Don Schaefer's List: Copyright

"The report, “Three Myths About Copyright Law and Where to Start to Fix It” (sic), was actually removed from the committee’s website the next day after pressure from some of its members — and probably lobbyists — who complained that it didn’t reflect the organization’s range of viewpoints. “On issues where there are several different perspectives among our members, our policy briefs should reflect that,” a spokesman for the committee told Broadcasting & Cable. “[T]he simple fact is that we screwed up.”"

"Under the Copyright Act, a plaintiff is not entitled to statutory damages or attorney’s fees for infringement if the first in a series of ongoing infringements of the same kind commenced prior to registration of the copyright, unless the registration occurred within three months after first publication of the work."

"A class action lawsuit was filed against Instagram in San Francisco federal court Friday, following user outrage regarding the mobile photo sharing app's changed Terms of Service.

This appears to be the first civil lawsuit filed as a result of Instagram's service term changes, Reuters reports."

"Observers of Kirtsaeng v. Wiley look to Justice Kagan's vote to be pivotal this time. It was hard to tell from her questions, however, which way she might be leaning in the Kirtsaeng case. For instance, addressing the issue of how the phrase "lawfully made" should be interpreted, Justice Kagan told Wiley's lead lawyer, Theodore B. Olson, "I can kind of see it both ways."

Justice Stephen G. Breyer challenged the lawyers repeatedly about "all the horribles"—the worst-case scenarios laid out in briefs filed on behalf of Mr. Kirtsaeng by library and museum groups, booksellers, Internet companies, and others who resell, lend, or display works purchased elsewhere. Justice Breyer also wondered about individual people. Say a man picked up a book overseas and wanted to give it to his wife when he got home. Would that be illegal because the book had been imported without the permission of the copyright holder?"

"The case focuses on the book-reselling feats of Supap Kirtsaeng, a Thai native who studied math at Cornell University and USC. Kirtsaeng's family shipped him low-cost textbooks made in Thailand that he resold on EBay, earning $900,000. But publisher John Wiley & Sons sued him in 2008, alleging that he infringed the copyrights of eight of its textbooks that he resold. Because the books weren't made in the United States, a federal judge rejected Kirtsaeng's claim that he was protected under the first-sale doctrine, and the U.S. 2nd Circuit Court of Appeals agreed."

"John Wiley & Sons subsequently sued Kirtsaeng in the U.S. District Court for the Southern District of New York, alleging copyright infringement, trademark infringement, and unfair competition under New York state law. As to the copyright claim, the district court judge determined that the language in 17 U.S.C. § 109(a), known as the “first sale doctrine,” does not include copyrighted goods manufactured abroad.

That section provides, in relevant part, that “the owner of a particular copy . . . lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy.” Finding that the first sale doctrine did not apply to Kirtsaeng’s situation, the district court instructed the jury accordingly. The U.S. Court of Appeals for the Second Circuit affirmed the district court’s decision."

"As of June 2006 the Recording Industry Association of America had sued 17,587 people, including a 12-year-old girl and a dead grandmother for infringing the laws on copyright. The RIAA further sent around 2,500 pre-litigation letters to 23 universities across the US threatening action over students' alleged illegal downloading of music files. In Europe the Federation of the Phonographic Industry reported suing more than ten thousand people in 18 countries by the end of 2006. 1"

"In a case decided on Wednesday, the South Carolina Supreme Court ruled that accessing someone’s online e-mail without their permission doesn’t violate the 1986-era Stored Communications Act (SCA). Though they differed in their reasoning, the justices were unanimous in ruling that e-mail stored in the cloud (like Gmail or Yahoo Mail) does not meet the definition of electronic storage as written in the statute."

"When Alayna Eberhart was a freshman at Boston University, she used to buy every single textbook she was assigned.

“They’re expensive!” Eberhart realized quickly. Now, the college junior waits a few weeks each semester to see if she really needs the textbook. Often, she finds she doesn’t. And even when she does buy it, she doesn’t always use it.

