Category Archives: Law and Policy News

First Sale, Fair Use, and Digital Downloads:
Capitol Records v. ReDigi

Posted February 22, 2017

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In honor of Fair Use Week, we are delighted to feature this guest blog post from NYU Technology Law & Policy Clinic students Cassie Deskus and Kristen Iglesias discussing the role of fair use in the ReDigi case.

The Second Circuit will soon hear arguments in Capitol Records v. ReDigi, a case that will determine if and when consumers will be able to resell lawfully owned digital media. ReDigi provided an online marketplace for reselling music purchased from iTunes. ReDigi’s software allowed users to transfer music from their computer to ReDigi’s cloud servers, where it was offered for sale. Upon a subsequent sale, the software transferred the file to the buyer’s computer. The transfer process attempted to avoid copyright issues by employing strong verification safeguards and ensuring that there was only ever one full copy of the song in existence at any given time.

If ReDigi had been in the business of reselling physical CDs or books, resale would have been an uncontroversial application of first sale—a doctrine which permits the owner of any lawfully owned copy to dispose of that copy without restriction. The District Court, however, held that each song transfer was an unlawful reproduction, effectively preventing the owner of a digital work from reselling it. Unless the opinion is reversed, the only way consumers will ever be able to resell their digital music or books is to sell their entire digital device. In other words, to resell a $0.99 eBook you finished reading years ago, you’d have to sell your entire tablet and all of its contents!

This should be concerning to all creators of digital works. Without lawful resale, the “secondary markets” we enjoy in the physical sphere–libraries, used bookstores, garage sales, and even donations–cease to exist in the digital sphere. Not only will authors be unable to reach the same listeners and readers via digital publication that they might through analog publication, but those same listeners and readers won’t be able to easily share the digital works that they love.

That’s why the NYU Technology Law & Policy Clinic filed an amicus brief on behalf of over 20 copyright scholars, including several Authors Alliance members, arguing that any alleged unlawful reproductions are covered by either first sale or fair use.

As many Authors Alliance members know, the first factor of fair use is “the purpose and character of the use.” We argued that exercising a copy owner’s first sale rights, which have been recognized by courts and Congress for over one hundred years, is about as fair a purpose as can be. The public benefits resulting from digital secondary markets also favor this interpretation. The fact that ReDigi was a commercial enterprise does not change this outcome—indeed, many commercial uses of digital copyrighted works have been held to be fair use. ReDigi’s platform parallels secondary markets that have always existed in the physical realm; such markets are a testament to copyright law’s tolerance for, and accommodation of, robust resale rights. We hope that the Second Circuit reverses the lower court and preserves digital first sale, especially given the strong fair use arguments favoring ReDigi. If you’d like to read the rest of our argument, the entire brief is available here.

Authors Alliance Amicus Brief Supports Fair Use Defense in Georgia State Case

Posted February 13, 2017

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Since our founding, Authors Alliance has supported a robust interpretation of fair use that helps authors keep their works discoverable and in the hands of readers. We’ve published a number of opinion and policy articles on the subject, and our members and allies may recall that we filed an amicus brief in support of Google in the Authors Guild v. Google Books litigation, in which we argued that Google’s snippet views of scanned books from libraries made books more discoverable and served a public good by enhancing access to millions of works. We welcomed the Supreme Court’s decision not to hear the case, thereby ending the decade-long litigation and allowing the district court’s ruling in favor of fair use to stand.

Now, Authors Alliance has weighed in again on the fair use question, this time in the matter of Cambridge University Press v. Albert. The case turns on whether faculty at Georgia State University (GSU) infringed Cambridge University Press’ and other publishers’ copyrights by assigning chapters from scholarly books to their students via secure course websites. GSU argues that this limited use for nonprofit educational purposes falls within fair use, and we have filed an amicus brief with the 11th Circuit in support of that argument. In the brief, we highlight that academic authors’ primary motivation to write and publish scholarly works is grounded in their desire to share and advance knowledge. Many of our members are academic authors, and one of our members is the author of a chapter at issue in the case. They—and we—believe that this limited use of copyrighted content in a nonprofit educational setting meets the test for fair use. In the brief, we present three main arguments in support of this interpretation:

  • Incentives to write and publish scholarly book chapters will not be impaired by a ruling that nonprofit educational uses of these chapters is fair use.
  • The use of fact-, method-, and theory-intensive scholarly book chapters assigned primarily because of the originality of ideas, theses, research, data, and methods they contain, rather than on originality of expression, should tip in favor of fair use.
  • New options in digital publishing and trends toward open access in scholarly communications favor the fair use ruling.

