The Future of Internet Copyright:
Recent Cases and Congress
Presented by Wade Savoy
Growing Tension
The Congress shall have Power . . . [t]o
promote the Progress of Science and useful
Arts, by securing for ...
Road Map
Set the stage for reform
Congressional hearings
Copyright Act of
1976
DMCA Cartoons SOPA
3
4
The Copyright Act of 1976
DMCA
5
Digital Millennium Copyright Act
Passed 15 years ago
6
DMCA
Digital Locks Safe Harbors
Online Service Providers
Life Before DMCA Safe Harbors
7
Content Owners
@
Tracking down service providers
Being ignored or...
8
The DMCA Compromise
Notice requirements under section 513(c)(3):
Statements of good faith belief that the material is in...
9
DMCA in Context: Google
"How Google Fights Piracy"
In 2012, Google received requests to remove more than 57 million web ...
DMCA in Context: MPAA
“Understanding the Role of Search in Online Piracy”
10
About 80% from Google
11
Viacom v. YouTube (2012)
Do we really, really have to put YouTube on
notice of every single infringement?Q
Yes.
Isn't g...
12
Second Source of Tension: Cartoons
Cartoon Networks v. Cablevision (2008)
Cablevision Warehouse
DVR
DVR
DVR
DVR
Cartoon Networks
Public performance? Copy?
13
Cablevision Warehouse
DVR
DVR
DVR
DVR
14
Cartoon Networks
Mai Systems v. Peak Computer (1993)
Cablevision Warehouse
DVR
DVR
DVR
DVR
15
WNET v. Aereo (2013)
Aereo Warehouse
DVR
DVR
DVR
DVR
WNET v. Aereo (2013)
16
Aereo Warehouse
DVR
DVR
DVR
DVR
Progress?
17
Third Source of Tension: Angry Mob
Stop Online Piracy Act (SOPA)
The Stage for Reform
18
Tensions between tech and content – promote what kind of progress?
Public directly engaged and imp...
19
Hearings
The Courts, Intellectual Property and the Internet Subcommittee
of the House Committee on the Judiciary
“The g...
First Hearing
“A Case Study for Consensus Building:
The Copyright Principles Project”
May 16, 2013
20
Testifying:
Jon Baum...
First Hearing
21
“The goal of the CPP was to explore whether it was possible to reach some
consensus about how current cop...
THE
©OPYRIGHT
PRINCIPLES PROJECT
22
First Hearing
Recommendation #1
Copyright law should
encourage copyright owners
to reg...
THE
©OPYRIGHT
PRINCIPLES PROJECT
23
First Hearing
Recommendation #5
A small claims procedure
should be available for
resol...
THE
©OPYRIGHT
PRINCIPLES PROJECT
24
First Hearing
Recommendation #10
If copyright law is to retain the right
to elect to r...
THE
©OPYRIGHT
PRINCIPLES PROJECT
25
First Hearing
Recommendation #6
Commercial use or
commercial effect should
be given we...
THE
©OPYRIGHT
PRINCIPLES PROJECT
26
First Hearing
Recommendation #7
Copyright owners should
have the exclusive right to
co...
The professors are ready for a major overhaul: “Next great Copyright Act”
Better registration system leveraging new techno...
28
CLE Certification Code:
Rimonlaw1836
Send to info@rimonlaw.com
Please email this code and the state in which you would ...
Second Hearing: Content Owners
“Innovation in America: The Role of Copyrights”
July 25, 2013
29
Source: Getty Images
Sandr...
Fair compensation
Combative, defensive tone
Love-hate relationship with technology
Economic viability of copyright owners ...
Second Hearing: Content Owners
31
Copyright works at its core
But concerned about
Expansion of
fair use Ease of file shari...
Small claims
system
32
Second Hearing: Content Owners
Better, easier
registration system
needed
Third Hearing: Tech Companies
“Innovation in America:
The Role of Technology”
August 1, 2013
33
Testifying:
Danae Ringelma...
Third Hearing: Tech Companies
34
A new attitude about intellectual property:
Innovation (i.e., progress) is not dependent ...
