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Laws

  • Constitution, Article 1, Section 8.
  • 17 U.S.C. § 102(a).
  • 17 U.S.C. § 302. The Constitution gave Congress the ability to create copyrights for a limited time. The idea was that it is vital for a democracy and also for commerce that, after that limited time, the work be release into the public domain. For example, the book Alice in Wonderland is currently in the public domain and has been published by several different publication houses. Not everyone things that life plus 70 years is a Constitutionally limited time. Current before the Supreme Court is litigation suggesting that such a copyright term is in fact excessive, unconstitutional, and should be reduced. Note that the term for works-for-hire is 95 years from first publication, or 120 years from creation, whichever expires first.
  • 17 U.S.C. Chapter 5 Copyright Infringement and Remedies.
  • See also First Sale Doctrine: A purchaser of a copy may resell or otherwise disposed of a copy (unless it is a recording or a computer software program)
  • 18 U.S.C. § 2319
  • See also the Fraudulent Online Identity Sanctions Act (criminalizing false WHOIS records)

Domain Name Blocking

Taking down websites / domain names on allegation (no judicial finding of) copyright infringing content. See activity of DHS Immigration Customs Enforcement (ICE)

Caselaw

SOPA (editor note: tweet when done)

  • Stop Online Piracy Act (SOPA) HR 3261
    • Originally known at the E-PARASITE Act
    • CRS Summary: SUMMARY AS OF: 10/26/2011--Introduced.

      Stop Online Piracy Act - Authorizes the Attorney General (AG) to seek a court order against a U.S.-directed foreign Internet site committing or facilitating online piracy to require the owner, operator, or domain name registrant, or the site or domain name itself if such persons are unable to be found, to cease and desist further activities constituting specified intellectual property offenses under the federal criminal code including criminal copyright infringement, unauthorized fixation and trafficking of sound recordings or videos of live musical performances, the recording of exhibited motion pictures, or trafficking in counterfeit labels, goods, or services.

      • note that this goes beyond the reach of the DMCA, which was limited in scope to copyright, to now reach trademark
      • Supporters of SOPA argue that SOPA is only aimed at foreign sites, not domestic sites

      Sets forth an additional two-step process (See DMCA Notice and Take Down) that

      • allows an intellectual property right holder harmed by a U.S.-directed site dedicated to infringement, or a site promoted or used for infringement under certain circumstances, to first provide a written notification identifying the site to related payment network providers and Internet advertising services
      • requiring such entities to
        • forward the notification and
        • suspend their services to such an identified site [within 5 days]
      • unless the site's owner, operator, or domain name registrant, upon receiving the forwarded notification, provides a counter notification explaining that it is not dedicated to engaging in specified violations.
      • Authorizes the right holder to then commence an action for limited injunctive relief against the owner, operator, or domain name registrant, or against the site or domain name itself if such persons are unable to be found, if:
        1. such a counter notification is provided (and, if it is a foreign site, includes consent to U.S. jurisdiction to adjudicate whether the site is dedicated to such violations), or
        2. a payment network provider or Internet advertising service fails to suspend its services in the absence of such a counter notification.

      Requires online service providers, Internet search engines, payment network providers, and Internet advertising services, upon receiving a copy of a court order relating to an AG action, to carry out certain preventative measures including withholding services from an infringing site or preventing users located in the United States from accessing the infringing site. Requires payment network providers and Internet advertising services, upon receiving a copy of such an order relating to a right holder's action, to carry out similar preventative measures.

      Provides immunity from liability for service providers, payment network providers, Internet advertising services, advertisers, Internet search engines, domain name registries, or domain name registrars that

      • take actions required by this Act or
      • otherwise voluntarily block access to or end financial affiliation with such sites.

      Permits such entities to stop or refuse services to certain sites that endanger public health by distributing prescription medication that is adulterated, misbranded, or without a valid prescription.

      Expands the offense of criminal copyright infringement to include public performances of: (1) copyrighted work by digital transmission, and (2) work intended for commercial dissemination by making it available on a computer network. Expands the criminal offenses of trafficking in inherently dangerous goods or services to include: (1) counterfeit drugs; and (2) goods or services falsely identified as meeting military standards or intended for use in a national security, law enforcement, or critical infrastructure application.

