Steven Seidenberg, Intellectual Property Watch; Controversy Hides Within US Copyright Bill
"In a time when partisanship runs wild in the USA and the country’s political parties can’t seem to agree on anything, the Music Modernization Act is exceptional. The MMA passed the House of Representatives on 25 April with unanimous support. And for good reason. Almost all the major stakeholders back this legislation, which will bring some badly needed changes to copyright law’s treatment of music streaming. But wrapped in the MMA is a previously separate bill – the CLASSICS Act – that has been attacked by many copyright law experts, is opposed by many librarians and archivists, and runs counter to policy previously endorsed by the US Copyright Office."
Tuesday, May 29, 2018
The Demise Of Copyright Toleration; Techdirt, May 24, 2018
Robert S. Schwartz, Techdirt; The Demise Of Copyright Toleration
"Although denying fair use, these content owners were acknowledging a larger truth about copyright, the Internet, and even the law in general: It works largely due to toleration. Not every case is clear; not every outcome can be enforced; and not every potential legal outcome can be endured. Instead, “grey area” conduct must be impliedly licensed, or at least tolerated.
Counsel then or now could not have cited a single court holding on whether the private, noncommercial recording of a song is a lawful fair use. Long before the Supreme Court in Sony Corp. of America v. Universal City Studios, Inc. said that video home recording from broadcasts as a fair use, the music industry could have pursued consumers for home audio recording from vinyl records. But the risk of losing and establishing a bad precedent was too great.
Toleration endured because fair use, and the practicalities of enforcement, had to be endured by content owners. They recognized that their own creative members also relied on fair use in adapting and building on the works of contemporaries as well as earlier generations. They also realized that offending consumers by suing them might not be a good idea – a reason (in addition to the possibility of losing) why the Sony plaintiffs dropped the individual consumer defendants they had originally named."
"Although denying fair use, these content owners were acknowledging a larger truth about copyright, the Internet, and even the law in general: It works largely due to toleration. Not every case is clear; not every outcome can be enforced; and not every potential legal outcome can be endured. Instead, “grey area” conduct must be impliedly licensed, or at least tolerated.
Counsel then or now could not have cited a single court holding on whether the private, noncommercial recording of a song is a lawful fair use. Long before the Supreme Court in Sony Corp. of America v. Universal City Studios, Inc. said that video home recording from broadcasts as a fair use, the music industry could have pursued consumers for home audio recording from vinyl records. But the risk of losing and establishing a bad precedent was too great.
Toleration endured because fair use, and the practicalities of enforcement, had to be endured by content owners. They recognized that their own creative members also relied on fair use in adapting and building on the works of contemporaries as well as earlier generations. They also realized that offending consumers by suing them might not be a good idea – a reason (in addition to the possibility of losing) why the Sony plaintiffs dropped the individual consumer defendants they had originally named."
Friday, May 25, 2018
‘Big Deal’ Cancellations Gain Momentum; Inside Higher Ed, May 8, 2018
Lindsay McKenzie, Inside Higher Ed; ‘Big Deal’ Cancellations Gain Momentum
"Also last year, SPARC, an advocacy group for open access and open education, launched a resource tracking big-deal cancellations worldwide. Greg Tananbaum, a senior consultant at SPARC, said that there is a “growing momentum” toward cancellations.
According to data from SPARC (which may not be comprehensive, said Tananbaum), in 2016 five U.S. and Canadian institutions announced cancellations with big publishers such as Springer Nature, Wiley, Taylor & Francis and Elsevier. In 2017, seven more North American institutions said they planned to cancel their big deals, including the University of North Carolina at Chapel Hill and Kansas State University, among others.
Motivation for Cancellation
Both Tananbaum and Anderson agree that one factor driving cancellations of big deals is that library budgets are not growing at the same rate as the cost of subscriptions. Given budget restrictions, “there’s just a reality that tough choices have to be made,” said Tananbaum."
"Also last year, SPARC, an advocacy group for open access and open education, launched a resource tracking big-deal cancellations worldwide. Greg Tananbaum, a senior consultant at SPARC, said that there is a “growing momentum” toward cancellations.
