Tuesday, January 24, 2012

Research Works Act - HR 3699 - Stealing From the Public Domain?

In the wake of the U.S. Supreme Court's decision in Golan v. Holder last week, bills like the Research Works Act, which is designed to restrict access and limit sharing of scientific data, become more ominous.   More on the Research Works Act from Wikipedia here.   The full text below.

Congressman Darrell Issa and Congresswoman Carolyn Maloney are co-sponsors.

Richard Poynder's take here and here. The American Association of Publishers is behind this apparently legislation.

1st Session
H. R. 3699
To ensure the continued publication and integrity of peer-reviewed research works by the private sector.
December 16, 2011
Mr. ISSA (for himself and Mrs. MALONEY) introduced the following bill; which was referred to the Committee on Oversight and Government Reform

To ensure the continued publication and integrity of peer-reviewed research works by the private sector.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
This Act may be cited as the ‘Research Works Act’.
No Federal agency may adopt, implement, maintain, continue, or otherwise engage in any policy, program, or other activity that--
(1) causes, permits, or authorizes network dissemination of any private-sector research work without the prior consent of the publisher of such work; or
(2) requires that any actual or prospective author, or the employer of such an actual or prospective author, assent to network dissemination of a private-sector research work.
In this Act:
(1) AUTHOR- The term ‘author’ means a person who writes a private-sector research work. Such term does not include an officer or employee of the United States Government acting in the regular course of his or her duties.
(2) NETWORK DISSEMINATION- The term ‘network dissemination’ means distributing, making available, or otherwise offering or disseminating a private-sector research work through the Internet or by a closed, limited, or other digital or electronic network or arrangement.
(3) PRIVATE-SECTOR RESEARCH WORK- The term ‘private-sector research work’ means an article intended to be published in a scholarly or scientific publication, or any version of such an article, that is not a work of the United States Government (as defined in section 101 of title 17, United States Code), describing or interpreting research funded in whole or in part by a Federal agency and to which a commercial or nonprofit publisher has made or has entered into an arrangement to make a value-added contribution, including peer review or editing. Such term does not include progress reports or raw data outputs routinely required to be created for and submitted directly to a funding agency in the course of research.

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Monday, January 23, 2012

Murder, Mystery and Egon Schiele's Dead City February 8 at Jewish Federation of San Antonio

Thanks to the Federal Bar Association and the Jewish Federation of San Antonio, I will be speaking at the Jewish Federation of San Antonio on February 8 about Egon Schiele's Dead City and the mystery and litigation that it has spawned since District Attorney Robert Morgenthau seized it in 1998 at the Museum of Modern Art.
The MoMA's possession and concealment of artworks stolen from Holocaust survivors has come under fire recently, check out William Cohan's MoMA's Problematic Provenances in December ArtNews here.
For more stolen art by Egon Schiele at the MoMA visit Art Stolen from Fritz Grunbaum.

For the latest brief filed last week in Bakalar v. Vavra, an appeal to the Second Circuit arguing that the District Court's application of the laches doctrine to award a stolen drawing to a Massachusetts art collector, see the embedded document below.
11-4042-Cv Appellant's Brief and Special Appendix

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Due Process of Law, First Amendment and Copyright Law: SOPA and PIPA's Effects

Great video by TED's Clay Shirky explaining how SOPA and PIPA undermine the First Amendment, creativity, and due process of law.  A frightening vision of Americans being transformed back into mindless consuming couch potatoes, with a great concrete example of child creativity being stifled by abusive copyright claims.

More on TED (Technology Entertainment Design) here
Thanks to Techdirt for pointing this out.
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Sunday, January 22, 2012

New Petition to White House To End ACTA Anti-Counterfeiting Trade Agreement

If you thought SOPA and PIPA were bad, they have nothing on ACTA, which hands over copyright law and policy to an unaccountable trade collective.

I have posted in the past on ACTA, learn more here and here.

Here is the text of a petition to the White House to end ACTA, the link is here if you would like to sign it.   https://wwws.whitehouse.gov/petitions#!/petition/end-acta-and-protect-our-right-privacy-internet/MwfSVNBK

we petition the obama administration to:

End ACTA and Protect our right to privacy on the Internet

The Anti-Counterfeiting Trade Agreement, or ACTA, is a 'plurilateral' trade agreement, currently being negotiated between the US, Canada, Japan, the European Union, South Korea, Mexico, Switzerland, Australia and New Zealand. It is somewhat similar to SOPA/PIPA, however ACTA is an executive agreement between countries besides the United States, and it can be passed without the approval from Congress and the Supreme Court. It is potentially hazardous to the Internet we know and how it works.

