Mister Copyright

by Kevin Madigan

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Richard Prince and the Increasingly Permissive Treatment of Infringement

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Earlier this month, a federal judge in New York denied a motion to dismiss a copyright infringement suit against notorious “Instagram artist” Richard Prince, setting the stage for another transformative fair use showdown. The lawsuit is the latest turn in an ongoing debate—often involving Prince or similar artists—over what qualifies as transformative in the digital age, as more and more artists engage in acts of appropriation with questionable amounts of added expression. And while it appears the District Judge in New York may not subscribe to a broad interpretation of the limits of fair use, a significant win for Prince in the Second Circuit and the seemingly limitless application of the transformative purpose fair use theory represent a continuing slide towards an increasingly permissive approach to copyright infringement.

Whether an act of appropriation is sufficiently

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Judgment Against Sci-Hub is a Win for Authors and Publishers

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Last week, the United States Court for the Southern District of New York entered a default judgment against Sci-Hub, the Library Genesis Project (LibGen), and a number of related websites and site operators for the willful infringement of dozens of copyright-protected scholarly articles. The judgment comes two years after Elsevier—an international academic publishing company now part of RELX Group—brought suit against the websites and their operators for the unauthorized reproduction and distribution of numerous works to which Elsevier owns the copyright. In awarding the maximum in damages and making permanent a preliminary injunction against US domain name registries associated with the defendants, the decision is not only a win for authors and copyright owners, but represents a strong indictment against the infringement of scholarly works, no matter the purported public benefit.

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As Investment Moves Overseas, the US Must Restore its Gold-Standard Patent System

Venture capital investment in the United States has declined steadily for years, as investors abandon an uncertain domestic climate for more reliable opportunities in foreign countries. In a report on the current state of the entrepreneurial ecosystem, the National Venture Capital Association emphasizes the extreme decline in the US share of global venture capital in the last twenty years, highlighting a drop from 83% of global share in 1996 to just 54% in 2015. At a time of decreasing investment, the US should be working to improve its innovation ecosystem, providing stable and effective property rights to inventors so that VCs can once again feel confident that investments in startups’ R&D—secured by patent rights—won’t just be stolen by established and better-financed infringers. Unfortunately, its doing just the opposite. Over the past decade, the US has continued to gut its patent

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Increase in IP-based Extortion Reveals True Nature of Piracy

Earlier this month, an unprecedented worldwide cyberattack nicknamed WannaCry debilitated computer systems in over 150 countries, with the virus’s architects demanding payments to reinstate victims’ access to their own computers and files. The same week, hackers claimed to have stolen a version of the soon-to-be-released summer blockbuster Pirates of the Caribbean 5 and were reportedly blackmailing Disney under the threat of widespread online exposure. While the legitimacy of the Pirates of the Caribbean hack is now being questioned, it’s part of an alarming trend that recently saw hackers leak stolen Orange is the New Black episodes to piracy networks after Netflix refused to respond to coercive demands.

Some reporting on these brazen acts of extortion complain that they’re “damaging the image of piracy,” which they argue is dedicated to taking and distributing creative works for

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In Defense of an Inclusive IP Conversation

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In a recent essay responding to a divisive critique of his book, Justifying Intellectual Property, Robert Merges makes clear from the start that he won’t be pulling any punches. He explains that the purpose of his essay, Against Utilitarian Fundamentalism, is to address the misleading and polarizing conclusions of Mark Lemley’s 2015 article, Faith-Based Intellectual Property, recapitulate the arguments he makes in Justifying IP, and show that those who approach intellectual property theory through a nonstrict empirical lens can still make meaningful contributions to the debate.

Merges exposes the key hypocrisy of Lemely’s article: By flippantly dismissing theories that deviate from his own, Lemley ultimately champions the same inflexible exclusivity he purports to condemn.

