Revolving Door Revolves Some More: Head Of Copyright Office Leaves To Join MPAA

from the hollywood's-hooks dept

For many years we've been covering the rather disturbing revolving door between the US Copyright Office and Hollywood. This includes a bunch of copyright maximalists going back and forth between entertainment industry lobbying organizations and government positions. It seems to happen over and over and over again. Indeed, the former head of the Copyright Office, Maria Pallante, now leads the Association of American Publishers, where she's been advocating for ever more ridiculous copyright laws.

And, now we find out that the current head of the Copyright Office, Karyn Temple, a former RIAA VP, who only just became the official Copyright Register (after a few years of being the "interim" Copyright Register after Pallante was fired), has jumped ship to the MPAA. Because of course.

Karyn A. Temple, one of the world’s leading authorities on copyright, has been named Senior Executive Vice President and Global General Counsel at the Motion Picture Association, Chairman and CEO Charles Rivkin announced today.

Temple will join the association in January after serving more than eight years in the U.S. Copyright Office, most recently as the Register of Copyrights, where she fulfilled her statutory authority to administer U.S. copyright law and advise members of the U.S. Congress, federal courts, and executive branch agencies on issues of copyright law and policy.

This is all perfectly legal, but given some of the many questions people have raised over the years about why the Copyright Office frequently appears to be more an arm of Hollywood, rather than the American public (as is supposed to be the case), this move should raise a few more eyebrows. It won't, of course. This is just how things are done.

But even Hollywood folks should be concerned about this. For all the laughable claims it makes about how we need more "respect" for copyright, the one doing the most to undermine that respect is Hollywood itself, with such a blatant display of "soft corruption." No one actually believes the Copyright Office has any of the public's interests in mind, when the head of the office is simultaneously lining up her next job directly with Hollywood's biggest lobbyist.

No one respects copyright because Hollywood has made sure it deserves no respect.

Oh, and I guess it deserves mention that the reason the MPAA needed a General Counsel is because the last one got arrested on charges of blackmail and sexual assault.

Filed Under: copyright, copyright office, karyn temple, lobbying, public interest, revolving door
Companies: riaa

House Overwhelmingly Votes To Empower Copyright Trolls And To Bankrupt Americans For Sharing Photos

from the sad dept

Perhaps not a surprise, but Congress did what Congress does and voted overwhelmingly to approve the CASE Act, which is better described as the "we need more copyright trolling" act, and which is very likely unconstitutional. Only 6 Reps voted against the bill, with 410 voting for it (15 didn't vote -- including, Doug Collins who infamously laughed that anyone might be inconvenienced by a "small" $30,000 fine). I will say kudos to the six reps who voted against it: Amash, Davidson, Gianforte, Kelly, Massie, and Norman. Frankly, the most surprising "yes" vote here was Rep. Lofgren, who historically has been great on copyright (and other issues). I'm surprised to see her on the wrong side of this bill and helping to enable trolling like this.

Rep. Hakeen Jeffries, who was the sponsor of the bill -- and who (coincidentally, I'm sure) offered lobbyists the chance to join him at the recording industry's biggest party for just a $5,000 contribution -- made a bunch of utter nonsense statements in support of the bill:

“There is no gun that is being held to anyone’s head, because the small claims court like tribunal is voluntary in nature,” Jeffries told The Verge. “Any argument made to the contrary, represents a deliberate attempt to misrepresent what’s at stake as part of the effort to do away with the content copyright laws that have been part of the fabric of our democracy since the founding of the Republic and in fact the Constitution.”

“The internet doesn’t change the Constitution,” Jeffries continued.

Sure. The internet doesn't change the Constitution. But Congress sure has gone a looooooooong way in changing copyright law, away from its Constitutional roots, to the point that it is almost unrecognizable. Let's remember that the Constitution only provides for copyright law if it is used to "promote the progress of science," which at the time it was written meant "learning and education." What about the CASE Act promotes education? Can Jeffries answer that?

Also, the Constitution promised us that copyright should only be for "limited times." Yet, Congress has extended copyright over and over and over again such that no one can honestly claim that it matches up with the initial understanding under the Constitution.

So, sure, if you're going to cite the Constitution as the reason for your new copyright law, I'm going to point out that, as originally interpreted in the very first Copyright Act, it was believed that the Constitution only provided for 14 years of protection for "maps, books, and charts." What we have today is kinda different, don't you think? Congress has made a mockery of the Constitutional concept of copyright. Rather than 14 years, it's "life plus another 70 years." Instead of "maps, books, and charts" it's literally every newly created work. Instead of only applying to things that are registered, it now applies to everything. Instead of applying almost entirely to commercial operations, it applies to everyday sharing. If you're going to cite the constitution for favoring a massive expansion of copyright trolling, you might want to at least acknowledge how unlike the original concept of copyright the law has become today. Or did the lobbyists paying $5,000 a pop to party with you at the Grammies forget to tell you that part?

