In 2012, I published a law review article where I argued that when a defendant engages in the type of activity permitted by a specific exception under the Copyright Act, but does not qualify for a technical reason, the court should give weight to the defendant’s substantial compliance with the exception when considering the first fair use factor (the purpose and character of the use).1 In adopting a specific exception, Congress recognized the strong public policy interest in permitting the use in cases meeting the exception’s requirements. Significantly, the same public policy interest still exists in cases where many, but not all, of the exceptions’ requirements are met. While the existence of a specific exception should not be dispositive of the fair use analysis, I argued that it should have a positive influence on the first fair use factor. Since then, both the Second Circuit and the Register of Copyrights have given substantial weight to specific exceptions in the context of consideration of the first fair use factor.
This article is part of an IP-Watch and Infojustice.org series analyzing the Trans Pacific Partnership intellectual property provisions by leading experts around the world. The series will publish weekly through the first quarter of 2016.
During the negotiation of the Trans-Pacific Partnership Agreement, many concerns were voiced about how TPP would mandate adoption of U.S. style statutory damages. Under the U.S. Copyright Act, a court can award damages of up to $30,000 per work infringed, which can be ratcheted up to $150,000 per work infringed in cases of willful infringement. Scholars have found that statutory damages in the U.S. have discouraged investment in innovative technologies while incentivizing the emergence of copyright trolls.
So how bad is the statutory damages provision in the final TPP agreement?
The Trans-Pacific Partnership (TPP) Agreement contains an important provision concerning achieving balance in the copyright systems of the twelve countries party to that free trade agreement. This provision was not present in the early draft of the agreement. Then, in July 2012, the United States proposed language that formed the basis of the text of the provision. This language subsequently was strengthened over the next three years to its final form. This paper recounts the evolution of this provision. Because of the lack of transparency of the TPP negotiations, it is difficult to reconstruct a precise timeline of when specific language was proposed, who proposed it, and why. However, a combination of leaked drafts and public statements provides evidence of the provision’s trajectory.
Updated on April 3, 2013, to include Liberia.
More than 40 countries with over one-third of the world’s population have fair use or fair dealing provisions in their copyright laws. These countries are in all regions of the world and at all levels of development. The broad diffusion of fair use and fair dealing indicates that there is no basis for preventing the more widespread adoption of these doctrines, with the benefits their flexibility brings to authors, publishers, consumers, technology companies, libraries, museums, educational institutions, and governments.
Both political parties have begun to focus greater attention on the growing income inequality in the United States. While there probably are many factors contributing to the inequality, one factor has received relatively little attention: the nature of the U.S. political system encourages increasingly complex regulatory frameworks, which benefit those with more resources to navigate those frameworks. As the frameworks get more complex, the advantage of those with resources increases.
It has been widely reported that the hacked Sony Pictures emails reveal that in early 2014, MPAA launched Project Goliath, a policy initiative to develop legal tools to block access to websites that facilitate infringement. The effort to develop such legal tools at the federal level failed spectacularly with the SOPA/PIPA debacle, so Project Goliath attempted to enlist the support of state attorneys general. The news reports about Project Goliath speculate that “Goliath” is a code name for Google, one of the most vocal opponents of SOPA/PIPA and a frequent target of entertainment industry complaints that its search engine directs users to infringing sites such as cyberlockers. Google in a policy blog expressed “deep concerns” about the revelations, and asked why the MPAA, an organization that claims to be committed to the First Amendment and artists’ freedom of expression, was “trying secretly to censor the Internet.” The MPAA responded that “Google’s effort to position itself as a defender of free speech is shameful.”
On July 25, 2014, the House of Representatives passed the version of cell phone unlocking legislation adopted ten days earlier by the Senate. President Obama promptly announced that he would sign the legislation, bringing at least a short-term resolution to a controversy that had burst into the public eye early in 2013. The underlying issue, however, has much deeper roots, stretching back to the enactment of the Digital Millennium Copyright Act in 1998. Moreover, the legislation only temporarily permits consumers to unlock their cell phones to access other mobile networks. In 2015, the Librarian of Congress will determine whether to renew this permission for another three years. A permanent solution to this problem appears precluded by the free trade agreements to which the United States is a party. This paper examines the legal background of this matter.
[Library Copyright Alliance Press Release, Link] The Library Copyright Alliance is extremely pleased with today’s decision by the US Court of Appeals for the Second Circuit in Authors Guild v. HathiTrust, finding in favor of fair use. The Library Copyright Alliance filed an amicus brief (PDF) in the case, supporting HathiTrust’s position and the lower court’s finding of fair use. Jonathan Band, counsel for the Library Copyright Alliance, said, “The decision is a significant victory for the public.”
The Administration’s 2013 Joint Strategic Plan on Intellectual Property Enforcement identifies “protection of public health and safety” as one of its “primary concerns.” A press release issued by the Department of Homeland Security (DHS) on March 24, 2014, concerning its intellectual property seizures in fiscal year 2013 suggests that its IP enforcement efforts are largely targeted at preventing the importation of counterfeit products that threaten health and safety. The actual statistics, however, reveal a somewhat different story: that DHS is either exaggerating the danger posed by counterfeit goods to health and safety, or it is not taking that danger seriously enough.
In March 2014, the International Federation of the Phonographic Industry (IFPI) announced that global industry revenues declined 3.9 percent in 2013. IFPI claims that “digital piracy is the biggest single threat to the development of the licensed music sector and to investment in artists.” Notwithstanding these dire pronouncements, the record labels remain profitable and the music industry as a whole is thriving.
On March 4, 2013, the White House announced that it disagreed with the decision of the Librarian of Congress not to allow consumers to unlock their cell phones to access other mobile networks. The White House took this position in response to a “We The People” petition that gained over 114,000 signatures. With legislation to address this issue pending in Congress, the five largest mobile carriers on December 12, 2013, adopted a voluntary commitment to allow cell phone unlocking after the expiration of a service contract. While this voluntary commitment provides some benefit to consumers, a comprehensive legislative solution may be precluded by the free trade agreements to which the United States is a party. This paper examines the legal background of this matter.
An earlier version was posted previously, but this version has been updated to reflect the debate over the new bulk unlocking language that was added as the bill went to the House floor.
[Cross posted from the DisCo Blog, Link] The second season of the gripping Washington drama House of Cards, starring Kevin Spacey and Robin Wright, will be available on Netflix in two weeks. But this post is about a different house of cards – the study released yesterday by the National Association of Manufacturers (NAM) on the Economic Impact of Global Software Theft on U.S. Manufacturing Competitiveness and Innovation. Although infringement of software obviously occurs throughout the world, the NAM report contains serious flaws.