Digital copyright

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The rise of the Internet and other digital technologies has spurred a broad reconsideration of the rules of copyright. Congress frequently updated copyright laws in the 1990s, and continues to consider copyright-related legislation. In the 109th and 110th Congresses, the most significant pieces of copyright legislation deal with potential changes to the Digital Millennium Copyright Act (DMCA), the anti-piracy "broadcast flag," and potential revisions to laws governing music licensing and webcasting.

Contents

Introduction

In general, copyright refers to the rules that govern copying and distribution of original works. Copyright law grants authors the exclusive rights to reproduction and distribution of such works. The United States copyright law is in Title 17 of the United States Code and has many specialized provisions governing the digital reproduction and transmission of audio-visual works like movies, books, computer programs, cable television and satellite transmissions, musical compositions, news and magazine articles and sound recordings of music. Other provisions of Title 17 set the rules and rates governing the reproduction and transmission of digital copyrights.

In the 109th and 110th Congresses, the most significant pieces of copyright legislation deal with potential changes to the Digital Millennium Copyright Act (DMCA), the anti-piracy "broadcast flag," and potential revisions to laws governing music licensing and webcasting. Another major piece of legislation, dubbed the PERFORM Act, pertains to satellite radio and whether the industry will be restricted in the way it designs recording devices. Other current controversies concern the way high-profile lawsuits -- including Viacom's copyright lawsuit against Google's YouTube -- address the issue of peer-to-peer computing in the wake of the Supreme Court's 2005 decision, MGM Studios v. Grokster. It is also important to note how Digital Rights Management (DRM) issues have impacted Congress' consideration of copyright law.

The Internet has changed the way individuals receive music, movies, news and other forms of information, putting pressure on existing copyright laws. With the advent of peer-to-peer (P2P) technology -- an Internet-enabled form of distributed computing -- and portable digital media devices like Apple's iPod, the entertainment and consumer electronics industries are frequently pitted against each other. This creates new business models, or new lobbying strategies to change copyright laws, or both. As more consumers decide to purchase content online, business models must take into account consumer demands for quality, affordability, availability and interoperability. Some in the industry have already moved towards addressing these demands, including London-based EMI Group’s recent decision to sell higher quality music – without Digital Rights Management restrictions – on Apple iTunes online music store for $1.29, instead of the normal $0.99 per-song price. [1]

Digital Millennium Copyright Act (DMCA)

The 1998 Digital Millennium Copyright Act (DMCA), introduced by Rep. Howard Coble, R-NC) is the proper starting point for discussions of digital copyright law. It changed U.S. copyright law to make it a crime for an individual to design or sell technologies that circumvented digital protection technologies. The most significant class of these protection technologies is generally dubbed Digital Rights Management. That phrase generally refers to encryption-based technologies that scramble digital books, movies and music. The theory behind DRM is that when a consumer purchases a song through Apple’s iTunes, for example, the consumer receives the key to unscramble the digital song. An unauthorized user – one who obtains a copy over the Internet through a peer-to-peer network, for example – has no such key and is not easily able to unscramble the digital file and enjoy the song. The DMCA made it a crime for an individual to bypass or sell anti-piracy technologies. The new language criminalized “circumvention” technologies whether or not the act of copying the creative work was a violation of copyright law. Hence the 1998 law became very controversial for several years. Although some members of Congress seek modifications, advocates and critics alike view attempts to either tighter or loosen its provisions as a difficult battle.

Passage of DMCA

The impetus to pass the DMCA came from two 1996 treaties of the World Intellectual Property Organization (WIPO), a body of the United Nations. The treaties, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty were promoted by supporters as an update of copyright law for the digital age. Media companies maintained that the law allowed them to build digital locks on their movies and songs, and to prosecute those who would crack those locks. In addition to criminalizing the circumvention of protection technologies and banning the manufacture or distribution of a device that could circumvent copy-protection – codified as Section 1201 of U.S. copyright law – the legislation created a “safe harbor” provision for Internet Service Providers (ISPs). This latter provision was enacted as Section 512 of U.S. copyright law. It shielded ISPs from secondary liability when their customers posted infringing content online. Section 512 was a crucial element in securing the support of then-powerful ISPs such as AOL, Microsoft’s MSN, and Yahoo!

