Special Report: Roundup Of US Copyright Office Review Of US Law 08/06/2016 by Dugie Standeford for Intellectual Property Watch 1 Comment Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window)The United States Copyright Office is examining how provisions of the 1998 Digital Millennium Copyright Act (DMCA) and the 1976 Copyright Act are working and whether any changes, legislative or otherwise, are needed. Not surprisingly, there are broad differences of opinion among rights owners, public interest groups, users of copyrighted works and the high-tech community on both questions. The office announced three inquiries in December. One involved a review of the role of copyright law with regard to software-enabled consumer products. A second concerned an assessment of how well Title 17, United States Code, Section 1201 of the DMCA – which bars circumvention of technological measures that control access to copyrighted material – is working. The third sought comment on how successfully 17 U.S.C. Sec. 512, the DMCA’s notice-and-take-down provisions, prevents online infringement and protects against improper takedown notices. All three Federal Register notices of the inquiries are available here. Roundtables on the inquiries took place on various dates in May in San Francisco, Washington DC, and New York. Section 1201: Need for a Nexus Between Infringement and Circumvention? Rights owners, including the Association of American Publishers, generally believe that Section 1201 needs no changes, said Allan Adler, AAP general counsel and vice president-government affairs, who participated in Copyright Office roundtables on Sections 1201 and 512. The Entertainment Software Association, for example, told Intellectual Property Watch: “The current legal framework embodied under Section 1201 of the U.S. Copyright Act has worked extremely well and has allowed the video game industry to flourish and provide gamers with the best products in the world. Congress should not change anything in the Act that would negatively affect this very good situation.” Critics, however, said the provision unduly harms users. “Our concern is that Section 1201 is and always has been too broad. Users should not have to seek permission from rights holders, or the Copyright Office, to engage in activity that does not infringe a copyright,” emailed Public Knowledge Policy Counsel Raza Panjwani. Public Knowledge has urged the office to prohibit circumvention of technical protections only where the purpose is to infringe copyright. Section 1201’s broad scope was originally justified as being necessary to stop large-scale digital infringement and to encourage the development of digital markets for content, said Panjwani. “Per copyright holders’ own statements about the state of online infringement, Section 1201 has clearly failed at the first goal.” Conversely, digital content distribution has flourished despite that failure, which suggests that Section 1201’s current scope is unjustified on the basis of its own underlying rationale, and that it “should be seriously re-examined,” he said. Similarly, the Library Copyright Alliance (LCA) “believes that section 1201 has had a negative, and unnecessary, impact on lawful uses,” attorney Jonathan Band told Intellectual Property Watch. It’s broader than needed to implement the WIPO Internet treaties, and it’s based on the “flawed premise” that “legal protections somehow enhance technological protections.” Technological protections are used precisely because legal protections sometimes prove ineffective, so stacking on more legal protections affects legitimate uses by entities, such as libraries and universities, that follow the law, he said. LCA also backs the idea of requiring a nexus between circumvention and infringement, Band said. Section 1201 comments to the Copyright Office are here. Software-Enabled Consumer Products: “Jarring Collision” of Legal Systems? Another part of the Copyright Office inquiry concerns software that’s embedded in everyday consumer products. The software itself is generally recognised as being copyrighted, but its functionality for driving the products has become an issue under Section 1201, Adler said. A “significant majority” of comments filed with the Copyright Office, including those that recommended changes to the law, agreed that Congress shouldn’t amend the Copyright Act to treat embedded software differently from other types of software or copyrighted works, the Copyright Alliance said. There’s little or no evidence that the existing law has caused any actual problems in the secondary marketplace or hurt consumers, it said. But Consumers Union cited a “jarring collision” between the “new frontier” of copyright law that allows computer code to be treated as a “language” for copyright purposes and the core safeguards of property law. It called for specific legislative clarifications to address uncertainties arising from the collision of the two bodies of law: (1) Ownership of a product should include ownership of its contents, what makes it function and the fruits of its use. That doesn’t mean, CU said, that owning a copy of the software inside a device means having an unlimited right to copy the software and use it in other products or sell it multiple times. (2) Simple use of a product isn’t infringement. Being able, for example, to unlock a mobile phone isn’t “copying” in the infringement sense and shouldn’t require the user to seek permission from the owner of copyright in the software. Consumer Union’s position was echoed by the Auto Care Association (ACA), a trade association that represents businesses that make automotive car parts and service and repair