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CopyrightX: Lecture 11.3, Technological Protection Measures by William Fisher Published on Feb 20, 2014

This video is licensed under the Creative Commons Attribution-Noncommercial-Sharealike 2.5 License, the terms of which are available here: http://creativecommons.org/licenses/b….

This lecture was prepared for the course CopyrightX, which was offered by William Fisher under the auspices of Harvard Law School and HarvardX during Spring 2014. For more information on CopyrightX, please see http://copyx.org

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The highly successful open course from Harvard prepared and delivered by Prof. William Fisher is in its Spring 2014 incarnation. It has a clear organization that lets you dive into a specific area that interests you like Technological Protection Measures. A full set of lectures and other resources available to the public online. I especially like the copyright concept maps.  A vision for the course can be found here.

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Justia attorneys have summarized a number of unusually interesting recent copyright decisions that I’d like to call to your attention. If you click through, you’ll see human written, human readable case summaries.

Garcia v Google – or the Innocence of the Muslims case, aligns copyright interests with an actress’s interest in controlling the use of her performance but is juxtaposed to free speech interests by Google/YouTube

Anderson v. LaVere – heirs of Mississippi blues musician Robert Johnson dispute over royalties

Brownstein v. Lindsay – about whether a court has authority to cancel a copyright registration when a plaintiff’s authorship has been “expressly repudiated”

Swatch v Bloomberg – in which Bloomberg obtained a copy of a conference call recording discussion a company’s recent earnings report

 

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On January 16, 2014, Stanford’s Program in Law, Science & Technology along with CodeX: The Stanford Center on Legal Informatics hosted a discussion with UC Berkeley Professor Brian Carver to discuss the Free Law Project, which provides free public access to primary legal materials, develops legal research tools, and supports academic research on legal corpora.

 

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On January 28, 2014, Stanford’s Program in Law, Science & Technology hosted the discussion, “Congratulations, you have an app – now what? App Development and Marketing from A-Z.” The discussion featured a panel of high level, experienced practitioner who provide tips, checklists and a road map for addressing legal considerations relating to mobile apps, including best practices for mobile TOU and Privacy Policies, platform considerations and much more.

Panelists included Ian Ballon, Shareholder at Greenberg Traurig, Lothar Determann, Partner at Baker & McKenzie, Tristan Ostrowski, Product Counsel, Android at Google Inc., Geoff Griffith, Senior Counsel at Google Inc, Thomas “TJ” Angioletti, Associate General Counsel, Technology & Transactions at Netflix, Daniel Brennan, Director, Legal at Twitter, Inc. and Luis Villa, Deputy General Counsel at Wikimedia Foundation.

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http://judiciary.house.gov/index.cfm/hearings?ID=8E18A9AA-1AA4-4D7C-8EBF-0284862EC44B

A little hidden on the Internets, so we bring the Congressional hearings on Fair Use here to you:

January 28, 2014

Subcommittee on Courts, Intellectual Property, and the Internet, 2141 Rayburn House Office Building

 

 

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The public meeting has been postponed until Dec. 12, but the public comment deadline remains the same, Nov. 13th.  The Department of Commerce is soliciting input on the Internet Policy Task Force’s green paper,  “Copyright Policy, Creativity, and Innovation in the Digital Economy,”  produced by the USPTO and the National Telecommunications and Information Administration (NTIA).

Questions from the Federal Register Oct. 3, 2013

Remixes

1. Is the creation of remixes being unacceptably impeded by this uncertainty? If not, why not? If so, how? In what way would clearer legal options result in even more valuable creativity?

2. In what ways, if any, can right holders be efficiently compensated for this form of value in cases where fair use does not apply?

3. What licensing mechanisms currently exist, or are currently under development, for remixes and for which categories of works?

4. Can more widespread implementation of intermediary licensing, such as YouTube’s Content ID system, play a constructive role? If so, how? If not, why not?

5. Should alternatives such as microlicensing to individual consumers, a compulsory license, or a specific exception be considered? Why or why not?

6. What specific changes to the law, if any, should be considered? To what extent are there approaches that do not require legislation that could constructively address these issues?

First Sale

7. What are the benefits of the first sale doctrine? And to what extent are those benefits currently being experienced in the digital marketplace?

8. To what extent does the online market today provide opportunities to engage in actions made possible by the first sale doctrine in the analog world, such as sharing favorite books with friends, or enabling the availability of less-than-full-price versions to students? 9. If the market does not currently provide such opportunities, will it do so in the near future? If not, are there alternative means to incorporate the benefits of the first sale doctrine in the digital marketplace? How would adoption of those alternatives impact the markets for copyrighted works?

