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ICANN NCUC Blog
On January 19 2012 the Copyright Society of the USA‘s NY Chapter presented The Future of Digital Licensing: Still Door-To-Door or One-Stop-Shop? . Speakers were Jay Rosenthal,Senior Vice-President and General Counsel at the National Music Publishers’ Association (NMPA) and Anjali Malhotra, Manager, Content Partnerships, Music for YouTube. Moderator was Jim Griffin, Managing Director of OneHouse LLC. Video is below.
ipod | stills |
CopyNight NYC February: The Defense of SOPA
https://www.eventbrite.com/event/2925677781
Did Hollywood have a leg to stand on? At our next CopyNight, join us for a great opportunity to talk one on one with one of SOPA’s supporters. This is a chance to get into the more nuanced aspects of the drive for IP protection vs. the issues of security, free speech and privacy that have driven the debate so far. We will discuss the issues behind legislation as well as the general divide between Hollywood and tech.
Our speaker, Hillel I. Parness, is a practising attorney and partner with the New York-based firm of Robins, Kaplan, Miller & Ciresi and an adjunct member of the IP faculty at Columbia University School of Law . His analysis of SOPA has been featured on ReadWriteWeb, the MPAA blog, and elsewhere. He will give a brief presentation followed by discussion.
CopyNight February will be at 7pm at Vig Bar, 12 Spring Street, Back Room. Tuesday, 2/28.
CopyNight is a monthly social gathering of people interested in restoring balance in copyright law. We meet over drinks once a month in many cities to discuss new developments and build social ties between artists, engineers, filmmakers, academics, lawyers, and many others. Join us in the back room.
Creative Commons has announced a  requirements gathering period, an opportunity to contribute ideas for improving the license suite. Major concerns are resolving the treatment of sui generis database rights in Europe, and to adjust the licenses to more fully support intergovernmental organizations and other international applications.
For a fuller description of CC’s objectives, the process and expected schedule, visit the 4.0 wiki homepage
Policies mandating DNS filtering undermine the open architecture of the Internet and raise human rights and freedom of expression concerns
[Washington, D.C. and Geneva, Switzerland – 12 December 2011] – The Internet Society Board of Trustees has expressed concern with a number of U.S. legislative proposals that would mandate DNS blocking and filtering by ISPs to protect the interests of copyright holders. While the Internet Society agrees that combating illicit online activity is an important public policy objective, these critical issues must be addressed in ways that do not undermine the viability of the Internet as a platform for innovation across all industries by compromising its global architecture. The Internet Society Board of Trustees does not believe that the Protect-IP Act (PIPA) and Stop Online Piracy Act (SOPA) are consistent with these basic principles.
Specifically, the Internet Society is concerned with provisions in both bills regarding Domain Name System (DNS) filtering. DNS filtering is often proposed as a way to block illegal content consumption by end users. Yet policies to mandate DNS filtering will be ineffective for that purpose and will interfere with cross-border data flows and services undermining innovation and social development across the globe.
(More …)
On December 7 2011 the Center for Internet and Society at Stanford Law School hosted a panel discussion – What’s Wrong With SOPA? – on the evils of the proposed Stop Online Piracy Act (SOPA) currently before Congress.
Panelists:
Moderator:
The Internet Society has noted with concern a number of U.S. legislative proposals that would mandate DNS blocking and filtering by ISPs in order to protect the interests of copyright holders. We agree with proponents of the Protect-IP Act (PIPA) and Stop Online Piracy Act (SOPA) that combating illegal online activities is a very important public policy objective. However, policies that are enacted to achieve this goal must not undermine the viability of the Internet as a globally reachable platform. After close examination and consultation with the Internet community, we do not believe that the current U.S. legislative proposals are consistent with these basic principles.
In particular, we are concerned with provisions in both laws regarding DNS filtering. DNS filtering is often proposed as a way to block illegal content consumption by end users. Yet policies to mandate DNS filtering have not proven to be effective – these approaches interfere with cross-border data flows and services undermining innovation and social development across the globe. In addition, DNS blocking raises significant concerns with respect to human rights and freedom of expression and may curtail fundamental international principles of rule of law and due process.
