Saturday, May 30, 2009

Acting Sua Sponte, the Second Circuit Creates Copyright Controversy that the U.S.Supreme Court Will Now Consider

“Sua Sponte”

Sua Sponte is acting independently, of one’s own accord. While the recently filed Elsevier et al. brief ( characterizes the lower court’s behavior as sua sponte, after reading the opinion I’m not sure I agree. In fact, it appears the lower court, the second circuit court of appeals, was merely bringing forth arguments made by Elsevier et al. during settlement/mediation discussions. The lower court case was In Re: Literary Works in Electronic Databases Copyright Litigation, 509 F. 3d 116.

Now at the Supreme Court level, the case is named Reed Elsevier, Inc. v. Muchnick (but involves multiple parties on both sides of the issue). The case will be scheduled for oral argument in the October 2009 term of the Supreme Court. Currently, briefs are being filed in the case. The docket can be followed here:

Question presented is:

Does 17 U.S.C. §411(a) restrict the subject matter jurisdiction of the federal courts

over copyright infringement actions?

411(a) is a section of title 17 that requires registration of copyrighted works in order to institute an action for copyright. The language reads as follows:

(a) Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b), no 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. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute an action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights. The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register's failure to become a party shall not deprive the court of jurisdiction to determine that issue.

The docket shows recent events in the case are as follows:

Mar 2 2009 Petition GRANTED limited to the following Question: Does 17 U. S. C. Sec. 411(a) restrict the subject matter jurisdiction of the federal courts over copyright infringement actions?

Mar 12 2009 The time within which to file the joint appendix and petitioners' brief on the merits is extended to and including May 18, 2009.

Apr 2 2009 Deborah Jones Merritt, Esq., of Columbus, Ohio, is invited to brief and argue this case, as amicus curiae, in support of the judgment below.

Apr 6 2009 The time for respondent Muchnick, et al. within which to file their brief on the merits in support of reversal is extended to and including June 1, 2009.

Apr 6 2009 The time within which to file brief of amicus curiae in support of the judgment below is extended to and including July 31, 2009.

Apr 6 2009 Any amicus curiae briefs in support of reversal are to be filed on or before June 8, 2009.

Apr 6 2009 Any amicus briefs in support of the judgment below are to be filed on or before August 7, 2009.

May 18 2009 Brief of respondents Letty Cottin Pogrebin, et al. in support filed.

May 18 2009 Joint appendix filed.

May 18 2009 Brief of petitioners Reed Elsevier, Inc., et al. filed.

So far, briefs on the same side of the issue (the publishers’ side) have been filed by Letty Cotin Pogrebin et al. and Reed Elsevier et al. The stance espoused in these briefs is that the second circuit was wrong in its holding and that the court should in fact have jurisdiction in order to certify the class and subsequently approve the offered settlement although some or most of the class involved in the settlement have copyrighted works that have never been registered as required under 411(a). Amicus briefs in support of the judgment below, i.e. the second circuit holding that the court does not have jurisdiction to certify the class and approve the offered settlement, do not have to be filed until August 7, 2009. Therefore, this case will be one to watch develop over the summer.

Basically, what happened in this case is that a class action settlement was reached subsequent to an earlier case New York Times Co. v. Tasini, 533 U.S. 483 (2001) . As part of the settlement process, a class must be defined and certified. If you recall, Tasini involved a dispute between freelance authors and newspapers at a time when writing went digital so quickly that corporate interests had failed to anticipate. With respect to the current Supreme Court case:

“This case presents an issue of exceptional importance to the nation’s freelance authors, newspaper and magazine publishers, archival databases, and the researching public. Its resolution will decide whether, in connection with the nationwide class action spawned by the New York Times v. Tasini case, the parties may globally settle their differences by compensating and releasing the claims of freelance authors with respect to all their contributions to the databases. Tasini expressly contemplated that databases, publishers, and authors could reach a court enforceable global settlement. On that basis, the parties and publisher spent over four years of intensive negotiations to reach an industry-wide settlement that was approved” (Elsevier Brief, p. 2).