The full text of the brief may be read here. We will continue to follow the case and provide updates on new developments in the litigation.

Authors Alliance Submits Comments Regarding the U.S. Copyright Office to the House Judiciary Committee

Posted January 31, 2017

Today, Authors Alliance submitted comments to the House Judiciary Committee in response to an initial proposal by Representatives Bob Goodlatte (R-VA) and John Conyers (D-MI) to reform the U.S. Copyright Office. The Committee invited comment on four proposed reforms intended to reorganize the office, bolster expertise, modernize technology infrastructure, and allow for pursuit of small claim infringements.

We applaud the Judiciary Committee for soliciting stakeholder input on these important issues, and we will continue to monitor developments at the Copyright Office and keep our members up to date as the Office seeks a new Register of Copyrights and works to implement reforms. The full text of our comments may be read below:

Copyright Week 2017: Foster Transparency and Representation in Copyright and Provide Input on the Next Register of Copyrights

Posted January 18, 2017

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It’s copyright week! This week, Authors Alliance is joining a group of organizations in reflecting on some of the principles that help make copyright law an engine of creativity.

Copyright law has many stakeholders, including creators of all kinds and the consumers of their works. Traditionally, however, only a narrow band of copyright’s constituents have had real representation in setting copyright policy, which has typically put the interests of certain classes of commercial creators and industries first. From the start, Authors Alliance has worked to bring the voices of creators who wish to share their work broadly to these important debates.

Today, the United States is at a critical inflection point in how it makes copyright policy and whose interests are considered in the process, with a new Librarian of Congress currently working to appoint a new Register of Copyrights (the highest ranking official at the United States Copyright Office and the U.S. government’s leading copyright expert).

In fact, the resignation of Register of Copyrights Maria Pallante last fall brought about renewed scrutiny of the entire U.S. Copyright Office, as well as calls for reform—notably from Rep. Goodlatte and the House Judiciary Committee in December.  Key points under consideration are the Office’s relationship to the Library of Congress, its organizational structure, and the pressing need for modernization and technological upgrades.

The Library of Congress is currently seeking input from the public on the qualifications and priorities for a new Register of Copyrights. The Copyright Office is tasked with serving a diverse constituency whose values and goals are often at odds with one another. The leadership transitions at LOC and the Copyright Office have created a significant opportunity to see a copyright office that is both more effective at its core functions (most especially, registering copyrights and copyright transfers), and more cognizant of the diversity of interests in our copyright system. The debates are real, and the consequences far-reaching. Now is the time for those of us who support openness, a broad view of fair use, and protections for individual creators, to advocate for our values.

Authors Alliance is closely following these developments at the Copyright Office in the coming year, and is committed to continuing seeing our members’ interests represented in these kinds of venues. We encourage all of our members and allies to take the LOC’s survey by the January 31 deadline to ensure that we—as authors and creators whose work is both helped and hindered by copyright policy—have a voice in the ongoing debates on copyright reform.

 

Copyright Week 2017: Building and Defending the Public Domain

Posted January 16, 2017

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It’s copyright week! This week, Authors Alliance is joining a group of organizations in reflecting on some of the principles that help make copyright law an engine of creativity.

The public domain—the realm of works not subject to copyright restrictions—is a vital part of our creative system, providing the shared history, raw material, and expressive freedom essential to authorship and intellectual inquiry. It is worth celebrating and protecting, as Authors Alliance noted in our Principles and Proposals for Copyright Reform. In that document, we wrote that the law should “recognize the interests of both authors and the public in the public domain.” We elaborated:

The public domain . . . is critical to the scholarly and creative activities of authors. For too long, the law has ignored the importance of works in the public domain as essential building blocks for new creations. Copyright law should expressly recognize the public domain and the interests of authors and the public in its continued existence. Moreover, the law should recognize the public domain as inviolable: once made free to all, works and ideas should not again be subject to restrictions imposed by copyright law, by contracts, or by technology.