The United States has an important leadership role when it comes to online Internet freedoms and should show the way when it comes to balancing local responsibilities and global impact, especially with respect to Internet policy.
In short, the negative impact of DNS filtering far outweighs any short-term, narrow, legal, and commercial benefits. The Internet Society believes that sustained, global collaboration amongst all parties is needed to find ways that protect the global architecture of the Internet while combating illegal online activities. We must all work to support the principles of innovation and freedom of expression upon which the Internet was founded.
Today, Wed. November 16 2011 the U.S House of Representatives Judiciary Committee held a hearing on H.R. 3261, the Stop Online Piracy Act, which was introduced October 26, 2011. This hearing, of which no recording is currently available, was controversial – not only because of the provisions of the Act, but also because, with the exception of Google, every invited witness is a vocal proponent.
Opponents have deemed today American Censorship Day and statements have been issued opposing the bill including letters from corporations, advocacy groups, members of Congress and law professors.
A petition on the White House site has already surpassed its target of 25k signatures.
On September 15 2011, the Copyright Society of the USA’s New York Chapter presented “Copyright and Content in the Cloud” at the Princeton Club NYC. A panel focussed on the critical legal issues raised by the expansion of cloud computing and explore how stakeholders can balance the need to comply with evolving laws, standards and court decisions with the need to exploit new technological advancements that lead to improved services and enhanced user experiences.
SPEAKERS:
VANESSA C. HEW, Partner, Duane Morris LLP
BARRY I. SLOTNICK, Partner, Loeb & Loeb LLP
MODERATOR:
DAN SCHNAPP, Partner, Hughes Hubbard & Reed LLP
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ipod | mp3 | stills |
The Electronic Frontier Foundation (EFF) has responded to the July 6  “Memorandum of Understanding” (MOU) between big content and ISP’s that outlined a graduated response scheme of “copyright alerts” for enforcing user compliance with respect to content distribution models.  The responses detailed include notices, education and, ultimately, restrictions on access.  The EFF notes the involvement of NY Governor Andrew Cuomo in the process, no doubt building on his earlier success of removing Usenet from all local major ISPs.
The EFF’s main bones of contention are that 1) the “education” involved is big content propaganda and omits all mentions of fair use or other adverse legal aspects; 2) that the public was at no point consulted in the process. It is noted that, on the latter point, that the Center for Copyright Information (CCI),  set up to administrate the six-strikes system,will have a three-person advisory board to voice the concerns “from relevant subject matter and consumer interest communities.†The subscribers, who’s fees will be paying for the entire effort, and who will be subject to its mandates, have no direct representation whatsoever.
Why representation? Noting an egregious lack of due process in the provisions the EFF suggests that, if the public had been consulted, some of the following considerations might have been included:
Read more: The “Graduated Response†Deal: What if Users Had Been At the Table?
This was finally picked up by Boing Boing yesterday
Peter Walker of UK newspaper The Guardian reports that United States Immigration and Customs Enforcement agency (ICE) is looking to extradite owners of websites it believes are breaking US copyrights – even if their servers are not based in America or are legal in their own countries. The rationale is that the use of generic top level domain names like .com and .net, administered by Verisign in the US, provides “nexus” thus giving them jurisdiction. At issue is the case of tvshack.net – a linking site run by British student Richard O’Dwyer. The domain already was seized by ICE. O’Dwyer now faces extradition. Walker quotes ICE Assistant director Erik Barnett:
“Without wishing to get into the particulars of any case, the general goal of law enforcement is to arrest and prosecute individuals who are committing crimes. That is our goal, our mission. The idea is to try to prosecute.”
On linking:
“I’ll give you an analogy. A lot of drug dealing is done by proxy – you rarely give the money to the same person that you get the dope from. I think the question is, are any of these people less culpable?”
In England there are calls to amend the extradition agreement with the US so that a UK judge can decide jurisdiction on individual cases..