The second circuit had been considering an appeal from the (lower) district court’s certification of the class in a class action lawsuit. “The precise issue on appeal was whether the district court had jurisdiction to certify a class consisting of claims arising from the infringement of unregistered copyrights and to approve a settlement with respect to those claims. It did not” (In Re, p. 2).

Tasini held that that if freelance authors’ writings were to be distributed and/or archived in electronic databases and formats, publishers had to have express licenses from those authors.

The second circuit (Judges Winter and Straub, Judge Walker dissenting) characterized Tasini as follows: “The contracts did not grant the publishers the right to electronically reproduce those works or license them for electronic reproduction by others. But the publishers did so anyway” (In Re, p. 4).

While in the present case, Elsevier et al. characterizes Tasini a bit differently:

“Tasini effectively compelled electronic publishers to purge their databases of many hundreds of thousands of newspaper and magazine articles for which written licenses had not been obtained. Obtaining such licenses retrospectively would be an insuperable task, given the sheer number of authors and works involved and the practical difficulties associated with finding the authors and executing individual agreements with each of them . . . following the second circuit’s Tasini decision, more than a score of freelance authors, supported by national authors’ rights trade organizations, filed lawsuits against online databases and certain publishers” (Elsevier, p. 2)

Here’s a quote from the brief filed May 18, 2009 by Reed Elsevier et al. describing how the issue now before the Supreme Court had arisen in the lower court, the second circuit:

“Shortly before argument, the second circuit panel sua sponte requested briefing on ‘whether the district court had subject matter jurisdiction over claims concerning the infringement of unregistered copyrights’ . . . All parties, including the objectors, responded that the district court had jurisdiction to approve the settlement” (p. 7).

But from my view, in the second circuit opinion, rather than acting completely independently of the parties involved, the court invoked the defendants’ (the publishers) arguments in reaching its decision:

“Before the mediator, defendants contended that this litigation possessed scant settlement value because the District Court could never certify the vast majority of the claims for inclusion in any proposed class.” Citing 411(a), the Defendants stated: “That rule . . . whose language could hardly be clearer, precludes the certification of any class respecting works in which a copyright has not been registered . . . the District Court lacks jurisdiction . . . to certify a class covering any unregistered works” (In Re, p. 5). The second circuit also pointed out that defendants provided survey evidence showing that only 1% of journalists registered their work and subsequently 99% of the claims at issue in the class were covering unregistered work.

So briefs asserting arguments in support of the second circuit decision have yet to be filed. This is an interesting case because it pits two sets of publishing stakeholders against each other in a rather unique fashion. (Publishers on one side, and authors and author trade organizations on the other side).

The case presents a sort of irony to some of the arguments made in comp/rhet that information should be set free, or that corporate interests should not over-regulate our use of information. In this case, the large publishers are arguing against their usual position – that information should be locked up, and in this case are arguing how sad it is that databases have had to be purged because copyright holders cannot be located (along the lines of the interests in the Orphan Works Act). In this case, publishers want to have free reign over the works of authors who did not expressly license their materials to be published in perpetuity in digital formats – freelance authors who I’m guessing were not paid much and were not provided health insurance, retirement, job security, and so on, i.e., marginalized peoples, in some ways.

My idea here is supported in some of the discussion in the second circuit opinion at issue. The class that was formed as a basis for the settlement before the lower court included three classes, A, B, and C.

“Category A claimants receive a flat fee. Category B claimants receive the greater of either a flat fee or a percentage of the original price of the work. By and large, Category C claimants also receive the greater of either a flat fee or a percentage of the original price of the work. Importantly, if the cost of all claims (plus the cost of notice, administration, and attorney’s fees) exceeds $18 million, then the amount paid to Category C claimants is reduced – potentially to zero – before the claims of Category A and B claimants are affected. This feature is called the ‘C-reduction.’” (In Re, p. 2) Category C claimants were largely those whose works had not been registered, and so the justification for their lower status in the settlement, according to the second circuit, was posited by the defendants as fair treatment since C claimants’ claims were for the most part worthless since they had not registered their works. The plaintiffs, according to the second circuit, basically agree with this.

