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Professor Evans’ scholarship in line with DOC’s latest reccs re: copyright statutory damages, remixes

February 12, 2016 Leave a comment

iptf_logosThe Department of Commerce‘s Internet Policy Task Force recently released its much-anticipated report on statutory damages, remixes, and the first sale doctrine. The report, titled White Paper on Remixes, First Sale, and Statutory DamagesCopyright Policy, Creativity, and Innovation in the Digital Economy (The IPTF Report), recommended numerous important and long overdue changes to the Copyright Act. Those recommendations focus on three key areas:

  1. the legal framework for the creation of remixes;
  2. the relevance and scope of the first sale doctrine in the digital environment; and
  3. the application of statutory damages in the context of individual file-sharers and secondary liability for large-scale online infringement. (p. iii, The IPTF Report).

The Task Force Report made three recommendations overall:

  1. To enact a new section 504 of the Copyright Act that lists factors for courts and juries to consider when determining the amount of a statutory damages award.
  2. To remove the “notice bar” to the Innocent Infringer “defense” and instead treat notice as merely a factor. This change is especially important to protect a good faith, mistaken user (who I refer to as a “mea culpa infringer” in Safe Harbor for the Innocent Infringer in the Digital Age).
  3. To give courts the discretion to assess statutory damages in ways other than a strict per-work basis in cases involving non-willful secondary liability for online services offering a large number of works.

I write primarily about the impact of new technologies and new forms of artistic expression on copyright law. Therefore, I am excited and encouraged to see that my assertions and recommendations in Safe Harbor for the Innocent Infringer in the Digital Age (50 Willamette L. Rev. 1 (2013)), Reverse Engineering IP  (17 Marquette Intell. Prop. L. Rev. 61 (2013)), and Sampling, Looping & Mashing … Oh MY! (21 Fordham Intell. Prop. Media & Ent. L.J. 843 (2011)), are consistent with the Task Force’s approach to these critical areas in need of substantive reform.

For example, in Safe Harbor for the Innocent Infringer in the Digital Age I explored the role of the innocent infringer archetype historically and in the digital age. I also highlighted the tension between a “20th century” copyright regime and “21st century” user expectations regarding generally accepted online uses of copyrighted materials. Those customary uses reflect the efficient use of digital technologies and the Internet. Finally, I offered a legislative fix in the form of “safe harbor” from liability for certain innocent infringers akin to the type of protection afforded online service providers.

In that article, I argued that such an exemption seems not only more efficient but also more just in the online environment where unwitting infringement for the average copyright consumer is far easier than ever to commit, extremely difficult to police, and often causes little, if any, real market harm.

copyrightsymbol_lock

In a current work-in-progress titled “Safer Harbor” from Statutory Damages for Mea Culpa Infringers: Remixing the DOC White Paper, I approach the topic from the damages-instead of the liability-phase.

I offer a legislative fix to the statutory damages section that would inject greater balance, fairness and uniformity into the damages assessment. I began writing this article in 2014 but in light the IPTF Report, I intend to analyze and incorporate the Report’s findings and recommendations against the backdrop of my own recommended fixes to copyright law.

 

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Government Shutdown Affects IP Profs, Attys too … Copyright.gov down!

October 1, 2013 Leave a comment

October 1, 2013

Creative Commons License
Government Shutdown Affects IP Profs, Attys too … Copyright.gov down! by Tonya M. Evans is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 United States License.

As I prepared for my Copyright & Trademark class this morning, I needed to pull the text of one of the sections of the Copyright Act. So I surfed on over to Copyright.gov to access the full text of the Act when I bumped into an odd-looking notice page.

Without really looking at the text, I figured my browser had auto-completed the last URL I’d visited at the site so I typed in copyright.gov myself and hit send. The odd-looking notice page appeared again and there it was … an official notice that due to the government shutdown the Copyright Office is closed:

Copyright.gov special notice due to gov't shutdownSo it seems the government shutdown is INDEED having intended and unintended consequences as thousands of federal employees are furloughed, or receiving government IOUs because the government cannot pay. The strategy to defund the federal government in order to participate in the kabuki theater of purporting to defund the Patient Protection and the Affordable Care Act (Affordable Care Act or ACA) a/k/a Obamacare seems not only inane (and insane) but just plain inhumane.