Effects of DMCA

Critics of the DMCA countered that it still overwhelmingly sided with software, recording and motion picture industries – at the expense of hardware manufacturers and users of content. Library groups and other large users of content said that Section 1201 eroded their ability to make “fair use” of copyrighted material. Fair use, which has been part of U.S. copyright law for more than a century, and is codified in Section 107, allows a user to make limited use of copyrighted material without the permission of the owner.

Additional critics came from the research community. They argued that while the law created an exemption from Section 1201 for libraries and educational institutions, researchers would be barred from creating equipment and services – including research into Internet security – that might also enable copyright circumvention. Princeton University computer scientist Ed Felten ran into this problem when he was conducting research into a DRM technology called the Secure Digital Music Initiative. After a threatening letter from officials with the Recording Industry Association of America, Felten and the Electronic Frontier Foundation filed a declaratory judgment seeking assurance that his activities were not illegal. Although the court dismissed Felten’s case, EFF called the action a victory because RIAA backed down from its threats. [2]

Copyright Office Exemptions to the DMCA

As a compromise to those who felt that the DMCA would undermine fair use, Section 1201(a)(1)(C) of the 1998 law instructs the Register of Copyrights to consider, on a triennial basis, whether non-profit archival or educational purposes are negatively impacted by the anti-circumvention ban. The latest round of reconsideration concluded in 2006, when the Copyright Office created six exemptions, all of which expire in 2009, when the office is scheduled to undertake another such review. The first examination took place in 2000 and created two exemptions; the 2003 rulemaking created four exemptions. The law instructs exemptions from the circumvention ban so as to minimize the impact on criticism, teaching and news reporting.

Under the 2006 exemptions, which run until October 27, 2009, the DMCA's anti-circumvention ban does not apply to:

  1. Audiovisual works at a university’s film departments when making compilations of portions for educational use;
  2. Computer programs using hardware, such as dongles, if the dongles prevent access to content due to malfunction or age (a dongle is an electronic device that must be attached to a computer in order for it to use protected software)[3];
  3. Computer programs and video games distributed in formats that have become obsolete, if done for the purpose of preservation or archival reproduction of published digital works by a library or archive;
  4. Literary works distributed in ebook format where access controls prevent user's ability to read the ebook aloud or to render the text into a specialized format;
  5. Firmware-computer programs that enable wireless telephone handsets to lawfully connect to a wireless telephone communication network;
  6. Sound recordings and audiovisual works in CD format for the purpose of good faith testing, investigating, or correcting such security flaws or vulnerabilities that compromise security of personal computers. [4]

A number of exemptions considered but rejected included "space-shifting," or moving a copyrighted work from one device to another, literary works distributed in electronic audio format by libraries, fair use for all works, regionally coded digital video discs, and audiovisual works and sound recordings protected by a broadcast flag.[5]

Digital Media Consumers' Rights Act

Rep. Rick Boucher (D-Va.) has been at the forefront of efforts to change the DMCA. In 2003, he introduced the Digital Media Consumers’ Rights Act of 2003 H.R. 107 and reintroduced in two years later as H.R. 1201 with Rep. John Doolittle (R-Calif). The bill would have amended the DMCA to allow individuals seeking to make fair use of movies and songs the ability to crack digital locks for non-infringing purposes. It also would have required the Federal Trade Commission to oversee a program whereby copy-protected CDs would require warning labels.

In the 110th Congress, Boucher has re-introduced a modified version of the bill, which is now called the Freedom And Innovation Revitalizing U.S. Entrepreneurship (FAIR USE) Act of 2007. The new bill, whose bill number – (H.R. 1201) – mirrors the section of the copyright law that it aims to amend – is again co-sponsored by Doolittle. The measure would ease hurdles in legal battles between innovators and copyright holders by providing six special circumstances allowing entities like libraries and archives to circumvent digital locks. It would also limit the fines, or statutory damages, for copyright infringement.