So, what this boils down to is that the case is not really about whether or not information should be set free, but whether or not the publishing industry will benefit to the detriment of freelance authors, from inadequately anticipating the implications of the digital age rather suddenly befalling us in 2001.

I will be interested in following this case, and I’m willing to see how the arguments unfold. I also will commit more time to re-read Tasini and surrounding documents. But my inclination is to favor the holding in the second circuit that the court has no jurisdiction to approve a settlement that involves copyright claims and authors who have never registered their works.

I see some logical problems in the briefs I’ve read so far. If the court accepts the settlement via acknowledging jurisdiction, it is in effect preempting a copyright owner’s right to register their work – this seems a strange result. What I mean is, if the court had approved the settlement, it means that an author could register a work and be granted an official copyright, which would be meaningless due to the settlement. So that seems like a bizarre result. The other problem I have is that I interpret 411(a) as presenting a bar to the more powerful party in a copyright action, the copyright holder wishing to institute an action to enforce his/her rights. But in the present case, it’s being requested that 411(a) be used, or rather ignored, to present a bar to the weaker party in the copyright action, the author who never registered his/her work. In this case, the weaker party is *not* instituting the action. So, if the court would assume jurisdiction and rule in favor of taking rights from a party who had never registered their work, 411(a) would be inverted from what seems to me to be its intended purpose.

Further, the second circuit argued that if it were to assume jurisdiction in this case: “defendants’ position calls for an exception vastly broader than is found in any case by asking us to rule that registration of one party’s copyright would somehow provide jurisdiction over claims stemming from the unregistered copyrights of many other parties. We decline to do so” (In Re, p. 8).

So this is very problematic to me, and would produce inequitable results if it were embraced by the Supreme Court. In general I will be one to favor the weaker party in the lawsuit when the stronger party is moving against it, and thus has the burden. This is especially true in this case because the weaker party is not even present in the case both because of lacking registered works, and because of the possibility of being “represented” in the class (but remaining invisible) if it is indeed certified. The fair thing for the Supreme Court to do in this case is to affirm the second circuit. This seems very clear after reading the second circuit opinion which is available for free on its website using a search for docket number 05-5943.

Stay tuned.

Additional Resources (New York Times v Tasini)

Citation for Second Circuit Opinion Being Appealed: 509 F.3d 116; 2007 U.S. App. LEXIS 27558; 85 U.S.P.Q.2D (BNA) 1217; Copy. L. Rep. (CCH) P29,494

Publishers Involved

Thomason Corporation

Dialog Corporation

Gale Group, Inc.

West Publishing

Dow Jones & Company, Inc.

Dow Jones Reuters Business Interaction, LLC

Knight Ridder, Inc.

Knight Ridder Digital

Mediastream, Inc.

News Bank, Inc.

Pro Quest Company

Reed Elsevier, Inc.

Union-Tribune Publishing Company

Times Company

Copley Press, Inc. EBSCA Industries, Inc.

Participating Publisher Tribune Company

Computers and Composition Special Issue

Deadline for manuscripts: September 15, 2009 (response by November 15)
Deadline for final manuscripts: January 15, 2010

I am co-editing an Intellectual Property-focused special issue of Computers and Composition with Danielle Nicole DeVoss, John Logie, and Steve Westbrook. I've pasted the call below and it can also be accessed as a pdf file here:


special issue of Computers and Composition, volume 27 issue 3, September 2010
Copyright, Culture, Creativity, and the Commons

In 1998, Computers and Composition and Kairos both published special issues related to intellectual property. Much has changed in the 11 years since those special issues, including new legislation, proposed legislation, and the rise and fall of file-sharing spaces like Napster and Kazaa. Further, issues not addressed in the earlier special issue require the attention of computers and writing scholars, including global and international issues related to intellectual property, feminist and ecofeminist research in intellectual property, and issues of cultural cannibalism and intellectual commons. This special issue will attend to these—and other—issues, with a particular focus on the cultural consequences of our expanded sense of what counts as “property” in digital spaces.

Questions we invite authors to consider and respond to include, but are not limited to:

* Where are the significant intersections between intellectual property and computers and composition? What intersections have thus far remained invisible or buried?