35
Questions?
wade.savoy@rimonlaw.com
504.267.1665 ext. 237
Wade Savoy
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Future of Internet Copyrights: Recent Cases and Congress

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Congress is currently considering whether copyright law needs to be overhauled for the digital era. Despite the explosion in innovation and creativity on the Internet since passage of the DMCA 15 years ago, tensions have been growing between content owners and technology providers, leading to high profile clashes that will impact the future of the Internet, innovation, and creativity. We will review ongoing Congressional hearings and recent cases that set the stage for these policy discussions and future legislation.

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  • Goal is progress, not $.What is progress?Two legitimate, competing ways to achieve progress – ideal for legislative balancing
  • 1909 Act1976 ActChanges since thenMajor shift = copyright shifted from being behind the scenes to part of our daily lives (eg., waking up in morning) – up to individuals being attacked as infringersPositive side and negative side
  • Mention pulling software at Walmart
  • Potential liability for user content (search engines)Complaints of both sides
  • Notice sent to userCounter notificationNo liability to owner or user
  • Future of Internet Copyrights: Recent Cases and Congress

    1. 1. The Future of Internet Copyright: Recent Cases and Congress Presented by Wade Savoy
    2. 2. Growing Tension The Congress shall have Power . . . [t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. U.S. Constitution, Article I, Section 8 2
    3. 3. Road Map Set the stage for reform Congressional hearings Copyright Act of 1976 DMCA Cartoons SOPA 3
    4. 4. 4 The Copyright Act of 1976
    5. 5. DMCA 5 Digital Millennium Copyright Act Passed 15 years ago
    6. 6. 6 DMCA Digital Locks Safe Harbors
    7. 7. Online Service Providers Life Before DMCA Safe Harbors 7 Content Owners @ Tracking down service providers Being ignored or slow responses Reluctance to remove infringing materials Inconsistent responses Not copyright experts Cannot afford to be copyright experts Missing information Liability from users Direct liability? Contributory? Vicarious?
    8. 8. 8 The DMCA Compromise Notice requirements under section 513(c)(3): Statements of good faith belief that the material is infringing, of the accuracy of the notice, and that the person complaining is authorized to act for the owner Signature Identification of the copyrighted work Identification of the infringing material and where it’s located Contact information for the complaining party
    9. 9. 9 DMCA in Context: Google "How Google Fights Piracy" In 2012, Google received requests to remove more than 57 million web pages from its search engine Removal on average in less than six hours
    10. 10. DMCA in Context: MPAA “Understanding the Role of Search in Online Piracy” 10 About 80% from Google
    11. 11. 11 Viacom v. YouTube (2012) Do we really, really have to put YouTube on notice of every single infringement?Q Yes. Isn't general knowledge of all that infringement we all know is there enough? Nope. But why? The magic dance we call the DMCA. Q Q A A A
    12. 12. 12 Second Source of Tension: Cartoons Cartoon Networks v. Cablevision (2008) Cablevision Warehouse DVR DVR DVR DVR
    13. 13. Cartoon Networks Public performance? Copy? 13 Cablevision Warehouse DVR DVR DVR DVR
    14. 14. 14 Cartoon Networks Mai Systems v. Peak Computer (1993) Cablevision Warehouse DVR DVR DVR DVR
    15. 15. 15 WNET v. Aereo (2013) Aereo Warehouse DVR DVR DVR DVR
    16. 16. WNET v. Aereo (2013) 16 Aereo Warehouse DVR DVR DVR DVR Progress?
    17. 17. 17 Third Source of Tension: Angry Mob Stop Online Piracy Act (SOPA)
    18. 18. The Stage for Reform 18 Tensions between tech and content – promote what kind of progress? Public directly engaged and implicated in copyright Decline in public perception coupled with social media
    19. 19. 19 Hearings The Courts, Intellectual Property and the Internet Subcommittee of the House Committee on the Judiciary “The goal of this hearing . . . will be to determine whether the copyright laws are still working in the digital age to reward creativity and innovation. ” -- Chairman Goodlatte Image courtesy of politico.com
    20. 20. First Hearing “A Case Study for Consensus Building: The Copyright Principles Project” May 16, 2013 20 Testifying: Jon Baumgarten Former General Counsel Copyright Office (1976-1979) Prof. Laura Gasaway University of North Carolina School of Law Prof. Daniel J. Gervais Vanderbilt University School of Law Prof. Pamela Samuelson University of California Berkley School of Law Jule Sigall Assistant General Counsel for Copyright, Microsoft
    21. 21. First Hearing 21 “The goal of the CPP was to explore whether it was possible to reach some consensus about how current copyright law could be improved and how the law’s current problems could be mitigated.” Report issued in 2010 Twenty five recommendations THE ©OPYRIGHT PRINCIPLES PROJECT
    22. 22. THE ©OPYRIGHT PRINCIPLES PROJECT 22 First Hearing Recommendation #1 Copyright law should encourage copyright owners to register their works so that better information will be available as to who claims copyright ownership in which works. Recommendation #2 The Copyright Office should transition away from being the sole registry for copyrighted works and toward certifying the operation of registries operated by third parties, both public and private.