Specifically, the bill carves out five new exemptions varying from those of the Copyright Office, in addition to allowing circumvention for educational purposes. It would also enable circumvention for the purpose of avoiding commercial or objectionable content (i.e., skipping advertisements or nudity on feature film DVDs); for transmitting a work over a home or personal network as long as it is not uploaded to the Internet; to gain access to a work in the public domain; to gain access to work for the purposes of criticism, news reporting, or research; and to allow libraries and archives to meet requirements of 17 U.S.C. 108(a)(2), or to preserve or replace a purchased copy of a work.[6]

The Broadcast Flag

Perhaps the major flare-up in the battle between the entertainment industry and the technology industries have been over a requirement that computer and electronic companies modify their devices to police potential copyright infringement by consumers. The battle began in 2001, when Hollywood pushed for sweeping legislation introduced by former Sen. Ernest “Fritz” Hollings (D-S.C.), then chairman of the Senate Commerce Committee. The studios pressed for three goals. They wanted a mandatory “broadcast flag” designed to stop the unauthorized transmission of copyrighted television programs. Second, they wanted Congress to require digital devices to halt the copying of motion pictures through the use of a digital “watermark.” Third, they wanted the tech sector to find ways to stop peer-to-peer file-sharing. [7]

Although Hollings’ bill never made it out of the Commerce Committee, the battle continued over at the Federal Communications Commission. In August 2002, then-agency-chairman Michael Powell put forth a proposal requiring that television and electronics manufacturers design products that would encrypt over-the-air digital television signals after received by a broadcast tuner. [8] After much pressure by owners of network programming, including CBS, News Corp., and Walt Disney, this “broadcast flag” rule was adopted in November 2003. But in May 2005, the order was struck down in a unanimous decision by the U.S. Court of Appeals for the D.C. Circuit. In American Library Association v. FCC, the appeals court reversed the order, agreeing with plaintiffs Public Knowledge, Consumers, Union, Electronic Frontier Foundation, and the American Association of Law Libraries, who had argued that “the FCC acted both in excess of its statutory authority and contrary to the factual evidence in the record, and asked the Court to set aside the FCC’s order.”[9] The court relied heavily on a declaration filed by Peggy Hoon, Scholarly Communication Librarian at North Carolina State University, who “explained the adverse impact that the flag would have on distance education activities at NCSU” – activities allowed under the “fair use” provisions of copyright law.[10]

Since the ruling, the Motion Picture Association of America has pressed for legislation to re-impose the broadcast flag. And while the Recording Industry Association of America was not active in the early go-rounds of this dispute, they have eagerly urged Congress to extend anti-piracy rules to a so-called “audio flag” mandate. Such a proposal has the added hurdle of overcoming language in the Audio Home Recording Act that specifically allows consumers to make at least one copy of audio broadcasts.

Among these proposals were the Audio Broadcast Licensing Act of 2006 H.R. 4861 by Rep. Mike Ferguson (R-N.J.), and the broadcast flag proposals that were included in the Senate version of telecom overhaul legislation (S. 2686) introduced by Sen. Ted Stevens (R-Alaska), then-chairman of the Senate Commerce Committee. Although the bill passed the committee in June 2006, it did not reach the Senate floor because of the controversy over Net neutrality. The Ferguson bill would have expanded FCC jurisdiction to mandate the audio flag as well as the video broadcast flag. Stevens' telecom bill only addressed the video flag. Opponents argued that both of these would control innovation and violate the rights of consumers by inhibiting home recording.

Music Licensing

The rise of online peer-to-peer file-sharing services, particularly of digital music files, led groups like the Recording Industry Association of America, the National Music Publishers of America, and performing rights groups such as the American Society of Composers, Artists and Performers (ASCAP), Broadcast Music Inc. (BMI), and SESAC to seek relief from Congress. As the original P2P service Napster opened the door to wide-scale copying and redistribution of music, many questioned whether copyright law could cope with how easy copying has become.