The bill still needs to go to the Senate, but given the overwhelming vote in the House, it's not encouraging. The only bright side is that we'll have plenty of new stories to cover as this law gets widely abused by trolls.

Filed Under: case act, congress, copyright, copyright office, copyright trolling, hakeem jeffries, hosue, jerry nadler, small claims

Three Years Later And The Copyright Office Still Can't Build A Functioning Website For DMCA Agents, But Demands Everyone Re-Register

from the and-pay-up dept

In early 2016, we wrote about an absolutely ridiculous plan by the Copyright Office to -- without any basis in the law -- strip every site of its registered DMCA agent. In case you're not aware, one of the conditions to get the DMCA's Section 512 safe harbors as a platform for user content, is that you need to have a "Designated Agent." As per 512(c)(2), it says:

Designated agent.—The limitations on liability established in this subsection apply to a service provider only if the service provider has designated an agent to receive notifications of claimed infringement described in paragraph (3), by making available through its service, including on its website in a location accessible to the public, and by providing to the Copyright Office, substantially the following information:

(A) the name, address, phone number, and electronic mail address of the agent.

(B) other contact information which the Register of Copyrights may deem appropriate.

The Register of Copyrights shall maintain a current directory of agents available to the public for inspection, including through the Internet, and may require payment of a fee by service providers to cover the costs of maintaining the directory.

Note that this says that Register of Copyrights shall maintain such a list. However, the Copyright Office, decided back around 2016 that there were too many "old" registrations in the database, and decided to literally dump every single registration, despite the law not allowing it to do so. It then instituted a new plan that said -- again, without any legal basis -- that every site not only needed to register, but it would need to re-register every three years or it would lose the safe harbor protections, which could expose sites to massive liability.

In late 2016, this plan went into effect, and I detailed the incredibly bad computer system that the Office had put in place to handle such registrations, starting with the fact that the password requirements literally violate the federal government's own rules for passwords. Back in 2016, NIST told government agencies, among other things, to stop requiring random characters, upper and lower case, etc. and to stop expiring passwords with no reason.

Verifiers SHOULD NOT impose other composition rules (e.g., requiring mixtures of different character types or prohibiting consecutively repeated characters) for memorized secrets. Verifiers SHOULD NOT require memorized secrets to be changed arbitrarily (e.g., periodically). However, verifiers SHALL force a change if there is evidence of compromise of the authenticator.

So we were, well, not surprised back in 2016, that the Copyright Office's system ignored that rule not to include composition rules, and highlighted how they stupidly said:

Passwords must have at least 12 characters, with at least one lower case letter, upper case letter, number, and special character "!@#$%^&*()", and must not have any repeated letters, numbers, or special characters.

Not only did this violate NIST's guidelines, but it actually makes passwords significantly less secure by reducing the randomness of passwords, making them less secure.

Anyway, three years have almost passed, and as per the new rules, the Copyright Office is about to kick everyone off again. For no good reason at all. Even better, they sent an email over the Labor Day weekend to alert people that they're at risk of losing their registrations if they don't re-register -- because it's not like people miss random, poorly formatted emails that literally come from "donotreply@loc.gov" when going through emails coming back from a long weekend. Thankfully, I also saw Eric Goldman's blog post about this, though I'm guessing not everyone who owns a website that needs 512 safe harbors protection reads his blog (unfortunately).

Incredibly, it looks like the Copyright Office has done literally nothing to fix the problems of the system. Indeed, it turns out that things are even worse than before. Not only does the system still require "composition rules" that violate NIST's guidelines, it also expired everyone's passwords (which also violates the guidelines).

It actually proved significantly more difficult than expected to create a new password. Like everyone in the world should, I use a password manager to generate and store my passwords. But because of the Copyright Office's dumb rules, none of the passwords my password manager generated would work. I kept getting error message after error message, just telling me the same dumb, pointless, rules over and over again:

Even though it's literally bad practice to make your own passwords, I even tried to "edit" some of the auto-generated passwords to meet the rules, but it still didn't work, though I'm not sure why. One thing I discovered, while it says you have to use "special character" the list shown in that image is the entire set of allowed special characters. So, passwords using other special characters don't work, even though the Copyright Office's system doesn't bother to explain why it rejected your password. But special characters like "\>{]" and such don't work, even though there's no reason why they shouldn't, and most password generators will (smartly!) include them. Oh yeah, also this one stymied me for a really long time. The " mark is not allowed in a password, even though it sorta looks like it's included in that list. But it's not. It's just a pointless set of "quote marks" around the allowed symbols. This is not an intuitive system. It is not user friendly. It's is dumb, insecure, and violates NIST's rules -- as it did three years ago when I complained about it.

Then you log in... and the information given to you is sorely lacking. First, at the very top, you get a message saying that the entire website may be offline for three whole days... a month ago. What? What the hell are they doing that they need to take a site offline for three whole days? And if they had to do system upgrades for that long, how the hell have they not made anything actually work right? And, most importantly, if that shutdown happened a month ago, why are they still showing the damn warning message?