    23. 23. THE ©OPYRIGHT PRINCIPLES PROJECT 23 First Hearing Recommendation #5 A small claims procedure should be available for resolving small-scale copyright disputes. Recommendation #21 Congress should limit remedies as to those who reuse in-copyright works whose rights holders cannot be found after a reasonably diligent search. (Orphaned works.)
    24. 24. THE ©OPYRIGHT PRINCIPLES PROJECT 24 First Hearing Recommendation #10 If copyright law is to retain the right to elect to recover statutory damages in lieu of actual damages, guidelines for awarding statutory damages in a consistent, reasonable, and just manner should be developed. Recommendation #11 To give courts discretion to award up to three times the amount of actual damages and infringer profits in exceptional cases as long as the copyright owner registered the infringed work(s) before the infringement commenced. (Treble damages.)
    25. 25. THE ©OPYRIGHT PRINCIPLES PROJECT 25 First Hearing Recommendation #6 Commercial use or commercial effect should be given weight in assessing whether an exclusive right has been infringed. Recommendation #18 Personal uses of copyrighted works should be privileged to some degree.
    26. 26. THE ©OPYRIGHT PRINCIPLES PROJECT 26 First Hearing Recommendation #7 Copyright owners should have the exclusive right to control communications of their protected works to the public, whether by transmission or otherwise.
    27. 27. The professors are ready for a major overhaul: “Next great Copyright Act” Better registration system leveraging new technology Focus on maximizing authorized uses rather than minimizing unauthorized uses Orphaned work Statutory damages Safe harbors for consumers making ordinary uses of legitimately purchased works Microsoft: DMCA is the right approach First Hearing 27
    28. 28. 28 CLE Certification Code: Rimonlaw1836 Send to info@rimonlaw.com Please email this code and the state in which you would like CLE credit to info@rimonlaw.com. If you are seeking CLE credit in Louisiana, please also include your bar number and the date and time you viewed this presentation in your email.
    29. 29. Second Hearing: Content Owners “Innovation in America: The Role of Copyrights” July 25, 2013 29 Source: Getty Images Sandra Aistars Executive Director, Copyright Alliance Eugene Mopsik Executive Director, American Society of Media Photographers Tom Hansen Co-Founder, Yep Roc Records/ Red Eye Distribution John Lapham General Counsel, Getty Images William Sherak President, Stereo D Testifying:
    30. 30. Fair compensation Combative, defensive tone Love-hate relationship with technology Economic viability of copyright owners drives innovation 30 Second Hearing: Content Owners
    31. 31. Second Hearing: Content Owners 31 Copyright works at its core But concerned about Expansion of fair use Ease of file sharing Stronger statutory damages provisions Cutting off ad and credit card revenue to infringing sites Search engines 1 2 3 4 5
    32. 32. Small claims system 32 Second Hearing: Content Owners Better, easier registration system needed
    33. 33. Third Hearing: Tech Companies “Innovation in America: The Role of Technology” August 1, 2013 33 Testifying: Danae Ringelmann Founder & Chief Customer Officer, Indiegogo Jim Fruchterman President and CEO, Benetech Nathan Seidle CEO, SparkFun Electronics, Inc. Van Lindberg PV Intellectual Property, Rackspace Rakesh Agrawal Founder & CEO, SnapStream Media
    34. 34. Third Hearing: Tech Companies 34 A new attitude about intellectual property: Innovation (i.e., progress) is not dependent on intellectual property. Make money by innovating and iterating. Don’t enforce, compete. Intellectual property is not the only option. One business model should not be baked into the Copyright Act. Law should not focus just on traditional creators. Scrap copyright law altogether?
    35. 35. 35 Questions? wade.savoy@rimonlaw.com 504.267.1665 ext. 237 Wade Savoy

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