The two sections of the copyright law most pertinent to digital music are Section 114, which deals with sound recordings, and Section 115, a compulsory license for making copies of sound recordings. Until 1972, the U.S. had no copyright protection at all for sound recordings, but only for the underlying musical compositions. Copyright holders received protection against the reproduction of their recordings. Under the framework put in place by the 1976 Copyright Act, Congress extended this limited protection for sound recordings to also include performances – but only for digital broadcasts and transmissions – in the 1995 Digital Performance Right in Sound Recordings Act. Congress has continued to toil over reforming both Section 114 and Section 115 in the past three years. Opponents of change have argued that music industry is seeking to “double dip.” For example, ASCAP has sought revenues from webcasters on the grounds that the reproductions of musical compositions made in the course of an Internet radio transmission invoke Section 115. But RIAA and performers’ groups counter that a webcast is a public performance subject to Section 114. As a result, the industry has not been able to agree on legislation that could harmonize changing technology with copyright law.

The Copyright Royalty Board

Under compulsory licenses, the government is responsible for setting the royalty rate. Currently, such determinations are made by a three-judge Copyright Royalty Board (CRB), part of the Library of Congress and its Copyright Office. Under the Copyright Royalty and Distribution Reform Act of 2004, the CRB officially began its existence on May 31, 2005, taking the place of prior quasi-judicial bodies. Copyright Arbitration Royalty Panels existed from 1993 until 2004. Copyright Royalty Tribunals were created under the 1976 Copyright Act, and operated until the creation of CARPs.

The three copyright royalty judges – James Scott Sledge, Stanley C. Wisniewski, and William J. Roberts – were appointed by Librarian of Congress James H. Billington on January 11, 2006. The statute calls for the chief judge (Sledge) to have at least five years of experience in adjudications, arbitrations, or court trials, while one of the other judges must have significant knowledge of copyright law (Roberts) and the other a significant knowledge of economics (Wisniewski). [11] No such requirements about copyright expertise existed under the CARP system. The other major difference with the CARP system is that copyright royalty judges will serve permanently under six-year terms. However, Wisniewski received a four-year appointment and Roberts a two-year appointment, so as to avoid a complete turn-over at the conclusion of Sledge’s six-year term. [12]

The trio made headlines with their March 2007 decision to increase royalty rates for webcasters, sending the Internet radio industry into a panic. As provided in sections 112 (e), 114, 115, 116, 118, 119 and 1004 of the Copyright Act, the Judges determine rates and terms for statutory, or compulsory licenses that are collected by the Copyright Office. In addition, they are to determine the status of a digital audio recording device or a digital audio interface device under sections 1002 and 1003, as provided in section 1010, which they have not done yet. [13]

Webcasting

Section 114 governs digital audio transmissions, authorizing compulsory licenses under statutory rates to commercial and noncommercial webcasters. It concerns the public performance right for digital sound recordings. This means that webcasters streaming Internet radio stations, and satellite radio providers, must pay a sound recording royalty, even though terrestrial broadcasters do not. [14]

On March 1, 2007, the CRB increased the royalty rate for webcasters. Under the decision by the royalty board, the rate that webcasters must pay for performances will rise from 0.08 cents per song, in 2006, to 0.19 cents per song, in 2010. Although the rate is retroactive to 2006, it will not take effect until July 15, 2007. [15] These payments go to the SoundExchange, a royalty collection agency. [16]On July 12, 2007, SoundExchange Executive Director [John Simson] told a Congressional committee that the collection agency would not enforce the new royalty rates against small webcasters so song as negotiations continue on a new royalty rates. [17]

The International Webcasting Association and other larger webcasters and broadcasters including Live365.com, as well as National Public Radio and Clear Channel, protested the decision. (Although broadcasters do not pay the performance royalty for over-the-air transmissions, they do pay when the stream songs over the Internet.) As a result, broadcasters, an industry with $20 billion in annual revenue, pays no royalties on its over-the-air performances, while satellite radio, with a $2 billion in annual revenue, pays between three and seven percent of revenue, according to the Save Net Radio Coalition. The group also projected that the combined revenues of the six largest Internet-only radio services will total only $73.6 million in 2008, while royalties will equal $42.4 million.[18]

Small webcasters said that it would put them out of business. NPR submitted motion for reconsideration of the new rate plan; however, the Board denied its appeal.[19] While advocates of the new plan say that Internet radio broadcasters can supplement costs by attracting advertisers, opponents, including the Net Radio Coalition, are appealing the Board’s decision.