From there, you are shown a weird chart with a lot of useless information -- but it is not at all clear how you re-register. There is no indication that you need to re-register. There is just your "service provider name," "registration number," "status," "last updated" and the ever useless "Action" box.

It turns out, to re-register, you have to click that little pencil, which the tooltip tells me is to "Edit." But I'm not "editing" anything. I just want to renew so I still am protected by the DMCA's safe harbors. It then makes me review everything multiple times, before telling me I need to pay $6, and sending me to a sketchy looking payment site (which I get is not run by the Copyright Office itself, but still).

I was almost afraid to give it my credit card.

Either way, eventually it "worked," but in the most fucked up of ways. The website itself is then not exactly clear if this renewal adds on to my existing -- meaning do I get three more years from the date of my original three year registration in 2016 (which would be December 1), or if it simply starts the clock anew, as of the date I paid. It sure looks like they just started a new three year clock yesterday -- meaning they cheated me out of 3 months of coverage because I dared to renew promptly. So by being good and renewing in their stupid system nearly 3 months before I need to, they just chop off 3 months of the "service" they're providing me? How the fuck is that allowed? If you look at my original listing -- even though I'd paid up for 3 full years, they now show it as "inactive" and list the new one as "active."

And that's kinda fucked up. The current listing says "Active" for "September 3, 2019 to Present" which almost certainly means this one will expire September 3, 2022, even though it should go until December 1, 2022.

All of this is a complete mess. It's entirely unnecessary, and as Eric Goldman notes in his piece, when the Copyright Office rolled this out it "promised a smooth renewal process." This was anything but smooth -- and it's likely that plenty of sites may miss the fact that they have to do this, or get caught up in trying to get the damn system to work. While, thankfully, this hasn't impacted any sites directly that I'm aware of, it's only a matter of time until a site that thought it had a successful DMCA agent finds out it no longer does because the Copyright Office decided to change the entire process, and apparently can't build a freaking website that works or is even up to basic federal website standards.

And, sure, $6 is cheap, but it's still pretty messed up that the Copyright Office simply lopped off three months of service they owed me because their own system is too poorly implemented to know to add on another three years at the end of my existing "subscription." It seems like something that shouldn't happen -- and one hopes that someone at the Copyright Office or the Library of Congress figures their shit out before September of 2022. But I have my doubts.

Filed Under: copyright, copyright office, dmca, dmca agent, library of congress

DOJ/Copyright Office File An Amicus Brief In Support Of Led Zeppellin

from the copyright-is-turning-upside-down dept

As announced by the Copyright Office's General Counsel, the DOJ and the Copyright Office have now filed an amicus brief in the 9th Circuit in support of Led Zeppelin in its never ending legal dispute with the estate of Randy Wolfe (aka Randy California) over whether or not Led Zeppelin infringed on the copyright of the Spirit song "Taurus" with their classic "Stairway to Heaven." We've discussed this case at length over the years. If you were to just listen to the recordings of Taurus and Stairway to Heaven, you can definitely hear some similarities. Yet, as we noted, you can hear the same similarities in J.S. Bach's Bourree in E Minor, which I believe predates both of those other songs. This video also shows a bunch of other songs (most predating Taurus) that have the same basic melody.

There were a lot of issues in the case, including the unfortunate fact that the original court did make some mistakes, even if the overall outcome -- that Led Zeppelin didn't infringe on the Taurus composition -- seemed like the appropriate outcome. The 9th Circuit in reopening the case, has a chance to fix the problems of the original. But it also has the chance to muck things up.

The case is so strange that even the RIAA and the NMPA stepped in to warn against overprotection by copyright. Let me repeat that. The RIAA argued to a court that you could go too far in protecting copyright. Really.

And here, the Copyright Office and the DOJ are on the right side again. The government's brief is focused on the more narrow issue of what the copyright at issue here actually covers. As we've discussed, for musical works prior to 1973, you could only get a copyright in the "composition" and not the recording. One of the arguments in this case is that Randy Wolfe's estate argued that the copyright of Taurus, registered in 1968, somehow did encompass the recording (and that said recording should be played at the trial), as opposed to just showing the sheet music of the composition that had been deposited with the Copyright Office. As we discussed in earlier posts, this is crazy, as the composition copyright and the recording copyright are two separate things, and there was no sound recording copyright in 1968... so you don't just get to pretend that the composition copyright magically covers the sound recording.

Even more to the point: playing the recording can be completely misleading, because it would include non-copyright covered material, but a jury would be unlikely to be able to parse out which parts are covered by copyright and which were not.

And -- perhaps surprisingly -- the Copyright Office and the DOJ agree. In fact, they note that the various performance elements are not covered by copyright, and when you remove them, what's left is fairly basic and not covered by copyright either:

The copyright at issue here was obtained, as the Copyright Act then required, by depositing a “complete copy” of the work with the Copyright Office. The copyright that was created by that deposit extends only to the work that was deposited with the Copyright Office. While there may be other, related works in which the author or his successors may hold or have held rights, the federal copyright at issue here extends only to the work that was deposited. The district court and the panel thus properly concluded that “performance elements,” which might have been present when the song was performed or recorded but were not reflected in the deposited sheet music, are not protected by the copyright registered with the Copyright Office.

