Sen. Tillis Promises DMCA Review

In an opinion piece published by The Hill on December 17, Senator Thom Tillis (R-N.C.), chairman of the Senate Judiciary Subcommittee on Intellectual Property, announced that he plans “to launch a major new initiative … to explore ways we can better promote the creative economy in the 21st century.” That initiative, comprising “a series of hearings … to evaluate both the policy baseline created by the DMCA and the current practices and and operations of both platforms and creators…” is intended to “re-forge the consensus that originally powered the DMCA and craft new legislation to modernize the DMCA for today’s internet.”

It’s a noble goal to be sure, but as I wrote in Chapter 6 of The Unrealized Promise, what to do with the DMCA — specifically the safe harbor provisions found in Section 512 of Title 17 — is among the most divisive issues in copyright policy discussions and, at least as of the House Judiciary Committee’s copyright review, one that stakeholders on either side had little interest in doing anything other than bemoan the fact that the other side “doesn’t get it” (I paraphrase slightly).

But as I also discuss in the book (in Chapter 11), there have been significant changes to the copyright policy landscape since the House undertook its review. Perhaps now — or more specifically, next year, when Sen. Tillis promises his hearings — is an appropriate time to re-visit the conversation. That said, I’m doubtful much has changed on this particular issue given how polarizing it’s been, dating back as long as the statute itself.

As an aside, Sen. Tillis mentioned that he’s looking forward to reading the forthcoming Copyright Office study on Section 512, but I hope he’s not holding his breath. That study has now been pending for four years, and given the recent news that Register of Copyrights Karyn Temple is leaving at the end of the year, it’s unlikely that the Office will be in a position to finalize a report on something as controversial as the DMCA anytime soon.

Register of Copyrights Announces Resignation

Chapter 10, “Regime Changes” delves into the unfortunate, untimely, and unseemly removal of Maria Pallante from the Register of Copyrights post in late 2016. The then Associate Register for Policy and International Affairs, Karyn Temple was announced as interim register shortly thereafter. Temple was eventually appointed permanently to the post on March 27, 2019.

It didn’t last long.

After less than a year of being in the role, on December 9, 2019, Temple announced that she would leave the Copyright office on January 3, 2020 to join the Motion Picture Association as its general counsel.

No word yet on who will take over the Register post, though word is that Congress is pushing Librarian of Congress Dr. Carla Hayden, to fill it promptly.

Update: On December 18, 2019, Dr. Hayden appointed longtime Copyright Office staffer Maria Strong as acting Register of Copyrights. Strong was most recently the head of the Office’s department of policy and international affairs, and before that served as deputy director and senior counsel in the same department. From April to July 2013 she served as acting general counsel. She joined the Copyright Office in 2010.

Copyright Office Inquiry on Definition of “Publication”

In Chapter 6 I lay out several of the major challenges confronting photographers and other visual artists. Among them is the outdated and outmoded definition of “publication” set forth in Section 101 of the Copyright Act. That definition says, on the one hand, that “offering to distribute copies . . . to a group of persons for purposes of further distribution, public performance, or public display, constitutes a publication.” But goes on to say that a mere “public performance or display of a work does not of itself constitute publication.”

The definition was relatively easy to apply in the pre-internet era, where it was fairly obvious what was “published,” but as distribution technology has evolved, the Copyright Act has remained static, calling into question whether works posted online are “published” as contemplated by the Act. Because the requirements for copyright registration differ based on the publication status, and because registration is required before a copyright owner can enforce his or her rights in court, the distinction is critical.

On December 4 the Copyright Office announced it has launched an inquiry into the issue, with the intent of ultimately providing some guidance on “interpreting the statutory definition of publication and the role that publication should play in copyright law and the registration process.”

Comments are due by 11:59 p.m. on February 3, 2020. You can learn more about the inquiry on the Copyright Office’s website.

Former Congressman John Conyers, Jr. Dies at Age 90

Former Congressman John Conyers, Jr. (D-Michigan) passed away today, October 27, 2019. He was 90. According to The Washington Post, Conyers, one of the longest-serving members of Congress and the longest-serving African American member of Congress, died from natural causes.

Although Conyers is most frequently associated with civil rights issues and as one of the founding members of the Congressional Black Caucus, he was also an ardent supporter of copyright and the rights of creatives. In his capacity as ranking member of the House Judiciary Committee, a position Conyers held from 2001 to 2017 (and had held previously from 1995 to 2007), he worked closely with chairman Bob Goodlatte to spearhead the copyright review, which would become the most comprehensive examination of U.S. copyright law since the passage of the Copyright Act of 1976.

Conyers also served as chairman of the House Judiciary Committee from 2007 to 2011, and chairman of the House Oversight Committee from 1989 to 1995. He left Congress in late 2017 following allegations of sexual harassment.

He is survived by his wife and two sons.

To date, the copyright review that he helped start has produced one successful piece of legislation, the Music Modernization Act (see Chapter 7 of The Unrealized Promise of the Next Great Copyright Act), and one other bill, the Copyright Alternative in Small-Claims Enforcement (CASE) Act just passed the House and is awaiting a floor vote in the senate.

