Author: Brandon Butler

Deans of Virginia University Libraries to Chairman Goodlatte: First Do No Harm in Copyright Revision

[Reposted from the author’s blog, here. (CC-BY)] The Copyright Office is poised to issue a total rewrite of Section 108 of the Copyright Act, which protects library and archives’ copying for preservation and research. Libraries and archives have said they do not want this, but the Office seems to be determined to do it. So, a group of Deans and Directors of Virginia university libraries has sent a letter to House Judiciary Chairman Bob Goodlatte (R-VA!) to ensure he realizes the controversy and context that surrounds the Office’s proposed changes. If you are a concerned library or librarian, consider writing your representative, especially if they sit on the Judiciary Committee. John Unsworth, the Dean and Director of the University of Virginia Library (my new boss — welcome, John! — at my new workplace — wahoowa!), joined with his colleagues at William & Mary, Virginia Tech, George Mason, and VCU, to send an important letter to House Judiciary Chairman Bob Goodlatte this morning. Some basic background on this letter is available at the UVA Library News blog. Below is a little more context on the Copyright Office, Section 108, and copyright reform generally. These are my personal opinions, of course; I’m speaking here only for myself. The Copyright Office The Copyright Office is a complicated place. Some very smart and dedicated professionals work there, and the work they do to...

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The TPP and Rightsholder Abuse: Unusual Recognition, Discretionary Protections

The Trans-Pacific Partnership (“TPP”) is a massive new trade agreement recently negotiated between the US and a host of countries including Australia, Japan, Canada, Mexico, Singapore, and Chile. The TPP’s IP Chapter (PDF) includes a series of provisions that address rightsholder abuse. While the agreement’s acknowledgment of abuse is salutary, and the protections it affords to users are real, these provisions rely largely on the discretion of judicial or administrative authorities, making the agreement’s protections for users less certain than protection for rightsholders. Intellectual property rightsholders sometimes abuse their rights. Some use copyright, for example, to censor critics, frustrate political rivals, silence journalists, and target others whose speech they dislike. They claim rights far in excess of what they actually own, sometimes claiming rights that don’t exist at all. Other rightsholders (often known as copyright or patent “trolls”) acquire rights for the sole purpose of ensnaring unwary infringers, whom they then threaten with draconian damages or crippling injunctions to extract settlements that far exceed the market value of the infringing use, or of the underlying work or invention. These first three modes of abuse – censorship, copyfraud, and trolling – may be the most well-known kinds of abuse, but many other practices also arguably push the boundaries of how IP rights should be (or were meant to be) used. Copyright holders, for example, have used IP rights to control...

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Fair Use, MOOCs, and the Digital Millennium Copyright Act: Frequently Asked Questions

(Cross posted from ipclinic.org, Link] In October 2015 the Librarian of Congress issued an important new rule permitting faculty and staff creating MOOCs (massive open online courses) to copy short clips from video media protected by digital locks. The rule was the result of a petition brought by clinic students Mark Patrick and Sarah O’Connor on behalf of Peter Decherney, Professor of Cinema Studies and English at the University of Pennsylvania, the College Art Association (CAA), the International Communication Association (ICA), and the Society for Cinema and Media Studies (SCMS). The rule may be the first official acknowledgment that MOOC courses are appropriate venues for the fair use of copyrighted media, including video content. To help MOOC faculty and staff understand and apply the new rule, Peter Decherney and I have prepared a short FAQ. We hope to update it from time to time as people begin to implement the rule and face new questions or concerns. Accordingly, please do let us know if you have questions about the document or the rule. Fair Use, MOOCs, and the Digital Millennium Copyright Act: Frequently Asked...