Writing on the Volokh Conspiracy blog on July 4 David Post – author of  In Search of Jefferson’s Moose: Notes on the State of Cyberspace - notes that over 90 Law and IP professors have signed a letter opposing the proposed Protect IP Act.  He says:
The bill, which will allow the government to obtain injunctions against domain names hosting allegedly copyright-infringing or trademark-infringing material, and to have those domain names deleted from the Internet’s databases, represents a serious assault on the fundamental principles that have built the Net — the design principles at the heart of its technical infrastructure, and the free speech principles it has done so much to foster and cultivate around the globe, all at the behest of your friends in the recording and motion picture industries.
The full text of the letter is below
Today, July 4, Independence Day in the USA the New York Times has chosen to speak out on the freedom on the Internet in an editorial entitled Free Speech and the Internet.
Endorsing the recent UN rapporteur’s report, and noting heavy-handed moves like Chinese censorship,  Italy’s defamation case, data retention in Brazil,  three-strikes laws, & the United States’ dubiously legitimate domain seizures, the Times concludes:
The U.N. has proposed sound guidelines to defend free expression: censorship of content online must be transparent and enforced only through the courts. Governments should not rely on private entities like service providers to censor content and should not hold them liable for user content. Counterterrorism should not be an excuse to bar expression, unless it is to prevent imminent threats.
With few exceptions, governments should not adopt Internet registries that require users to reveal their identities. And defamation — so often used as a legal tool to repress political speech — should be decriminalized. Finally, nobody should be banned from the Internet. It is a fundamental tool for enabling free speech.
A short video Cory Doctorow recorded for The Guardian called “Every Pirate Wants to Be an Admiral,” in which he lays out the case for a less-restrictive copyright as better for culture.
OUTLAW.COM reports a recent court decision in Los Angeles where one Kenneth Stern had sued for copyright infringement after an allegedly libelous email to a listserv was leaked to its subject.
Judge Dolly Gee said Stern’s email lacked originality and a copyright certificate he had obtained from the US Copyright Office was invalid as a consequence. The reproduction of Stern’s email was legitimate as it was in order to represent what Stern had written and not because it was a creative expression.
” [Stern’s] listserv post … displays no creativity whatsoever – its content is dictated solely by functional considerations. As [Stern] expression of his idea is indistinguishable from the idea itself, it is not entitled to copyright protection.” judge Dolly Gee said.
Stern argued that he had considered alternatives to the email’s wording, but the judge said that “trivial” alternatives did not show that the finished email merited copyright protection.
Judge Dee, stating that Stern had sought litigation in bad faith, awarded summary judgement for the defendants, and costs to be assessed.
On Feb 17 2011 the Center for Information Technology Policy at Princeton presented David Robinson talking about “Half Speed Ahead: America’s Wise Reluctance to Turn Internet Intermediaries into Copyright Enforcers” David’s thrust is that America’s cherished freedom ideals belay the kind of heavy-handed enforcement attempted elsewhere. Wishful thinking? Judge for yourself in the video below. (download)
As we have noted earlier, DHS/ICE recent takedowns of domains have been of dubious legality. Â The Obama administration intends to clear that up in short order..
Declan McCullagh reports on the latest proposals from IP czar Victoria Espinel.
In a 20-page white paper (PDF), the Obama administration called on the U.S. Congress to fix “deficiencies that could hinder enforcement” of intellectual property laws.
Some of the highlights:
• The White House is concerned that “illegal streaming of content” may not be covered by criminal law, saying “questions have arisen about whether streaming constitutes the distribution of copyrighted works.” To resolve that ambiguity, it wants a new law to “clarify that infringement by streaming, or by means of other similar new technology, is a felony in appropriate circumstances.”
• Under federal law, wiretaps may only be conducted in investigations of serious crimes, a list that was expanded by the 2001 Patriot Act to include offenses such as material support of terrorism and use of weapons of mass destruction. The administration is proposing to add copyright and trademark infringement, arguing that move “would assist U.S. law enforcement agencies to effectively investigate those offenses.”
• Under the 1998 Digital Millennium Copyright Act, it’s generally illegal to distribute hardware or software–such as the DVD-decoding software Handbrake available from a server in France–that can “circumvent” copy protection technology. The administration is proposing that if Homeland Security seizes circumvention devices, it be permitted to “inform rightholders,” “provide samples of such devices,” and assist “them in bringing civil actions.”
