Welcome to the Copyright section of our webpage.
This front page will reflect our most current information on copyright law and related intellectual property law issues affecting educational institutions.
Comments submitted to Copyright Office on Section 1201 of the DMCA by the Association of American Universities (AAU), The American Council on Education (ACE), the Association of Public and Land-grant Universities (APLU), and Educause on Section 1201 of the Digital Millennium Copyright Act (DMCA)-March 2017
This group of higher education representatives ask for serious reform to section 1201, as it is viewed as a fundamentally flawed provision. Sought are the following changes:
(1) Attach section 1201 liability to circumvention only where that act of circumvention results in infringement of the underlying copyrighted work(s).
(2) Expand the rulemaking process to apply to sections 1201(a)(2) and 1201(b) in order to allow beneficiaries of exemptions to acquire the tools to utilize those exemptions.
(3) Create a regulatory presumption for existing section 1201 exemptions, whereby the burden is shifted to those opposed to renewal of a previously granted exemption.
(4) Create an “equitable rule of reason” framework wherein previously granted exemptions are treated as illustrations of the types of uses permitted.
(5) At a minimum, draft broader and simpler exemptions that are easier for the public to interpret and apply.
2015 Exemptions from the DMCA ban on Technology Circumvention, Final Rule, Oct. 28, 2015.The exemptions to the circumvention ban issued this year include motion pictures for educational use, e-books for use with assistive technologies for the blind, or with visual or print disabilities, computer programs used to allow connection of a used device to an alternative network (including cellphones). For complete list see pages 3-4 of the Final FAQ. See the article dated 11-9-15 titled Copyright Office Issues DMCA exemptions for automotive software, jailbreaking smart TVs.
Decision written by Judge Pierre Leval, author of the key law review article on Fair Use, titled Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990). This law review article is probably the best read to date for anyone seeking to understand how Section 107 of the Copyright Law should be applied. Thus the decision is one to be considered as somewhat authoritative. Also to be granted great weight since it is out of the 2nd Circuit, where most of the publishers are domiciled.
The case was brought by publishers who claimed the Google Library Project and Google Books infringe Google's copyright. Google makes and retains digital copies of books submitted to it by major libraries, allows the libraries that submitted the book to download and retain a digital copy, and allows the public to search the texts and see snippets of the texts. (Note-If you search books.google.com you may find more than a snippet. This could be because the book is in the public domain (see Le Grand Meaulnes, by Alain Fournier, published 1920 in French so entire French original text can be read online) or because portions of the book have been made availalbe to Google by the Publisher. See for example, Brother of the More Famous Jack, by Barbara Trapido-87 pages can be viewed, through an agreement with publisher.
The publishers appealed from the district court ruling finding the use transformative and thus allowed under fair use, and argue the main motive is not educational but commercial, and also that the display infringes publishers' derivative rights in the books. The publishers also argue that storage of digital copies will enable hackers, and that use by libraries of the digital copies is not transformative. The Second Circut rejected all of these arguments.
The Court of Appeals addressed the four fair use factors as it related to each issue in dispute. On the Factor Three, amount of the work used, in noting the Google Books project made a digital copy of the entire book, teh corut noted that "courts have rejected any categorical rule that a copying of the entirety cannot be a fair use". (see page 29 on print out, or Headnote 15 in 2015 U.S. App LEXIS 17988). Due to security measures put in place by Google, the court did not find hacking was a distinct risk, and the publishers had not identified any thefts to date.
The court closed the decision as follows:
In sum, we conclude that: (1) Google's unauthorized digitizing of copyright-protected works, creation of a search functionality, and display of snippets from those works are non-infringing fair uses. The purpose of the copying is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals. Google's commercial nature and profit motivation do not justify denial of fair use. (2) Google's provision of digitized copies to the libraries that supplied the books, on the understanding that the libraries will [*70] use the copies in a manner consistent with the copyright law, also does not constitute infringement. Nor, on this record, is Google a contributory infringer.
Guidance Memorandum on Compliance with Public Access Rules (8-19-15) Prepared by AAU, APLU, and ARL. This letter was sent to campus senior research officers specifying how to comply with agency grant rules on public access to the results of federally funded research. There are a number of resources and links w/in the letter. This may include amending IP ownership policies, if needed.
Lenz v. Universal Music Corporation, Nos. 13-16106, 16107, (C.A. 9) (Sept. 14, 2015)
The case involved a notice of take down sent by Universal to YouTube claiming a video posted by Lenz in February 2007 of her two young children dancing to the artist Prince's song "Let's go Crazy". YouTube removed the video and sent an email to Lenz, who sent a counter-notification to YouTube. A second counter-notificiation resulted in reposting of the video. The plaintiff filed a complaint on July 24, 2007 and an amended complaint on August 15, 2007. After these were dismissed she filed a Second Amended Complaint alleging a claim for misrepresentation.
Ultimately the case ended up being reviewed de novo by the 9th Circuit. In analyzing the case, the court revised 17 USC 512 (c). This law requires identification of a copyrighted work, identification of allegedly infringing material, and statement the copyright holder believes in good faith the material posted is not authorized by the copyright owner, its agent, or the law. The court held that Universal was required to consider whether the potentially infringing material was a fair use under section 107 of the law before issuing a take down notification. In finding Universal did not show on the Motion for Summary Judgment that it had properly conduct this analysis, the court held there was a triable issue of fact as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law. The court also held the plaintiff could seek nominal damages for an injury that occurred as a result of Universal's misrepresentation the posting violated the law.
The sole argument presented by defendant was that fair use is not "authorized by the law". The court squarely rejected this noting that fair use is not just excused by the law, it is wholly authorized by the law. The holding stated as follows:
"We conclude that because 17 USC §107 created a type of non-infringing use, fair use if "authorized by the law" and a copyright holder must consider the existence of fair use before sending a takedown notification under § 512 (c)."
Failure to consider fair use at all subjects a copyright holder to damages under §512(f). Lenz can seek her nominal damages, and if she prevails at trial, may be able to recover damages and attorneys' fees.
U.S. Copyright Office Fair Use index of cases: A neat tool for searching current federal case law on fair use. For example, you can choose to click on your circuit, the Federal Circuit, and maybe the 2nd Circuit (all the publishers are there) and then click on a topic, like internet digitization, and the search will automatically list all the cases pertaining to your topic, with a brief summary of the case.