According to data from SPARC (which may not be comprehensive, said Tananbaum), in 2016 five U.S. and Canadian institutions announced cancellations with big publishers such as Springer Nature, Wiley, Taylor & Francis and Elsevier. In 2017, seven more North American institutions said they planned to cancel their big deals, including the University of North Carolina at Chapel Hill and Kansas State University, among others.
Motivation for Cancellation
Both Tananbaum and Anderson agree that one factor driving cancellations of big deals is that library budgets are not growing at the same rate as the cost of subscriptions. Given budget restrictions, “there’s just a reality that tough choices have to be made,” said Tananbaum."
Why Every Media Company Fears Richard Liebowitz; Slate, May 24, 2018
Justin Peters, Slate; Why Every Media Company Fears Richard Liebowitz
"Key
to Liebowitz’s strategy is the pursuit of statutory damages. Under the
Copyright Act of 1976, federal plaintiffs can be awarded statutory
damages if they can prove “willful” infringement,
a term that is not explicitly defined in the text of the bill. (“What
is willful infringement? It’s what the courts say it is,” explained
Adwar. Welcome to the wonderfully vague world of copyright law!) If
a plaintiff had registered the work in question with the Copyright
Office before the infringement occurred or up to three months after the
work was initially published, then he or she can sue for statutory
damages, which can be as high as $150,000 per work infringed. That’s
a pretty hefty potential fine for the unauthorized use of a photograph
that, if it had been licensed prior to use, might not have earned the
photographer enough for a crosstown taxi.
“Photographers are basically small businesses. They’re little
men. But you have this powerful tool, which is copyright law,” said Kim,
the freelance photographer. The question that copyright attorneys,
media executives, and federal judges have been asking themselves for 2½
years is this: Is Richard Liebowitz wielding that tool responsibly? “He
offers [his clients] nirvana, basically. He essentially offers them: I
will sue for you, I don’t care how innocuous the infringement, I don’t
care how innocuous the photograph, I will bring that lawsuit for you and
get you money,” said attorney Kenneth Norwick. And the law allows him
to do it. So is Liebowitz gaming the system by filing hundreds of
“strike suits” to compel quick settlements? Or is he an avenging angel
for photographers who have seen their livelihoods fade in the internet
age? “They can call Richard Liebowitz a troll,” said Kim. “Better to be a
troll than a thief.”...
Over the past 2½ years, Liebowitz has attained boogeyman status in the
C-suites of major media organizations around the country. Like the
villain in a very boring horror movie featuring content management
systems and starring bloggers, his unrelenting litigiousness has
inspired great frustration amongst editors and media lawyers fearful
that they will be the next to fall victim to the aggravating time-suck
known as a Richard Liebowitz lawsuit. And he is probably all of the
things his detractors say he is: a troll, an opportunist, a guy on the
make taking advantage of the system. He is also a creature of the media
industry’s own making, and the best way to stop him and his disciples is
for media companies to stop using photographers’ pictures without
paying for them—and to minimize the sorts of editorial mistakes borne
out of ignorance of or indifference to federal copyright law. “People
should realize—and hopefully will continue to realize,” said Liebowitz,
“that photographers need to be respected and get paid for their work.”"
It Took 17 Years: Freelancers Receive $9 Million in Copyright Suit; The New York Times, April 30, 2018
Jaclyn Peiser, The New York Times;It Took 17 Years: Freelancers Receive $9 Million in Copyright Suit
"Seventeen
years after nearly 3,000 freelance journalists filed a class-action
lawsuit claiming copyright infringement by some of the country’s biggest
publishers, the checks are finally in the mail.
The
2,500 writers who made it through the tortuous legal process will start
receiving their pieces of a settlement totaling $9 million this week...
The
Authors Guild filed the suit — along with the American Society of
Journalists and Authors, the National Writers Union and 21 freelance
writers named as class representatives — in 2001 after publishers
licensed articles by freelancers to the electronic database Lexis/Nexis
and other digital indexers without getting the writers’ approval. The
publishers include The New York Times, Dow Jones, and Knight Ridder, as
well as Reed Elsevier, the provider of Lexis/Nexis.