* What significant changes have occurred in U.S. copyright law in the past 15 years? In international copyright law, policies, and approaches?

* What global, international, or cross-cultural intellectual property issues should we be attentive to?

* How might our understandings of “the commons,” the concept of shared or “community-owned knowledge,” and the notion of “cultural appropriation” contribute to conversations on copyright and/or intellectual property?

* What are some of the ways in which feminist/ecofeminist scholarship in intellectual property, and understandings of sustainability can inform or extend our approaches to intellectual property?

* What are some of the ways in which cultural rhetorics scholarship in intellectual property can inform or extend our approaches to intellectual property? For example, is there a connection between racism and the commodification of culture via intellectual property regimes? A connection with sexism? Where are the intersections between discourses of race and/or gender and intellectual property-related discourse?

* Are there better vocabularies, terms, and theories for us to drawn upon to situate and study “intellectual property?” Is it possible to recognize and/or attribute “intellectual property” in places other than formal legal regimes?

* How have intellectual property issues become more immediate with regard to the continual growth of and use for digital writing spaces? New media texts?

* In what ways can our long history of analyzing authorship and ownership of texts, including our discussions on issues of plagiarism and attribution, contribute to how we approach intellectual property issues? In what was does this long history perhaps submerge issues we
might be discussing?

* In what ways can writing instructors and researchers enter into public discussions about intellectual property?

The special issue will consist of: 1) a special issue editors’ introduction, which will provide some historical, legal, and philosophical context; 2) approximately 6–7 articles addressing issues of intellectual property, focusing on those issues that have arisen since the 1998 special issues; and 3) a roundtable-style-discussion piece capturing the interactions of key figures in intellectual property scholarship within and beyond computers and writing (e.g., Jim Porter, Ty Herrington, Jessica Reyman, Jessica Litman, Kembrew McLeod, Siva Vaidhyanathan, Rebecca Moore Howard, Vandana Shiva, Johndan Johnson-Eilola, and Peter Yu).

Deadline for manuscripts: September 15, 2009 (response by November 15) Deadline for final manuscripts: January 15, 2010

Please direct questions and email manuscripts to the special issue editors:

Martine Courant Rife
Lansing Community College

Steve Westbrook
California State University, Fullerton

Dànielle Nicole DeVoss
Michigan State University

John Logie
University of Minnesota

Friday, May 29, 2009

University of Ottawa law Prof. Michael Geist is Successful in Having Canadian Conference Board Recall Copyright Reports

Thanks to the diligent efforts of law professor Michael Geist, an expert on copyright law who also manages the BNA Internet Law News (a fantastic email resource), has announced today that the reports in question, those that I've blogged about earlier this week, are being recalled for failure to meet appropriate research standards.

"In a notice posted on its website Thursday, the board said it was recalling Intellectual Property Rights in the Digital Economy; National Innovation Performance and Intellectual Property Rights: A Comparative Analysis; and Intellectual Property Rights-Creating Value and Stimulating Investment."

Thursday, May 28, 2009

EFF Launches Free, Creative Commons-licensed "Teaching Copyright" Curriculum and Website

According to an announcement from the EFF (Electronic Frontier Foundation), "last week, the Copyright Alliance Education Foundation (a nonprofit mouth piece for the entertainment and software industries) unveiled plans to spread its protectionist ideas to the nation's schools and libraries through the distribution of a curriculum titled 'Think First,Copy Later.'"

The EFF states that the "Think First, Copy Later" curriculum is similar in nature to other intimidating educational materials produced by corporate interests such as the MPAA, RIAA, Business Software Alliance -- these types of educational materials are created, according to the EFF, to "scare students into believing that making copies is wrong."

But what students and teachers don't need, is more intimidation. Instead, the EFF recognizes that what is needed is "solid, accurate information that will help them make smart choices about how to use new technologies." In response to this, EFF has just launched a free, Creative Commons-licensed "Teaching Copyright" curriculum and website "to help educators explore copyright issues in their classrooms."

The materials appear to be very easy to navigate and understand, and will "encourage students to discover their legal rights and responsibilities — including how to make full and fair use of technology that is revolutionizing learning and the exchange of information."