The term “fair use” does not appear anywhere in the report. But it does mention Web sites like The Pirate Bay, which is hosted in Sweden, when warning that “foreign-based and foreign-controlled Web sites and Web services raise particular concerns for U.S. enforcement efforts.”
Supposedly the tricky legal point on streaming is whether it could be construed as “performance” – which, by definition, is protected under the first amendment, even if it is an infringing activity.
In another article, based I assume on the same hearing where the paper above was presented (I will check) : Congress told that Internet data caps will discourage piracy Nate Anderson reports that Daniel Castro suggested to the Senate Hudiciary Committee that the problem is just too much damn bandwidth!
Good exchange of views – between Harold Feld and Andrew Keen – in the LA Times;
Apparently the Espinel paper is in line with the US Trans-Pacific Partnership proposal leaked last week by Knowledge Ecology International. (pdf).
This proposal has too many egregious clauses to list. The Register notes that it would mandate ISPs to institute termination policies, implement monitoring, and at the drop of an infringement notice hand over subscriber info.
Leaker KEI comments:
Overall, the USTR proposal for the TPP intellectual property chapter would:
(1) include a number of features that would lock-in as a global norm many controversial features of U.S. law, such as endless copyright terms.
(2) create new global norms that are contrary to U.S. legal traditions, such as those proposed to damages for infringement, the enforcement of patents against surgeons and other medical professional, rules concerning patents on biologic medicines, disclosure of information from ISPs, etc. (We will work on a detailed list).
(3) undermine many proposed reforms of the patent and copyright system, such as, for example, proposed legislation to increase access to orphaned copyrighted works by limiting damages for infringement, or statutory exclusions of “non-industrial” patents such as those issued for business methods.
In contrast to Feb 15’s Hillary Clinton speech about Internet Freedom on Feb. 16 2011, Â the Senate Committee on the Judiciary held a hearing entitled “Targeting Websites Dedicated To Stealing American Intellectual Property“. This was a followup to last year’s shelving of the COICA Act and the recent DHS-ICE site seizures – which some consider to be of dubious legality. Witnesses include representatives of the Authors Guild, Go Daddy, Verizon, and Visa. There was be a webcast.
Witness Statements
Tom Adams – Rosetta Stone Inc
Scott Turow – Authors Guild
Christine Jones – Go Daddy
Thomas Dailey – Verizon
Denise Yee – Visa
Member Statements
Patrick Leahy Chair
Chuck Grassley
Al Franken
Mike Masnick of techdirt argues that recent seizures of domain names by Homeland Security’s Immigration & Customs Enforcement (ICE) group have dubious legal validity. Even the Supreme Court’s embrace of the concept of “inducement as contributory infringement” in the Grokster case didn’t contemplate it as criminal activity.
The actual seizure itself was handled clumsily, using outside contractors. The tracking of visitors to the seized sites contrary to government policy led many observers to initially conclude the whole thing was an elaborate hoax. This was compounded by the ICE delaying public statements so they could make a splash on “Black Monday”. Techdirt further noted in December just how inept and flimsy the case against one site – torrent-finder – was. If the standard – commercial sites that link to web items that advocate or facilitate filesharing – was applied across the board, the ICE would have to seize a large portion of the entire web!
Jan 19:
ICE director John Morton said Tuesday. In “every single case,” federal investigators were able to obtain materials that infringe copyright from the websites that had their domain names seized, Morton said during a speech at the Congressional Internet Caucus’ State of the ‘Net conference.
The operators of Torrent-finder.com, a BitTorrent search engine, and two hip-hop music blogs, have questioned why their domain names were seized. ICE and the DOJ “spent a lot of time” examining the websites, and the agencies did not honor all of the requests to take action that they received from copyright holders, Morton said.
The owners of those sites can challenge the seizures in court, Morton added. The seizures have also started a lively debate about copyright protections in the U.S., and “that’s a good thing,” he added.
[Source: Computerworld
The video of this is now online:
Morton starts talking about domain takedowns at http://www.youtube.com/watch?v=OWZY_LujUhc&feature=player_detailpage#t=328s
Then, in answer to question, about whther this set a bad example for Internet freedom in other countries.
The New York Law School IP Society will present a screening of the film Copyright Criminals next Wednesday 1/19/2011. After the film there will be a panel discussion.
