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

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.

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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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Evans joins world class panelists at Ent, Arts & Sports Symposium in DC 9/18-19

On September 18-19, 2015 Howard University School of Law is hosting a national conference focusing on entertainment, arts, and sports law. It will be held at the Marriott Marquis in Washington, DC. The conference agenda is below. Online registration is available here:  http://newglobaleas.com.

The gala dinner and awards ceremony honoring Professor Spencer Boyer is on Friday night. The tickets for that event are available here: http://www.law.howard.edu/1952.

Conference Agenda  Continue reading “Evans joins world class panelists at Ent, Arts & Sports Symposium in DC 9/18-19”

Evans chapter on copyright appears in ‘Hip Hop and The Law’ anthology pub’d by Carolina Academic Press

I am excited to announce the official publication of the anthology, Hip Hop & the Law, edited by the late Pamela Bridgewater (formerly a professor at American University School of Law), andré douglas pond cummings (Vice Dean and Professor of Law at Indiana Tech Law School), and Donald F. Tibbs (Associate Professor at the Drexel University School of Law).

I am honored that my contribution,  Sampling, Looping and Mashing … Oh My! How Hip Hop Music is Scratching More Than the Surface of Copyright Law“, appears in this formidable collection of essential reflections by many of today’s leading critical thinkers. From professors, to practitioners, to creatives, Hip Hop and the Law curates a host of diverse voices to analyze and assess the interdisciplinary intersection of American jurisprudence and hip hop music and culture.

bridgewater coverWhat is important to understanding American law? What is important to understanding hip hop? Wide swaths of renowned academics, practitioners, commentators, and performance artists have answered these two questions independently. And although understanding both depends upon the same intellectual enterprise, textual analysis of narrative storytelling, somehow their intersection has escaped critical reflection.

Hip Hop and the Law merges the two cultural giants of law and rap music and demonstrates their relationship at the convergence of Legal Consciousness, Politics, Hip Hop Studies, and American Law.

No matter what your role or level of experience with law or hip hop, this book is a sound resource for learning, discussing, and teaching the nuances of their relationship. Topics include Critical Race Theory, Crime and Justice, Mass Incarceration, Gender, and American Law: including Corporate Law, Intellectual Property, Constitutional Law, and Real Property Law.

About Hip Hop & the Law published by Carolina Academic Press

Berklee College of Music explores just what “public performance” means in the age of ubiquitous music in @TheMBJ

“All the world’s a stage,” wrote Shakespeare in As You Like It, and he said as much in other plays. The public performance of creative works, including the work of songwriters, has to be seen in that context today. The advent of the Internet and digital technologies has blurred the lines of demarcation between public and private places, placing an undue burden on those experiencing or performing copyrighted works as to when a particular performance of a work necessitates obtaining a public performance license from the copyright holder.”

Read more: The Music Business Journal, “Copyright in Public Places” by Brian Oliver