The Future of Internet Copyright: Recent Cases and Congress

Presented by Wade Savoy

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Growing Tension

The Congress shall have Power . . . [t]o

promote the Progress of Science and

useful Arts, by securing for limited

Times to Authors and Inventors the

exclusive Right to their respective

Writings and Discoveries.

U.S. Constitution, Article I, Section 8

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Road Map

Set the stage for reform

Congressional hearings

Copyright Act

of 1976

DMCA Cartoons SOPA

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The Copyright Act of 1976

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DMCA

Digital Millennium Copyright Act

Passed 15 years ago

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DMCA

Digital Locks Safe Harbors

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Online Service Providers

Life Before DMCA Safe Harbors

Content Owners

@

Tracking down service providers

Being ignored or slow responses

Reluctance to remove infringing materials

Inconsistent responses

Not copyright experts

Cannot afford to be copyright experts

Missing information

Liability from users

Direct liability? Contributory? Vicarious?

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The DMCA Compromise

Notice requirements under section 513(c)(3):

Statements of good faith belief that the material is infringing, of the accuracy of the notice, and that the person complaining is authorized to act for the owner

Signature

Identification of the copyrighted work

Identification of the infringing material and where it’s located

Contact information for the complaining party

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DMCA in Context: Google

"How Google Fights Piracy"

In 2012, Google received requests to remove more than 57 million web pages from its search engine

Removal on average in less than six hours

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DMCA in Context: MPAA

“Understanding the Role of Search in Online Piracy”About 80% from Google

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Viacom v. YouTube (2012)

Do we really, really have to put YouTube on notice of every single infringement? Q

Yes.

Isn't general knowledge of all that infringement we all know is there enough?

Nope.

But why?

The magic dance we call the DMCA.

Q

Q

A

A

A

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Second Source of Tension: Cartoons

Cartoon Networks v. Cablevision (2008)

Cablevision Warehouse

DVR

DVR

DVR

DVR

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Cartoon Networks

Public performance? Copy?

Cablevision Warehouse

DVR

DVR

DVR

DVR

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Cartoon Networks

Mai Systems v. Peak Computer (1993)

Cablevision Warehouse

DVR

DVR

DVR

DVR

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WNET v. Aereo (2013)

Aereo Warehouse

DVR

DVR

DVR

DVR

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WNET v. Aereo (2013)

Aereo Warehouse

DVR

DVR

DVR

DVR

Progress?

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Third Source of Tension: Angry Mob

Stop Online Piracy Act (SOPA)

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The Stage for Reform

Tensions between tech and content – promote what kind of progress?

Public directly engaged and implicated in copyright

Decline in public perception coupled with social media

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Hearings

The Courts, Intellectual Property and the Internet Subcommittee of the House Committee on the Judiciary

“The goal of this hearing . . . will be to

determine whether the copyright laws

are still working in the digital age to

reward creativity and innovation. ” -- Chairman Goodlatte

Image courtesy of politico.com

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First Hearing“A Case Study for Consensus Building:

The Copyright Principles Project”May 16, 2013

Testifying:

Jon Baumgarten Former General Counsel Copyright Office (1976-1979)

Prof. Laura GasawayUniversity of North Carolina School of Law

Prof. Daniel J. GervaisVanderbilt University School of Law

Prof. Pamela SamuelsonUniversity of California BerkleySchool of Law

Jule SigallAssistant General Counsel for Copyright, Microsoft

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First Hearing

“The goal of the CPP was to explore whether it was possible to reach some consensus about how current copyright law could be improved

and how the law’s current problems could be mitigated.”

Report issued in 2010

Twenty five recommendations

THE © OPYRIGHT PRINCIPLES PROJECT

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THE © OPYRIGHT PRINCIPLES PROJECT

First Hearing

Recommendation #1

Copyright law should

encourage copyright

owners to register their

works so that better

information will be

available as to who

claims copyright

ownership in which

works.

Recommendation #2

The Copyright Office should

transition away from being the

 sole  registry  for copyrighted

works and toward certifying the

operation of registries operated by

third parties, both public and

private.

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THE © OPYRIGHT PRINCIPLES PROJECT

First Hearing

Recommendation #5

A small claims

procedure should be

available for resolving

small-scale copyright

disputes.

Recommendation #21

Congress should limit

remedies as to those

who reuse in-copyright

works whose rights

holders cannot be found

after a reasonably

diligent search.

(Orphaned works.)

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THE © OPYRIGHT PRINCIPLES PROJECT

First Hearing

Recommendation #10

If copyright law is to retain the

right to elect to recover

statutory damages in lieu of

actual damages, guidelines for

awarding statutory damages in

a consistent,  reasonable, and

just manner should be

developed.

Recommendation #11

To give courts discretion to award up to

three times the amount of actual

damages and infringer profits in

exceptional cases as long as the

copyright owner registered  the

infringed work(s)  before the

infringement commenced. (Treble

damages.)

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THE © OPYRIGHT PRINCIPLES PROJECT

First Hearing

Recommendation #6

Commercial use or

commercial effect

should be given weight

in assessing whether an

exclusive right has been

infringed.

Recommendation #18

Personal uses of

copyrighted works

should be privileged to

some degree.

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THE © OPYRIGHT PRINCIPLES PROJECT

First Hearing

Recommendation #7

Copyright owners

should have the

exclusive right to

control communications

of their protected works

to the public, whether

by transmission or

otherwise.

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The professors are ready for a major overhaul: “Next great Copyright Act”

Better registration system leveraging new technology

Focus on maximizing authorized uses rather than minimizing unauthorized uses

Orphaned work

Statutory damages

Safe harbors for consumers making ordinary uses of legitimately purchased works

Microsoft: DMCA is the right approach

First Hearing

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Second Hearing: Content Owners

“Innovation in America: The Role of Copyrights”

July 25, 2013

Source: Getty Images

Sandra AistarsExecutive Director, Copyright Alliance

Eugene Mopsik Executive Director, American Society of Media Photographers

Tom HansenCo-Founder, Yep Roc Records/ Red Eye Distribution

John LaphamGeneral Counsel, Getty Images

William SherakPresident, Stereo D

Testifying:

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Fair compensation

Combative, defensive tone

Love-hate relationship with technology

Economic viability of copyright owners drives innovation

Second Hearing: Content Owners

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Second Hearing: Content Owners

Copyright works at its core

But concerned about

Expansion of fair use Ease of file sharing

Stronger statutory damages provisions

Cutting off ad and credit card revenue to

infringing sites

Search engines

1 2 3

4 5

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Small claims system

Second Hearing: Content Owners

Better, easier registration

system needed

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Third Hearing: Tech Companies

“Innovation in America: The Role of Technology”

August 1, 2013

Testifying:

Danae RingelmannFounder & Chief Customer Officer, Indiegogo

Jim FruchtermanPresident and CEO, Benetech

Nathan SeidleCEO, SparkFun Electronics, Inc.

Van LindbergPV Intellectual Property, Rackspace

Rakesh AgrawalFounder & CEO, SnapStream Media

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Third Hearing: Tech Companies

A new attitude about intellectual property:

Innovation (i.e., progress) is not dependent on intellectual property.

Make money by innovating and iterating.

Don’t enforce, compete.

Intellectual property is not the only option.

One business model should not be baked into the Copyright Act.

Law should not focus just on traditional creators.

Scrap copyright law altogether?

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Questions?

wade.savoy@rimonlaw.com

504.267.1665 ext. 237

Wade Savoy