This bedrock principle is one we continue to support and are pleased to highlight this Copyright Week. Share our belief in the importance of the public domain to creative work? Join us as a member and show your support!

Authors Alliance Comment to U.S. Copyright Office Supports Print-Disabled Readers

Posted November 9, 2016

As part of our ongoing advocacy in the space, Authors Alliance has again responded to the U.S. Copyright Office’s call for further comments regarding anti-circumvention provisions in Section 1201 of the Digital Millennium Copyright Act. We believe in making reasonable exemptions from the law that protects digital “locks” that keep content inaccessible. In the past, we have successfully advocated for for such an exemption supporting the creative work of multimedia ebook authors, and earlier this year, we submitted comments in support of streamlining the law’s rulemaking process.

Our most recent comment is in favor of a permanent exemption that would improve access to copyrighted works by people who are blind, visually impaired, and print disabled. There is broad consensus that such an exemption is beneficial and necessary; in fact, it has been granted in every rulemaking cycle since 2003. We fully support a permanent exemption that would help make our members’ works accessible to these audiences. Read the full text of the comment here.

Important Fair Use Decision Stands, Helps Keep Authors’ Works Findable

Posted April 18, 2016

Pamela Samuelson, President, Authors Alliance

There was very good news for authors in the Supreme Court’s decision not to review last year’s ruling in the Authors Guild v. Google litigation. That decision, which will now stand, found that Google’s scanning of in-copyright books from research library collections for purposes of creating an index and serving up snippets in response to user search queries was fair use, not copyright infringement. The Authors Guild’s leadership (and its lawyers) are undoubtedly disappointed in this outcome. But all authors who want their books to be found by readers who are interested in learning from those books have reason to celebrate the end of this decade-long litigation.

While we obviously can’t know for sure what the Court would have done had it decided to hear the Guild’s appeal, it is fair to infer that the Court was not so outraged by the Second Circuit’s ruling that it felt compelled to put the case on its docket. The Court’s rejection of the Guild’s petition does not, of course, mean that it approved the fair use ruling. Yet it is worth noting that the Court gave considerable deference to Judge Leval’s conception of fair use in its 1994 Campbell v. Acuff-Rose decision. It was the very same judge’s fair use analysis that the Court would have reviewed had it taken the Authors Guild v. Google case.

Authors Alliance filed a friend of the court brief in support of Google’s fair use defense, saying: “Book Search makes it possible for many who are not privileged to have physical access to research library collections to be able to discover that our works exist.  Interested researchers should be able to find in an efficient way the ideas and contributions to human knowledge contained in our writings. We want our intellectual legacies to extend to a new generation of readers who nowadays search and find books almost exclusively online. Creation of a full-text searchable database of books provides these benefits.”

Judge Leval recognized the public benefit in making books more findable: “Google’s making of a digital copy to provide a search function is a transformative use, which augments public knowledge by making available information about Plaintiffs’ books without providing the public with a substantial substitute for matter protected by the Plaintiffs’ copyright interests in the original works or derivatives of them.”

Judge Leval could have gone on to say that authors of published books want those books to be findable and to be useful to readers who are looking for information that the books contain. So it isn’t just the public (and Google) who benefit from Book Search, but these authors as well.

Authors Alliance Submits Comments to U.S. Copyright Office in Support of Reforming the DMCA Exemption Process

Posted March 3, 2016

Since our founding, Authors Alliance has advocated for policies that protect fair use and non-infringing uses of copyrighted works. As part of our ongoing engagement with the U.S. Copyright Office on fair use issues surrounding the Digital Millennium Copyright Act’s anti-circumvention provisions, we have answered the Office’s request for comments to advocate for a streamlined, less burdensome rulemaking process in order to protect the fair uses of copyrighted work otherwise threatened by the legal protection the law gives to digital locks.