Once those performance elements are removed, the only similarity between the original work and the allegedly infringing work is the selection and arrangement of two basic musical elements: an A-minor chord and a descending chromatic scale. Those elements may not themselves be copyrighted. The selection and arrangement of a small number of standard elements such as these is entitled, at most, to a “thin” copyright that protects only against virtually identical copying. Because the works at issue here are not virtually identical, the district court’s judgment should be affirmed.

The brief here is quite readable, and more or less mocks the arguments of the plaintiff for not recognizing that the same song can have a variety of different copyrights:

Plaintiff’s suggestion that the copyrighted work is something other than the work deposited with the Copyright Office appears to be largely premised on the mistaken view that there cannot be multiple, distinct copyrightable works that are all versions of the same song. The statute expressly contemplates that there can be.

It is not often that I find myself on the same side of a case with the RIAA, Copyright Office and the DOJ. Especially regarding a copyright case. But here we are.

There is still time for the 9th Circuit to mess things up even worse, though. They're good at that when it comes to copyright. Also, no one tell Donald Trump that his DOJ just supported a UK band over an American one.

Filed Under: amicus brief, composition, copyright, copyright office, doj, led zeppelin, spirit, stairway to heaven, taurus

Copyright Office Weighs In After Wannabe Satoshi Craig Wright Registers Copyright On Original Bitcoin Paper

from the it-never-ends dept

I was tempted to start this post with just a series of head-smashing-into-desk emojis, but I thought that might come off as a bit weird. Remember Craig Wright? He's the somewhat controversial guy who has claimed to have really been Satoshi Nakamoto, the creator of Bitcoin. Suffice it to say, there are a lot of people who do not believe Craig Wright, and have highlighted how Wright has failed to provide any of the fairly straightforward methods the original Satoshi could use to prove who he was, and instead used complicated methods that suggest gamesmanship, rather than actual proof.

As we've highlighted in our posts, Wright seems most focused on patenting everything he can with regards to Bitcoin and cryptocurrency -- which, at the very least, seems to go against the open, sharing nature that was a key part of the early cryptocurrency community that Satoshi Nakamoto supported.

And now comes the somewhat hilarious report that Wright has tried to register the copyright on the original Bitcoin whitepaper that Satoshi Nakamoto published. This is basically a troll move. Registering the copyright is meaningless. The Copyright Office does not review carefully if you are the actual creator. It's mostly a rubber stamp process -- and it's rarely an issue because in most cases if someone tried to fraudulently register someone else's copyright, that would come out pretty quickly and it would not take long to sort out what's real. But in this case, when you have an anonymous secret author, it gets a little more complicated.

As CoinCenter's Jerry Brito notes this is sort of a bug of the system, but he also notes that someone else could also register the copyright and see if Wright would actually sue over it (in which case, he'd have to establish to a court that he actually held the copyright):

The situation is getting so much attention, that even the Copyright Office has decided to weigh in, highlighting (as we note above) that it doesn't have any methodology for reviewing these registrations, or for anyone to contest them, and that any such situation would have to happen in federal court (most likely if anyone tried to enforce the copyright).

As a general rule, when the Copyright Office receives an application for registration, the claimant certifies as to the truth of the statements made in the submitted materials. The Copyright Office does not investigate the truth of any statement made.

A registration represents a claim to an interest in a work protected by copyright law, not a determination of the truth of the claims therein. It is possible for multiple, adverse claims to be registered at the Copyright Office. The Copyright Office does not have an opposition procedure for copyright registrations, such as the procedures available at the Patent and Trademark Office for patents and trademark registrations. Disputes over the claims in a registration may be heard before federal courts, including disputes over authorship of a work. Someone who intentionally includes false information in an application may be subject to penalties.

The Copyright Office also points out that it merely asks the applicant to state that they are the author of a pseudonymous piece of content.

In a case in which a work is registered under a pseudonym, the Copyright Office does not investigate whether there is a provable connection between the claimant and the pseudonymous author.

In the case of the two registrations issued to Mr. Wright, during the examination process, the Office took note of the well-known pseudonym “Satoshi Nakamoto,” and asked the applicant to confirm that Craig Steven Wright was the author and claimant of the works being registered. Mr. Wright made that confirmation. This correspondence is part of the public registration record.

So, this probably doesn't matter, because if Wright actually wants to enforce the copyright, then he'd have to go to court and prove that he was the legitimate holder of the copyright (and the registration by itself won't cut it). But, as a purely dickish way to try to game the system to pretend you have proof of being "Satoshi Nakamoto," it seems to fit in with a pattern of past behavior by Wright. Though not by Nakamoto. Still, it will be interesting to see if this copyright ever ends up in court.

