Copyright Law: Interview With Register of Copyrights Maria Pallante

 "If you're looking for certainty, fair use is not going to help you sleep at night."

- Maria Pallante, Register of Copyrights, on copyright law's fair use doctrine

Ars Technica has published an excellent interview with Maria Pallante, the new Register of Copyrights here.

If you want to know where copyright law is going, it is important to follow the activities of the Register of Copyrights whose activities and views carry extraordinary weight in shaping U.S. copyright policy.   More on the office of the Register of Copyrights here.

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 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

Electronic Frontier Foundation: Oppose Criminal Streaming Bill in Senate

The above YouTube video had over 500K views

The EFF is organizing a letter writing campaign to the US Senate - to use the letter tool, visit here

The EFF's take:

Oppose Congress' Criminal Streaming Bill


S. 978 is a reckless attempt to attack online streaming by focusing on the "unlawful public performance" area of copyright law. By increasing the criminal penalties for certain online public performances, the bill will impose a chilling effect around the posting and creation of online video. Moreover, it will hamper the pace of innovation as users, websites, and investors cope with the uncertainty of running afoul of one of the more vague sections of copyright law. Act now and tell your Senators to oppose this shortsighted bill!

Under certain conditions, an "unlawful public performance" of a copyrighted work is already a crime. But this bill targets online streaming in an effort to give the government more enforcement power to bear—particularly against websites that the entertainment industry believes to be threatening.

Techdirt reports on YouTube protests here

Text of the bill below:

112th CONGRESS


1st Session
S. 978
To amend the criminal penalty provision for criminal infringement of a copyright, and for other purposes.
--------------------------------------------------------------------------------

IN THE SENATE OF THE UNITED STATES

May 12, 2011
Ms. Klobuchar (for herself, Mr. Cornyn, and Mr. Coons) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
----------------------------------------------------------------------------

A BILL
To amend the criminal penalty provision for criminal infringement of a copyright, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. Criminal infringement of a copyright.

(a) Amendments to section 2319 of title 18.—Section 2319 of title 18, United States Code, is amended—

(1) in subsection (b)—

(A) by redesignating paragraphs (2) and (3) as paragraphs (3) and (4), respectively; and

(B) by inserting after paragraph (1) the following:

“(2) shall be imprisoned not more than 5 years, fined in the amount set forth in this title, or both, if—

“(A) the offense consists of 10 or more public performances by electronic means, during any 180-day period, of 1 or more copyrighted works; and
“(B)(i) the total retail value of the performances, or the total economic value of such public performances to the infringer or to the copyright owner, would exceed $2,500; or
“(ii) the total fair market value of licenses to offer performances of those works would exceed $5,000;”; and

(2) in subsection (f), by striking paragraph (2) and inserting the following:
“(2) the terms ‘reproduction’, ‘distribution’, and ‘public performance’ refer to the exclusive rights of a copyright owner under clauses (1), (3), (4), and (6), respectively of section 106 (relating to exclusive rights in copyrighted works), as limited by sections 107 through 122, of title 17;”.

(b) Amendment to section 506 of title 17.—Section 506(a) of title 17, United States Code, is amended—

(1) in paragraph (1)(C), by inserting “or public performance” after “distribution” the first place it appears; and

(2) in paragraph (3)—

(A) in subparagraph (A), by inserting “or public performance” after “unauthorized distribution”; and

(B) in subparagraph (B), by inserting “or public performance” after “distribution”.

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 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

Protect-IP Act: Powerful In Rem Remedies for Private Plaintiffs Against Offshore Infringers

Support The Pirate Bay T-Shirts

Last week the Senate Judiciary Committee voted the Protect-IP Act out of committee.  Sen. Ron Wyden put a hold on it on Thursday.   I read it and my comment focus on the aspects of interest to the civil litigator.

Section 4 "Eliminating the Financial Incentive to Steal Intellectual Property Online" of the Protect-IP Act would let a private attorney, on behalf of a copyright or trademark owner, commence an in personam action against a registrant or owner of an "Internet site dedicated to infringing activities".   If these folks cannot be found or don't have addresses within the U.S., the private plaintiff could bring an in rem action against the domain name itself.    As part of the remedies authorized, you would be able to get a court to order any company processing financial transactions with the domain to stop, as well as any company advertising on the domain name.

Invoking these provisions would subject a plaintiff to a fairly high standard of proof.   Critics have focused on other aspects of the bill giving the Attorney General sweeping powers (see links below).   For a U.S. IP owner facing an offshore scofflaw who is doing business in the United States, Section 4 of the bill seems to be a fairly sensible and well-balanced remedy.
A copy of the full text of the Protect-IP Act passed by the Senate Judiciary Committee last week here.

The Electronic Frontier Foundation' criticisms of the bill here.

