Under the safe harbors of the Digital Millennium Copyright Act (DMCA), Internet service providers are encouraged to respond to copyright complaints with content takedowns, assuring their immunity from liability while diminishing the rights of their subscribers and users. … Under the DMCA, process for an accused infringer is limited. … If this takedown procedure took place through the courts, it would trigger First Amendment scrutiny as a prior restraint, silencing speech before an adjudication of lawfulness. Because DMCA takedowns are privately administered through ISPs, however, they have not received such constitutional scrutiny, despite their high risk of error. …
This Article argues for greater constitutional scrutiny. The public is harmed by the loss of speech via indirect chilling effect no less than if the government had wrongly ordered removal of lawful postings directly. Indeed, because DMCA takedown costs less to copyright claimants than a federal complaint and exposes claimants to few risks, it invites more frequent abuse or error than standard copyright law. I describe several of the error cases in detail. The indirect nature of the chill on speech should not shield the legal regime from challenge.
See Wendy Seltzer “Free Speech Unmoored in Copyright’s Safe Harbor: Chilling Effects of the DMCA on the First Amendment” 24 (1) Harvard Journal of Law & Technology 172 (2010) (pdf).
Copyright law 2010 –the year in review in Canada and around the world
January 13th, 2011 by Barry Sookman Leave a reply »
Here is a copy of the slides I used today at the Law Society of Upper Canada’s Intellectual Property Year in Review conference. The associated paper prepared in collaboration with Glen Bloom, and with the help of others, is available here.
My slides summarize the following copyright cases from Canada, Australia, UK, Ireland, Singapore, Europe and the USA:
Willy the Wizard falters in the US, but can he still pull a rabbit from
The BBC report, “Harry Potter plagiarism case dismissed” (here), will not have escaped the eagle eyes of 1709 Blog readers. The headline refers not to the ongoing litigation in England and Wales between the estate of Adrian Jacobs and the JK Rowling crew, which is set to go to a full trial (see earlier posts on the 1709 Blog here and on the IPKat here) but to its United States counterpart.
I’ve blogged here about the ongoing litigation in England and Wales, and if this decision doesn’t encourage the applicant to settle those proceedings, no doubt I shall blog about the outcome in due course. In the meantime, the US decision is enough to be going on with.
PS: in the title to the 1709 blog post, I wonder where the Wizard is pulling the rabit from?
Semiotics, Law, and Copyright
H. Brian Holland, Texas Wesleyan School of Law, is publishing Social Semiotics in the Fair Use Analysis in a forthcoming issue of the Harvard Journal of Law and Technology. Here is the abstract.
This article presents an argument for an expansion of fair use, based not on theories of authorship or rights of autonomy but rather on a theory of the audience linked to social practice. The article asks, in essence, whether audiences determine the meaning, purpose, function, or social benefit of an allegedly infringing work, often regardless of what the work’s creator did or intended. If so, does this matter for the purpose of a fair use analysis based on a claim of transformativeness?
Happy New Year and Welcome to the Public Domain
Holidays, festivals and parties abound as the year turns from one to another. As we recover from all the celebrating, let us not forget one of copyright’s biggest days buried in the midst of all the punch, eggnog and streamers: Public Domain Day.
As is usual for this most festive of IP days, many posts around the blogosphere are listing works that have entered the public domain, works that would have entered the public domain under previous copyright laws and parties and events celebrating it all.
Picture: A page from this blogger’s favorite public domain work
The “Fallacy of Intellectual Property” Fallacy
… Law professor Eric E. Johnson is currently writing a series of posts on “the great fallacy of intellectual property“. He describes this fallacy this way: “The long understood theory for why IP rights are necessary has been that people won’t invent useful technologies or create worthwhile art and literature without having the right to profit from their labors.”We can call this the “fallacy of intellectual property” fallacy.
It’s a fallacy because it doesn’t accurately state the theory behind copyright. The economic justification for copyright is that it is an incentive to create — not a necessary condition. True, there exists a base level of drive to create knowledge and culture. But, as knowledge and culture are fundamentally important to a democratic society, an incentive to create above and beyond this base level provides significant benefits to that society.
In addition, the “fallacy of intellectual property” fallacy fails to account for an arguably more important function of copyright. Copyright provides an incentive to invest in creation.
This is an extract from a long, fascinating and subtle discussion by of a very important issue.
A little later than promised, here are some thoughts that occurred to me at the recent seminar on Promoting innovation – Reshaping the Law for the Digital Economy (which I blogged here and here). In the same way that browsers have a constant battle between features and speed, so the modern law of copyright is faced with a similar dilemma between encouraging and rewarding innovation. It is becoming increasingly clear that it has not solved this dilemma in a particularly satisfactory way. More than that, the most popular emerging solution – the introduction of a fair use defence to EU law – may not be sufficient for current needs, let alone for future developments.
At the seminar, Johnny Ryan argued that with the rise of the internet, where everything is in perpetual beta, we are in effect are reverting back to the pre-Gutenberg plasticity of information. In historical terms, this is the norm. It is the post-Gutenberg era of fixed information which is the anomaly. Copyright is a feature of this period: in the 1500s, it developed to protect the publishers; in the second half of the 1600s it came under increasing pressure to protect authors, and this was codified in the Statute of Anne, 1710; thereafter, the statutory protections were slowly expanded to other creators of other original works.…
As I said my first post yesterday, last Friday morning I attended a seminar on Promoting innovation – Reshaping the Law for the Digital Economy, hosted by Google Ireland, co-sponsored by the Institute for International and European Affairs (IIEA), and chaired by TJ McIntyre. In that post, I summarized the presentations by Johnny Ryan (the internet has created a hinge in history when information is plastic and copyright law is a block upon total commerce) and Niall O’Riordan (for Google, a fair use doctrine in Ireland and Europe is an idea whose time has come). In this post, I’ll look at last Friday’s other presentations; and in tomorrow’s post, I’ll add a few comments of my own on some of the issues raised by the seminar.
Kate O’Sullivan (Director of Regulation and Public Policy, UPC Ireland) pointed out that intermediaries (such as Google, Facebook, and ISPs) are caught in the middle between content producers seeking to enforce their rights as against users, and it is not appropriate that ISPs should be judge and jury in such a cause. Section 40(3) of the Copyright and Related Rights Act, 2000 (also here) provides that the mere provision of facilities by an ISP, for example, which enable the making available to the public of copies of a work “shall not of itself constitute an act of making available to the public of copies of the work” and therefore shall not for that reason amount to a copyright infringement.…
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