[ObamaCare Exchanges start up just as government shuts down]

Dozens of offices are closed, including the Copyright Office. So the impact is real. Mail will be delivered. Social Security and Medicare benefits will continue to flow (although there will likely be delays). But WIC food benefits, federal courts, NIH, food safety, Head Start, federal loan processing, veterans services and work safety (to name just a few areas) are all immediately and negatively impacted (either by delays or closures). Even our military and military families are taking a hit. And because taxes and fines will go uncollected, valuable and much-needed revenue will take a hit as well.

Despite the Copyright Office closure, the United States Patent & Trademark Office remains open … at least for several weeks! It’s hardly a silver lining but not all agencies are impacted in the same way.

The USPTO notice reads as follows:

During the general government shutdown that began October 1, 2013, the United States Patent and Trademark Office will remain open, using prior year reserve fee collections to operate as usual for approximately four weeks. We continue to assess our fee collections compared to our operating requirements to determine how long we will be able to operate in this capacity during a general government shutdown. We will provide an update as more definitive information becomes available.

Should we exhaust these reserve funds before the general government shutdown comes to an end, USPTO would shut down at that time, although a very small staff would continue to work to accept new applications and maintain IT infrastructure, among other functions. (Should it become necessary for USPTO to shut down, details of the agency’s plan for an orderly shutdown are available on page 78 of the United States Department of Commerce’s shutdown plan, available here.)

It was avoidable. Read more…

Internet browsing against policy may get you fired but it’s no federal crime, says the 9th Circuit

June 11, 2012 Leave a comment

Source: SWIPLit.com:

 “In a decision that should give many employees a sigh of relief, the Ninth Circuit has held that browsing the Internet in contravention of an employer’s use restrictions does not give rise to criminal penalties under the Computer Fraud and Abuse Act (CFAA) 18 U.S.C. § 1030.”

Read the full article at SWIPLit.com

Victory … for now. Congress drops scheduled SOPA & PIPA votes!!

January 20, 2012 Leave a comment


A Message from FightForTheFuture.org:

Hi everyone!

A big hurrah to you!!!!! We’ve won for now — SOPA and PIPA were dropped by Congress today — the votes we’ve been scrambling to mobilize against have been cancelled.

The largest online protest in history has fundamentally changed the game.  You were heard.

On January 18th, 13 million of us took the time to tell Congress to protect free speech rights on the internet. Hundreds of millions, maybe a billion, people all around the world saw what we did on Wednesday.  See the amazing numbers here and tell everyone what you did.

This was unprecedented. Your activism may have changed the way people fight for the public interest and basic rights forever.

The MPAA (the lobby for big movie studios which created these terrible bills) was shocked and seemingly humbled.  “‘This was a whole new different game all of a sudden,’ MPAA Chairman and former Senator Chris Dodd told the New York Times. ‘[PIPA and SOPA were] considered by many to be a slam dunk.’”

“’This is altogether a new effect,’ Mr. Dodd said, comparing the online movement to the Arab Spring. He could not remember seeing ‘an effort that was moving with this degree of support change this dramatically’ in the last four decades, he added.”

About Fight for the Future

Fight for the Future is a non-profit helping to organize the historic strike against the web censorship bills SOPA and PIPA on our site sopastrike.com – go there for a list of websites that are striking and more information.

IP Prof Uses Anti-Piracy Legislation Protests as Teachable Moment

January 18, 2012 Leave a comment

As reported by the Web Editor at law.widener.edu:

“We’re doing a law firm simulation in class where the students are divided into 5 law firms, maintaining their own websites and blogs and tracking intellectual property issues,” says Associate Professor Tonya Evans of her efforts to use two proposed pieces of legislation – the Stop Internet Piracy Act (SOPA) in the House of Representatives and its counterpart in the Senate known as the Protect IP Act (PIPA) – as teachable moments for her students.