For those of you who have been desperate for a crazy copyright case since the end of the monkey selfie case, I would nominate this potential lawsuit as a worthy followup.

Filed Under: bitcoin, copyright, copyright office, copyright registration, craig wright, satoshi nakamoto, whitepaper

Supreme Court Says Of Course You Need To Register Your Copyright Before You Can Sue; Copyright Trolls & Hollywood Freak Out

from the oh,-poor-souls dept

17 USC 411(a) (part of US Copyright law) states the following:

...no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.

This is pretty clear. It also becomes important in a surprising number of situations and cases, including quite a few we've discussed just recently, such as the various copyright lawsuits over dances in Fortnite, where it appears that none of the "dances" were actually registered with the Copyright Office. Copyright trolls, also, are somewhat notorious for threatening lawsuits over works without any copyright registration at all.

So it's a bit bizarre that the Supreme Court even needed to weigh in on this, but there was a bit of technical confusion between a bunch of circuits as to whether or not you could sue as soon as you submitted a registration application, or if you had to wait until the Copyright Office issues the actual certificate of registration. While getting a registered copyright is mostly (though not entirely) a rubber stamp process by the Copyright Office, it still takes about six to seven months right now, though the Copyright Office has been upgrading its technology (after some earlier hiccups under the previous regime), and insists that before long the timing will be one of weeks, rather than months.

In a unanimous ruling, surprisingly written by Justice Ginsburg, the court ruled that the law is pretty clear and you have to wait until registration is complete and the certificate has been issued by the Copyright Office. It comes down to the Justices just reading what the law actually says and saying "um, that's pretty clear." Indeed, the ruling basically says the wording of the law wouldn't make any sense if it meant you just had to submit the application to be able to sue:

If application alone sufficed to “ma[ke]” registration, §411(a)’s second sentence—allowing suit upon refusal of registration—would be superfluous. What utility would that allowance have if a copyright claimant could sue for infringement immediately after applying for registration without awaiting the Register’s decision on her application? Proponents of the application approach urge that §411(a)’s second sentence serves merely to require a copyright claimant to serve “notice [of an infringement suit] . . . on the Register.” See Brief for Petitioner 29–32. This reading, however, requires the implausible assumption that Congress gave “registration” different meanings in consecutive, related sentences within a single statutory provision. In §411(a)’s first sentence, “registration” would mean the claimant’s act of filing an application, while in the section’s second sentence, “registration” would entail the Register’s review of an application. We resist this improbable construction.

As for the claims that by requiring a copyright holder to wait infringement can go on for a while, the Court points out that the law still lets them go after all that past infringement after getting the registration:

If infringement occurs before a copyright owner applies for registration, that owner may eventually recover damages for the past infringement, as well as the infringer’s profits. §504. She must simply apply for registration and receive the Copyright Office’s decision on her application before instituting suit. Once the Register grants or refuses registration, the copyright owner may also seek an injunction barring the infringer from continued violation of her exclusive rights and an order requiring the infringer to destroy infringing materials.

The court also takes a dim view on the idea that it takes too long to get the registration, and this could impact the statute of limitations on suing (three years):

Fourth Estate raises the specter that a copyright owner may lose the ability to enforce her rights if the Copyright Act’s three-year statute of limitations runs out before the Copyright Office acts on her application for registration. Brief for Petitioner 41. Fourth Estate’s fear is overstated, as the average processing time for registration applications is currently seven months, leaving ample time to sue after the Register’s decision, even for infringement that began before submission of an application

Furthermore, Ginsburg notes that even if it's taking the Copyright Office a long time, that's an issue for Congress to deal with rather than the courts:

True, the statutory scheme has not worked as Congress likely envisioned. Registration processing times have increased from one or two weeks in 1956 to many months today. See GAO, Improving Productivity in Copyright Registration 3 (GAO–AFMD–83–13 1982); Registration Processing Times. Delays in Copyright Office processing of applications, it appears, are attributable, in large measure, to staffing and budgetary shortages that Congress can alleviate, but courts cannot cure.

The surprising aspect of this is that Ginsburg wrote the decision. Historically, Justice Ginsburg has never seen a copyright case where she wouldn't support the more Hollywood-friendly interpretation. Whether you agree with Ginsburg on other issues or not, she's generally... awful on copyright with the infamous Eldred ruling being a key example (if you want to read a good half-book long rant about just how badly Ginsburg messed up nearly every aspect of the Eldred ruling, I highly recommend the book No Law, which has some choice words for that particular decision).

Still, this decision was a pretty straightforward reading of the statute, and in some ways builds on the basis that Ginsburg set forth in Eldred, in which she more or less says "hey, Congress can do what Congress wants regarding copyright." And here, Congress has said you need to register to sue.

What's amusing, though, is that this fairly minor step has Hollwyood and its friends completely flipping out about how much more difficult it's going to be to stop piracy. But this makes no sense. Once a work is out there, it's out there. It's not like being able to sue a few months earlier is going to stop works from leaking or being available. And suing is usually not the most efficient way to stop the spread of something anyway (the DMCA takedown process still works...).