The Coalition, whose members include Yahoo!, Live365 stations, Rhapsody, MTV Online, Pandora, and AccuRadio on June 26, 2007, led a Day of Silence among the webcasting industry to encourage listeners to support identical bills in Congress called Internet Radio Equality Act, also known as H.R. 2060 introduced by Rep. Jay Inslee, (D-WA) and S. 1353 introduced by Sen. Ron Wyden, (D-OR). The bill would reverse the CRB decision and require that rates in future proceedings be based upon a standard balancing the interests of copyright owners and copyright users, rather than between what a "willing buyer" would pay a "willing seller." Moreover, for the 2006-2010 period, the bills would also create a transitional rate of either 7.5 percent of annual revenues or 0.33 cents per listener/hour. Webcasters prefer those metrics, used commonly in the satellite radio industry, to the per-song measurement method set by the CRB. [20]




Section 115 Reform Act (SIRA)

Section 115 provides compulsory licenses to those seeking to record, or “cover,” a musical composition. It requires these individuals to provide notice and pay a statutorily established royalty. [21]Many have argued that the section lacks clarity and creates problems for new methods of digital delivery, like Web streaming. Last year’s Section 115 Reform Act of 2006 (SIRA) showed a willingness for interested parties to work together. But last-minute issue, including the inclusion of measures addressing XM Satellite Radio’s portable satellite receiver that also records music, killed the bill.[22]

In a March 2007 hearing before the House Judiciary Subcommittee on Courts, the Internet, and Intellectual Property, Register of Copyrights Marybeth Peters said that any new legislation would need to consider the scope of the license and a clarification of rights, collection and distribution of royalty fees. Peters recommended: that the committee amending Section 115 to resemble Section 114, creating a blanket license so that licensed services would only need to file a single notice, rather than on a song-by-song basis; and create a sublicensing system enabling music services clear the rights to both the sound recording and the musical work embodied therein with the record label. Other, previous suggestions included designating an agent to collectively manager reproduction and distribution rights, creating a music rights organization, and allowing the marketplace regulate licensing. [23]

Regulating Recording Devices

Issues of music licensing often pit performing artists against record labels against composers. The music industry is more united in their efforts to stop satellite and digital radio companies from compile portable digital libraries without adequate payment. Portable devices allow consumers to record, sort, and store digital broadcasts, effectively turning a broadcasts into a download, the industry says, creating an unlicensed digital music library.

But putting such limitations in law would cripple new innovations, the technology industry counters. The U.S. Supreme Court’s Sony v. Universal Studios (1984) decision held that equipment makers were not liable for consumers recording copyrighted works for noncommercial, personal use.[24]

Audio Home Recording Act of 1992

In particular, record labels have sued XM Satellite Radio over its combined receiver and digital music file player. XM claims that its device is protected under the Audio Home Recording Act of 1992. Moreover, the company says, the device does not infringe on copyrights even though consumers could record blocks of content like a cassette recorder to tape terrestrial AM or FM content because:

  1. content is locked to the device
  2. consumers cannot pick individual songs or artists played
  3. XM is already barred from publishing or announcing a playlist of upcoming songs
  4. digital songs on the device ends when subscription ends
  5. songs can be “bookmarked” for later purchase through XM or Napster and “pristine, permanent copies that can be exported from the device in accordance with Napster’s DRM.”[25]

In addition to its lawsuit, the recording industry seeks to use the “audio flag” portions of the PERFORM Act to limit such digital recording devices. Introduced by Sen. Dennis DeConcini (D-Ariz.), the Audio Home Recording Act of 1992, S.1623, required manufacturers of digital audio recording devices to make royalty fees to copyright holders, in addition to implementing the Serial Copy Management System to stop the production of multiple copies. It also prohibited devices that did not confirm with SCMS.

