Category: Intellectual Property

Supreme Court Will Not Hear Capitol v. Vimeo Case

Photo by Nagornyi

The Supreme Court has denied cert in the case of Capitol Records v Vimeo, leaving in place the holding of the Second Circuit Court of Appeals that video-hosting site Vimeo was shielded by the “safe harbors” of the DMCA when the service and its users made infringing use of sound recordings fixed prior to February 15, 1972.  In general, this is a victory for the internet industry, parties who favor “safe harbors,” and parties who disfavor copyright; but there’s a lot more to this story than meets the eye.

On the surface, we have Vimeo users lip-synching to famous songs by The Beatles, Beach Boys, etc. and posting their videos.  Harmless fun.  What’s the big deal?  The big deal in this case—and not only in this case—is that prior to the 1970s, U.S. copyright law was partly a patchwork of state laws. Among the goals of the 1976 Copyright Act was to federalize nearly all of copyright under a single, uniform system.

Concurrent with these developments was the addition of sound recordings to federal protection in 1972, but for reasons that remain unclear, Congress left recordings fixed prior to Feb. 15, 1972 under the protection of state laws with everything after that date covered by federal statute. In 2011, the USCO filed a report requested by Congress on proposals to absorb pre-72 recordings into the federal system in which the Register states, “Congress did not articulate grounds for leaving pre-1972 sound recordings outside the federal scheme and there is very little information as to why it did so.”  In fact, these pre-1972 recordings are the only category of copyrightable works subject to this kind of exception, and it goes without saying there were a lot of still-valuable sound recordings made before this date.

At issue in the Vimeo case was the question of whether or not the liability shield provisions in the DMCA (§512 of the federal copyright law) apply when the work allegedly infringed is a pre-1972 sound recording. Proponents on the internet side say that it should be obvious that the DMCA was intended to apply universally, and that’s more or less what Vimeo argued and what the Second Circuit concluded. Unfortunately, it’s not that simple.

Although this is arguably a problem for Congress and not the courts, the fact remains that the ruling as it stands leaves the rights holders of these recordings in copyright limbo—or perhaps copyright purgatory.  As noted in an earlier post, citing the work of Stephen Carlisle, owners of pre-1972 recordings are trapped between §301(c) and §512 of the Copyright Act, with the former explicitly stating that their works are not protected by federal statute but the latter interpreted by the Second Circuit to mean that they are limited by federal statue from enforcing their rights against an ISP.

The technological developments during the 22-year gap between passage of the Copyright Act and the DMCA have created this disparity, and Congress should probably fix it.  As mentioned, the proposal to fold this class of sound recordings into the ambit of the federal statute and the above-cited report by the USCO favors this approach.  In fact, the report cites that the beneficiaries of this change would include librarians and archivists, who are frequently at odds with copyright.  “While many librarians and archivists are dissatisfied with the scope of the federal statutory privileges enjoyed by libraries and archives, these exceptions and limitations (sections 107 and 108 in particular) provide more certainty and, in general, more opportunity than state laws to preserve and make available sound recordings from many decades past,” the Register’s report states. This report further argues that the primary concern of the rights holders of these recordings (i.e. creating new ambiguities) could be remedied by properly articulated statute.  For now, the decision of SCOTUS to decline hearing Capitol Records v. Vimeo leaves in place considerable ambiguity, and perhaps this will prompt further efforts to petition Congress to unify all sound recordings under a single system.

The EFF is Full of It on Indie Register of Copyrights

Photo by GlobalIP

Okay.  I’m not remotely surprised that the EFF & Co. don’t like the bill H.R. 1695 to make the Register of Copyrights a presidential appointee rather than an employee of the Librarian of Congress.  And I’m way not surprised that they’ve written a post which only thinly veils this bill as a power grab by the Trump administration. This despite the fact that the proposal dates back, on paper, to at least 2014 and well before that in general discussion among copyright experts.

I won’t repeat the historic context I’ve already written to explain why this legislative move makes sense, but instead I have selected some choice pull-quotes from the EFF’s post because, well…I just can’t help myself.

