I’m Speaking at the 2020 Midwest IP Institute

Midwest IP Institute Brochure Cover

I will be speaking at the 2020 Midwest IP Institute on October 1 from 4:15 to 5:00 p.m. Central Time.

Specifically, I’ll be on a panel titled Copyright Enforcement Entities v. The Internet — Today’s Practices and Policy Attitudes and What They Mean for Your Clients, that will look at the current state of enforcement practices in the visual arts industry. Moderated by Minneapolis intellectual property attorney Michael Lafeber, I’ll be joined by panelists Michael Masterson, the CEO of Permission Machine, and Catherine Rowland, Associate Register for Public Information and Education at the U.S. Copyright Office.

Here’s the official description of the panel:

Easy access to and use of photos and images on the internet has given rise to a proliferation of copyright enforcement entities. In this session, with the benefit of diverse perspectives, you’ll learn about the current landscape of copyright policing and enforcement on the internet, including the need for, the practices of, and the policy issues surrounding copyright enforcement entities – and the practical import for your clients. Speakers include: the Associate Register for Copyrights at the U.S. Copyright Office; an author and corporate counsel for Fox Corporation; the CEO of a user-friendly and ethics-focused copyright enforcement service; and an experienced IP litigator.

The IP Institute offers two full days of programming and virtual networking, October 1-2, 2020. You can learn more on the Minnesota CLE’s website by clicking here.

New Edition of Circular 92 Available

The Copyright Office has released a new version of Circular 92, Copyright Law of the United States and Related Laws Contained in Title 17 of the United States Code. It contains a number of significant updates to copyright law that have been enacted since the last edition of the circular was released in 2016, including the:

  • Marrakesh Treaty Implementation Act
  • Orrin G. Hatch-Bob Goodlatte Music Modernization Act
  • National Defense Authorization Act for Fiscal Year 2020
  • Satellite Television Community Protection and Promotion Act of 2019
  • Library of Congress Technical Corrections Act of 2019
  • Coronavirus Aid, Relief, and Economic Security Act

The document is available on the Copyright Office website. The Office says a print edition is forthcoming but has been delayed due to the ongoing COVID-19 pandemic.

Eighth Triennial 1201 Rulemaking Begins

It seems like only yesterday that the Copyright Office announced the seventh triennial 1201 rulemaking (or maybe it was only yesterday that I finally finished reading the 340+ pages of the Register’s recommendation), but here we are again: the Office has just announced the commencement of the eighth proceeding. The rulemaking, under 17 U.S.C. § 1201, aims to identify particular classes of works for which users are adversely affected in their ability to make non-infringing uses due to the prohibition on circumvention of access control technologies.

As I describe more fully in Chapter 5 of my book, the proceeding has evolved over the years form a relatively banal, esoteric administrative exercise into a more closely watched and sometimes hotly contested battle. (It was the fifth triennial rulemaking during which the Copyright Office determined — and justifiably so — that there was no longer a need for an exemption to allow consumers to “unlock” their cell phones).

The last rulemaking cycle was the first during which the Office used its streamlined procedure for “renewals” of existing exemptions, recognizing that while the statute does not permit the Office to simply “renew” previously granted exemptions, it could accelerate the way it adjudicates requests for those exemptions to continue. That approach apparently worked well, as the Office is doing it again during this cycle.

Here’s the full announcement from the Copyright Office:

The Copyright Office has published a notice of inquiry and request for petitions initiating the eighth triennial rulemaking proceeding under the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 1201. Section 1201 provides that the Librarian of Congress, upon the recommendation of the Register of Copyrights, may adopt temporary exemptions to the DMCA’s prohibition against circumvention of technological measures that control access to copyrighted works. The ultimate goal of the proceeding is to determine whether there are particular classes of works as to which users are, or are likely to be in the next three years, adversely affected in their ability to make noninfringing uses due to the prohibition on circumventing access controls. When such classes are identified, the Librarian promulgates regulations exempting the classes from the prohibition for the succeeding three-year period.

For this proceeding, the Office is again using a streamlined procedure for the renewal of exemptions that were granted during the seventh triennial rulemaking. If renewed, those current exemptions would remain in force for an additional three-year period (October 2021–October 2024).