      Increases the penalties for: (1) specified trade secret offenses intended to benefit a foreign government, instrumentality, or agent; and (2) various other intellectual property offenses as amended by this Act.

      Directs the U.S. Sentencing Commission to review, and if appropriate, amend related Federal Sentencing Guidelines.

      Requires the Secretary of State and Secretary of Commerce to appoint at least one intellectual property attache to be assigned to the U.S. embassy or diplomatic mission in a country in each geographic region covered by a Department of State regional bureau.

    • Support:
    • Opponents
    • Criticisms
      • SOPA breaks DNSSEC.[PK]
      • DNS Blocking does not work; work arounds include
        • using actual IP number of site,
        • browser plugins, and
        • using DNS services outside of the USA (outside of SOPA's reach). [PK]
      • Due Process: 
        • Content creators get only 5 days to respond to the take down notice (barely enough time to even find an attorney)
        • It's a short cut to the legal system, allowing punishment without proof or evidence, and without consequences when copyright owners wrongfully file takedown notices. [PK]
        • Authorizes Attorneys General to shut down websites without due process.
      • Vague Definitions
        • SOPA targets sites that "facilitate" piracy.  This definition potentially includes all User Generated Content sites.
      • Nuclear Option:  Where the DMCA Notice-and-take down is aimed at the specific page where the infringing content is located, resulting only in that specific content being  removed, with SOPA, on sites large or small, one piece of allegedly infringing content would result in the entire website being taken down (the domain name would be blocked and its revenue would be turned off).  This is a sledge hammer solution. 
        • Collateral damage: This means that SOPA will cause significant collateral damage.  Imagine one Youtube video somewhere alleged as infringing content, the entire site is blocked, and all of the educational videos used by a school, or the User Generated Content videos of a national disaster, being not accessible.  
        • Basically repeals DMCA Notice and Take Down, as use of the SOPA remedies will replace the DMCA remedies [Goldman Nov 15, 2011]
      • It would destroy the User Generated Content industry.  With SOPA, there would be no YouTube and there would be no Facebook.
        • Cuts off revenue to websites without due process. Websites that have done nothing wrong will be losing 5 days of revenue per notice. [EFF Oct 28, 2011] [EFF Nov. 7, 2011]
      • Revenue sources can voluntarily cut off websites even without a notice. [EFF Nov. 7, 2011]
      • Discrupt business models
        • Because the increased risk of significant disruption of revenue, this will significantly decrease potential investment in new and innovative online services. (investment is premised on the promise and risk of ROI - where the risk that there will not be ROI goes up, then investment goes down)
        • Small firms innovating with User Generated Content could potentially get swamped with take down notices.
      • Abusive Take Down Notices: Content owners have established through the DMCA that they will send bogus takedown notices, with little repercussion. [EFF Oct 28, 2011] [Techdirt Nov 22 2011]
      • It creates blacklists of "rogue" websites, censoring those sites, creativity, expression, and innovation.  As such it is directly inconsistent with the State Departments Internet Freedom policy.
      • Cost Benefit Analysis
        • The cost of SOPA, as demonstrated above, would be devastating
        • The Benefit of SOPA, is less than clear.  The DMCA notice and take down regime is in place and is working.  The RIAA has claimed that it has piracy in check.  Those people who want pirated content will likely still be able to get it while those people who want legitimate content on legitimate services will likely find those services disrupted.
      • Solutions: Part of the problem of piracy is consumers who want to consume professionally produced content, but the content owners do not make the content available - or do not make it affordable.  This creates an incentive for those consumers who desire to consume the content to create their own solutions.  Where content owners have made their content available to consumers at an affordable price, piracy of content has significantly dissipated. 
        • The same platforms that enable piracy are the platforms that enable innovation -- and make the record production industries redundant. 
        • Greater enforcement does not result in decreased infringement. Historically, piracy has been resolved by new business models that makes content accessible and affordable. [Techdirt Nov 22 2011]
        • Economist Nov. 26: "The Social Science Research Council, an American non-profit body, found in a study this year “little evidence—and indeed few claims—that enforcement efforts to date have had any impact whatsoever on the overall supply [of pirated media].”"
    • News

Protect IP

DNS Filtering for foreign websites hosting allegedly (no judicial finding of) copyright infringing content

Proponents

  • MPAA
  • George Ou

Criticism

Links

COICA

Hearings

Bill Introduced: H.R.1689 To provide support to combat illegal downloading on college and university campuses., Open Congress 6/15/2007

News

International

ACTA

EFF: What is ACTA?