We need to stop ACTA before it is finally approved by all countries involved. If you value your privacy and you don't want "Big Brother" watching over you, sign this petition and spread the word. Research ACTA and see just how dangerous it is to the Internet, our privacy, and our liberties.

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Are SOPA and PIPA Necessary To Shut Down Rogue Websites?

Thanks to Anonymous for commenting here on my Megaupload post yesterday and for explaining that one of the rationales for the Stop Online Piracy Act and the Protect IP Act is that this legislation is purportedly necessary because there is allegedly no remedy against rogue websites that operate offshore.

I immediately went to Chapter 7 of my Copyright Litigation Handbook and found the Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 243 F.Supp.2d 1073, 1087 (C.D.Cal.2003) case.   As I recalled, that court found that Grokster/Kazaa had subjected itself to jurisdiction by the nature of its contacts with the forum state.   There, jurisdiction was exercised over a company that had moved to the island of Vanuatu.

This Grokster rationale has been used by a few other courts in exercising jurisdiction over offshore/foreign "rogue websites".   Below are a few cites that basically support the proposition that our existing copyright law has substantial remedies against rogue websites that permit or promote infringement of U.S. copyrights.

Other jurisdictions, such as Germany or India, also have courts and laws that will enforce U.S. copyrights.  So the claim by SOPA and PIPA supporters that remedies don't exist is a bit mystifying.   Of course to remedy some of these injuries, a company might have to leave the comfort of home, but there is a pretty strong reason that we consult German courts and the German justice system, for example, before shutting down a German website.

Additionally, I considered the Second Circuit's decision in Penguin Group (USA) v. American Buddha, 640 F.3d 497 (2d Cir. 2011) which permits a copyright owner to bring suit in NY when the owner of the copyright is injured by an illegal download outside New York.

I would be happy to hear from anyone who can cite cases to the contrary or assist me in better understanding the counterargument.

Some quotes below.

When media producers bring suit for copyright infringement, the presence of software users in the forum state is enough to show that the defendant purposefully directed its activities there. Motown Record Co., L.P. v. iMesh.Com, Inc. 2004 WL 503720, 8 (S.D.N.Y.,2004) citing Arista Records, Inc. v. Sakfield Holding Co., 314 F.Supp.2d 27, 32 (D.D.C.2004); Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 243 F.Supp.2d 1073, 1087 (C.D.Cal.2003).

From Arista Records, Inc. v. Sakfield Holding Co. S.L., 314 F.Supp.2d 27, 31 (D.D.C. 2004):

Thus even without considering the evidence offered in the declaration of Bruce Ward the Court can find that the download of music files by Henriksen constitutes transacting business in the District. As the Court of Appeals in Gorman noted, the fact that the transactions between defendant and residents of the District of Columbia occurred in cyberspace “is not some mystical incantation capable of warding off the jurisdiction of courts built from bricks and mortar.” 293 F.3d at 510. See also Material Supply Intern., Inc. v. Sunmatch Industrial Co., 62 F.Supp.2d 13 (D.D.C.1999) (noting that a single act may be sufficient to transact business and that defendant need not ever be physically present in the district to transact business within the meaning of the statute). All of the aforementioned acts represent transactions between a district resident and defendant that have given rise to consequences in the District.

DigiProtect USA Corp. v. Does, 2011 WL 4444666, 2 (S.D.N.Y. 2011)(discussing American Buddha):