The EFF teaching materials and curriculum can be accessed here:

Wednesday, May 27, 2009

"File-sharing report that slammed Canada plagiarized"

"Michael Geist, a Canada Research Chair at the University of Ottawa, said the new study on the digital economy from the self-described 'independent' research organization is a 'deceptive, plagiarized report' that copied passages from the International Intellectual Property Alliance, including one instance without any attribution."

Conference Board of Canada Ignores Research

The Conference Board of Canada, which apparently holds itself out to be non-partisan, non-lobbying, and independent, has ignored some research it commissioned, research that contradicts the findings in its recent report. The report sides with recent corporate interests and stances in the U.S. by stating:

"The Conference Board report calls Canada 'the file-swapping capital of the world' and calls for strict new copyright legislation as well as new power for border guards to deal with counterfeit and pirated goods."

So far the Board has been accused of plagiarism, and has been asked to withdraw its report.

However, the Board admits:

"According to the Conference Board, the report was funded by the Canadian Anti-Counterfeiting Network, the Canadian Intellectual Property Council, the Copyright Collective of Canada and the Ontario Ministry of Research and Innovation as well as other lobby groups who are pushing for stronger Canadian copyright legislation."

This is a really interesting area of the law developing in Canada - it appears to be one of those cases where the "researcher" ignores evidence that is against the researcher's own position. It seems to be that step-by-step U.S. corporate interests will have their way in Canada.

Obama to Release US Cyber Security Report Friday

"President Barack Obama is to release the results of a 60-day review of U.S. cyber security policy on Friday, White House spokesman Robert Gibbs said Tuesday."

Thursday, May 21, 2009

Study of Blogger's Ethical Beliefs and Practices Published in New Media & Society

A study of 1224 bloggers' ethical beliefs and practices was just published in New Media & Society. This incredibly insightful and well written piece clearly lays out the methodology and findings. The study found that "personal bloggers valued attribution most, followed by minimizing harm, truth-telling and accountability respectively. Non-personal bloggers valued both attribution and truth-telling most, followed by minimizing harm, then accountability. For both groups, attribution was most valued, and accountability least valued." (p. 586). Attribution mattered most for the bloggers. (Supporting my study findings as well). Based on their research, the authors crafted ethical guidelines for bloggers, based on what the 1224 bloggers thought was important. In their piece, they also site Clancy Ratliff's "Attracting Readers: Sex and Audience in the Blogosphere."

US Congressional Caucus says Canada is a "Safe-Haven for Pirates"

According to the Congressional International Anti-Piracy Caucus briefing paper: "Canada: The country does not have legislation or legal rulings that 'clearly provide an effective means for copyright holders to protect their works from online piracy. This legal void has made Canada an attractive location for illicit Web sites, and Canada has regrettably become known as a 'safe haven' for Internet pirates.'"

Wednesday, May 20, 2009

Canada Put On Another US "Watch" List

In addition to being placed on the "301" list last week by the office of US trade representative, Michael Geist reports that a US Congressional Caucus has just placed Canada on another "list."

"Because one unfounded and unsupportable designation as a pirate nation is never enough, the U.S. Congressional International Anti-Piracy Caucus has placed Canada on a watch list alongside China, Mexico, Russia and Spain. This is a separate list from the USTR Special 301 list."

Just today I revised a chapter that I hadn't read in two years. It discusses Canada's amazing CCH opinion, an opinion that took the US fair use doctrine and broadened it. Copying (fair use) for research, private and commercial is legal in Canada. Downloading for private use is legal, and uploading is not illegal. Canada has taken a pretty clear stand on protecting user rights - the country probably has the broadest user protection of any country. And you can see the results. Obama's committed to enforcing IP rights and will appoint a Czar soon. The content industry will continue to exert pressure, lobbying pressure, on US politicians, and in turn, Canada will continue to be a focus of US attention in this area.

First Person is Convicted Under DMCA for Selling Circumvention Tool

At the DMCA Rulemaking hearings, I recall, I think it was the attorney for the MPAA/RIAA, asserted that no one had ever been convicted under the DMCA for selling/trafficking circumvention tools. While it is not illegal under the DMCA to use these tools, it is illegal to sell them. An example might be a fake access key to access software or a tool to unscramble the CSS on a DVD.

