The Copyright Office has released a new version of Circular 92, Copyright Law of the United States and Related Laws Contained in Title 17 of the United States Code. It contains a number of significant updates to copyright law that have been enacted since the last edition of the circular was released in 2016, including the:
Marrakesh Treaty Implementation Act
Orrin G. Hatch-Bob Goodlatte Music Modernization Act
National Defense Authorization Act for Fiscal Year 2020
Satellite Television Community Protection and Promotion Act of 2019
Library of Congress Technical Corrections Act of 2019
Coronavirus Aid, Relief, and Economic Security Act
The document is available on the Copyright Office website. The Office says a print edition is forthcoming but has been delayed due to the ongoing COVID-19 pandemic.
It seems like only yesterday that the Copyright Office announced the seventh triennial 1201 rulemaking (or maybe it was only yesterday that I finally finished reading the 340+ pages of the Register’s recommendation), but here we are again: the Office has just announced the commencement of the eighth proceeding. The rulemaking, under 17 U.S.C. § 1201, aims to identify particular classes of works for which users are adversely affected in their ability to make non-infringing uses due to the prohibition on circumvention of access control technologies.
As I describe more fully in Chapter 5 of my book, the proceeding has evolved over the years form a relatively banal, esoteric administrative exercise into a more closely watched and sometimes hotly contested battle. (It was the fifth triennial rulemaking during which the Copyright Office determined — and justifiably so — that there was no longer a need for an exemption to allow consumers to “unlock” their cell phones).
The last rulemaking cycle was the first during which the Office used its streamlined procedure for “renewals” of existing exemptions, recognizing that while the statute does not permit the Office to simply “renew” previously granted exemptions, it could accelerate the way it adjudicates requests for those exemptions to continue. That approach apparently worked well, as the Office is doing it again during this cycle.
Here’s the full announcement from the Copyright Office:
The Copyright Office has published a notice of inquiry and request for petitions initiating the eighth triennial rulemaking proceeding under the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 1201. Section 1201 provides that the Librarian of Congress, upon the recommendation of the Register of Copyrights, may adopt temporary exemptions to the DMCA’s prohibition against circumvention of technological measures that control access to copyrighted works. The ultimate goal of the proceeding is to determine whether there are particular classes of works as to which users are, or are likely to be in the next three years, adversely affected in their ability to make noninfringing uses due to the prohibition on circumventing access controls. When such classes are identified, the Librarian promulgates regulations exempting the classes from the prohibition for the succeeding three-year period.
For this proceeding, the Office is again using a streamlined procedure for the renewal of exemptions that were granted during the seventh triennial rulemaking. If renewed, those current exemptions would remain in force for an additional three-year period (October 2021–October 2024).
The notice of inquiry requests that interested parties submit written petitions for renewal of current exemptions by 11:59 p.m. Eastern Time on July 22, 2020, written comments in response to any petitions for renewal by 11:59 p.m. Eastern Time on September 8, 2020, and written petitions proposing new exemptions by 11:59 p.m. Eastern Time on September 8, 2020.
The Office will be offering a public webinar to discuss the 1201 rulemaking process on June 23, 2020, at 2 p.m. Eastern Time. Registration is required and available here.
After more than five years, the Copyright Office released its long awaited report on Section 512 of Title 17. Better known as the “safe harbor” provision that grants internet service providers with immunity from liability for copyright infringement committed by their users, Section 512 has become one of the most hotly debated provisions of copyright law. It’s also the provision that is arguably the ripest for a legislative fix, and yet the least likely to ever get one for want of consensus among stakeholders.
Enacted in 1998, at the dawn of the commercial internet, Section 512 was intended to create “strong incentives for service providers and copyright owners to cooperate to detect and deal with copyright infringements that take place in the digital network environment. At the same time, it provides greater certainty to service providers concerning their legal exposure for infringement that may occur in the course of their activities.” S. Rep. 105-190, at 20 (1998).
Unfortunately the spirit of cooperation envisioned by Congress has not been realized. Today, service providers use the safe harbor as a shield, turning a blind eye to obvious copyright infringement taking place on their networks, a perspective endorsed by a number of course who have misunderstood (or been willfully blind to) the balance that Congress sought to strike. Copyright owners are left holding the bag, essentially having to police the internet themselves for the rampant infringement that still takes place there today, notwithstanding the dozens of legal sources for copyrighted books, films, television shows, and music.