We believe that fair use is an essential part of the creative ecosystem, and that reasonable exemptions to anti-circumvention laws are both possible and worthwhile. To that end, our comment suggests changes that would simplify the rulemaking process and not require frequent, burdensome re-evaluations of rules that have already proven themselves to be beneficial.  Read the full text of the Authors Alliance comment here.

The Digital Millennium Copyright Act And Freedom Of Expression: A New Rule Preserving Authors’ Fair Use Rights In The Digital Age

Posted November 24, 2015

The following is a guest post by Aleksander Danielyan and Lauren Wong, third-year law students of the Intellectual Property, Arts, and Technology Clinic (IPAT) at the University of California, Irvine School of Law. Over the past year, UCI-IPAT and the Samuelson-Glushko Technology Law & Policy Clinic represented Authors Alliance in a Library of Congress Rulemaking seeking to preserve authors’ fair use rights in the digital age.

Over the past year, we have had the pleasure of representing Authors Alliance along with a coalition including the American Association of University Professors, the Society for Cinema and Media Studies, the University Film and Video Association, and film scholars Bobette Buster and Mark Berger in a Library of Congress rulemaking in which we sought to preserve e-book authors’ rights to make fair use in the digital age.

At issue is the Digital Millennium Copyright Act. As Authors Alliance has written previously, the DMCA makes it illegal to break encryption or any technological lock that protects copyrighted content. The predictable effect is that many legitimate uses are impossible under the DMCA. In our case, authors want to make fair use of audio and video content in e-books—but can’t because the DMCA makes it illegal to access popular media like DVD and Blu-ray.

In comments filed over the past year, we asked for an exemption to allow multimedia e-book authors to circumvent technological protection measures in order to embed high-quality content into their works for fair use purposes—impossible without a special exemption from the Librarian of Congress. A previous exemption allowed circumvention of DVDs and online distribution services only in non-fiction e-books offering film analysis. This round, we asked that the 2012 exemption be modified to allow authors to access Blu-ray content and use this high-quality content in all works, not just film analysis.

Much of this year-long effort involved collecting evidence and demonstrating that access to high-quality content like Blu-ray is essential for e-book authors to exercise their fair use rights in the digital age. We also emphasized the difficulties e-book authors face when licensing such content. In May we traveled to Washington, D.C. to bring our case to the staff of the U.S. Copyright Office and the National Telecommunications and Information Administration. In a lengthy hearing at the Library of Congress, we presented passionate and informative perspectives on the 1201 exemption. Authors Alliance Executive Director Mike Wolfe testified, along with noted film scholar Bobette Buster. UCI Professor Jack Lerner and IPAT student Aaron Benmark also testified, together with Professor Blake Reid and Molly McClurg from the Technology Law & Policy Clinic at Colorado Law.

Late last month, the Acting Librarian of Congress announced this round’s Final Rule, which included one of the two modifications we had requested. The Rule provides an exemption that allows e-book authors “offering film analysis” to circumvent digital locks on Blu-rays, DVD, and digitally transmitted video such as downloads and streaming for purposes of criticism and commentary. The Rule gives authors everywhere access to a wealth of high definition content—particularly, from Blu-ray—that they need in order to make fair use in multimedia e-books. Unfortunately, the Acting Librarian declined to provide an exemption for e-book authors writing about subjects other than film analysis.

Although we are disappointed that the Rule did not provide an exemption for all authors who need it, we are celebrating the Rule as a victory for fair use in the digital age. The Rule demonstrates that the Register recognizes the inherent danger to lawful uses that the DMCA presents in a swiftly changing technological landscape. As e-book technology continues to become more interactive, engaging, and personalized to the needs of individual readers, we see immense potential in a market for e-books that can evolve at the fast pace of technological innovation. But in order for that to happen, authors must be able to make the type of fair uses that they have always made in the brick-and-mortar world. Fortunately—at least for authors offering film analysis—this Rule essentially preserves that right.

