Mister Copyright

by Kevin Madigan

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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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Have Your Cake and Protect it Too: How Copyright Applies to Edible Art

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Amidst a flurry of inaugural ball appearances on the evening of January 20th, Donald Trump took a moment to participate in a cake cutting ceremony at the Armed Services Ball. Trump and VP Mike Pence – under the close supervision of a Coast Guard officer – used a saber to cut into an extravagant, nine-tiered cake. It was a towering and patriotic confection, worthy of a President ready to stop the carnage. But no matter which facts one subscribes to – mainstream, alternative, reality-based – there’s no denying the cake was a spitting image of a cake created for Obama’s 2013 inauguration festivities.

The day after the inauguration, renowned pastry chef Duff Goldman tweeted photos of the two cakes side by side, noting that he had made the original for Obama’s second inauguration four years earlier. The media quickly jumped on the story, claiming the design had been stolen and some outlets

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Copyright in 2017: A Question of Leadership

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2016 was a year no one will soon forget. In the fall, the world was shocked by the replacement of a competent and dependable leader by a bully with no government experience and little regard for Washington politics. A feeling of powerlessness and frustration was pervasive, and many remain skeptical of an uncertain future. I’m referring of course to the United States Copyright Office and the untimely “reassignment” of Register Maria Pallante by the newly appointed Librarian of Congress Carla Hayden. Alright, maybe it wasn’t the biggest shakeup in DC in 2016, but it was epitome of an unpredictable and lively year for copyright. The reality is that whether referring to the incoming administration in the White House or the next Register of Copyrights, new leadership will define the direction of copyright law and policy in 2017.

Year in Review

The year began with the Copyright Office’s

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Librarians’ Contradictory Letter Reveals an Alarming Ignorance of the Copyright System

library.pngOn December 14th, a group of librarians sent a letter to Congress explaining why they believe the Copyright Office should remain under the control of the Library of Congress. Written by University of Virginia Library’s Brandon Butler, the letter is a self-contradicting and uninformed response to recent recommendations on reform of the Copyright Office offered by leading members of the House Judiciary Committee. While the lawmakers’ report proposes overdue, sensible reforms to the framework of a department in need of modernization, the librarians’ letter favors a one-sided approach to reform and reveals a gross misunderstanding of how copyright law and the Copyright Office ensure public access to creative works.

The Letter Embraces the Very Conflict It Claims to Reject

The letter begins by criticizing another recent letter to Congress from former Registers of Copyright Ralph Oman and

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