Law and Tech Research feed - Digital Copyright http://law.berkeley.edu 11:12:55 -0400 09:00:00 -0400 Can Online Piracy Be Stopped by Laws? http://www.law.berkeley.edu/14566.htm http://www.law.berkeley.edu/14566.htm Sat, 07 Jul 2012 09:00:00 -0400 Jumping the Grooveshark: A Case Study in DMCA Safe Harbor Abuse http://www.law.berkeley.edu/12763.htm http://www.law.berkeley.edu/12763.htm Wed, 21 Dec 2011 09:00:00 -0400 In Search of Copyright’s Lost Ark: Interpreting the Right to Distribute in the Internet Age Drawing upon the historical development of copyright law and the legislative history of the Copyright Act of 1976, this article explains why Congress selected the term “distribute” in its last omnibus revision of copyright law, shows unequivocally that Congress intended to encompass broadly the 1909 Act rights to “publish” and “vend” within the right to distribute, and rejects the position that Congress required proof of “actual distribution” to prove violation of the distribution right. This critical legislative history has been notably absent from treatise accounts and briefing on the liability standard in the file sharing cases, leaving courts without a compass to navigate this statutory terrain. This article traces the origins of the key legislative terms to elucidate the scope of the distribution right in the Internet age.

]]> http://www.law.berkeley.edu/9913.htm http://www.law.berkeley.edu/9913.htm Tue, 14 Dec 2010 09:00:00 -0400 Digital Exhaustion Acknowledging the obstacles to legislative intervention, this Article argues that courts are equipped today to limit copyright exclusivity in order to enable copy owners to make traditionally lawful uses of their copies, including resale through secondary markets. We argue that first sale is not simply an isolated limitation on the distribution right. Instead, it is a component of a broader principle of copyright exhaustion that emerges from early case law preceding the Supreme Court’s foundational decision in Bobbs-Merrill v. Strauss. This context reveals a common law of copyright exhaustion that embraces a set of user privileges that includes not only alienation, but renewal, repair, adaptation, and preservation. Despite congressional recognition of exhaustion in sections 109 and 117 of the Copyright Act, this Article concludes that courts have ample room to apply and continue to develop common law rules that preserve the many benefits of the first sale doctrine in the digital marketplace.

]]> http://www.law.berkeley.edu/10045.htm http://www.law.berkeley.edu/10045.htm Sat, 16 Oct 2010 09:00:00 -0400 The Google Book Settlement as Copyright Reform This Article explains why certain features of U.S. law, particularly copyright law, may have contributed to Google’s willingness to undertake the GBS project in the first place and later to its motivation to settle the Authors Guild lawsuit. It then demonstrates that the proposed settlement would indeed achieve a measure of copyright reform that Congress would find difficult to accomplish. Some of this reform may be in the public interest. It also considers whether the quasi-legislative nature of the GBS settlement is merely an interesting side effect of the agreement or an additional reason in favor or against approval of this settlement.

]]> http://www.law.berkeley.edu/10039.htm http://www.law.berkeley.edu/10039.htm Tue, 28 Sep 2010 09:00:00 -0400 Updating Fair Use for Innovators and Creators in the Digital Age: Two Targeted Reforms • Updating Section 107 to provide better guidance to courts, creators, copyright holders, and innovators on how to interpret the statute in light of new technologies and new forms of art and media by adding a limited (and nonexclusive) set of additional uses to its preamble; and

• Reforming Sections 504 and 505 to reduce one of the greatest barriers to making fair use of copyrighted works: fears of excessive and unpredictable statutory damages and attorneys’ fees and costs. The unpredictability of these remedies can chill even the most intrepid follow-on users making the most conservative fair uses.

These reforms are limited in scope and general in application for an important reason: one of the great strengths of the American fair use doctrine is its flexibility in accommodating both new uses and new markets for copyright holders. This ability to adapt and change as needed to preserve copyright’s critical balance over time has been a hallmark of good copyright policy. As such, in many aspects it is most appropriate for
fair use to develop through court cases and community norms,2 which can flexibly take into account changes in technology, societal and community practices, and business models.