CASE Act Passes House

As I wrote back in June, the Copyright Alternative in Small-Claims Enforcement (CASE) Act, which had been introduced in the 115th Congress, was reintroduced on May 1st of this year as H.R. 4246. On October 22, it passed the House on a vote of 410-6. It now goes on to the Senate, where companion bill S. 1273 awaits a floor vote (it was reported out of the Judiciary Committee on September 12, 2019).

Discussed more fully in Chapter 6 of The Unrealized Promise of the Next Great Copyright Act, the CASE Act calls for the establishment of a tribunal within the Copyright Office to adjudicate relatively minor copyright infringement claims. The procedure is intended to provide alternative path to adjudication for small, independent creative professionals who typically do not have the resources to bring full-fledged federal infringement litigation. Damages would be capped at $15,000 per claim (and $30,000 per total). The streamlined adjudicatory process would be entirely voluntary — plaintiffs would remain free to file infringement actions in feral district court, just as they do now, and defendants may opt out, effectively requiring the plaintiff to bring the action in federal district court.

Copyright Office Designates MLC and DLC

On July 5, 2019 the U.S. Copyright Office announced that pursuant to its authority under the Orrin G. Hatch-Bob Goodlatte Music Modernization Act, it has appointed the aptly named Mechanical Licensing Collective, Inc., to serve as the designated mechanical licensing collective (MLC) and Digital Licensee Coordinator, Inc., to serve as the digital license coordinator.

As one might expect, the Mechanical Licensing Collective, Inc. board comprises representatives from the music publishing and songwriting community, while the board of Digital Licensee Coordinator, Inc. is composed of representatives from the titans of digital music distribution: Amazon, Apple, Google, Sirius XM, and Spotify.

More information can be found on the Copyright Office’s website detailing the announcement.

Copyright Office Oversight Hearing

On June 26, Karyn Temple, the Register of Copyrights and Director of the U.S. Copyright Office, appeared before the House Judiciary Committee as the sole witness in a hearing on Oversight of the U.S. Copyright Office.

Oversight hearings are fairly routine in Washington, but this one was notable because it was the first time that Register Temple has appeared before the Committee since her permanent appointment to the Register post back in March, giving her an opportunity to present her vision for the future of the Office and her policy priorities.

Not surprisingly, much of the discussion centered around the modernization of the Office’s IT systems, and the Library’s meddling in the Office’s IT affairs. As described throughout The Unrealized Promise, the relationship between the Library’s IT department and the Copyright Office has been fraught (to put it mildly), but Register Temple appeared confident that the Library’s CIO would adhere to the statutory mandate to use funding allocated specifically for the Copyright Office for Office-specific IT enhancements.

Other topics of discussion included the recently re-introduced CASE Act, which would provide copyright owners with an alternative to full-blown federal court litigation for infringements of relatively small value; and the upcoming expiration of the section 119 license for satellite retransmissions which, as readers of The Unrealized Promise‘s chapter 8 know, has traditionally been extended at the last minute. The Copyright Office has long supported the phasing out of the various statutory licenses for broadcast retransmissions, and Register Temple reiterated that view on Wednesday.

You can watch the testimony in full below and review the hearing record on the House Judiciary Committee’s website. More of Register Temple’s vision can be found in the Office’s 2019-2023 strategic plan.

Court Ruling in 1201 Challenge

In Chapter 5, I briefly discuss a case brought by the Electronic Frontier Foundation challenging the constitutionality of the anticircumvention provisions of the Digital Millennium Copyright Act (better known as “Section 1201”). At the time the book was written, the plaintiffs’ motion for a preliminary injunction and the defendants’ motion to dismiss were pending.

On June 27, 2019, the court granted in part and denied in part the defendants’ motion to dismiss, leaving intact only an as-applied challenge on grounds that the government failed to establish that the anti-circumvention and anti-trafficking provisions  do not burden more speech than necessary to achieve their intended ends. The court did not rule on the motion for preliminary injunction. The full opinion is below.

The case is Green, et al. v. U.S. Department of Justice, et al., Civil No. 16-01492, pending before the U.S. District Court for the District of Columbia.



CASE Act of 2019 Introduced

In Chapter 6 of The Unrealized Promise of the Next Great Copyright Act, I discuss the Copyright Alternative in Small-Claims Enforcement Act which was introduced in the 115th Congress but did not make it through the legislative process before the end of the term. Intended to alleviate the burden on small, independent creative professionals who often do not have the resources to bring full-blown traditional federal litigation, the bill would have established a tribunal within the Copyright Office to adjudicate certain infringement claims of relatively low value. Participation would be voluntary, though the timing and mechanism by which a defendant would opt in (or opt out) of the procedure was a matter of some consternation among stakeholders.

The measure has been re-introduced in the 116th Congress in both houses: H.R. 2426 in the House and S. 1273 in the Senate. As with last term, the bill enjoys broad support, especially from the visual arts industry.