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...

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...

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...

Last week, the fifth round of the North American Free Trade Agreement (NAFTA) negotiations closed in Mexico City with tensions high and little progress made towards a modernized trade deal. While the most recent talks saw the U.S., Mexico, and Canada discussing (and disagreeing over) ways to resolve trade disputes and rules governing automobile tariffs, earlier meetings have focused on ways to update international intellectual property standards for the 21st century. And though it remains unclear how potential updates will take shape, it’s essential they give creators and copyright owners a fair shot at protecting their works, rather than reinforce an outdated system that promotes immunity for those who continually facilitate infringement.

Held in Ottawa in late September, the third round of NAFTA negotiations concentrated on intellectual property and used text from the Trans-Pacific...

It’s been six weeks since the Copyright Alternative in Small Claims Enforcement (CASE) Act (H.R.3945) was introduced to Congress by a bipartisan coalition of Representatives, and while there’s an abundance of support among politicians, creators, artists’ rights organizations, and the Copyright Office, some have been critical of the legislation. Although much of the pushback can be chalked up to certain groups who seemingly resist any effort to hold infringers accountable for misappropriation, it’s worth addressing some of the criticisms to show that they’re largely baseless.

The CASE Act would create a Copyright Claims Board (CCB) within the Copyright Office to hear claims brought by individual creators and copyright owners. It aims to provide a venue for these often frustrated parties to address rampant infringement online, empowering a class of rights holders who have limited means...

This month, Congress introduced a bill that would establish a long-discussed small claims court for copyright disputes. The legislation comes after a House Judiciary Committee proposal based on a four-year review of the US Copyright system and a 2013 report by the Copyright Office that recommended “the creation of an alternative forum that will enable copyright owners to pursue small infringement matters and related claims arising under the Copyright Act.” The bill represents one of the key reforms intended to modernize the US copyright system, hoping to finally empower creators of limited means in the fight against the unauthorized use of their works.

Dubbed the Copyright Alternative in Small-Claims Enforcement (CASE) Act, the legislation was introduced to the House of Representatives by Congressmen Hakeem Jeffries (D-NY) and Tom Marino (R-PA), along with Representatives Doug...

Published this week by the International Federation of Phonographic Industry (IFPI), a new report on the way music is being consumed confirms what’s become apparent in recent years: Streaming is king when it comes to how people listen to music, and stream-based piracy has taken over as the most popular way to steal music. The 2017 Music Consumer Insight Report, titled “Connecting with Music,” highlights not only the rise in both legal audio streaming and stream-based copyright infringement, but also the “value gap” created by user-uploaded video services that fail to return fair value to the creative community.

The study looked into the habits of consumers across 13 of the world’s leading markets and found that while on-demand digital streaming service subscriptions continue to rise, more and more fans are turning to free, user-uploaded video websites to listen to music. Thanks in...

As formats change and advances in technology continue to transform the way we listen to music, new methods of pirating content are never far behind. What started with the analog dubbing and bootlegging of cassettes forty years ago evolved with the digital age into CD burning and MP3 sharing, eventually leading to a chaotic illegal downloading landscape at the turn of the century that would force the music industry to develop novel anti-piracy efforts and distribution models. Digital streaming services have since taken over as the preferred way to consume music, boasting over 100 million subscribers in 2016—a number that recently surpassed the total number of Netflix streaming video subscribers.

A Fast Growing Threat

Despite this substantial base of paying customers and affordable monthly subscription rates, many are choosing to bypass legitimate services by “ripping” songs from...

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...

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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