But the law also allows consumers to make royalty-free copies. XM cites the AHRA in defending itself. However, in a preliminary motion in Atlantic Recording Corp. v. XM Satellite Radio, federal district court Judge Deborah A. Batts denied XM’s request to dismiss the RIAA’s case against the satellite radio company over its device. The AHRA “provides no protection to XM” finding that XM’s product was used both for broadcasting and distributing. Comparing XM’s product to that of the cassette-record player was inadequate because it was “manifestly apparent that the use of a radio-cassette player to record songs played over free radio does not threaten the market for copyrighted works as does the use of a recorder which stores songs from private radio broadcasts on a subscription fee basis,” Judge Batts said.[26]

In addition to the RIAA suit, the National Music Publishers Association filed a similar suit against XM on March 22, 2007, in federal district court. The NMPA seeks a maximum of $150,000 in statutory damages for each work infringed by XM, and lists over 75 songs as a “small fraction” of those being illegally distributed through the XM+MP3 service. The NMPA noted that after XM “announced its intent to merge with one of its main competitors, SIRIUS Satellite Radio, XM began aggressively defending against charges that the merger would create an unacceptable monopoly. XM has asserted that it is in the same market as ‘music subscription services, iPods, CD players and cell phones,’ making clear that its unlicensed service is designed to compete with legitimate digital music download services and other distributors of recorded music.” [27]

The PERFORM Act

The PERFORM ACT of 2006 or "Platform Equality and Remedies for Rights Holders in Music Act," S.2644 and H.R.5361, brought this issue to a head in the 109th Congress. Introduced April 25, 2006 and reintroduced on January 25, 2007, as S.256 by Sen. Dianne Feinstein (D-Calif.), aims to create parity among all digital media broadcasters—satellite, cable and Internet radio service—by harmonizing rate setting standards for copyright licenses on a fair market rule under Sections 112 and 114 in the Copyright Act. According to a 2007 statement by Feinstein, “what was once a passive listening experience has turned into a forum where users can record, manipulate, collect and create personalized music libraries. As the modes of distribution change and the technologies change, so must our laws change.” [28]


The bill singled out XM and Sirius, and its proponents argued that Section 114 compulsory licenses should only be available to these companies that provide listening-only services, and not recording capabilities. However, opponents such as the Consumer Electronics Association-supported Home Recording Rights Coalition said that the legislation would stifle innovation. The Electronic Frontier Foundation argued that the bill would require DRM-laden streaming formats for satellite and digital radio stations as well as Internet webcasters. [29] XM said that its devices complied with the 1992 Audio Home Recording Act and with Section 801(b) of the Copyright Act, which governing Section 114 performance licenses. The Home Recording Rights Coalition and CEA sided with its member XM in the copyright lawsuits.

Other Copyright Issues

Digital Rights Management and Peer to Peer File Sharing

As the entertainment industry blamed peer-to-peer (P2P) services for piracy and lost record sales, they took legal action against Napster, Bit Torrent, Kazaa and Gnutella and other P2P services. Although lower courts provided mixed decisions, the U.S. Supreme Court sided with the entertainment industry in the 2006 decision MGM v. Grokster. The court found that Grokster could be held liable for the copyright infringement of its users because it did not do what it could have done to restrict users’ ability to trade digital files. Meanwhile, the RIAA began an aggressive strategy of suing their customers, sending pre-litigation letters requiring significant monetary settlements for engaging in copyright infringement. Music, movie and software companies alike have begun more aggressive uses of anti piracy technologies known as Digital Rights Management (DRM). Companies deploying such technologies to “lock” their digital wares have the ability to take enforce those digital restrictions under the 1998 Digital Millennium Copyright Act.

Since then, Napster went out of business; its name was bought by a new company that struck licensing deals with record labels. Bit Torrent also settled with entertainment companies. It agreed to use copyright filters to thwart the trading of pirated content by its users.. Now, however, streaming video clip sites have now taken on the burden of lawsuits. The most recent suit is Viacom v. YouTube over infringing video segments on their Web site. The owner of Comedy Central, BET, and MTV sought $1 billion.[30] Despite the fact that the alleged infringing content had been posted by users, and taken down upon notice by Viacom, the suit insisted that users continued to post unauthorized content of television programming and films and that YouTube failed to take reasonable measures to prevent infringement. The case may demonstrate the reach of the Grokster decisionAs a result of the suit, Viacom snubbed Google, which owns YouTube, and a multi-year advertising deal with Viacom went instead Yahoo.[31]

The DRM debate has reached new grounds as consumers and digital media services have complained that anti-piracy technologies restrict the ability for users to move digital content from one device to another. DRM opponents argue that such technologies deter consumers from going online to purchase digital media. Other problems include slow download times, lack of diverse content or complications in moving legally downloaded content onto a portable media player like an iPod or a Zune.

