Mister Copyright

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Sometimes Fair Use Takes a Little Effort (and that’s a Good Thing)

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Last week, the Electronic Frontier Foundation (EFF) launched a series of “science fiction stories” as part of their ongoing crusade to invalidate Section 1201 of the Digital Millennium Copyright Act (DMCA), which prohibits the circumvention of copyright technical protection measures (TPMs). Though Section 1201 provides exemptions to the prohibitions under certain circumstances, the EFF considers them to be “complicated” and “difficult to use” and advocates for broad exemptions that would allow anyone engaged in fair use copying to override TPMs. It’s a proposition that disregards legal alternatives to hacking digital protection mechanisms, and it’s one that promotes a fallacy that the fair use doctrine requires that a user have the most convenient access to the highest quality version of a work.

The Unicorn Scene

In an attempt to “illustrate the bad effects DMCA 1201 could have,” the...

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USTR Report Highlights Concerns over Canada’s Treatment of IP

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Earlier this month, the United States Trade Representative (UTSR) released its annual Report on the global state of intellectual property rights, identifying a range of threats to worldwide innovative markets and calling out countries with insufficient IP protection and enforcement mechanisms. And while the Report’s inclusion of certain troublesome jurisdictions—such as China and Russia—should come as no surprise, a renewed focus on the US’s neighbor to the north has raised eyebrows.

The 301 Report

For the past 30 years, the USTR has published an annual review of the state of IP among the United States’ trade partners aimed at maintaining and encouraging a global environment that fosters innovation and investment. This year’s report describes its objective as making use of “all possible sources of leverage to encourage other countries to open their markets to U.S. exports of goods and...

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Usual Suspects Fight Effort to Impose Online Accountability in Europe

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Last week, World Intellectual Property Day commemorated the role that intellectual property rights play in encouraging innovation and creativity, with a focus on the brilliant women who are driving change around the world and shaping our future. But while World Intellectual Property Day is a time to celebrate IP and the way it incentivizes and promotes the progress of the arts and innovation, it’s also an opportunity to recognize that some groups continue to advocate for weakened IP rights that would deprive copyright owners and creators of the ability to control and commercialize their works.

One of these efforts involves the Electronic Frontier Foundation’s (“EFF”) relentless war against accountability in cyberspace, highlighted by its recent attempt to block updates to the European Digital Single Market Directive on Copyright aimed at reducing online infringement. Over the last...

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CASE Act Set to Empower Creators and Impose Accountability

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Next week, the Copyright Alternative in Small Claims Enforcement (CASE) Act is scheduled for markup before the House Judiciary Committee, promising long-overdue support for small creators and copyright owners in their fight against overwhelming infringement in the digital age. While the bill has bipartisan support and the backing of a wide array of individual creators, artist organizations, and the creative industries, some detractors are now raising questions of constitutionality in an attempt to interfere with the bill’s passage. But the constitutional argument is merely a meritless rhetorical refrain put forward to mask a steadfast resistance by certain companies to any effort to impose accountability for online infringement.

A product of years of advocacy on behalf of the creative community and a thorough report by the Copyright Office, The CASE Act would create a Copyright Claims...

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Panel on Streaming Media Boxes Explores the New Face of Piracy

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Last week, I had the opportunity to participate in a panel discussion organized by the Information Technology & Innovation Foundation on the growing problem of stream-based piracy. The panel, titled Unboxing the Piracy Threat of Streaming Media Boxes, brought together representatives from the creative industries, as well as copyright and cyber security experts, to explore the recent shift from unauthorized, torrent-based downloading to stream-based piracy facilitated by illegal media boxes. While the discussion touched on many aspects of copyright infringement, as well as legitimate content consumption in an era of on-demand streaming, the message was clear that the rise of illegal streaming devices (ISDs) poses a serious threat to artists, copyright owners, and the creative ecosystem.

The panel began with a demonstration of an illegal streaming device by Neil Fried of the Motion...