Remixes and sampling are part of our musical culture, but what’s the legality behind them? Copyright Criminals delves into this question by looking at the intersection between musical expression and copyright law. The film showcases different artists who sample, artists who have been sampled, and the legal scholars and practitioners who argue over how the law should control it all.
WHEN: Wednesday, January 19, 2011 - 6:00 p.m.–8:30 p.m.
WHERE: New York Law School, Rm W201, 185 West Broadway NYC
RSVP: This event is open to the public. RSVP to Naomi Allen at naomi.allen@nyls.edu by January 12, 2011.
MODERATOR
•  Professor Dan Humter
PANEL:
• Tony Berman ’91: Founder of Berman Entertainment and Technology Law
• Stephen Block: Vice President of Business Affairs and Senior Counsel for Harry Fox Agency
• Lou Carlozo: Record Producer and Entertainment and Culture Journalist
• Hope Carr: Clearance Consultant for Clearance 13’-8â€
The Copyright Society of the U.S.A. New York Chapter Panel: Why Viacom v. YouTube Matters (Besides the $1 Billion) at the Princeton Club NYC on Nov 18 2010. While YouTube won a summary judgement in this case, it is under appeal. The panel was tasked, rather than making appellate cases, with discussing the implications of the decision. Nevertheless much of the meat of the arguments was chewed at this lunchtime event.
Panel: Cliff Sloan (Partner, Skadden Arps), Daniel Blackman (Co-founder, Howcast, and formerly of Google), Michael Kwun (Of Counsel, Keker & Van Nest), Thomas Sydnor (Director of the Center for the Study of Digital Property at The Progress & Freedom Foundation), Moderated by Professor James Grimmelmann (New York Law School)
The United States Patent and Trademark Office (USPTO) and National Telecommunications and Information Administration (NTIA) have issued a notice of inquiry (NOI) into “the relationship between the availability and protection of online copyrighted works and innovation in the Internet economy.”
Comments can be emailed to copyrightnoi-2010@ntia.doc.gov. Deadline is November 19 2010.
Full press release is below:
(More …)
Nate Anderson has been keeping an eye on the activities of copyright troll firm Leesburg, Virginia-based Dunlap, Grubb, & Weaver, whose efforts make the RIAA look like “amateurs”.
As Anderson notes :
The model couldn’t be simpler: find an indie filmmaker; convince the production company to let you sue individual “John Does” for no charge; send out subpoenas to reveal each Doe’s identity; demand that each person pay $1,500 to $2,500 to make the lawsuit go away; set up a website to accept checks and credit cards; split the revenue with the filmmaker.
14,583 Does have now been sued in federal court, with lawyers from Dunlap, Grubb & Weaver handling each case. The number is extraordinary; even after years of lawsuits, the RIAA campaign against file-swappers targeted 18,000 people (you can see the bump caused by RIAA lawsuits in the chart below between 2003 and 2008).
The sheer volume suggests that these cases aren’t designed for prosecution—and they don’t need to be. As the RIAA lawsuits showed us, most people will settle. Data from the recording industry lawsuits, revealed in a court case, showed that 11,000 of the 18,000 Does settled immediately or had their cases dropped by the labels. Seven thousand either refused to settle or never responded to the settlement letter, but after the RIAA subpoenaed their identities and filed “named” lawsuits against them, nearly every one settled.
After years of litigation, the number of people who have pursued a trial all the way to a verdict can be counted on one hand.
The legal campaign has the potential to earn real money. Copies of the settlement letters and settlement contracts seen by Ars Technica show that Dunlap, Grubb, & Weaver generally asks for $1,500 to $2,500, threatening to sue for $150,000 if no settlement payment is forthcoming. Assuming that 90 percent of the current targets settle for $1,500, this means that the lawyers, studios, and P2P detection company would split $19.7 million.
Once the infrastructure has been set up, this sort of system is simple to replicate, since it’s built largely on sending out letters and collecting cash. If the lawyers can continue signing up indie film clients at the current rate, they could be on their way to filing nearly 30,000 lawsuits by year’s end, which would double the potential cash on the table.