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Leval on Fair Use and Google Books: A Sketch of a Story

[Reposted from TechDirt, Link] Last Thursday, Judge Pierre N. Leval, a renowned fair use scholar and judge on the Second Circuit Court of Appeals in New York, delivered the Fourth Annual Peter A. Jaszi Distinguished Lecture on Intellectual Property (you can watch the recording at that link) at the law school where I teach, the American University Washington College of Law (whew). “Lecture” doesn’t really do it justice, though; Leval may have spoken in front of a lectern at a law school, but what he said was hardly dry or academic. Instead, it was a bravura exercise in storytelling, which is fitting, as storytelling and narrative are some of Peter Jaszi’s favorite subjects, second only to fair use. Judge Leval recently authored the landmark opinion in Authors Guild v. Google, vindicating Google’s massive digitization program which, in collaboration with research libraries all over the country, has made more than 20 million books full-text searchable and available for data-mining with the very cool Ngram Viewer. The opinion was the apotheosis of 25 years of fair use case law set in motion by Judge Leval himself in a 1990 law review article entitled “Toward a Fair Use Standard.” Now here was the man himself, ready to talk about fair use in the digital age, and in honor of transformative use’s most vociferous defender. Judge Leval’s lecture, like his opinion, told the...

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Fair Use and Blurred Lines Between Common Law and Civil Law Countries

[Cross posted from EIFL.org, Link (CC-BY)] For the last few decades, the United States has been aggressively and systematically “exporting” half of its copyright system. In treaties and in trade agreements, the US has insisted on longer terms of protection, stiffer penalties for infringement, legal protection for digital locks, and a variety of other measures designed to benefit copyright holders. Only recently, however, has the US even acknowledged the part of its copyright law that protects the public, including schools, libraries, technologists, and entrepreneurs, against overreaching copyright laws. We in the US have known all along, however, that the real secret of the US’s relative success in both the culture and technology spheres is the balance to copyright protections provided by limitations and exceptions, especially the fair use doctrine. Fair use is a big deal The fair use doctrine is an open-ended limitation to the exclusive rights granted to copyright holders, designed to allow free use for socially valuable purposes such as criticism, commentary, teaching, and news reporting. It has existed in the US for over a century as judge-made law, but was codified in the 1976 Copyright Act at Section 107. While critics of the doctrine sometimes mischaracterize it as a “mere” affirmative defence or excused infringement, the Copyright Act itself refers to “the right of fair use”, and the US Supreme Court has said that fair use is...

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Google Books and Feist-y Fair Use

Judge Pierre Leval’s opinion today in the Google Books case offers another fascinating glimpse into the richness of his thinking about the concept of fair use. (For more, be sure to attend (or stream) his talk at WCL’s Fourth Annual Peter Jaszi Lecture on November 12.) A law review article by then-district court Judge Leval was the source of the now-dominant theory of fair use, grounded in a concept he called “transformative use,” an idea later adopted wholesale by the Supreme Court in Campbell v. Acuff-Rose and spread throughout the land in subsequent cases. Although the outcome in Google Books (Google wins, duh) was obvious to anyone whose paycheck didn’t depend on their believing otherwise, the discussion that gets us there sheds light on a host of hot fair use topics in ways that courts and copyright wonks will be citing and unpacking for years to come. In a later post I’d like to explore the ways Judge Leval managed to weigh in on a remarkable number of fair use controversies over the course of a single opinion. For now, though, rather than take a grand tour of all the nooks and crannies of the opinion, in this post I want to make my first foray into the text by highlighting one big idea that I think is woven throughout the fabric of the opinion in a fundamental way:...

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ARSC Guide to Audio Preservation — Council on Library and Information Resources

[Cross posted from brandonbutler.info] Yesterday an exciting new (free!) book was published to provide expert advice on a wide range of issues relevant to anyone who cares about (and especially those who care for) sound recordings. The ARSC Guide to Audio Preservation was made under the auspices of the Association for Recorded Sound Collections and the Council on Library and Information Resources with funding from the Library of Congress. I have two contributions about the legal dimensions of this important work. First, I hope to have struck a few blows for the right and the good in my chapter on copyright, which discusses the legal rights as well as the responsibilities of libraries and others who have sound recording collections. Unfortunately much of the copyright guidance I see circulating for practitioners consists almost entirely of “thou shalt not,” and pays little attention to the substantial part of the law that says “please do!” When it comes to preservation, the law can be quite favorable, indeed, and I hope folks will feel more confident taking advantage of their rights based on this book. In addition to my chapter on copyright generally, there is also a supplemental report on fair use that Peter Jaszi and I wrote drawing on all of the existing best practices that treat the subject of fair use for libraries, scholarship, teaching, etc. Peter and I spoke...