The underlying dispute between Lemley and Merges turns on what place nonstrict empirical research has in

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Register of Copyrights Selection and Accountability Act is First Step Towards a Modern Copyright Office

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Last Thursday, House Judiciary Committee Chairman Bob Goodlatte and Ranking Member John Conyers, Jr. introduced the Register of Copyrights Selection and Accountability Act. The Act is the first legislative effort to follow a four-year review of U.S. Copyright law and aims to kick-start an overdue modernization of the United States Copyright Office (USCO). Focusing on the selection process of the Register of Copyrights, the concise bill requires the Register to be nominated by the President of the United States and subject to confirmation by the U.S. Senate, rather than appointed and dismissed at the pleasure of the Librarian of Congress.

In 2013, the House Judiciary Committee began a comprehensive bipartisan review of the copyright system that included 20 hearings, testimony from over 100 witnesses, and a listening tour that invited input from copyright stakeholders across the

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Kodi Software Enabling Widespread Copyright Infringement

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Cross-posted from the CPIP blog

Awards season always seems to arrive with new stories about how piracy is affecting the film industry and the way we watch movies. Whether it’s a promotional screener that was stolen and uploaded to a torrent site, or the latest software that allows users to download or stream pirated content, the tales are reminders of the enduring problem of online copyright infringement.

This year, when talking to people (outside of the copyright law world) about whether they’d seen certain Oscar-nominated films, the same name kept coming up: Kodi. Specifically, users described downloading the Kodi app to an internet connected device, then adding “plug-ins” or “add-ons” that deliver an extensive library of streaming TV shows and movies, including Moonlight, La La Land, and other Best Picture nominees. Though Kodi’s controversial popularity in the UK has been

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What Would Judge Gorsuch Mean for Fair Use?

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Cross-posted from the CPIP blog

On February 1st, President Trump nominated Neil Gorsuch to fill the Supreme Court seat left vacant by the passing of Justice Antonin Scalia. The announcement opened the floodgates of prognostication as to how the appellate court judge from Colorado might sway the Court in the coming terms, with forecasters pouring over his past decisions in an attempt to get into the head of the potentially game-changing jurist. And while Gorsuch’s views on intellectual property remain largely unknown, a closer look at his track record provides some insight into his understanding of copyright law that should leave creators and copyright owners optimistic.

In the forty years since the Copyright Act was enacted, courts have expanded the “transformative” fair use doctrine to encompass a variety of uses whose original expressive contribution is difficult, if not impossible

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End of Copyright Alert System Shouldn’t Deter Voluntary Agreements

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In late January, it was reported that the “six strikes” Copyright Alert System (CAS) was coming to an end. Originally implemented in 2013, the CAS was the result of a voluntary agreement between Internet service providers and the entertainment industry to fight online copyright infringement after legislative efforts were unsuccessful. While it’s unfortunate that the joint program did not achieve the intended results, its failure was due to a lack of effective deterrence and should not discourage stakeholders from working together to better address the enduring problem of repeat infringers.

In 2011, a number of groups representing the interests of creators and copyright owners came together with five major internet service providers (ISP) to form the Center for Copyright Information (CCI). According to their mission statement, the CCI intends “to educate consumers about the importance

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IP Scholars Explain Why We Shouldn’t Use SurveyMonkey to Select Our Next Register of Copyrights

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Crossposted from the CPIP blog

In a letter submitted to House Judiciary Committee today, nine IP scholars (organized by CPIP’s Sandra Aistars) express their support for the Committee’s proposal to modernize the Copyright Office. The letter identifies three major challenges facing the Copyright Office, including “(1) insufficient funds, staff, and infrastructure to efficiently perform its core functions; (2) operational impediments stemming from its integration with the Library of Congress; and (3) potential risk of constitutional challenges to its decision-making authority should the Office take on increased regulatory or adjudicatory responsibility.”

The IP scholars laud the Committee’s recommendation that the Office be led by a principal officer of the government, nominated and confirmed like other senior government officials. The scholars also express their concern with the

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