At the same time, fair use is frequently criticized for the tradeoff required by such flexibility: unpredictability.3 Because it can sometimes be difficult to predict with certainty whether a court will find a given use fair, and because the downside risk of high statutory damages, costs and fees is also unpredictable, follow-on creators can be prevented from making and distributing valuable works that rely on fair use.

There is no model that can completely remove unpredictability from a flexible system, though proper understanding of caselaw4 and community norms5 can help. This Report focuses on another important method for increasing predictability without unduly sacrificing flexibility: Congress can update the general Section 107 framework with targeted changes that promote consistency across jurisdictions, diminish key chilling effects on fair use, and increase efficiency by limiting the need for litigation, without putting in place specific parameters that might limit the flexibility of the doctrine over time. We have focused our suggested reforms on Congress’ ability to achieve these goals.

]]> http://www.law.berkeley.edu/10324.htm http://www.law.berkeley.edu/10324.htm Sat, 13 Feb 2010 09:00:00 -0400 Envisioning Copyright Law's Digital Future http://www.law.berkeley.edu/10329.htm http://www.law.berkeley.edu/10329.htm Tue, 06 Oct 2009 09:00:00 -0400 What Effects Do Legal Rules Have on Service Innovation? http://www.law.berkeley.edu/10417.htm http://www.law.berkeley.edu/10417.htm Thu, 18 Jun 2009 09:00:00 -0400 Efficient Process or "Chilling Effects"? Takedown Notices Under Section 512 of the Digital Millennium Copyright Act In negotiating the § 512 compromise, copyright holders sought to ensure that OSPs had incentives to remove infringing material, and OSPs sought to avoid lawsuits and judgments based on secondary liability for users’ acts of copyright infringement. The resulting § 512 safe harbor is granted to OSPs in exchange for the “expeditious” takedown, upon notice by the copyright holder, of allegedly infringing material. The alleged infringers are to be protected from mistaken takedowns and misuse of this rather remarkable extra-judicial process principally through a counternotice procedure, through which they can demand replacement of the material if the copyright owner fails to initiate a lawsuit.

Copyright-holders have had access to the easy-to-initiate takedown process afforded by 17 U.S.C. § 512 for nearly eight years, and a review of the law seems in order. Has this compromise between industries worked as planned? Has infringing material been removed from the Internet? How have Internet publishers fared, including businesses large and small, bloggers, critics, and the many other speakers who make use of the Internet? How, if at all, has the great democratization of expression afforded by the Internet been affected by a simple, expedient extra-judicial procedure for removing material? These questions are frustratingly difficult to answer, a difficulty exacerbated by the fact that § 512 takedown notices—a matter of private action like any other cease-and-desist letter—are not part of the public record.

But for nearly four years, the Chilling Effects project has attempted to fill some of the gaps in this knowledge by collecting and archiving cease-and-desist notices of all kinds. Chilling Effects has collected § 512 takedown notices from a variety of sources, including all notices received by Google Inc. For this Article, we analyzed nearly 900 of these notices along various axes in an attempt to begin answering some of these questions. Our research is ongoing, and presumably over time the data set will increase in depth and size. As such, this is a preliminary evaluation. Insofar as we have begun to answer some questions, we have also learned enough to raise more questions and establish directions for further research. Unfortunately, however, our findings comprise a rather negative snapshot of the ways in which the § 512 process is being used, and reveal little benefit to some of the constituencies it was intended to support.

In Part II of this Article, we explain the § 512 process. In Part III, we sketch the rationale and history behind § 512, and briefly note some of the predictions, hopes and concerns that § 512 inspired in industry players, policymakers and commentators. In Parts IV, V, and VI, we present our study of § 512 notices, including a description of the data set, our methodology and findings. In Part VII, we analyze the findings and make some suggestions for change to the safe harbor scheme set up by § 512.

]]> http://www.law.berkeley.edu/10325.htm http://www.law.berkeley.edu/10325.htm Tue, 23 May 2006 09:00:00 -0400