Copyright Term Extension Act

Also known as the 1998 Sonny Bono Act, the Copyright Term Extension Act or Fairness in Musical Licensing Act of 1998, introduced by Rep. Howard Coble,R-NC, gave copyright holders an additional 20 years to hold onto to their copyrights, providing specific rules for copyright works before or after January 1, 1978. It was nicknamed the “Mickey Mouse Act” by opponents because some saw its key purpose as keeping the cartoon character owned by Walt Disney out of the public domain. The constitutionality of the extension was challenged by Internet law professor Lawrence Lessig, who sued on behalf of a New Hampshire online publisher.. Although many were surprised that the Supreme Court accepted the case (Lessig lost at both the district and appellate court level), the high court upheld the extension, by a 7-2 vote, in Eldred v. Ashcroft. Justice Ruth Bader Ginsburg concluded that the act “did not exceed Congress’s power under the Copyright Clause and did not violate the First Amendment.” Justices John Paul Stevens and Stephen Breyer dissented.

Orphan works

The copyright term extension has only heightened the dilemma of so-called “orphan works.” These are creative works whose owners are impossible, or all-but-impossible, to identify and locate. As a result, individuals are precluded from re-publishing such works – even if they are out of print – unless they are willing to risk substantial penalties for copyright infringement should the copyright owner turn up and sue. In a report on orphan works to the Senate Judiciary Committee on January 31, 2006, the Copyright Office of the Library of Congress has stated that the issue is problematice because it could “discourage subsequent creators and users from incorporating such works in new creative efforts, or from making such works available to the public.” Sens. Orrin Hatch (R-Utah) and Patrick Leahy (D-Vt.) requested the report.

Rep. Zoe Lofgren (D-Calif.) introduced the Public Domain Enhancement Act in 2003 or H.R. 1601, and reintroduced the measure in 109th Congress as H.R.1408. The bill would require copyright holders to charge a maintenance fee of $1 and allow abandoned copyrighted works to enter the public domain after 50 years. Meanwhile, the Orphan Works Act of 2006, introduced by Rep. Lamar Smith (R-Texas), would “limit the remedies available in a copyright infringement action if the infringer proves that: (1) the infringer performed and documented a reasonably diligent search in good faith to locate the copyright owner before using the work, but was unable to locate the owner; and (2) the infringing use of the work provided attribution to the author and owner of the copyright, if known.” [32] The bill sought to provide guidelines for limited copyright infringement action against an infringer based on reasonably diligent search in good faith and attribution in addition to reasonable compensation award if the infringement isn’t used for commercial use or ceases after notice, among other things.

The Copyright Office made it a top priority to continue its focus on this issue in FY 2007-08, Register of Copyright Marybeth Peters said. In the 109th Congress, the Office proposed a new section, 514 for Title 17, which was introduced in Congress but not enacted. [33]

Main article: Orphan works legislation

Creative Commons

Created in 2001, the nonprofit organization Creative Commons provides non-exclusive creative licenses to copyright holders who want to provide flexible protected content, by setting themselves terms of the copyright entered into the public domain. Content protected include books, Websites, blogs, film, photos, music, and recordings. The Center for Public Integrity’s Well Connected Project has created a modified version of such a license for the non-commercial use of its Media Tracker database. [34]

Articles and resources

Related SourceWatch resources

References

Acknowledgment: The first version of this article, "Digital Copyright: In Converging World, Congress Continues to Tinker with Copyright," was written by Stokely Baksh, staff reporter with the Center for Public Integrity's Well Connected Project, and was published on July 13, 2007.

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  31. Google Gets Snubbed by CBS, CNN Money, April 12, 2007.
  32. Thomas page on H.R. 5439 (Orphan Works Act of 2006)
  33. Fiscal Year 2008 Budget Request, Statement of the United States Copyright Office before the Subcommittee on Legislative Branch, Committee on Appropriations, March 22, 2007.
  34. Center Releases License for Non-Commercial Use of Its Media Tracker, Press Release, Center for Public Integrity, July 3, 2007.

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