A Copyfighter’s Musings

Prof. Lemley works through how we might standardize and unify Internet intermediary safe harbors across the board, from defamation to copyright and beyond. Read his paper here. (Via Eric Goldman)

Filed by Derek Slater at 10:09 am under Uncategorized
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Read about her ambitious plan for a model copyright law here. (via Patry)

Filed by Derek Slater at 7:49 pm under Uncategorized
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Two months ago, the Justice Department floated draft legislation to expand the scope of, and stiffen the penalties for, criminal copyright infringement, and now a related bill has been introduced in the House. This isn’t the first time that Congress has taken up the DoJ’s copycrime wishlist, and, for all the reasons we listed in a blog post about a proposal offered up last year, H.R. 3155 is an awful idea.

This bill goes even further than the prior bill in that it would ratchet up statutory damages in certain instances. Under copyright law, copyright owners don’t need to prove that they have been harmed in order to get damages and can instead elect to get statutory damages, which a court can set between $750 and $30,000 per work infringed. Such disproportionate penalties can be especially dangerous when it comes to lawsuits against mass-market products like the iPod or TiVo that enable the making of thousands of copies.

H.R. 3155 makes matters worse by allowing a judge to dole out damages for each separate piece of a derivative work or compilation, rather than treating it as one work — for example, copying an entire album could translate into damages for each individual track, even if the copyrights in those tracks aren’t separately registered.

This is particularly unfair because record labels register entire albums as single works principally to strip their artists of reversion rights they would otherwise enjoy if the songs were registered individually. (As some may remember from the 2000 flap over a stealthy RIAA amendment slipped into the Copyright Act, record labels register albums as “compilations” or “collective works” in an effort to characterize them as “works for hire,” which are owned outright from their creation by the labels, and thus can never revert to the artist.)

Let’s hope this bill meets the same fate as last year’s DoJ proposal and is stopped dead in its tracks. Take action now to stop it, and make sure you also support the FAIR USE Act, which would put much-needed limits on statutory damages.

(Cross posted from DeepLinks)

Filed by Derek Slater at 7:47 pm under Uncategorized
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Last week, Sen. Harry Reid proposed and then withdrew dangerous legislation that threatened to make universities do the entertainment industry’s dirty work and use ineffective, burdensome copyright filtering tools on their networks. The Higher Education Reauthorization Act has now passed the Senate without that language. Thanks to everyone who took the time to call their Senators over the last day.

We won this battle in Congress, but we’re not out of the woods yet. Unfortunately, the RIAA’s college lawsuit campaign rages on, and universities remain under intense pressure to bully their students and install network surveillance technologies. While some schools have implemented draconian penalties for file sharing — including one strike and you’re off the network policies — others have gone further and started blocking certain P2P tools. Meanwhile, Congress has recently been scolding and scrutinizing colleges for file sharing on their networks, and more legislation may be in the pipeline.

Indeed, Sen. Reid still did tack on another amendment that instructs schools to tell students about the possible penalties for copyright infringement. This new language is far less worrisome, but it doesn’t move the ball forward in the P2P dilemma either. While students certainly should know the potential personal consequences of file sharing, all the finger wagging in the world isn’t going to stem the tide of “Internet piracy.”

The longer this futile fight against ordinary fans continues, the more universities’ resources will be wasted, the more legitimate uses of the network will inevitably be chilled, and the more money will be left on the table. After all, tougher enforcement isn’t putting a dime in artists’ pockets, but a sensible alternative like blanket licensing would.

Hopefully, last week’s fight in the Senate will be another reason for the university community to push hard towards a better solution that gets the entertainment industry off schools’ backs, ensures that artists are paid, and lets students keep sharing. For more on this topic, read Fred von Lohmann’s Washington Post editorial, “Copyright Silliness on Campus.”

(Cross-posted from DeepLinks)

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