Mister Copyright

by Kevin Madigan

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Copyright in 2017: A Question of Leadership


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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Digital Single Market Must Protect the Rights of All Authors and Publishers

In 2015, the European Commission unveiled a plan to “create a free and secure digital single market” that would expand and standardize the EU’s digital economy for the benefit of consumers. The strategy was named the Digital Single Market and one of its objectives is to modernize the EU copyright framework to fit the digital age. But while the plan includes the preservation of the rights of creators such as film producers and musicians, publishers of scientific and academic materials are subject to a notable carve out that stands to rob them of the rights in their works. It’s a peculiar exclusion that has provoked both authors and publishers to demand a proposal that will ensure they receive the same treatment as their fellow creators, and it’s critical that the European Commission respond to form a comprehensive policy that upholds the rights of all authors and copyright owners.


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Content Thief Turned Content Creator Rails Against Piracy

camera.jpegLast week, YouTube celebrity (yes, that’s a thing now) Olajide “JJ” Olatunji posted an expletive-filled tirade aimed at those illegally downloading his new movie “Laid in America.” After fans of Olatunji (aka KSI), whose YouTube page has over 14 million subscribers, began notifying him of the film’s availability on a number of illicit torrent sites, he lashed out at the people pirating the film, listing the many legal services offering his work, and explaining – in not so subtle terms – how illegally downloading the film hurts all who contributed to its creation. Some commenters were quick to point out that Olatunji himself used pirated software to create the very videos that made him famous. But while Olatunji readily admitted his outburst was somewhat hypocritical, the dramatic rant speaks to an important aspect of the nature of piracy: The extensive damage caused by the illegal

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Rejection of DOJ Consent Decree Interpretation is a Win for Songwriters

Earlier this month, a federal judge in the Southern District of New York issued an order rejecting the Department of Justice’s (DOJ) interpretation of a consent decree governing the way the performance rights organization Broadcast Music Inc. (BMI) licenses its songs. The ruling was in response to a DOJ statement that the consent decrees controlling BMI and ASCAP should be interpreted to include a “full-work” licensing agreement that would require any entity that controls part of a composition to offer a license for the whole composition. The implications of the DOJ’s evaluation would be disastrous for both artists and the organizations that represent them, and while the judge’s order is likely not the final say in the debate, it represents a strong endorsement of the rights of publishers and songwriters to control their creative works.

PROs and the Consent Decrees

Performance rights

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European Union Draws a Line on Infringing Hyperlinks

Untitled.pngLast week, the European Court of Justice—the judicial authority of the European Union—issued an anticipated decision in the Sanoma hyperlinking case, declaring that commercial linking with knowledge of unauthorized content constitutes copyright infringement. The opinion comes after years of similar cases in Europe stirred debate over whether linking to pirated works was a ‘communication to the public’ and therefore infringing, and provides a sensible test that protects the works of authors and creators while ensuring the internet remains a bastion of free speech.

Sanoma involved the popular Dutch news and gossip site GeenStijl, which ran an article in 2011 that included links to an Australian website where copyrighted Playboy magazine photos were made available. The photos were published on the Australian website without the consent of Sanoma, Playboy’s editor and copyright owner of

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Despite What You Hear, Notice and Takedown is Failing Creators and Copyright Owners

In a recent op-ed in the LA Times, Professors Chris Sprigman and Mark Lemley praise the notice and takedown provisions of the Digital Millennium Copyright Act (DMCA) as “a bit of copyright law worth saving.” They argue that Section 512 of the DMCA continues to serve its purpose of balancing the rights of copyright owners and creators with those of Internet service providers (ISPs), while leaving both sides only “slightly disappointed.” Satisfying these two groups is indeed a difficult charge, but it’s simply disingenuous to suggest that creators and copyright owners are satisfied with a system so clearly in need of an overhaul.

As the Copyright Office embarks on its review of the DMCA, supporters and critics of the nearly twenty-year-old doctrine are weighing in on its effectiveness in addressing online infringement. Sprigman and Lemley claim that the “process has worked well for

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Letter on FCC Set-Top Box Regulation Once Again Confuses the Issue

apple-tv-1049876_960_720.jpgLast week, a group of law professors wrote a letter to the acting Librarian of Congress in which they claim that the current FCC proposal to regulate cable video navigation systems does not deprive copyright owners of the exclusive rights guaranteed by the Copyright Act. The letter repeats arguments from response comments they filed along with the Electronic Frontier Foundation (EFF), accusing the Copyright Office of misinterpreting the scope of copyright law and once again bringing up Sony v. Universal to insist that copyright owners are overstepping their bounds. Unfortunately, the IP professors’ recurring reliance on Sony is misplaced, as the 30-year-old case does not address the most significant and troubling copyright violations that will result from the FCC’s proposed rules.

In 1984, the Supreme Court in Sony held that recording television shows on a personal VCR was an act of

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The Dangerous Combination of Content Theft and Malware

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Malware, short for malicious software, has been used to infiltrate and contaminate computers since the early 1980s. But what began as relatively benign software designed to prank and annoy users has developed into a variety of hostile programs intended to hijack, steal, extort, and attack. Disguised software including computer viruses, worms, trojan horses, ransomware, spyware, adware, and other malicious programs have flooded the Internet, allowing online criminals to profit from illicit activity while inflicting enormous costs on businesses, governments and individual consumers.

Purveyors of malware target unsavory websites to embed and distribute their programs, often making deals with those in the business of disseminating stolen content. Content theft websites that appear online through legitimate hosting and content delivery systems are frequently riddled with devious malware

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by Matthew Barblan & Kevin Madigan
cross-posted from the CPIP Blog

In 2013, CPIP published a policy brief by Professor Bruce Boyden exposing the DMCA notice and takedown system as outdated and in need of reform. The Failure of the DMCA Notice and Takedown System explained that while Section 512 of the DMCA was intended as a way for copyright owners and service providers to work together to fight infringement in the digital age, the notice and takedown system has been largely ineffective in managing the ever-increasing amount of piracy.

Three years later, the DMCA is still just as broken. Since we published the brief, courts have further diminished service providers’ responsibility to cooperate with copyright owners to detect and deter infringement, rendering the DMCA even more fruitless and desperately in need of retooling.

Boyden explained the fundamental problems with the system at

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