Both bills are designed to make it more difficult to sell or distribute a range of copyrighted materials such as movies, television shows, and music, as well as counterfeit goods ranging from pharmaceuticals to watches. The bills have support from both sides of the political spectrum, and the purpose of the legislation is broadly regarded as a worthy goal.

There is, however, strong opposition to the methodology employed in the proposed legislation from a range of technology companies and advocates for Internet freedom, who have serious reservations about the provisions contained within. >> Read the full story

Prof Evans Joins in the Movement to Defeat SOPA/PIPA

January 17, 2012 Leave a comment

Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has.”

~Margaret Mead~

Protection or overprotection?

The House of Representatives is currently considering passage of the Stop Online Piracy Act (SOPA) introduced by Representative Lamar Smith. A similar bill titled the Protect IP Act (PIPA), introduced by Senator Patrick Leahy, is making its ways through the Senate. Both bills, in my opinion, threaten Internet freedom and should not pass in their present form.If passed and signed by the President into law, such an onerous law could well put publishing freedom severely at risk, and allow copyright holders to, without due process or any consideration of the limitations on copyright, shut down entire sites at the whim of private corporate interests.

Fight for the Future created a fantastic short video explaining things further.

The folks at WordPress.org circulated a missive today (quoted in part below) that informed site owners about the online protest of SOPA/PIPA and invited WordPressers to join in. I will be participating in the SOPA protest on all of my WordPress sites and encourage you to do the same. This site will be blacked out on January 18th and will sport the support ribbon during the full protest (which ends with the vote) so stay tuned and be informed!

On January 18, 2012, sites all over the internet will be blacking out to protest and try to mobilize more people to speak out against this bill coming up in the Senate next week — S. 968: the Protect IP Act (PIPA) — in an attempt to let U.S. lawmakers know how much opposition there is. WordPress.org, Wikipedia, and even WordPress.com VIP I Can Has Cheezburger? will be participating in the blackout to raise awareness and spur you to action.

Here on WordPress.com, we want to participate as well. Freshly Pressed will be blacked out during the strike. Sorry to take away your daily fix of yummy web content, but this bill threatens to do that on a much wider scale. You don’t want that, do you?

More importantly, we are making it possible for you to participate in the protest. There are two options: a “Stop Censorship” ribbon and a full blackout. The blackout portion will be in effect January 18 from 8am to 8pm EST, while the ribbon will be displayed until January 24.

And one last pitch: whatever you decide to do about your site, please take a few minutes to head over to americancensorship.org and take action. It only takes a few moments of your time to be an agent of change!

We are not a small group. More than 60 million people use WordPress — it’s said to power about 15% of the web. We can make an impact, and you can be an agent of change. Go to Stop American Censorship for more information and a bunch of ways you can take action quickly, easily, and painlessly. The Senate votes in two weeks, and we need to help at least 41 more senators see reason before then. Please. Make your voice heard.

Wikipedia, Others fade to black in protest of SOPA and PIPA

January 17, 2012 Leave a comment

As reported by Wiki Media Foundation:

It is the opinion of the English Wikipedia community that both of these bills, if passed, would be devastating to the free and open web.”

On January 16, 2012, the Wikipedia community announced its decision to black out the English-language Wikipedia for 24 hours, worldwide, beginning at 05:00 UTC on Wednesday, January 18 (you can read the statement from the Wikimedia Foundation here).

The blackout is a protest against proposed legislation in the United States—the Stop Online Piracy Act (SOPA) in the U.S. House of Representatives, and the PROTECTIP Act (PIPA) in the U.S. Senate—that, if passed, would seriously damage the free and open Internet, including Wikipedia.

This will be the first time the English Wikipedia has ever staged a public protest of this nature and is not done lightly. Dozens of other high-powered sites and thousands more are joining the protest in varied ways to to speak with a collective voice. Read the full announcement

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