Cnet News reports today that Adonis Gladney has been convicted of selling fake Microsoft product keys.

"Gladney, 24, is believed to be the first person convicted for DMCA violations dealing with the circumvention of security protections on software, according to Assistant U.S. Attorney Craig Missakian. Typically, product keys are used to activate software and are printed on Certificate of Authenticity labels that accompany legitimate products."

My opinion is that there's always a balance to be maintained between users/creators and corporate interests. It was clear at the rulemaking hearings that the DMCA's anti-circumvention provisions are completely useless and ineffective. Users are circumventing and creating all kinds of digital remixes. The corporate interests have no choice but to now go after those who sell these kinds of tools that permit hacking. This result also gives me hope though, because maybe the tides are turning for those who circumvent in order to make a fair use of existing materials. If the copyright office grants an exemption to the DMCA for educational users, it will probably be a matter of days before the corporate interests create licenses that permit users to circumvent, and then offer a cheap, legal tool for doing so.

White House Office of Administration is Deemed Not Subject to FOIA

"The appeals court in Washington ruled that the White House Office of Administration isn't an agency subject to the Freedom of Information Act, allowing the White House to keep secret documents about an email system that has been plagued with problems."

Friday, May 15, 2009

My Research Participants' Misunderstanding Was Also Obama's?

One area of clear misunderstanding that arose in my copyright study, was that professional writers were not fully aware of the government exception to copyright protection. That is, items authored by the US government are not copyright protected, but are in the public domain. It appears that the Obama administration fell prey to this same misunderstanding but has now, thankfully, corrected itself.

"When the White House photos first appeared on Flickr in April, Fred Benenson of Creative Commons and others pointed out that the government couldn't grant a CC license on content to which it didn't own the copyright and hypothesized that the administration likely chose a CC Attribution license as the least restrictive option available to it because Flickr "doesn’t allow their photographers to choose Public Domain as an option to release their work to the world." (As Hugh D'Andrade of EFF pointed out, Flickr does have a public domain option (of sorts) on the "Commons" portion of its site, which acts as a repository for certain public photography collections. This "No known copyright restrictions" label, however, is only available to participating institutions like The Library of Congress and The Brooklyn Museum.) "

Nixon Library to Open New Materials in June

On June 23, 2009, the Richard Nixon Presidential Library and Museum will make newly available 154 hours of Nixon White House tape recordings and textual materials among the Nixon Presidential Historical Materials.

"The tape recordings will be made available on the Web at beginning at 9 a.m. (EDT)/6 a.m. (PDT). The textual materials will be made available at the National Archives building at College Park, MD beginning at 11 a.m."

Thursday, May 14, 2009

University Owned Gene Patents Challenged on First Amendment Grounds

"The American Civil Liberties Union and the Public Patent Foundation filed suit on Tuesday to challenge the constitutionality and validity of patents on two human genes linked to breast and ovarian cancer."

Wednesday, May 13, 2009

"Judge Dismisses U. of Missouri's Lawsuit Against a Professor in Dispute Over Inventions"

"A federal judge has dismissed a lawsuit that the University of Missouri system filed against one of its professors in an intellectual-property dispute." See the Chronicle News Blog

Tuesday, May 12, 2009

Posted on WIDE's Blog

I posted a summary of the DMCA testimony on the WIDE blog; the title is "DMCA Testimony."

I will be creating an annotated archive and resource this summer.

The brunt of my DMCA testimony

Here's a high quality version of my testimony on May 6 before the copyright office supporting the educational exemption to 1201.

Monday, May 11, 2009

Lessig receives take down notice from Warner Music

A New Study Shows Copyright Exception for Legalising File-Sharing is Feasible, as a Cease-Fire in the “War on Copying” Emerges

From the Intellectual Property Watch

"A landmark study by the Institute of European Media Law (EML) found that a levy on internet usage legalising non-commercial online exchanges of creative works conforms with German and European copyright law, even though it requires changes in both. The German and European factions of the Green Party who had commissioned the study will make the “culture flat-rate,” as the model is being called in Germany, an issue in their policies. The global debate on a new social contract between creatives and society is getting more pronounced by the day. Two models are emerging: a free-market approach based on private blanket licences and voluntary subscriptions, and a legal licence approach based on exceptions in copyright law and mandatory levies, that now has been proven legally feasible and appropriate by the EML study."