Last Thursday, Senator Ron Wyden of Oregon blocked this "internet censorship" bill, story here.

Larry Downes' take at Forbes here.   Techdirt on Larry Downes here.

The 1709 Blog reports Google's defiance of search-engine blocking provisions here.


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 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

Copyright Wars: A Brief Video History of Copyright, Technology and Piracy

A nice summary of the copyright wars in the 20th century, the Guardian interviews Cory Doctorow. Direct criticism of lawmakers' willingness to criminalize popular entertainment.


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 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

Lessig Video: Deregulate Culture - Copyright Law Does Not Make Sense

In this video of a speech from the ABA Techshow, Professor Lawrence Lessig has put together a powerful political manifesto for those wishing to deregulate culture. He points out how internet code has created new artistic norms, abilities to speak and communicate through video and music that are being marginalized, stifled and criminalized without regard to the First Amendment. He joins a thoughtful, enjoyable legal and historical analysis of the internet, of the interaction of law, norms, market and architecture on human behavior and the problems we face with a plan to reduce the impact of big money on Congress.

Watch the video, he can't be accused of thinking small.

His Manichean vision of Congress and the current state of big money influencing Congress (Lessig seeks to "kill off the bad" and "strike evil") is pure Ralph Nader.

About money and Congress, Nader was right, Lessig is right. This video, and Lessig's ideas, are tremendously important.

Whether we need a new Messiah to smite evil is a different story.

From http://www.rootstrikers.com/about/

About
Money is corrupting our democracy. Our country's founders intended our government to be dependent upon the people alone—but today, lawmakers spend up to 70% of their time raising money for their reelection campaigns. In 2010, it cost an average of $8.5 million to win a Senate seat. Barack Obama is expected to spend over $1 billion on his reelection campaign. Where do we think this money comes from?

We need a democracy that's dependent on the people, not the funders. Government won't change itself. We need a grassroots movement to fight the corrupting influence of money in politics.

Thoreau wrote, "There are a thousand hacking at the branches of evil to one who is striking at the root." The root of our political evils is money. Our goal is to build a network of rootstrikers—to talk about this issue, clearly identify the problem, and work together towards practical reforms.

Rootstrikers is a project of Fix Congress First, a nonprofit organization founded in 2008 by Lawrence Lessig and Joe Trippi to fight the corrupting influence of money in politics.

Joe Trippi's website says the following:

Joe Trippi is one of the most sought-after political strategists and an enduring figure on the presidential campaign circuit. He worked for Ted Kennedy, Walter Mondale and Gary Hart and turned Howard Dean into an unlikely front runner in 2004. A former Silicon Valley consultant, Trippi was the first political operative to appreciate and then realize the potential of the internet, and as such the strategy, tactics and tools he created in 2004 have become the foundation for many of today\'s most successful campaigns.

So the guy who created Howard Dean is going to combat the evils of money in politics?  Presumably if I send him some evil money?

Lessig's core thesis of deregulating culture is a powerful one.  But when he moves off message to Wikileaks and politics, the polish wears thin.  I am not so sure that Wikileaks really brought democracy to the Middle East, but I am in agreement that our expenditures on foreign expeditionary wars cloaked in democratic rhetoric are a collosal waste of money.

Lessig ought to lighten up on the combating evil stuff, be a bit more nuanced and tighten his focus to win on the ground where he is strong: criminalization of creativity.  It's kind of tough to save culture AND end wars at the same time, standing next to a guy bragging that he was Howard Dean's internet bag man. It wouldn't be the first time an idealistic young crusader went to Washington, was used by the establishment, had his pockets emptied and idealism shattered. Lessig is correct that deregulation of copyright law is a sensible and reasonable thing.  But it's not enough to be right.  Coalition-building, consensus and compromise are not necessarily dirty words and people who don't agree with you are not necessarily evil or insane.   Even if they are dead wrong.

Again, watch the speech, he is a brilliant thinker and his message is important.

Thanks to Cyberlaw Central for bringing the Lessig speech up, Kevin Thompson's take here.

More on Remix culture here.

WSJ endorses Lessig here.

My review of Lessig's book Remix.

 http://www.dunnington.com/rdowd_bio.html
 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

IP Law Professors: Obama Secret Anticounterfeiting Treaty Unconstitutional Without Congressional Approval

Still the best explanation out there of how a bill moves through Congress to become a law, although it omits the role of lobbyists and corporations in initiating laws. But lots of law professors think that the Obama Administration's forgotten the Schoolhouse Rock video many of us grew up with.

Thirty law professors think that the Anti-Counterfeiting Trade Agreement ought to work the same way - by going through Congress and that ACTA is unconstitutional because it purports to be and will be a binding treaty internationally under the doctrine of pacta sunt servanda (agreements must be kept), but without Congressional approval, is not enforceable domestically and thus requires Congressional approval.   But according to the 30 professors, other countries will be able to punish US noncompliance with countermeasures consistent with international law.   The professors point out that even the most radical exponents of unilateral Presidential action don't believe that the President can act unilaterally where powers are specifically reserved to Congress by Article 1, Section 8 of the US Constitution.