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1201 Exemption Hearings, Day 2 – Note from the Front Lines

[Cross posted from brandonbutler.info, Link, (CC-BY)]  Wednesday was day two of the Washington, D.C. portion of the triennial rule making to determine whether breaking digital locks that block copying from DVDs, Blu-ray, and other digital media should be allowed in a series of defined cases. There was also a series of hearings in Los Angeles, CA, last week to address some of the proposals with mostly West Coast-based proponents and opponents. There were some intriguing rays of hope in Wednesday’s hearing in DC. I was there because I had supervised a team of student attorneys, Sarah O’Connor and Mark Patrick from the Glushko-Samuelson Intellectual Property Clinic at AU Washington College of Law, who represented film professor Peter Decherney and a distinguished group of higher education associations, including the American Association of University Professors and the Library Copyright Alliance, with a collective membership totaling over 300,000 educators and librarians. Professor Decherney spoke eloquently about the educational need to copy materials from DVD and Blu-ray, I spoke on behalf of our legal team about the question of whether these uses would be lawful, and Jonathan Band spoke ably about both the legal and policy issues on behalf of librarians. If you want to know more about Section 1201 and this series of hearings, the Copyright Office has collected all the relevant documents, including proposed classes and comments by proponents and opponents, here....

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Busting a Copyright Myth-buster

[Cross posted from brandonbutler.info]  In a recent listicle on Medium, the Canadian writer John Degen, executive director of the Writers’ Union of Canada, described what he characterized as “5 Seriously Dumb Myths About Copyright the Media Should Stop Repeating.” Of course, Degen’s post takes aim at the usual straw man, a mythical “free culture” movement that hates all copyrights and wants them abolished. As a result, he ignores the complexity of the debate over copyright’s genuine costs and the real contributions of scholars who have shown the harm that unrestrained copyright can do. In fact, two of Degen’s “myths” have been shown empirically to be facts, and two are ambiguous statements with at least one interpretation that is reasonable and uncontroversially true. Only the #1 myth, “Copyright only helps corporations,” is clearly false, but that’s only because it is cast in such artificially stark terms. Two Proven Facts Artists feel restricted by copyright. Degen’s first “myth” is that “artists feel restricted by copyright.” One way to know how artists feel about copyright is to ask them, and several researchers have done so. For example, Patricia Aufderheide and Peter Jaszi found in 2004 that documentary filmmakers felt constrained by their fear of copyright liability and the cost of rights clearance. In a more recent study, Jaszi and Aufderheide found that visual arts professionals “pay a high price for copyright confusion...

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Is Fair Use a “Dangerous Exception”?

In a recent white paper, Geoffrey Manne and Julian Morris argue that fair use is a “dangerous exception” that should not be “exported” to our trade partners through trade agreements the way other aspects of US copyright law (such as our lengthy term and protection for digital rights management) have been spread for years. Their salvo, grounded in a “law and economics” framework, is just the latest in what will surely be an ongoing series of attacks on fair use and similar flexible exceptions, a response to the growing appetite for balance in the global IP system. (Indeed, the industry-sponsored advocacy group Copyright Alliance posted its own ambivalent warning about “exporting fair use” just the other day.) Fair use is an important part of the U.S. copyright system; the Supreme Court has called fair use part of the “traditional contours” of the law, and a vital “first amendment accommodation.” Fair use is one of the most distinctive features of US copyright law (most other basic US IP doctrines are roughly ‘harmonized’ with other countries by a constellation of treaties), and it enables one of this country’s most dynamic and dominant industries (the Internet and technology sectors), so one might think that fair use should be an essential ingredient in any attempt to export US values and facilitate US-style economic success. In any event, if fair use were a truly...

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