10. Are there any changes in technological capabilities since the Copyright Office’s 2001 conclusions that should be considered? If so, what are they? For example, could some technologies ensure that the original copy of a work no longer exists after it has been redistributed?

11. To what extent are there particular market segments or categories of users that may warrant particularized legal treatment?

12. How will the Supreme Court’s decision in Kirtsaeng v. John Wiley & Sons, Inc., 133 S.Ct. 1351 (2013), impact the ability of right holders to offer their works at different prices and different times in different online markets? How will any such changes impact the availability of and access to creative content in the United States and elsewhere?

Statutory Damages

13. To what extent is application of the current range of statutory damages necessary for effective deterrence with respect to (a) direct infringement by individual file sharers and (b) secondary liability by online services?

14. Is the potential availability of statutory damages against online

services for large scale secondary infringement hindering the development of new, legitimate services or platforms for delivering content? If so, how? What is the evidence of any such impact?

15. If statutory damages for individual file sharers and/or services found secondarily liable for infringement were to be recalibrated, how should that be accomplished? Would legislation be required?

Government Role in Improving the Online Licensing Environment

16. What are the biggest obstacles to improving access to and standardizing rights ownership information? How can the government best work with the private sector to overcome those obstacles?

17. To what extent is a lack of access to standardized, comprehensive, and reliable rights information impeding the growth of the online marketplace? What approaches could be taken to improve the situation?

18. Are there other obstacles that exist to developing a more robust, effective, or comprehensive online licensing environment? If so, what are they?

19. In addition to those efforts to develop standardized, comprehensive, and reliable rights databases and online licensing platforms described in the Green Paper, are there other efforts under way by the private sector or public entities outside the United States? If so, what are they?

20. Would a central, online licensing platform for high-volume, low-value uses (a ‘‘copyright hub’’) be a useful endeavor in the United States? If not, why not? If so, how can the government support such a project?

21. What role should the United States government play in international initiatives at WIPO or elsewhere?

Operation of the DMCA Notice and Takedown System

22. The Task Force believes that at least the following issues could be  constructively addressed through a notice and takedown multistakeholder dialogue:

a. Reducing the volume of takedown notices sent to service providers;
b. Minimizing reappearance of infringing material;

c. Inaccurate takedown requests;

d. Misuse of takedown requests; and e. Difficulties in using the system for

individuals or small and medium-size enterprises (SME).

What other issues could be considered? For each issue to be considered, who are the stakeholders needed at the table?

23. How can the Task Force ensure participation by all relevant stakeholders, as well as effective and informed representation of their interests?

24. Are there lessons from existing multistakeholder processes in the realms of Internet policy, intellectual property policy, or technical standard- setting that could be applied here? If so, what are they and to what extent are they applicable?

25. In what ways could the stakeholder discussions be structured to best facilitate consensus?

 

 

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By way of introduction, you might wonder: what is the Uniform Electronic Legal Material Act (UELMA)?

UELMA was approved in July 2011 by the National Conference of Commissioners on Uniform State Laws (now the Uniform Law Commission). UELMA addresses the challenges states face in providing permanent public access to trustworthy electronic legal material. UELMA gives states a lot of flexibility. It does not require them to make an online version of the law official. But if a state does designate an online version as official, then UELMA requires that the online version be:

  1. Authenticated, by providing a method to determine that it is unaltered;
  2. Preserved, either in electronic or print form; and
  3. Accessible, for use by the public on a permanent basis.

The types of legal materials that might be included in an UELMA enactment are state constitutions, state session laws, codified laws, and agency regulations which have the effect of law. UELMA also establishes a presumption that a state’s authenticated laws are accurate copies, and that presumption applies in every state that has enacted UELMA. So adopting UELMA will harmonize standards for acceptance of electronic legal material across state boundaries.

If a state designates an online version of its primary legal materials as official, UELMA’s preservation component requires provisions for backup and recovery, and procedures to ensure the integrity and continued usability of the material.

When UELMA was first enacted, the Government Relations Office (GRO) of the American Association of Law Libraries (AALL) reached out to AALL members and chapters, looking for people to get involved with promoting the passage of UELMA.

I had moved to Colorado in July, 2011. In November, the GRO got in touch with me and asked if I would be the lead advocate in Colorado for UELMA. I was really excited about UELMA and I said yes. The GRO sent me position statements and FAQs and a contact in the Colorado Senate. It was about then that I began to wonder what I had done.

I was entirely new to the state, had no personal relations with any state legislators, stakeholders, librarians, Library groups, or anyone else. But I read my materials and went off to meet the senator with all my materials to ask for someone to sponsor the uniform law.