vehicles. Assertions of copyright over software embedded in consumer products that control the operation of the products “affects daily our members and the consumers they serve by making motor vehicle repair more expensive and legally risky,” the ACA said. It urged that copyright law be changed to expressly permit lawful repair of products whose physical operation relies on software, regardless of whether the software must be altered or reproduced for repairs to occur. The ACA also said copyright law should acknowledge and accommodate fair uses and non-infringing uses of such embedded software. The transfer of a single copy of software from one physical part to another “should be treated as noninfringement under the first sale doctrine,” just as patent law permits the re-use of parts as lawful repair, the ACA said. Comments on software-enabled consumer products are here. Section 512: Notice-and-Staydown? Section 512 allows copyright owners who discover unauthorised use of their works on the internet to send a notice to the online service provider requesting that it be taken down, said Mitchell Silberberg & Knupp LLP attorney Jay Rosenthal, who also participated in several Copyright Office roundtables. Rosenthal appeared on behalf of ESL Music and represents music industry content owners. If the online service provider complies, and is otherwise compliant with the law, it is given “safe harbor” against copyright infringement liability, he emailed. The Copyright Office is focusing on this issue now because “there are many problems in the way the law has developed,” said Rosenthal. The biggest is “whack-a-mole,” which happens when a copyright owner tries to take down an unauthorised use of its product which then immediately pops up somewhere else, he said. That has made the law “unusable for many small copyright owners,” he said. The Copyright Office is trying to determine if there are ways to change the law that would help the situation, Rosenthal said. Copyright holders want a “notice-and-staydown” approach which would require online service providers and websites to “take some responsibility to police the Internet – and their sites – for unauthorized use of their works,” he wrote. The entire responsibility for policing the ‘Net for infringing uses would be shared by content owners and users, instead of lying solely with copyright owners, he said. For a long time, stakeholders generally agreed tacitly that neither side wanted to reopen Section 512 because the risks might outweigh the measure’s significant benefits, AAP’s Adler said. That changed when the House of Representatives responded to the Copyright Office call for review of the act, and some now believe that if Section 512 doesn’t achieve its purposes, now is the time to make the case for change, he said. The AAP has suggested that Congress revisit the law because it doesn’t operate the way Congress intended and because of several court interpretations of key provisions which AAP believes are wrong, he said. Internet companies, public interest groups and others oppose notice-and-staydown, they said in filings. Amazon said it understands “the frustration resulting from the need to generate multiple notices because Amazon has a symmetrical burden to that of the rightsholder.” But notice-and-staydown isn’t the right way to go and would “violate 20 years of federal Internet policy that explicitly does not require service providers to affirmatively police or censor the activities of users or to make sophisticate legal determinations,” it said. Google agreed, saying notice-and-staydown would “impose an extraordinary burden on all [online service providers] to monitor all content available through their services and would not likely be effective,” and that only rights holders know whether subsequent uploads of material that has been taken down are infringing. ACT-The App Association said voluntary industry efforts between service providers and rights owners should be encouraged to improve the effectiveness of the process. BSA-The Software Alliance said Section 512 “continues to strike the careful balance between the interest of copyright owners, online intermediaries, and consumers that Congress intended.” Similarly, the Center for Democracy & Technology and the R Street Institute, a free-market policy think tank, argued that the whack-a-mole problem doesn’t justify upending the DMCA’s essential balance. First-round comments to the Copyright Office on Section 512 are here. Separately, the Copyright Office is also now seeking input on the need for changes to Section 108 of the Copyright Act, which covers exceptions for libraries and archives, it said in a 7 June notice. What Next? One question is how much attention should be paid to legislative fixes rather than to best practices, voluntary agreements and technological changes, the AAP’s Adler said. The Copyright Office will report the results of its various studies to Congress, but many people are sceptical that lawmakers will act on any legislative proposals from the office, he said. Many are waiting to see what, if anything, comes of the 20 or so hearings House Judiciary Committee Chairman Bob Goodlatte has committed to holding on copyright issues. In addition, Goodlatte only has another two years after this as chairman, so some believe this could be the time for legislative reforms, Adler said. Image Credits: US Copyright Office Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window) Related Dugie Standeford may be reached at email@example.com."Special Report: Roundup Of US Copyright Office Review Of US Law" by Intellectual Property Watch is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.