Of course, those who should really be worried are the copyright trolls who got kind of complacent about these things over the past few years. As Fight Copyright Trolls first noticed, prolific copyright trolling operation Malibu Media, has already been hit with an Order to Show Cause in response to this case for suing over works where no registration had been made:

It is hereby ORDERED that Plaintiff show cause in writing by March 12, 2019, why its complaint should not be dismissed for failure to state a claim upon which relief can be granted — specifically, for failure to allege that registration or preregistration of the copyright claims at issue had “been made” prior to the filing of this action. 17 U.S.C. § 411(a); see Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC, No. 17-571, 2019 WL 1005829 (U.S. Mar. 4, 2019). If Plaintiff fails to show good cause, or does not file anything by that date, the Court may dismiss this action without further notice to Plaintiff.

Anything that causes more problems for copyright trolls has to be a good thing.

Filed Under: applications, copyright, copyright office, copyright registration, copyright trolls, litgiation, registration, ruth bader ginsburg, supreme court
Companies: fourth estate, wall-street.com

Congress Using Lame Duck Session To Push Through Awful Plan To Politicize The Copyright Office

from the don't-do-this dept

I explain all the details below, but the short version is that Hollywood is trying to use the lame duck Congress session to push through a bill that would be very bad for copyright, and would politicize the Copyright Office. EFF has an action page where you can tell Congress not to do this. The bigger explanation of all of this is below.

You can't take your eyes off Congress for a second or they might do something awful. As you may recall, over the past few years, there's been a huge fight going on concerning who controls the US Copyright Office. Historically, the Copyright Office has been a part of the Library of Congress. In early 2017, I wrote a very long, detailed article for the Verge detailing why the Copyright Office is in the Library of Congress, and why it should stay there. If you're confused about this, I suggest reading that article. However, for years, many both within the Copyright Office itself, and (more importantly) in the legacy movie and recording industries, have been pushing to get the Copyright Office out of the Library and set up as its own agency (or possibly merged into the Patent and Trademark Office). This would give those special interests a lot more power over the organization, especially as it would make the head of the Copryight Office, the Register of Copyrights, now a Presidentially appointed position, rather than what it is today, where the Register is appointed by the Librarian of Congress.

The previous Register, Maria Pallante, advocated strongly for independence from the Library, and all sorts of rumors started to swirl after Librarian of Congress Carla Hayden (herself only recently appointed) fired Pallante. There was a ridiculous set of conspiracy theories pushed out about this falsely accusing "Google" of engineering the firing of Pallante. This entire narrative was debunked when it later came out that Pallante was almost certainly fired over an astoundingly botched computer system upgrade in which a new computer system that the Office had promised would cost $1.1 million had ballooned (through questionable means) to $11.6 million, and never actually worked and had to be scrapped. On top of that, an Inspector's General Report suggested that Pallante lied to both Congress and the Library of Congress about the status of that computer system upgrade, claiming that it was going great. Those are fireable offenses. Meanwhile, under Hayden's leadership, the Copyright Office has actually done a good job upgrading its computer systems.

However, the conspiracy theories around Pallante's firing gave the Hollywood lobby the momentum they needed to push for a law to remove the Copyright Office from the Library of Congress. Since Pallante was fired, Hayden (who had only taken the job a few months earlier, and who was the first actual librarian to run the Library of Congress, let alone the first black woman to do so), has not appointed a new Register of Copyrights, leaving the "acting" Register, Karyn Temple, in place. No one will state this definitively, but I've heard from multiple sources that Hayden was told not to appoint a new Register until after Congress decided what to do with the Copyright Office (with the implied threat being that if Hayden went ahead and did her actual job and appointed a Register, Congress would look negatively on such a move and it would almost certainly mean the Copyright Office would be taken away from the Library).

There was a big push last year to try to split the baby on this debate, and, like an actual splitting of a baby, the plan was ridiculous. It wouldn't technically take the Copyright Office out of the Library, but it would take away the Librarian's ability to appoint the head of the Copyright Office. Instead, it would become a Presidentially appointed position, which would effectively politicize the office at a time when the last thing we should want is a Copyright Office that is bowing to the whims of whoever is in the Oval Office.

There is no reason, whatsoever, to do this right now. First of all, we have a President who, two years into office, still has only filled 378 of the 704 key positions he's supposed to fill (with 129 still having no nominee at all). It's hard to see how it makes any sense to add yet another position to the list he has to fill when he doesn't seem particularly interested in actually appointing people.

Furthermore, while supporters of this move falsely claim it's necessary to help "modernize" the Copyright Office, this ignores that, under Hayden, the Office has been modernizing (and that Hayden has experience modernizing a massively large library system in the past). Furthermore, this move would take away Hayden's abilities to hold the Register accountable -- which seems important given how she discovered Pallante's management problems before. And, of course, there's the general optics of a bunch of old white men in Congress stripping the first black, female Librarian of Congress of the same authority that every previous Librarian (all white men) had had.