The professors urge that if President Obama signs ACTA, he should reserve the right of Congress to approve it before it becomes binding.  This, according to the professors, would protect us under international law in the case of non-implementation.

More on ACTA and the Obama Administration's IP Czar here.

The EFF's take on why you should care here.

International IP and the Public Interest call for IP law professors to sign on here.
Final text of ACTA via the United States Trade Representative here.

Article I, Section 8 of the U.S. Constitution gives Congress the power to regulate IP.

U.S. Constitution - Article 1 Section 8

Article 1 - The Legislative Branch
Section 8 - Powers of Congress

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and Post Roads;

To 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;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.


The 30 professors opposing ACTA below, their position paper here.

Sean M. Flynn
(Counsel of Record)
American University Washington College of Law
4801 Massachusetts Ave NW
Washington D.C. 20016

Brook Baker Northeastern School of Law

Dan L. Burk University of California, Irvine School of Law

Brian W. Carver University of California, Berkeley School of Information

Anthony Falzone Stanford Law School

Eric Fink Elon University School of Law

Michael Geist University of Ottawa School of Law

Llewellyn Joseph Gibbons University of Toledo School of Law

Leah Chan Grinvald Saint Louis University School of Law

Amy Kapczynski University of California, Berkeley School of Law

Dennis S. Karjala Arizona State University College of Law

Julian Kinderlerer University of Cape Town Department of Private Law

Lawrence Lessig Harvard Law School

David Levine Elon University School of Law

Jamie Lund St. Mary‟s University School of Law

Michael J. Madison University of Pittsburgh School of Law

Dr. Jeremy Malcolm Consumers International

Mark P. McKenna University of Notre Dame Law School

Michael Morris University of Edinburgh School of Law

Ira Nathenson St. Thomas University School of Law

Kevin Outterson Boston University School of Law

Frank Pasquale Seton Hall Law School

Varun Piplani George Washington University

Kenneth L. Port William Mitchell College of Law

Srividhya Ragavan University of Oklahoma College of Law

Wendy Seltzer Princeton Center for Information Technology Policy

Jessica Silbey Suffolk University Law School

Christopher Sprigman University of Virginia School of Law

Yousuf A. Vawda University of KwaZulu Natal Faculty of Law

Peter K. Yu Drake University Law School


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How To Testify Before Congress: It's a Whole New World - January 13

Samuel L. Clemens -  Mark Twain - Congressional Gadfly

Image Courtesy Wikipedia

Please join us this Thursday to get Bill LaForge's great new book:  How To Testify Before Congress.

The book features Samuel Clemens (p/k/a Mark Twain)'s testimony before Congress on copyright, which is a big hoot.

Thursday, January 13, 2011, 6:00 PM – 9:00 PM
3 MCLE Credits: 1.5 Skills; 1.5 Professional Practice
New York County Lawyers' Association http://www.nycla.org/
Testifying before Congress is different from giving testimony in any other forum – including courts of law – because the rules are different and the deck is stacked. This CLE will cover preparation and delivery of
congressional testimony from A to Z: the

• context and climate of the committee hearings process;
• how hearings are organized and staged;
• who should testify and how to get invited;
• the types of hearings and committee hearing players;
• preparation of a stellar written statement;
• rehearsal of the witness;
• key ingredients to superbly delivered oral testimony;
• how to respond to committee questions, including handling hostile inquiries and interrogators;
• how to excel as a witness with adequate preparation; and,
• strategies to maximize (or minimize) testimony impact and how to mitigate potential communication crisis.

This program provides a must have tutorial on preparing and delivering testimony before Congress and in Congressional hearings for use by lawyers, agencies, associations, corporations, military personnel, NGO’s
and state and local officials.

Attendees at the program will receive a copy of Testifying Before Congress, by William N. LaForge, The Capital.Net, Inc. ©2010.
 
Program Co-Sponsor: Southern District of New York Chapter of the Federal Bar Association

Program Chair and Moderator: Raymond Dowd, Dunnington, Bartholow & Miller LLP

Faculty: William N. LaForge, Winstead PC, author of Testifying Before Congress
Luke McGrath, Dunnington, Bartholow & Miller LLP
Jeff Richardson, Starkman Associates

Link to flyer with full information here:
http://www.scribd.com/full/46680881?access_key=key-1ckb9vquh4vg3kxalu24

 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

Canadian Students Mobilize to Demand "Fair Copyright"

Thanks to Michael Geist's blog, new video on Canadian students mobilizing against copyright legislation pending in Ottawa.