Thankfully the Copyright Office more or less agreed, writing:
Roughly speaking, many OSPs spoke of section 512 as being a success, enabling them to grow exponentially and serve the public without facing debilitating lawsuits. Rightsholders reported a markedly different perspective, noting grave concerns with the ability of individual creators to meaningfully use the section 512 system to address copyright infringement and the “whack-a-mole” problem of infringing content reappearing after being taken down. Based upon its own analysis of the present effectiveness of section 512, the Office has concluded that Congress’ original intended balance has been tilted askew.
The report, which runs nearly 200 pages, distilling five years of study into twelve recommendations, is available from the Copyright Office’s website. (The full record of the proceeding that led to the report is available here).
You can find more on the history and background of the Digital Millennium Copyright Act in Chapter 4 of my book, The Unrealized Promise of the Next Great Copyright Act.
I’ll be teaching a short (6 week; 2 credit) remote course in media law this summer as part of the University of New Hampshire Franklin Pierce School of Law’s Intellectual Property Summer Institute. Affectionately known as “IPSI” by us UNH alums, this year’s all-remote-taught institute marks the return of a longtime summer fixture at UNH that brings students together with professionals and expert academics from around the world for short, focused courses on various aspects of intellectual property law (and related areas). Of course the program used to live, in person, at the school’s Concord campus, but this year it will all be delivered online, and it’s open to law students, recent graduates, and practicing attorneys.
Here’s the official description for my course, Legal Issues in Media and Mass Communication:
This course offers broad exposure to various legal issues confronted by mass media enterprises, ranging from traditional broadcasters and similar internet-based services, to the major internet platforms and the new class of “media enterprises” that they spawned, such as YouTube influencers and TikTok stars. By examining current issues and events, students will navigate areas of law including defamation, rights of publicity and privacy, newsgathering and right of access, advertising, broadcast and internet regulation, intellectual property, and antitrust – to understand how the law’s staple doctrines apply to the business of producing and distributing news, information, and entertainment for mass consumption.
In addition to my media law course, they’re offering courses in a variety of topics. While I confess that I haven’t undertaken a comprehensive review of every law school’s catalog, I have a hunch that for at least several of these, you won’t find them anywhere else:
Cannabis & IP
Doing Business in China
IP Policy
IP & Entrepreneurship
Why Venue Matters in IP Litigation
Name, Image & Likeness in Sports
Patent Licensing
Patent Practice & Procedure
Trademark Searching
Video Gaming & IP
For more information, and to join us this summer at the IP Powerhouse, visit law.unh.edu/ipsi.
Back in October of 2017, in the days following the Route 91 Harvest Music Festival Shooting in Las Vegas, I wrote about how it was local broadcasters — not digital streaming platforms — that served as the most important source of news and information about the incident, the response, and the community’s recovery (see In Praise of Local Media).
This morning, millions of students are waking up without anywhere to go. As the unprecedented impact of the COVID-19 outbreak continues to spread rapidly across the United States, school districts from coast to coast are closing their doors, transitioning to remote learning in an effort to keep the students, teachers, and other school staff safe.
Here in Los Angeles, it was local broadcasting that helped the school district answer the call of changing times. On Friday, the Los Angeles area’s PBS stations — PBS SoCal, KCET, KLCS, along with San Francisco’s KQED — announced a partnership with the Los Angeles Unified School District that would allow the approximately 735,000 students to continue their studies remotely by dedicating the stations’ daytime lineups to grade-level-specific, curriculum-aligned programming.
The knee-jerk reaction these days is to convert everything to online delivery. Can’t get to class? No problem, just watch the lecture on YouTube, participate in a discussion on Canvas or Blackboard, then join a Google Hangout with your study group to talk about the homework. Got questions about the assignment? Just Slack your instructor.
That all works well for those with access to the internet, but despite how ubiquitous it’s become, the internet divide remains very real. Indeed, in a market like Los Angeles, where more than 84% of students qualify for free or reduced-price meals, there’s a good chance that many of its students don’t have internet access at home. Or if they do, it’s limited to a mobile device, which using for the duration necessary to deliver instruction is impractical. In ordinary times, absent those students might use the internet at their local library, but these are no ordinary times: both public library systems that serve the Los Angeles area are closed.
Broadcast television thus offers LAUSD with the widest possible reach. It’s free to viewers, and the broadcast signals cover essentially the entire metropolitan area. While it’s true that not every household owns a television, they’re more common than internet connections. Of the 5.8 million households in the Los Angeles market (comprising Los Angeles, Orange, Riverside, San Bernardino, and Ventura counties), 5.3 million (91%) have at least one television. (Unfortunately DMA-level internet penetration stats are difficult to come by, but I believe them to be less than 91% for Los Angeles).
All of this is to say, internet-based content services are no doubt a boon for consumers, but as the LAUSD’s solution to the COVID-19 closure demonstrates, they’re no match for broadcast television.