Sunday, May 10, 2009

Questions that arose during the DMCA 2009 rulemaking hearings

Some issues arose during the 2009 DMCA rulemaking hearing that took place in the US Copyright Office. One of these issues was concerning the use of screen-capturing software such as snag-it, camtasia, and morae. Snag-it was the only application mentioned by name. These discussions took place both during the educational exemption panel (afternoon May 6), and the general exemption panel (the vidders, morning May 7).

No one in the room, either those representing the motion picture industry, the copyright office panelists, nor those testifying in favor of the use, could say whether or not such screen capturing software is accomplishing a "circumvention" of technological protection measures.

So that question was left open.

Another question that arose, was whether or not an exemption for copying is even needed, since the DMCA was never intended to prohibit circumvention for purposes of copying as opposed to circumvention for purposes of gaining access. The MPAA and those opposing the exemption, argue that since both the access and copying controls are folded into one, to circumvent for copying is the same as circumventing for gaining access. I asked the copyright office to address this in its recommendations. They discussed it in the April 3, 2006 transcript, but never made a determination on this issue. The legislative summary I quoted from during my testimony clearly states that it is not the intention of congress to stop people from circumventing in order to make copies.

Another interesting development, was that there was consensus from the other side of the aisle, those opposing the exemption, that the kind of use I showed, a student created montage done for an academic conference, a course seminar, and submitted towards degree completion, was certainly a "fair use" under section 107.

DMCA Rulemaking Hearings Resources and Links

Mp3 files have been posted by the US Copyright Office (the agenda appears below the Mp3 files):

General info about the DMCA rulemaking hearings:

Audio files for the educational exemption hearing, created by the EFF (my testimony is an Mp3 file here).

Mp3 of my testimony on the educational use exemption.

Rebecca Tushnet's blog

Boing Boing

Center for Social Media Coverage

I will add to this resource list as information becomes available.

Saturday, May 9, 2009

Southeast Alaska Funerary Object to be Repatriated

Notice appearing in the Federal Register, E9-10577:


In 1976, an object was removed from a cave in Port Malmesbury, Kuiu
Island in Southeast Alaska, by a Forest Service archeologist. The
object is a wooden artifact that is believed to be a funerary object
since the cave where it was removed from contained human remains and
associated funerary objects. The human remains and associated funerary
objects that were removed from Port Malmesbury, Kuiu Island were
repatriated to the Organized Village of Kake in 1998, and are described
in a Notice of Inventory Completion previously published in the Federal
Register (63 FR 18034-18035, April 13, 1998). Due to an administrative
oversight this funerary object was not included.
Historical and ethnographic records, along with Tlingit oral
history, indicate that a smallpox epidemic in the 1800s decimated the
Tlingit communities on Kuiu Island and the survivors moved to Kake and
Klawock. The members of the Killerwhale clan in these villages are the
descendants of these survivors.
Officials of the U.S. Department of Agriculture, Tongass National
Forest have determined that, pursuant to 25 U.S.C. 3001(3)(B), the one
object described above is reasonably believed to have been placed with
or near individual human remains at the time of death or later as part
of the death rite or ceremony and are believed, by a preponderance of
the evidence, to have been removed from a specific burial site of a
Native American individual. Officials of the U.S. Department of
Agriculture, Tongass National Forest also have determined that,
pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group
identity that can be reasonably traced between the unassociated
funerary object and the Klawock Cooperative Association and Organized
Village of Kake.

Saturday, May 2, 2009

Canada put on 301 list

I cannot understand why the US ignores that fact that inserting its laws in other countries, is inserting its culture. Some of these cultures are incommensurable with the western IP paradigms . . .there are ways to accomplish goals of protecting IP, but not by ignorning the real problems of cultures with very conflicting paradigms about authorship, individuals, and ownership.