EFF:  The Copyright Office is supposed to focus on a pretty mundane but important job: registering copyrightable works….In the past decade, however, the Copyright Office has played an increasingly central role in policymaking…

Bullshit.  Sorry there’s just no other way to respond to this.  Although the Copyright Office was created within the Library of Congress in 1897 in order to serve a largely clerical function, even the first Register, Thorvald Solberg, was a respected expert on copyright law and played a role in helping to craft the 1909 Act.  Every Register since has performed an advisory function to Congress, the courts, and the public; and the USCO has grown in size, scope, and dimension commensurate with the growth in complexity of copyright law and the wide range of media production and distribution capabilities.

The EFF acknowledges that the USCO does not make copyright policy, but instead suggests that making the Register an Executive appointee will only make the Office more vulnerable to special interests.  This, despite the fact that, the EFF has been party to smearing the USCO as already beholden to “special interests” under the current organizational regime.  As they repeat in this post …

EFF: – and it has not been a neutral advocate.

Here, the EFF is citing a “report” published by PublicKnowledge that provides no statistical data to support the conclusion that the USCO has fallen prey to “regulatory capture” by major rights holders.  Instead, the report cites anecdotal “evidence” composed more of opinions than substantive debate.  For instance, they repeat…

EFF:  For example, one former Register famously stated, “[c]opyright is for the author first and the nation second.” 

She did say that. And she was absolutely right. And only detractors like the EFF made the statement “famous.”  As explained in this post, the Register was on solid ground, both with regard to functional common sense (i.e. the public doesn’t get what the author doesn’t first create) and with regard to philosophical precedent for the IP clause in the Constitution.  This is just the anti-copyright crowd leveraging a general lack of historical knowledge to manufacture a conflict that doesn’t exist.

EFF:  In sum, we’ll have a Register, and a Copyright Office, that is accountable only to the President and the special interests that helped get them approved in the first place.

This may be my favorite because, as mentioned, it’s seeking to trade on current contempt for the Trump administration in order to rally protest against this bill.  What’s particularly amusing about this one is that the most common “villain” in the copyright battle is Hollywood; and in case anyone hasn’t noticed, Hollywood isn’t exactly BFFs with the new president.  At best, one might call the relationships between this White House and many industries, including Silicon Valley, “complicated.” So, let’s try to assess policy on the merits where we can, shall we? The rationale for making the Register of Copyrights an Executive appointee is solid, it’s the result of years of consideration, and it will remain sound policy no matter who occupies the White House.

House Introduces Bill Moving Toward USCO Modernization

Photo by maxkabakov

Against the drama of day-to-day Washington—and I’m already exhausted—Rep.  Goodlatte, Chairman of the House Judiciary Committee, introduced a bill that most people won’t notice except the copyright watchers. Unlike certain congressional action making the headlines this week, H.R. 1695 represents years of testimony, proposals, and discussion and can claim 29, bi-partisan cosponsors.

The bill proposes to make the Register of Copyrights an appointee of the Executive with the advice and consent of the Senate, a move that would place the Copyright Office into a more clearly and more appropriately defined context given the functions it actually performs—and has performed for more than a century. The bill enjoys broad support from many parties, perhaps because it is the manifestation of a multi-year discussion; and the Copyright Alliance has recommended that the Librarian of Congress pause in her search for a new Register while the legislative process moves forward.

As I’ve explained in previous posts, the organizational placement of the USCO under the ambit of the LOC is antiquated, and it would be just as antiquated no matter who occupies the White House or controls Congress. Regardless of what some critics have claimed, it really is a coincidence of history that the Register’s initially-clerical role evolved out of changes at the Library that began under President Lincoln. Because the USCO has long been the nation’s agency of authority on copyright law—which is estimated to support over $1 trillion of GDP—it simply makes sense that the Office function as a separate agency from the Library, and with the Register appointed in the same manner as the Librarian.

When Dr. Carla Hayden was first nominated to the position of Librarian, many copyright skeptics cheered, seeing her as an ideological ally.  If anything, this only emphasizes the need for this long-contemplated split between the two agencies. The LOC and the USCO have evolved to perform two distinct functions that require leaders with two distinct types of experience and expertise. This organizational change is simply common sense.  Moreover, in a time of so much stress-inducing upheaval in Washington, this is an important proposal that deserves bi-partisan and general public support.