“Last semester, I was in a political science class and I would make notes about stuff I needed to learn more about,” Eberhart explained. “And I would just look it up online, rather than in the textbook. It’s easier.”

Easier. Better. More student-focused. That’s what textbooks need to be, according Ariel Diaz, co-founder of a Boston higher education startup called Boundless."

"The Copyright (Infringing File Sharing) Amendment Act 2011 has come into force. Sections 122A to 122U were added to the Copyright Act 1994 (the Act) to provide a process to deal with copyright infringements that occur via file sharing networks. Under the process, rights owners can:

* Request that an internet protocol address provider (IPAP) sends up to three infringement notices to an internet account holder who is alleged to have infringed copyright via a file sharing network;
* Take a claim of up to $15,000 to the Copyright Tribunal after the notice process is complete.

From 1 September 2011, section 92A of the Act is repealed.

The following information will be useful if you have received a notice under the new process.

* Information for internet account holders [205 KB PDF]
* Notice process diagram [112 KB PDF]
* Challenge process diagram [57 KB PDF] "

"It’s over—at least for publishers. The Association of American Publishers (on behalf of five named publisher plaintiffs) and Google today announced they have settled their long-running litigation over Google’s library book scanning. According to a statement from the AAP,  Google is said to “acknowledge the rights and interests of copyright-holders,” and U.S. publishers can “choose to make available or choose to remove their books and journals digitized by Google for its Library Project.”

In addition, under the details released, publishers deciding to have their scanned works included in the Google database can opt to receive a digital copy for their use. Google director of strategic partnerships Tom Turvey told PW that publishers will own the scans provided to them by Google, and will have “broad” rights to commercialize them or make them available in other search engines.

"

What is it about copyright law that makes Governments of both left and right try to reform it without Parliamentary scrutiny?

A few years ago the Labour Government included a clause in what was to become the Digital Economy Act that would have conferred wide powers on Ministers to amend copyright law.  This was supposed to help deal with the vexed problem of online infringement.  It was a controversial proposal, to say the least, with comparisons being made with the powers wielded by Henry VIII and with the Legislative and Regulatory Reform Bill of 2006, described by one commentator as the Abolition of Parliament Bill.  The Government responded to the criticisms by proposing that a Minister’s amendments should be subject to a super-affirmative Parliamentary procedure as a safeguard but eventually the clause was dropped.

The Bad Science And Greed Behind The “Intellectual Property Inhibits Innovation” Argument. Part 2.
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For some time now the web/technology lobby has been arguing that copyright and other forms of intellectual property rights are stifling innovation.  And if you don’t actually  think about it you might agree.  I mean it sound sort of like the argument against government over regulation. Having to get permission from all those IP owners.  And then having to pay them…

But is this really true?

No and the Evidence is right in front of us.

Let’s start with the easiest of these dubious claims.

One of the most common arguments about innovation and copyrights concerns music copyrights.  In particular it is often argued that copyrights are inhibiting innovation in the music tech space.  The idea is that  sites that ignore copyright  like The Pirate Bay provide a much better service than the legitimate music sites. Never mind that these sites out-sleaze the record labels by paying nothing to the artists. Magazines like Forbes hail them as hubs of innovation! “Piracy is a service problem” the magazine states.

Here is Google’s Sergey Brin making the same argument:

“I haven’t tried it for many years but when you go on a pirate website, you choose what you like; it downloads to the device of your choice and it will just work – and then when you have to jump through all these hoops [to buy legitimate content], the walls created are disincentives for people to buy,” he said. **

Astonishingly, an artwork need only be declared an orphan in one member state to acquire orphan status throughout the EU. So an artwork may be declared to be an "orphan" in Romania after a not-so-diligent search - oops! - even though the author is on record as identifiable in France, the UK and Germany.