We would like to thank our fantastic colleagues at Authors Alliance for the opportunity to represent them in such an important proceeding; Bobette Buster, the AAUP, and others who joined this effort; IPAT students Ranika Morales, Mike Lee, Kyle Reynolds, and Aaron Benmark; the talented team at Samuelson-Glushko Technology Law & Policy Clinic, including Professor Blake Reid and students Molly Priya McClurg and William Kaufman; and our visionary clinic director, Jack Lerner.

Anne Frank and the Lasting Legacy of the Public Domain

Posted November 17, 2015

The Diary of Anne Frank is expected to go into the public domain in the Netherlands this January. But in a startling and disappointing move the Swiss foundation that controls the rights to The Diary announced that it intends to assert copyright protection for decades after the proper expiration of the term. How? By relying on the role Anne’s father, Otto Frank, played in compiling the diary for publication to position him as a “co-author” and thereby extend the term significantly.

The legal details are tricky, but the upshot is that The Anne Frank Fonds—the foundation holding Anne’s copyright—is fighting to prevent the The Diary of Anne Frank from entering the public domain in Europe this January, seventy years after its author’s death in the Bergen-Belsen concentration camp.

This development is backed by a highly questionable legal theory that threatens authors’ rights, as well as a cynical view of the public domain. We want to set the record straight on both accounts.

Compilers are not co-authors

To the Anne Frank Fonds’ credit—and despite reporting to the contrary—no one appears to be claiming that Otto Frank was the co-author of The Diary in the sense of actually writing either the book or the original diaries. Instead, the Fonds notes that Otto Frank and Mirjam Pressler, each responsible for compiling and editing Anne Frank’s diaries into the published versions, are copyright holders in their “adaptations” of the original text. This much is true.

But the Fonds also takes things one step farther and argues that Otto Frank’s contributions to his adaptation also make him a co-author of the original work, the diaries famously written by his daughter. Can this possibly be right?

Of course not. Headlines and legal machinations notwithstanding, you remain the sole author of your work regardless of whether someone else compiles it for publication. The ramifications of any other answer would be deeply troubling for all authors. The rights of true co-authors are tremendously legally significant. Not only does co-authorship affect the copyright term; co-authors also take equal rights to the original work. In many jurisdictions, such co-authors may have perpetual and powerful moral rights in the work. Adaptors may take these rights in their adaptations, but not in the underlying original works.

The case of The Diary is complicated by the fact that the national laws of many countries treat older unpublished and posthumous works differently. Not all of Anne Frank’s actual diaries have been published; and those parts that were published were released at different times. Which portions of the original diaries fall into the public domain when, and where, will not be straightforward regardless of Otto Frank’s “co-authorship.” But by all accounts, much of the diaries should be in the public domain in many countries on January first, dubious assertions to the contrary notwithstanding.

Private control does not make for better stewardship than the public domain

Behind the attempt to extract extra copyright protection is the Fonds’ claim that it is the proper protector of Anne Frank’s legacy. But why should this be? There are many reasons that copyright terms end and creative work enters the public domain. One of the most compelling is that, after the very long time it takes for copyright to elapse, the public tends to be a better custodian of our collective cultural heritage than are the individuals and organizations that happen to hold the rights decades after an author’s passing.

The Fonds can claim that it does good work with the proceeds it earns from The Diary of Anne Frank. By all accounts it does. But we do not extend copyright terms as rewards for good behavior, and there are competing visions of how Anne Frank’s moving and important story might best and most powerfully impact a world that still very much needs her voice.

Indeed, the Fonds is far from the only institution carrying forth Anne’s legacy. The original diaries were left to the Dutch state, and are in the possession of Anne Frank House in Amsterdam. Anne Frank House has a different vision of how to do justice to the Diary and its author, and has been planning to make an “elaborate web version of the diary intended for publication once the copyright expires” according to the New York Times.

Allowing copyrights to properly expire at the end of their terms facilitates these kinds of creative public stewardship,  provides greater access to those works that have become indispensable parts of our shared heritage, and permits librarians, historians, and other expert curators to preserve the priceless intellectual legacies of true authors. It’s shameful to see a public-minded organization resist, rather than celebrate, the entrance of an important work to the public domain.