Thursday, May 24, 2018
New privacy rules could spell the end of legalese — or create a lot more fine print; The Washington Post, May 24, 2018
Elizabeth Dwoskin, The Washington Post; New privacy rules could spell the end of legalese — or create a lot more fine print
"“The companies are realizing that it is not enough to get people to just click through,” said Lorrie Cranor, director of the CyLab Usable Privacy and Security Laboratory at Carnegie Mellon University and the U.S. Federal Trade Commission’s former chief technologist. “That they need to communicate so that people are not surprised when they find out what they consented to.”
That has become more apparent in the past two months since revelations that a Trump-connected consultancy, Cambridge Analytica, made off with the Facebook profiles of up to 87 million Americans. Cranor said that consumer outrage over Cambridge was directly related to concerns that companies were engaging in opaque practices behind the scenes, and that consumers had unknowingly allowed it to happen by signing away their rights.
Irrespective of simpler explanations, the impact and success of the GDPR will hinge upon whether companies will try to force users to consent to their tracking or targeting as condition for access to their services, said Alessandro Acquisti, a Carnegie Mellon computer science professor and privacy researcher. "This will tell us a lot regarding whether the recent flurry of privacy policy modifications demonstrates a sincere change in the privacy stance of those companies or is more about paying lip service to the new regulation. The early signs are not auspicious.""
"“The companies are realizing that it is not enough to get people to just click through,” said Lorrie Cranor, director of the CyLab Usable Privacy and Security Laboratory at Carnegie Mellon University and the U.S. Federal Trade Commission’s former chief technologist. “That they need to communicate so that people are not surprised when they find out what they consented to.”
That has become more apparent in the past two months since revelations that a Trump-connected consultancy, Cambridge Analytica, made off with the Facebook profiles of up to 87 million Americans. Cranor said that consumer outrage over Cambridge was directly related to concerns that companies were engaging in opaque practices behind the scenes, and that consumers had unknowingly allowed it to happen by signing away their rights.
Irrespective of simpler explanations, the impact and success of the GDPR will hinge upon whether companies will try to force users to consent to their tracking or targeting as condition for access to their services, said Alessandro Acquisti, a Carnegie Mellon computer science professor and privacy researcher. "This will tell us a lot regarding whether the recent flurry of privacy policy modifications demonstrates a sincere change in the privacy stance of those companies or is more about paying lip service to the new regulation. The early signs are not auspicious.""
Public Knowledge Welcomes Sen. Wyden’s ACCESS to Recordings Act; Public Knowledge, May 23, 2018
Shiva Stella, Public Knowledge; Public Knowledge Welcomes Sen. Wyden’s ACCESS to Recordings Act
"Today, Senator Wyden (D-OR) introduced the ACCESS to Recordings Act, which would extend federal copyright protection to pre-1972 sound recordings, and in doing so, harmonize them with their modern counterparts. Public Knowledge applauds Senator Wyden for acknowledging the injustices posed by the current system and fighting to rationalize our copyright law.
The CLASSICS Act, a flawed bill that would hurt consumers, was recently incorporated into the Music Modernization Act, a larger bill addressing other issues in music licensing. Public Knowledge supports the ACCESS to Recordings Act because it provides full federal protection for pre-1972 sound recordings -- something the CLASSICS Act avoids."
"Today, Senator Wyden (D-OR) introduced the ACCESS to Recordings Act, which would extend federal copyright protection to pre-1972 sound recordings, and in doing so, harmonize them with their modern counterparts. Public Knowledge applauds Senator Wyden for acknowledging the injustices posed by the current system and fighting to rationalize our copyright law.
The CLASSICS Act, a flawed bill that would hurt consumers, was recently incorporated into the Music Modernization Act, a larger bill addressing other issues in music licensing. Public Knowledge supports the ACCESS to Recordings Act because it provides full federal protection for pre-1972 sound recordings -- something the CLASSICS Act avoids."
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