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Updated TickBox Injunction and the Fight Against Add-Ons

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Earlier this month, I wrote about a preliminary injunction handed down in favor of Netflix, Amazon, and six major studios in their case against the manufacturers of the set-top streaming device TickBox TV. While the order targeted the blatant language of inducement TickBox was using to promote the illicit capabilities of its streaming device, questions remained over what other steps, if any, TickBox would have to take to address boxes that were sold with built-in, piracy-enabling applications. In a significant update to the injunction, a Federal District Court in Los Angeles has ruled that TickBox must, among other things, implement a software update that will delete or disable previously installed applications associated with pirated content.

The New Injunction

The initial injunction, while certainly a step in the right direction, left unresolved questions surrounding devices that...

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TickBox Injunction Targets Blatant Inducement of Infringement

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Late last month, a preliminary injunction was issued in favor of Netflix, Amazon, and six major studios in their case against the manufacturers of the set-top streaming device TickBox TV. The order comes as use of piracy-enabling streaming devices is on the rise, and it represents an initial victory in the fight against stream-based infringement. But while the order is a step in the right direction aimed at ending TickBox’s brazen inducement of copyright infringement, it’s important to understand that the injunction will not disrupt distribution of the TickBox devices and that the ultimate effect on streaming piracy is unclear.

Rise of Illegal Streaming Devices

TickBox TV is a device sold by a Georgia-based company that, in many ways, is similar to the popular name-brand set-top devices such as the Roku, Amazon Fire Stick, or Apple TV. It’s an internet connected box that is easily...

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Concerns over ALI Copyright Restatement Leave Project in Limbo

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Over the past few weeks, widespread criticism has emerged over a superfluous and seemingly partisan effort to override existing copyright law. The target of concern is the American Law Institute’s (ALI) Restatement of the Law, Copyright project which—despite its stated mission to clarify copyright law—has been revealed as an influenced venture that could futher muddle already complex areas of IP law. And with disapproval ranging from the Restatement committee’s own Advisers to the Acting Register of Copyrights, the project’s future is suddenly in doubt.

Founded almost one hundred years ago, the ALI is an independent organization whose mission is to produce “scholarly work to clarify, modernize, and improve the law.” It brings together lawyers, judges, and academics to issue Restatements, the focus of which is to advance uniformity in fundamental state common law principles. But the...

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Study on Expanded “User Rights” Fails Econometric Scrutiny

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Earlier this month, scholars at the American University Washington College of Law’s Program on Information Justice and Intellectual Property (PIJIP) published a paper suggesting that governments around the world should consider weakening copyright protection in favor of expanded “user rights.” The Google-funded report presents an index purporting to show a positive correlation between broad fair use and safe harbor laws and certain economic and scholastic benefits. But, as economist George Ford explains in an essay published last week, the report is an exercise in flawed design and misapplied empirical analysis which cannot be relied upon for informed policymaking.

The PIJIP report, The User Rights Database: Measuring the Impact of Copyright Balance, written by Sean Flynn and Michael Palmedo, highlights a database of exceptions and limitations based on responses to copyright-related...

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Monkeys, Turtles, and Cheerleaders: Copyright in 2017 and Beyond

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2017 has come and (almost) gone, and with it, another year of noteworthy copyright developments…sort of. While there have undoubtedly been some interesting developments in copyright litigation—with the Turtles taking it on the chin and the Supreme Court contemplating the meaning of cheerleading outfits—the reality is that some of the most important questions involving the administration of copyright law entering 2017 remain unresolved. The Copyright Office (USCO) is not only still under the control of the Library of Congress and in need of modernization, but 14 months have gone by with no permanent Register of Copyrights appointed, notwithstanding a rigorous SurveyMonkey vetting process. Oh, and speaking of monkeys, that opportunistic macaque continued to dominate copyright headlines, despite it being years since the selfie seen ‘round the world was snapped.

The Copyright Office

A...

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