New York's long arm statute also provides jurisdiction over nondomiciliaries who commit a tortious act within the state, N.Y. C.P.L.R. § 302(a)(2); or a tortious act outside the state that resulted in injury within New York, id. § 302(a)(3)(ii). For a copyright infringement claim, under § 302(a)(2), the tortious act committed within the state is the act of infringement, or the illegal download. Yash Raj Films (USA) Inc. v. Dishant.com LLC, No. 08–CV–2715 (ENV)(RML), 2009 WL 4891764, at *7 (E.D.N.Y. Dec. 15, 2009). Under § 302(a)(3)(ii), only the injury must occur in New York; the act of downloading may occur outside the state, but the plaintiff must also show that the nondomiciliary “expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce.” N.Y. C.P.L.R. § 302(a)(3)(ii).
Finally, the Due Process Clause requires proof that out-of-state defendants have “certain minimum contacts ... such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Calder v. Jones, 465 U.S. 783, 788, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984) (quotations omitted).
The New York Court of Appeals recently held that, while the site of injury under § 302(a)(3)(ii) in commercial tort cases traditionally has been where business is lost, rather than where the plaintiff is located, “the unique bundle of rights granted to copyright owners” “tips the balance in favor of New York as the situs of the injury” when a New York company's copyright is infringed by unauthorized publishing on the internet. Penguin Grp. (USA) Inc. v. Am. Buddha, 16 N.Y.3d 295, 921 N.Y.S.2d 171, 946 N.E.2d 159, 176 (N.Y.2011).

UPDATED.   Attorney Benjamin Wright has pointed out the Liquid Motors case in which a federal judge ordered the FBI to restore service to legitimate users of a website containing allegedly infringing content. Wright's take on the Megaupload raid and discussion of the case here.
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Saturday, January 21, 2012

Rogue Website Seizure By Department of Justice and a Bumpy Week in Copyright Law

Courtesy Techdirt, a copy of the Megaupload indictment is embedded below. The indictment is against an alleged "rogue website" that allegedly facilitates copyright infringement.

Recently Congress has initiated legislation, the Protect-IP Act ("PIPA") and the Stop Online Piracy Act ("SOPA"). These efforts were purportedly aimed at rogue websites. Critics charged that the laws would permit copyright owners to shut down legitimate websites without due process of law, contained problematic security measures (DNS masking) and would have an overall severe chilling effect on the exercise of First Amendment rights relating to copyright's fair use doctrine, which permits use of copyrighted works for certain purposes. The legislation seems to have stalled in the wake of an internet/tech community uproar, culminating in blackouts by popular websites such as Wikipedia.

Right as all of this was happening, the Justice Department's seized of Megaupload basically doing what SOPA and PIPA proponets claimed they could not do, more from Techdirt on the details here. Breaking news here.

Perhaps most significant was the US Supreme Court's decision in Golan v. Holder (see my last post for a copy). The Supreme Court stated really for the first time that Congress could use the Copyright Clause of the U.S. Constitution to take materials from the public domain.

This is a dramatic and sweeping statement and it will change the battleground in the copyright wars for the decades to come.  I was fortunate enough to attend a luncheon with Maria Pallante, Register of Copyrights, last Thursday in Washington, DC and to discuss the Golan decision with her.  The luncheon was sponsored by the Capitol Hill Chapter of the Federal Bar Association.


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Thursday, January 19, 2012

Supreme Court Decides Golan v Holder

The U.S. Supreme Court decided yesterday that Congress has broad powers to place works in the public domain under copyright. 

Choice nugget:  "Congress can hardly be charged with a design to move stealthily toward a regime of perpetual copyrights."

In light of the SOPA/PIPA debacle, that is entirely unclear.  Decision below.

Golan v Holder

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Wednesday, January 18, 2012

Protect-IP Act Senate Whip Count - Open Congress

If you'd like to know where your Senator is on the Protect-IP Act and would like to know what their position is, here is a great page created by Open Congress.

 Purchase Copyright Litigation Handbook 2011 by Raymond J. Dowd from West here  

Tuesday, January 17, 2012

Art Law & Beer Event - SDNY Chapter of the Federal Bar Association - January 25

 Meet zymurgists, discuss copyright law's fair use doctrine, and get all creative over a beer or two.   It is time again for the Art Law & Beer program sponsored by the Southern District of New York Chapter of the Federal Bar Association's Younger Lawyers Committee.   Learn more about the SDNY Chapter here.   Learn more about the January 25 event here.   Get serious and join the Federal Bar Association here.