Anyway, as the EFF action page explains, the House has already passed the "Register of Copyright Selection and Accountability Act" and now it's the Senate's decision. With little fanfare (and little expectation this would happen), the Senate decided to vote on this tomorrow to get it out of Committee, and then will likely to try to hide it in the "must pass" end of year appropriation's bill. In other words, the lame duck Congress may give Hollywood a huge gift and politicize the Copyright Office. Tell them not to do this.

Filed Under: congress, copyright office, library of congress, politics, presidential appointee

Copyright Office Extends Anti-Circumvention DMCA Exemptions To All Filmmakers, Not Just Documentarians

from the victory dept

Earlier this year, we wrote a bunch of posts on the Copyright Office's request for comment on changes needed to the DMCA's anti-circumvention exemption list. There were lots of interesting submissions, but one that caught my attention was a whole bunch of film association groups, most of them for documentarians, advocating that the anti-circumvention they enjoyed to be able to use clips from other films and content be expanded to include filmmakers generally. This would address the copyright industries' cynical attempt to route around Fair Use usage by filmmakers by simply locking up their content behind all kinds of DRM that, unless you're a documentarian, you can't circumvent. The MPAA, as you would expect, said that allowing for this would kick off "widespread hacking" of all the DVDs on the planet, while all it was really concerned about was the licensing agreements it was able to secure by filmmakers who didn't want to violate the DMCA to get the Fair Use clips they wanted.

Well, the Copyright Office made its decision and the exemption will now be offered to filmmakers en masse.

Digital Millennium Copyright Act (DMCA) exemptions aren’t just for documentary filmmakers any more. The U.S. Copyright Office and Library of Congress last week broadened a DMCA exception to now allow more filmmakers to circumvent anti-copying technology and rip short video clips for purposes of commentary and criticism.

“This is huge for the independent film industry,” said Michael Donaldson, an attorney who argued for expanding the exemption before the Copyright Office, in a written statement. “The use of fair use material by narrative filmmakers has exponentially increased to the point where expanding the exemption to fiction films was absolutely necessary.”

What this means is that more filmmakers will now be able to simply rip clips from protected DVDs to use in their own creative works, as long as the purpose of the clip is used for parody or to demonstrate biographical or historically significant information. This opens up all kinds of uses, of course, but all of them will still be subject to being truly Fair Use cases. That, of course, is a defense, so you can expect lawsuits to be filed before we settle into some kind of a norm here.

Still, this is a good decision by the Copyright Office. The idea that the MPAA and others could lock up content that could otherwise be fairly used behind DRM obviously doesn't comport with the purpose of the law.

Filed Under: circumvention, copyright, copyright office, dmca, dmca exemptions, drm, fair use, filmmakers, library of congress, parody, triennial review

Congress And The CASE Of The Proposed Bill That Helps Copyright Trolls

from the start-of-stopping-trolls dept

One of the recurrent themes on Techdirt is that law itself should not become a tool for unlawful abuse. No matter how well-intentioned, if a law provides bad actors with the ability and opportunity to easily chill others' speech or otherwise lawful activity, then it is not a good law.

The CASE Act is an example of a bad law. On the surface it may seem like a good one: one of the reasons people are able to abuse the legal system to shut down those they want to silence is because getting sucked into a lawsuit, even one you might win, can be so ruinously expensive. The CASE Act is intended to provide a more economical way to resolve certain types of copyright infringement disputes, particularly those involving lower monetary value.

But one of the reasons litigation is expensive is because there are number of checks built into it to make sure that before anyone can be forced to pay damages, or be stopped from saying or doing what they were saying or doing, that the party making this demand is actually entitled to. A big problem with the CASE Act is that in exchange for the cost-savings it may offer, it gives up many of those critical checks.

In recognition of the harm removal of these checks would invite, EFF has authored a letter to the House Judiciary Committee raising the alarm on how the CASE Act would only aggravate, rather than remediate, the significant troll problem.

Per the letter, federal courts have been increasingly "reining in [trolling behavior] by demanding specific and reliable evidence of infringement—more than boilerplate allegations—before issuing subpoenas for the identity of an alleged infringer. Some federal courts have also undertaken reviews of copyright troll plaintiffs’ communications with their targets with an eye to preventing coercion and intimidation. These reforms have reduced the financial incentive for the abusive business model of copyright trolling."

But under the CASE Act, these provisions would not apply. Instead

[L]egally unsophisticated defendants—the kind most often targeted by copyright trolls—are likely to find themselves bound by the judgments of a non-judicial body in faraway Washington, D.C., with few if any avenues for appeal. The statutory damages of up to $30,000 proposed in the CASE Act, while less than the $150,000 maximum in federal court, are still a daunting amount for many people in the U.S., more than high enough to coerce Internet users into paying settlements of $2,000–$8,000. Under the Act, a plaintiff engaged in copyright trolling would not need to show any evidence of actual harm in order to recover statutory damages. And unlike in the federal courts, statutory damages could be awarded under the CASE Act even for copyrights that are not registered with the Copyright Office before the alleged infringement began. This means that copyright trolls will be able to threaten home Internet users with life-altering damages—and profit from those threats—based on works with no commercial or artistic value.

