Professor Evans will present her latest work-in-progress, Safer Harbor from Statutory Damages for Mea Culpa Infringers: Remixing the DOC White Paper, at the 2016 Tenth Annual Lutie Lytle Black Women Law Faculty Writing Workshop.
The paper, slated for fall placement, titled “Safer Harbor” from Statutory Damages for Mea Culpa Infringers: Remixing the DOC White Paper, is a follow up to her article, Safe Harbor for Innocent Infringers in the 21st Century. The former article argued that under certain circumstances, “innocent” users should be protected from liability in the same way that Internet Service Providers are protected under the Digital Millennium Copyright Act’s safe harbor provisions. In Safer Harbor, Professor Evans approaches the same topic from the damages-instead of the liability-phase.
In Safer Harbor, Professor Evans offers a legislative fix to the statutory damages section that would inject greater balance, fairness and uniformity into the damages assessment.
The 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 Damages: Copyright Policy, Creativity, and Innovation in the Digital Economy (The IPTF Report), recommended numerous important and long overdue changes to the Copyright Act.
In light the IPTF Report, Professor Evans analyzes and incorporates the Report’s findings and recommendations against the backdrop of her own recommended fixes to copyright law.
About the Lutie Lytle Conference
The Lutie A. Lytle Black Women Law Faculty Writing Workshop (the “Lytle Workshop”) is an annual gathering of current and aspiring black women law faculty. While the primary focus is on legal scholarship, this event is important for networking, bonding, and getting refreshed. Read more about the History of the Program. Since the Workshop began, its participants have published more than 29 books, 44 book chapters, and 500 articles (bibliography of works authored by workshop attendees as of 2016).
The 2016 gathering, which will be the historic and commemorative 10thAnnual Workshop, will be hosted by the University of Iowa College of Law on July 7-10, 2016, in Iowa City. A writing retreat will take place before and after the main Workshop on July 6-7 and 10-12, 2016. [More information …]
I invite you to register for Wednesday’s webinar, hosted by the NBA IP Law Section. Registration is free for all IP Section members, and $30 for non-members.
IP Law Review – A Survey of Recent Developments in Patent, Trademark, and Trade Secret Law.
Date: Wednesday, June 8, 2016
Follow live tweet at #NBAIPLaw
- Tonya Evans (Widener University Commonwealth Law School) – Moderator
- Darrell Mottley (Banner Witcoff)
- Shontavia Johnson (Drake University Law School)
- Kevin Jordan (JP Morgan Chase)
Summary – Our panelists will discuss a variety of hot topics and recent developments in patent, trademark, and trade secret law, including:
- The internet of things as an emerging technology/industry, and related IP and regulatory issues
- Intersection between the First Amendment and Section 2(a) of the Lanham Act regarding registration of immoral, scandalous, or disparaging trademarks, including the impact of trademark cases
- Overview of trade secret law and its viability as an alternative means of IP protection
CLE Info: The NBA IP Law Section is looking into obtaining CLE accreditation in the following jurisdictions: CA, GA, IL, NY, TX, and VA. For questions regarding CLE accreditation, please contact Bill Barrow (wbarrow[at]mayerbrown.com).
Cost: This webinar is free for NBA IP Law Section members and costs $30 (plus processing fees) for non-members.
Professor Evans’ scholarship in line with DOC’s latest reccs re: copyright statutory damages, remixes
The 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 Damages: Copyright 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:
- the legal framework for the creation of remixes;
- the relevance and scope of the first sale doctrine in the digital environment; and
- 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:
- 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.
- 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).
- 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.
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.
Statement From Aereo CEO & Founder Chet Kanojia on United States Supreme Court Decision
Court decision denies consumers the ability to use a cloud-based antenna to access free over-the-air television, further eliminating choice and competition in the television marketplace.
New York, New York (June 25, 2014) – The following statement, distributed via e-mail to Aereo mailing list subscribers and posted on the Aereo blog, can be attributed to Aereo CEO and Founder, Chet Kanojia:
“Today’s decision by the United States Supreme Court is a massive setback for the American consumer. We’ve said all along that we worked diligently to create a technology that complies with the law, but today’s decision clearly states that how the technology works does not matter. This sends a chilling message to the technology industry. It is troubling that the Court states in its decision that, ‘to the extent commercial actors or other interested entities may be concerned with the relationship between the development and use of such technologies and the Copyright Act, they are of course free to seek action from Congress.’ (Majority, page 17)That begs the question: Are we moving towards a permission-based system for technology innovation?”
“Consumer access to free-to-air broadcast television is an essential part of our country’s fabric. Using an antenna to access free-to-air broadcast television is still meaningful for more than 60 million Americans across the United States. And when new technology enables consumers to use a smarter, easier to use antenna, consumers and the marketplace win. Free-to-air broadcast television should not be available only to those who can afford to pay for the cable or satellite bundle.”
“Justice Scalia’s dissent gets it right. He calls out the majority’s opinion as ‘built on the shakiest of foundations.’ (Dissent, page 7) Justice Scalia goes on to say that ‘The Court vows that its ruling will not affect cloud-storage providers and cable television systems, see ante, at 16-17, but it cannot deliver on that promise given the imprecision of its results-driven rule.’ (Dissent, page 11)”
“We are disappointed in the outcome, but our work is not done. We will continue to fight for our consumers and fight to create innovative technologies that have a meaningful and positive impact on our world.”
Founder & CEO
My law review article, Safe Harbor for the Innocent Infringer in the Digital Age, published recently by Willamette Law Review (50 Willamette L. Rev. 1 (2013)), has been judged one of the best law review articles related to entertainment, publishing and/or the arts published within the last year!
Accordingly, the editor of the 2014 edition of the Entertainment, Publishing and the Arts Handbook selected Safe Harbor for inclusion in the annual Handbook anthology published by Thomson Reuters (West).
“The London School of Economics and Political Science has released a new policy brief urging the UK Government to look beyond the lobbying efforts of the entertainment industry when it comes to future copyright policy. According to the report there is ample evidence that file-sharing is helping, rather than hurting the creative industries. The scholars call on the Government to look at more objective data when deciding on future copyright enforcement policies.”