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Saturday, January 14, 2012

Stop Online Piracy Act: White House Calls For Rogue Website Legislation, Public Participation in Legislative Process

Below is the response of OMB's IP Czar Victoria Espinel to my signing a petition to Stop Online Piracy Act. Basically, the Administration wants to push ahead with legislation but has agreed with many of the concerns voiced by the public:
Combating Online Piracy while Protecting an Open and Innovative Internet
By Victoria Espinel, Aneesh Chopra, and Howard Schmidt

Thanks for taking the time to sign this petition. Both your words and actions illustrate the importance of maintaining an open and democratic Internet.
Right now, Congress is debating a few pieces of legislation concerning the very real issue of online piracy, including the Stop Online Piracy Act (SOPA), the Protect Intellectual Property Act (PIPA) and the Online Protection and Digital ENforcement Act (OPEN). We want to take this opportunity to tell you what the Administration will support—and what we will not support. Any effective legislation should reflect a wide range of stakeholders, including everyone from content creators to the engineers that build and maintain the infrastructure of the Internet.
While we believe that online piracy by foreign websites is a serious problem that requires a serious legislative response, we will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet.
Any effort to combat online piracy must guard against the risk of online censorship of lawful activity and must not inhibit innovation by our dynamic businesses large and small. Across the globe, the openness of the Internet is increasingly central to innovation in business, government, and society and it must be protected. To minimize this risk, new legislation must be narrowly targeted only at sites beyond the reach of current U.S. law, cover activity clearly prohibited under existing U.S. laws, and be effectively tailored, with strong due process and focused on criminal activity. Any provision covering Internet intermediaries such as online advertising networks, payment processors, or search engines must be transparent and designed to prevent overly broad private rights of action that could encourage unjustified litigation that could discourage startup businesses and innovative firms from growing.
We must avoid creating new cybersecurity risks or disrupting the underlying architecture of the Internet. Proposed laws must not tamper with the technical architecture of the Internet through manipulation of the Domain Name System (DNS), a foundation of Internet security. Our analysis of the DNS filtering provisions in some proposed legislation suggests that they pose a real risk to cybersecurity and yet leave contraband goods and services accessible online. We must avoid legislation that drives users to dangerous, unreliable DNS servers and puts next-generation security policies, such as the deployment of DNSSEC, at risk.
Let us be clear—online piracy is a real problem that harms the American economy, threatens jobs for significant numbers of middle class workers and hurts some of our nation's most creative and innovative companies and entrepreneurs. It harms everyone from struggling artists to production crews, and from startup social media companies to large movie studios. While we are strongly committed to the vigorous enforcement of intellectual property rights, existing tools are not strong enough to root out the worst online pirates beyond our borders. That is why the Administration calls on all sides to work together to pass sound legislation this year that provides prosecutors and rights holders new legal tools to combat online piracy originating beyond U.S. borders while staying true to the principles outlined above in this response. We should never let criminals hide behind a hollow embrace of legitimate American values.
This is not just a matter for legislation. We expect and encourage all private parties, including both content creators and Internet platform providers working together, to adopt voluntary measures and best practices to reduce online piracy.
So, rather than just look at how legislation can be stopped, ask yourself: Where do we go from here? Don’t limit your opinion to what’s the wrong thing to do, ask yourself what’s right. Already, many of members of Congress are asking for public input around the issue. We are paying close attention to those opportunities, as well as to public input to the Administration. The organizer of this petition and a random sample of the signers will be invited to a conference call to discuss this issue further with Administration officials and soon after that, we will host an online event to get more input and answer your questions. Details on that will follow in the coming days.
Washington needs to hear your best ideas about how to clamp down on rogue websites and other criminals who make money off the creative efforts of American artists and rights holders. We should all be committed to working with all interested constituencies to develop new legal tools to protect global intellectual property rights without jeopardizing the openness of the Internet. Our hope is that you will bring enthusiasm and know-how to this important challenge.
Moving forward, we will continue to work with Congress on a bipartisan basis on legislation that provides new tools needed in the global fight against piracy and counterfeiting, while vigorously defending an open Internet based on the values of free expression, privacy, security and innovation. Again, thank you for taking the time to participate in this important process. We hope you’ll continue to be part of it.
Victoria Espinel is Intellectual Property Enforcement Coordinator at Office of Management and Budget
Aneesh Chopra is the U.S. Chief Technology Officer and Assistant to the President and Associate Director for Technology at the Office of Science and Technology Policy
Howard Schmidt is Special Assistant to the President and Cybersecurity Coordinator for National Security Staff

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Friday, January 13, 2012

Fair Use Fridays: How To Watch a Video Blocked in Your Country

This video shows how to use Hotspot Shield, a software that permits IP address masking to bypass controls that make it impossible, in this case, for a German to watch a video created in the U.S. The video shows how to skip ads as well.