The notice of inquiry requests that interested parties submit written petitions for renewal of current exemptions by 11:59 p.m. Eastern Time on July 22, 2020, written comments in response to any petitions for renewal by 11:59 p.m. Eastern Time on September 8, 2020, and written petitions proposing new exemptions by 11:59 p.m. Eastern Time on September 8, 2020.

The Office will be offering a public webinar to discuss the 1201 rulemaking process on June 23, 2020, at 2 p.m. Eastern Time. Registration is required and available here

For more information, please visit https://www.copyright.gov/1201/2021/.

Copyright Office Releases § 512 Report…Finally

After more than five years, the Copyright Office released its long awaited report on Section 512 of Title 17. Better known as the “safe harbor” provision that grants internet service providers with immunity from liability for copyright infringement committed by their users, Section 512 has become one of the most hotly debated provisions of copyright law. It’s also the provision that is arguably the ripest for a legislative fix, and yet the least likely to ever get one for want of consensus among stakeholders.

Enacted in 1998, at the dawn of the commercial internet, Section 512 was intended to create “strong incentives for service providers and copyright owners to cooperate to detect and deal with copyright infringements that take place in the digital network environment. At the same time, it provides greater certainty to service providers concerning their legal exposure for infringement that may occur in the course of their activities.” S. Rep. 105-190, at 20 (1998).

Unfortunately the spirit of cooperation envisioned by Congress has not been realized. Today, service providers use the safe harbor as a shield, turning a blind eye to obvious copyright infringement taking place on their networks, a perspective endorsed by a number of course who have misunderstood (or been willfully blind to) the balance that Congress sought to strike. Copyright owners are left holding the bag, essentially having to police the internet themselves for the rampant infringement that still takes place there today, notwithstanding the dozens of legal sources for copyrighted books, films, television shows, and music.

Thankfully the Copyright Office more or less agreed, writing:

Roughly speaking, many OSPs spoke of section 512 as being a success, enabling them to grow exponentially and serve the public without facing debilitating lawsuits. Rightsholders reported a markedly different perspective, noting grave concerns with the ability of individual creators to meaningfully use the section 512 system to address copyright infringement and the “whack-a-mole” problem of infringing content reappearing after being taken down. Based upon its own analysis of the present effectiveness of section 512, the Office has concluded that Congress’ original intended balance has been tilted askew.

The report, which runs nearly 200 pages, distilling five years of study into twelve recommendations, is available from the Copyright Office’s website. (The full record of the proceeding that led to the report is available here).

You can find more on the history and background of the Digital Millennium Copyright Act in Chapter 4 of my book, The Unrealized Promise of the Next Great Copyright Act.

I’m Teaching Media Law at UNH This Summer

I’ll be teaching a short (6 week; 2 credit) remote course in media law this summer as part of the University of New Hampshire Franklin Pierce School of Law’s Intellectual Property Summer Institute. Affectionately known as “IPSI” by us UNH alums, this year’s all-remote-taught institute marks the return of a longtime summer fixture at UNH that brings students together with professionals and expert academics from around the world for short, focused courses on various aspects of intellectual property law (and related areas). Of course the program used to live, in person, at the school’s Concord campus, but this year it will all be delivered online, and it’s open to law students, recent graduates, and practicing attorneys.

Here’s the official description for my course, Legal Issues in Media and Mass Communication:

This course offers broad exposure to various legal issues confronted by mass media enterprises, ranging from traditional broadcasters and similar internet-based services, to the major internet platforms and the new class of “media enterprises” that they spawned, such as YouTube influencers and TikTok stars. By examining current issues and events, students will navigate areas of law including defamation, rights of publicity and privacy, newsgathering and right of access, advertising, broadcast and internet regulation, intellectual property, and antitrust – to understand how the law’s staple doctrines apply to the business of producing and distributing news, information, and entertainment for mass consumption.

In addition to my media law course, they’re offering courses in a variety of topics. While I confess that I haven’t undertaken a comprehensive review of every law school’s catalog, I have a hunch that for at least several of these, you won’t find them anywhere else:

  • Cannabis & IP 
  • Doing Business in China
  • IP Policy
  • IP & Entrepreneurship
  • Why Venue Matters in IP Litigation
  • Name, Image & Likeness in Sports
  • Patent Licensing
  • Patent Practice & Procedure
  • Trademark Searching
  • Video Gaming & IP

For more information, and to join us this summer at the IP Powerhouse, visit law.unh.edu/ipsi.