So what did I actually wind up doing, besides meeting with the senator? I personally emailed every senator on the senate judiciary committee and every representative on the house judiciary committee, explaining what UELMA was, sending links, and offering to help. The senator who introduced the bill asked for some further help with issues about disability access under UELMA, and I sent her my comments.

No one else took me up on my offer until a day in March 2012 when I got an email, apologizing for the lateness and asking if I could testify before the Senate Judiciary committee on UELMA the next day .  Sadly I was on a business trip in California, so I called the trusty GRO and asked for help. Together we put together a letter, which I emailed in. It was a helpful letter, according to the sponsor. It was read into the record. The bill passed the senate committee unanimously and was sent to finance.

I sent legislators lots of information about the many ways that documents can be authenticated because the Code of Colorado Regulations online is the official version and if UELMA was passed in Colorado, it was going to cost money to authenticate it. The bill sailed through the finance committee and headed to the house. Without any help from me, it passed through both committees in the house and went to the governor.

After UELMA was law, I got in touch with the agency that had been given the job of implementing UELMA and sent them all of the information the GRO had gathered on authentication and put them in contact with Michele Timmons, the Minnesota Revisor of Statutes, who was working on an in-house authentication system.

The key takeaways for me from this process were:  you don’t need to know your legislators or have a network in place in order to effect change and work within a new system; there don’t need to be large groups of people involved; the GRO was an amazing resource; and it wasn’t really that much work!

Other states have had a much different road to enactment. For example, in California, an experienced group of law librarian advocates worked closely with Uniform Law Commissioner and Legislative Counsel of California Diane Boyer-Vine to ensure enactment.  Each story is different and some of these stories are collected at Local Advocacy Networks: Adopting UELMA in Your State and How You Can Help, by Catherine M. Dunn, Head of Reference Services at the University of Connecticut School of Law Library. There are wonderful resources at the GRO’s UELMA Resources page. AALL has also posted case studies about the Colorado and California experiences written by me and Michele Finerty, Assistant Director for Technical Services at the Pacific McGeorge School of Law.

Which states have enacted UELMA so far? In order of enactment: Colorado, California, Minnesota, North Dakota, Hawai’i, Oregon, Connecticut and Nevada.

Bills to enact UELMA are pending in the District of Columbia and Pennsylvania. For more details on dates of passage, and the status of pending bills, go to the American Association of Law Libraries’ Government Relations Office website, the Uniform Electronic Legal Material Act Bill Chart, at http://www.aallnet.org/Documents/Government-Relations/UELMA/uelmabilltrack2013.pdf.

If your state has not already passed UELMA, think about getting involved as an advocate. You can contact AALL’s Government Relations Office or your local law library chapter. A few people can really make a difference!

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The Department of Commerce’s Internet Policy Task Force (Task Force) released its Green Paper on Copyright Policy, Creativity, and Innovation in the Digital Economy (Green Paper) July 31, 2013 and now seeks public comment on copyright issues critical to remixes, first sale, cultural development, economic growth, job creation, damages, secondary liability, licensing etc.

The Task Force will have an initial public meeting on October 30, 2013 in D.C., and will consider public comments received before Oct 15.

DATES: Comments are due on or before November 13, 2013. Any comments received before October 15, 2013 will be considered in the discussions in the public meeting. The public meeting will be held on October 30, 2013, from 8:30 a.m. to 5:00 p.m., Eastern Daylight Time. Registration will begin at 8:00 a.m.
ADDRESSES: The Task Force intends to hold the public meeting in the Amphitheatre of the Ronald Reagan Building and International Trade Center, 1300 Pennsylvania Avenue, N.W., Washington, DC 20004.

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When we buy print books, we own them.  We don’t own the intellectual property, the copyright, but we own the print book. We can give it away, resell it, burn it. It’s ours.

When we “buy” ebooks, we rarely own them. We certainly don’t own the intellectual property, but we also don’t really have ownership of the files.  This makes library lending of ebooks truly problematic.  The libraries are paying for expensive licenses to files that can and do disappear, and that usually can’t be legally transferred from an old library ebook system to a new one.

Consumers face the problem of ebook ownership too. Even if the consumer is able to buy an ebook “file,”  he or she can’t do much with it besides read it in the original device that it enters.  They may not even be able to lend it or give it away, even if they delete their copy of the file.

Public Knowledge has just issued a thinkpiece, “Really Owning Your Stuff” that says that PK THINKS that consumers who legally own copies of works have personal property rights in those copies, just like they have property rights over other goods.  I agree. Well put.

PK points out that in the seminal Supreme Court case that determined that the user owns the print book, this language was used:   “secure to the owner thereof the exclusive right to multiply copies…”    This is an important point.  When we resell an ebook, we need to make a copy.  Yet if we delete the original, has there really been a “multiplication” of copies?  No.