I am not suggesting that anyone do this or opining on the legality, it is however important to understand how this type of software works in context of the debates over the Stop Online Piracy Act and the Protect IP Online Act currently roiling Congress. A U.S.-based person doing this in the U.S. to access materials copyrighted in the U.S. may well violate the Digital Millenium Copyright Act by engaging in this activity. Whether content owners will be pursuing Germans someday who use this software, only time will tell.


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Fair Use Fridays: How To Fix Copyright Problems On YouTube (Audio)

Video illustrating YouTube's dispute resolution process (should not be used for infringing works)

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Sunday, January 08, 2012

How the Stop Online Piracy Act Got To Washington and What's Next #SOPA #PIPA

Video from Public Knowledge on the legislative history of the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA).  Over 71k views on YouTube.

More from Public Knowledge here on the expected cloture vote on January 24 to end the announced filibuster.  Three fifths of the Senate must support cloture (cutting off debate) for the bill to realistically proceed.  Senator Harry Reid is expected to make the cloture motion unless enough opposition arises between now and then.   Many organizations are urging citizens to contact their Senators now to urge opposition.

From Sen. Reid's website here:

Cyber Security to Protect America’s Entrepreneurs from IP Theft: Senate Democrats will seek to enact legislation to enhance our nation’s cyber security and promote the development of a well-educated, well-trained cyber workforce. Improving cyber security across government agencies, critical infrastructure, and the private sector will prevent theft of the intellectual property that is a key engine of the U.S. economy, create a jobs-rich market in security technologies and evaluation, and prevent the cyber attacks that now cost American businesses millions of dollars per year. The legislation will also expand research and development, education, and training programs designed to produce a well-qualified cyber security workforce, a highly competitive tech sector, and the continuing superiority of American innovation.
(highlighting supplied).

What the critics at Public Knowledge say here:

If made law, PIPA (S. 968) would...

  • Enable removing access to websites before those websites have the chance to defend themselves in court, raising substantial concerns about the bill's impact on free speech and the First Amendment, and giving rise to a situation that is ripe for abuse.
  • Define a number of key terms broadly enough to potentially harm many legitimate and beneficial services. For example, PIPA adds "information location tools" to the list of intermediaries that can be issued an injunction, making nearly every actor on the Internet potentially subject to enforcement.
  • Have an unintended impact on the safe harbor status of services like YouTube because they specifically target sites that "enable or facilitate" infringement, and also requires action by third parties such as online service providers, financial transaction providers, and ad networks.
  • Create conflicts between DNS servers by requiring the operators of certain domain name servers to blacklist certain DNS requests—you can see the potential for instability in the system.
  • This instability could also lead to increased cybersecurity risks, including cyber attacks and identity theft, as users migrate to offshore DNS providers not subject to PIPA's provisions.
  • Possibly lead to retaliation by foreign governments to take similar action against U.S. websites.
  • Seriously undermine a key value in our foreign policy—how could we, as a country, support openness and access in communication and condemn the use of DNS blocking, when we are doing it ourselves?
  • Risk setting a precedent for other countries to justify measures that would hinder online freedom of expression and association.
(highlighting supplied).
Mike Masnick at Techdirt summarizes the actions that are being taken to stop PIPA when Congress gets back in session later this month here and how SOPA is part of Hollywood's history of trying to kill innovation here.

From the U.S. Chamber of Commerce website:
How Do Intellectual Property Rights Drive Innovation?

As Abraham Lincoln said, “the patent system added the fuel of interest to the fire of genius…” IP protections ensure that American scientists, engineers, artists, writers, entrepreneurs and innovators recoup their investment and are rewarded for their work, incentivizing them to develop new ideas.

The patent system is the engine of the idea factory. In exchange for exclusive rights for a limited period of time, the inventor must publicly disclose the technical know-how behind a new invention. This allows other innovators to leverage past discoveries, constantly injecting new ideas into the public domain.

Congress ought to take the time to engage in the meaningful legislative process outlined in Bill Patry's excellent and newly-published How To Fix Copyright, which I reviewed here, with Patry's spirited response here (no Bill, I don't think you're churlish!)

 Purchase Copyright Litigation Handbook 2011 by Raymond J. Dowd from West here