Anderson notes that Dunlap, Grubb, & Weaver insist that they will seek the maximun $150,000 award, and defendants will incur high costs if they don’t settle. He details futile attempts by defendants to quash the cases.
While Verizon and Comcast are going along, a possibly more successful quash motion has been filed by Time Warner, saying they just don’t have the resources to keep up with the demand for user identification requests.
Lastly he details one particular case where the defendant denies any P2P activity and is preparing to go thru the courts.
A follow-up from Nate Anderson Songs of Innocence: accused P2P users speak out raises the specter of “Internet Insurance”
In a new article today, Anderson notes that Dunlap, Grubb, & Weaver argue that, by virtue of the swarm aspect of BT, all the suits are one big case. The EFF and ACLU had suggested they were “improperly joined”. A hearing on the issue is set for Jun 30.
In the comments to the article more than one respondent argues that this would indicate the most can be awarded against the 5000 defendents is the statutory maximum $150,000, or $30 each.
One says:
If you accept that argument and the John Doe case proceeded to judgment (which of course it won’t), it would result in what’s called joint and several liability, where each defendant is potentially liable for the full amount of the judgment, but there is only one common judgment between them. (i.e. if the judgment is for $1 million, defendant A may be required to pay the full $1, but then defendant B could not also be made to pay $1 million. More likely, the amount would be divided between them.) Now of course, USCG will never take the John Doe case to trial, but will dismiss it and sue individual defendants that don’t take the settlement. This is where it gets interesting though. Because under FCRP rule 22, defendants may file cross-claims against all the other defendants from the John Doe case and join them as co-defendants because they were already established to be part of the same transaction or occurrence. This would force the final judgment to be divided between them, greatly reducing each individual defendant’s share of the damages.
Thus the same argument the plaintiffs are using here could later be used against them to re-join all the other defendants and limit the amount they could win from any individual defendant.
UK regulator Ofcom has issued a consultation paper on the draft Initial Obligations Code, under which the ‘3 strikes’ rules for copyright infringement will be implemented.
This article by Andrew Cormack of UK educational ISP ja.net details some of the problems in the rules.
Cormack notes that these provisions are in direct conflict with the UK Government’s digital inclusion policies.
CopyNight Venue Change!
The next CopyNight will be on Tuesday, May 25 at 7PM.
We are moving to a new venue with a back room so we can talk and move about more easily.
Please join us at Vig at 12 Spring St. at the corner of Elizabeth in Nolita.
CopyNight is a monthly social gathering of people interested in restoring balance in copyright law. We meet over drinks once a month in many cities to discuss new developments and build social ties between artists, engineers, filmmakers, academics, lawyers, and many others.
Please feel free to pass along the invite, tweet or post.
Your hosts,
Fred Benenson & Laure Parsons
nyc (at) copynight.org
The Institute for Information Law & Policy and the International
Intellectual Property Society present: Open Source Database Licensing
Date: Wednesday, April 21, 2010
Time: 5:00 p.m. to 7:00 p.m.
Location: NY Law School 185 West Broadway NYC Room W201
RSVP: Naomi Allen at naomi.allen*at*nyls.edu. Refreshments will be served.
Database owners are increasingly seeking ways to make their data
available so that others can contribute to and build on their work. This
“open data” movement emphasizes the importance of sharing data for both
scientific development and humanitarian response. The willingness of
database owners to make their data available for re-use depends on their
ability to impose conditions on that release, which requires
consideration of the varying levels of copyright protection afforded to
databases across jurisdictions.
Please join us for a panel presentation focusing on the challenges
associated with balancing the advantages of “open data” with the need
for database owners to impose conditions on release. The speakers will
address the current state of copyright protection afforded to databases
and strategies for encouraging database sharing.
Panelists:
Janelle C. Bonanno, Graduate Research Fellow, New York Law School
Christopher Cotter 3L, New York Law School
Rachel DeLetto, Graduate Research Fellow, New York Law School
Cynthia Grady 2L, New York Law School
Chris Holmes, The Open Planning Project; Chair, Project Steering Committee, GeoServer
Molly Beutz Land, Associate Professor of Law, New York Law School
James Vasile, Software Freedom Law Center; Board Member, Open Source Matters
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