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.

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.

Maria Strong Named Acting Register of Copyrights

Following the resignation of Karyn Temple in early December, the Librarian of Congress has announced that Maria Strong, a longtime Copyright Office staffer and expert on international copyright law, will serve as acting Register of Copyrights until a permanent replacement is found.

From the announcement:

Strong has served as Associate Register of Copyrights and Director of Policy and International Affairs since April 23, 2019. In her position, Strong assisted the Register with critical policy functions of the U.S. Copyright Office, including domestic and international policy analyses, legislative support, and trade negotiations. She directed the Office of Policy and International Affairs, representing the Office at meetings of government officials concerned with the international aspects of copyright protection and enforcement and providing regular support to Congress and its committees.

Prior to that position, Strong served as deputy director of policy and international affairs since January 2015. Upon joining the Copyright Office in 2010, she served as senior counsel for policy and international affairs and also served as acting general counsel from April to July 2013. Before joining the Office, Strong spent nineteen years in private practice in Washington, DC, where she represented clients in the media, technology, and entertainment sectors and provided analyses and advocacy on global and domestic issues involving copyright law, enforcement, trade policy, and e-commerce. She began her legal career as a staff attorney at the Federal Communications Commission.

Strong earned her JD from George Washington University Law School, her MA in communications management from the University of Southern California’s Annenberg School of Communications, and her BA in communication studies from UCLA.

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.