And that's not all:

Another troubling provision of the CASE Act would permit the Copyright Office to dispense with even the minimal procedural protections established in the bill for claims of $5,000 or less. These “smaller claims”—which are still at or above the largest allowed in small claims court in 21 states—could be decided by a single “Claims Officer” in a summary procedure on the slimmest of evidence, yet still produce judgments enforceable in federal court with no meaningful right of appeal.

Also:

[T] he federal courts are extremely cautious when granting default judgments, and regularly set them aside to avoid injustice to unsophisticated defendants. Nothing in the CASE Act requires the Copyright Office to show the same concern for the rights of defendants. At minimum, a requirement that small claims procedures cannot commence unless defendants affirmatively opt in to those procedures would give the Copyright Office an incentive to ensure that defendants’ procedural and substantive rights are upheld. A truly fair process will be attractive to both copyright holders and those accused of infringement.

The CASE Act appears to reflect an idealized view that the only people who sue other people for copyright infringement are those who have valid claims. But that is not the world we live in. Trolls abound, parasites eager to use the threat of litigation as a club to extract money from innocent victims. And the CASE Act, if passed, would give them a bigger weapon.

It also gives would-be censors additional tools to chill their critics through the use of a new subpoena power administered through the Copyright Office, without sufficient due process built into the system to ensure that these subpoenas are not being used as a means of unjustly stripping speakers of their right to anonymous speech.

The CASE Act also gives the Copyright Office the authority to issue subpoenas for information about Internet subscribers. The safeguards for Internet users’ privacy established in the federal courts will not apply. In fact, the bill doesn’t even require that a copyright holder state a plausible claim of copyright infringement before requesting a subpoena—a basic requirement in federal court.

EFF was joined on this letter by many other lawyers (including me) and experts who have worked to defend innocent people from unjust threats of litigation, in the hope that it can help pressure Congress not to give the green light to more of it.

Filed Under: case act, congress, copyright, copyright office, copyright trolls, due process, small claims

The Museum Of Art And Digital Entertainment Calls For Anti-Circumvention Exemptions To Be Extended To Online Game Archives

from the preserve-and-protect dept

Now that we've covered a couple of stories about game companies, notably Blizzard, bullying the fans that run antiquated versions of MMO games on their own servers to shut down, it's as good a time as any to discuss a recent call for the DMCA anti-circumvention exemptions to include the curation of abandoned MMO games. A few weeks back, during the triennial public consultation period in which the U.S. Copyright Office gathers public commentary on potential exemptions to the DMCA's anti-circumvention provisions, a bunch of public comments came in on the topic of abandoned video games. Importantly, the Librarian of Congress already has granted exemptions for the purpose of preserving the art of video games so that libraries and museums can use emulators to revive classic games for the public.

But what do you do if you're looking to preserve a massive multiplayer online game, or even single-player games, that rely on server connections with the company that made those games in order to operate? Those servers don't last forever, obviously. Hundreds of such games have been shut down in recent years, lost forever as the companies behind them no longer support the games or those that play them.

Well, one non-profit in California, The Museum of Art and Digital Entertainment, wants anti-circumvention exemptions for running servers for these games to keep them alive as well.

“Although the Current Exemption does not cover it, preservation of online video games is now critical,” MADE writes in its comment to the Copyright Office. “Online games have become ubiquitous and are only growing in popularity. For example, an estimated fifty-three percent of gamers play multiplayer games at least once a week, and spend, on average, six hours a week playing with others online.”

“Today, however, local multiplayer options are increasingly rare, and many games no longer support LAN connected multiplayer capability,” MADE counters, adding that nowadays even some single-player games require an online connection. “More troubling still to archivists, many video games rely on server connectivity to function in single-player mode and become unplayable when servers shut down.”

Due to that, MADE is asking the Copyright Office (and the Librarian of Congress) to allow libraries and museums exemptions to run their own servers to display these games as well. Frankly, it's difficult to conjure an argument against the request. If games are art, and they are, then they ought to be preserved. The Copyright Office has already agreed with this line of thinking for the category of games that don't require an online connection, so it's difficult to see how it could punt on the issue of online games.

And, yet, we have examples of fan-run servers of abandoned games, or versions of games, getting bullied by companies like Blizzard. These fan-servers are essentially filling the same role that groups like MADE would like to do: preserving old gaming content that has been made otherwise unavailable by companies that have turned down online game servers.

It's enough to make one wonder why a group of fans of a game shouldn't get the same protections afforded to a library or museum, if the end result is nearly identical.

Filed Under: anti-circumvention, archiving, copyright office, dmca, dmca 1201, drm, librarian of congress, museums, triennial review, video games
Companies: made, museum of art and digital entertainment