In October 2007 the United States, the European Community, Switzerland and Japan simultaneously announced that they would negotiate a new intellectual property enforcement treaty, the Anti-Counterfeiting Trade Agreement, or ACTA. Australia, the Republic of Korea, New Zealand, Mexico, Jordan, Morocco, Singapore, the United Arab Emirates and Canada have joined the negotiations. Although the proposed treaty's title might suggest that the agreement deals only with counterfeit physical goods (such as medicines), what little information has been made available publicly by negotiating governments about the content of the treaty makes it clear that it will have a far broader scope, and in particular, will deal with new tools targetting "Internet distribution and information technology". . . . .

Michael Geist: "The ACTA Threat"

Articles

 

Consumer Information

Caselaw

  • Feist Pub'lns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)
  • Lexmark Int'l, Inc. v. Static Control Components, Inc., 387 F.3d 522, 534 (6th Cir. 2004) (citing Feist Pub'lns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)).
  • Eldred v. Ashcroft, No. 01-618 (S.Ct. Argued Oct. 9, 2002). (claim that copyright extension is unconstitutional fails, but Ginsburg reaffirms centrality of fair use in traditional copyright) Stanford Cyberlaw
  • New York Times, Inc. v. Tasini, No. 00-201 (S.Ct. June 25, 2001).  Free lance authors had written articles for inclusion in the New York Times.  New York Times uploaded those articles to an electronic database, LEXIS/NEXIS.  Authors sued arguing that the right to publish in the newspaper was not the same as the right to include the work in the electronic database.  The Supreme Court agreed.
  • A&M Records v. Napster, 239 F.3d 1004 (9th Cir. 2001) (affirming in part and reversing in part injunction on defendant's MP3 file sharing service)
  • Novak v Warner Bros Pictures, No. 08-56957 (9th Cir. July 15, 2010) ("historical facts are not protected by copyright")
  • RIAA v. Diamond Multimedia Systems, Inc.,180 F.3d 1072 (9th Cir. 1999) "For the foregoing reasons, the Rio is not a digital audio recording device subject to the restrictions of the Audio Home Recording Act of 1992. The district court properly denied the motion for a preliminary injunction against the Rio's manufacture and distribution."
  • Recording Industry Association of America v. Diamond Multimedia Systems (9th Cir. 1999) (affirming that computers are exempt from payment pursuant to the Audio Home Recording Act - this Act imposed a 2% fee for DAT recordings payable to the Register of Copyrights).
  • Sega Enterprises v. MAPHIA , 857 F. Supp 679, 682 (N.D. California 1994) (defendant was a bulletin board that permitted the sharing of gaming software. The court found defendant guilty of contributory infringement).
  • MAI Systems Corp. v. Peak Computer, Inc . , 991 F.2nd 511, 518 (9th Cir 1993) (A computer repair person who was not a licensed owner of the computer, turned on the computer in order to check the error log. In so doing, the repair person loaded the system into RAM memory. According to the court, saving a copy of a work to RAM memory constituted a copy of the work.)
  • Playboy Enterprises, Inc. v. Frena , 839 F. Supp. 1552 (M.D. Fla, 1993) (bulletin board owner permitted for a fee individuals to upload pictures to bulletin board; those pictures included 170 Playboy photos. Court ruled that defendant infringed plaintiff's exclusive right to distribute and display the photographs)
  • Betamax Case,
  • Sony v. Universal City Studios (1984) (VCRs time shift)
  • Robert Hendrickson v. Ebay, Inc., et al., Case No. CV 01-0495 RJK (RNBx) (C.D. Cal. 2001) Discussion Phillips Nizer  Kent Law

Government Activity

Papers

Links

News
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