Samuelson Clinic Takes Aim at Misleading Copyright Practices
By Andrew Cohen
Copyright owners are increasingly engaging in abusive and misleading practices that are unfair to consumers, according to a recent report by the Samuelson Law, Technology & Public Policy Clinic, which suggested several reforms.
The clinic crafted the report for client Public Knowledge (PK)—a Washington, D.C. nonprofit involved in intellectual property law and digital marketplace issues. It’s the third report in PK’s Copyright Reform Act Project, which was established to analyze copyright law’s main problems and provide solutions.
The report, “Copyright Abuse and Notice,” notes that misleading copyright warning notices “are so pervasive today that the average consumer is likely to take them for granted.” According to Allen Wang ’11, the report’s main student author, such notices can deter lawful uses of various works and “members of the public often believe these notices are an accurate representation of the law.”
Jennifer Urban ’00, co-director of the Samuelson Clinic, says the recent explosion in digital tools and open communication platforms has benefited society “by driving innovation, creativity, and access to information.” But she notes that “uncertainty about liability can stymie creators and innovators. Inaccurate and misleading copyright notices add to the problem.”
The report found that some copyright owners fail to provide adequate notice of technological restrictions on the products and services they offer. These restrictions are often buried in complex license agreements that do not offer meaningful notice, placing consumers “in a position where they may accidentally violate anti-circumvention laws.”
In addition to requiring accurate copyright notices and warnings, the report urges mandating that technological limitations on usage rights be clearly disclosed to consumers prior to purchase. Copyright owners failing to meet these requirements would be unable to hold consumers responsible for circumventing undisclosed technological restrictions.
The report also urges strong procedural protections for copyright defendants, allowing them to easily dismiss frivolous copyright lawsuits. Such protections would increase efficiency by suspending discovery and providing for attorneys’ fees, if successful.