January 02, 2013 · · Comments Off

Welcome back! I hope all my readers have had a wonderful holiday season and a happy new year. Now that the holidays are over, Copyhype is back to its regularly scheduled programming. I wanted to start things off with a quick look back at 2012 and a quick look forward at 2013.

The following were the most read Copyhype stories during 2012:

Hey, what happened to Wikipedia? (An intro to SOPA)

Was Hollywood built on piracy?

7 mythbusting copyright law articles

Though not the most popular, I personally enjoyed writing the following posts in 2012 and don’t mind highlighting them once more:

The genius of the Hunger Games

Myths from the birth of US copyright part 1 and part 2

Finally, a special shout out to my guest contributors, and some of their wonderful posts, including:

Devlin Hartline’s Nimmer changes his tune: ‘Making available’ is distribution

And Chris Ruen’s The Net Fail Part 1 and Part 2.

A Preview of 2013

The next year already promises plenty of legal and legislative developments in copyright law, a few of which I want to highlight.

The Supreme Court will release its opinion in first sale case Kirtsaeng v John Wiley. I’ve written about Kirtsaeng before, see also More on Kirtsaeng v John Wiley, What Kirtsaeng Won’t Answer, The United States “Odd” Kirtsaeng Argument, and Overturn Quality King? The Court is likely to release its opinion sometime between February and June.

The popular SCOTUSBlog does not include any other copyright-related petitions on its petitions to watch list (the list has a strong track record of selecting which petitions are granted by the Court), but there are several copyright petitions I’ll be keeping an eye on, including the one in Jammie Thomas-Rasset v Capitol Records, dealing with due process review of statutory damages, and Library of Congress v Intercollegiate Broadcasting System, which involved an Appointments Clause challenge to Copyright Royalty Judges (though a cert petition there has not been filed yet). Check out my most recent posts on these lawsuits: End of the Road for Jammie Thomas-Rasset? and Copyright Royalty Board Unconstitutional.

In the lower courts, a group of cases involving broadcast television retransmission and the impact of the Second Circuit’s 2008 Cablevision decision are wending their way through the judicial system. Leading the pack is Aereo, where oral arguments were heard in front of the Second Circuit late last November for an appeal of the district court’s denial of a preliminary injunction, meaning a decision could come later this year. See Aereo takes its tiny antennas to Opposite Town. And just last week, on the west coast, a federal district court came to the opposite conclusion and granted a preliminary injunction against FilmOn, a similar service.

Meanwhile, a set of cases against Dish Networks relating to its Autohop service are in their early stages. The furthest along involves Fox, which a few weeks ago appealed the denial of a preliminary injunction by a New York district court. I wrote a background on these cases at Skipping commercials isn’t infringement, but copying is.

A lawsuit against YouTube for widespread infringement during its early days is back at the district court level, after the Second Circuit ruled on a number of DMCA issues this past April. Most recently, YouTube moved for summary judgment against the various plaintiffs.

Little has been said about Hotfile so far, but developments should be expected this year in the lawsuit filed by major motion picture studios against the filelocker. A ruling on dispositive motions is currently pending in a Florida district court, and a trial date is tentatively scheduled for March. See Copyright Liability for Filelockers: Disney v Hotfile.

On the criminal side, expect slow movement on the US case against Kim Dotcom and Megaupload. An extradition hearing has recently been pushed back to no earlier than August 2013. My last post on this topic came last July in a Megaupload Megaupdate. Be sure to check out TorrentFreak for breaking coverage of every single thing Dotcom tweets.

In Congress, it would appear that the major issue this next year will be royalty rates for webcasting. The next ratesetting proceeding at the Copyright Royalty Board, to set rates for 2015-2020, is fast approaching. Last fall, Pandora backed the Internet Radio Fairness Act, which, among other things, would have changed the standard used by the Board to set rates. At a hearing in November, the House Judiciary Committee appeared skeptical of the bill’s approach, but also expressed a desire to take a broader look at the issue of digital performance of sound recording royalties, seemingly frustrated that the compulsory licensing scheme has required so much legislative attention over the past decade. Some members of the Committee also hinted that the issue of a broader public performance right for sound recording owners was on the table, something that has eluded such copyright owners for decades. See A Brief History of Webcaster Royalties for more background.

What else can we expect from Congress? There have been rumblings of a renewed push for orphan works legislation, and recent events from several conservative-leaning institutions hint at increased attention toward general copyright reform — aided by current European Commission efforts to modernize copyright law.

Much more is obviously in store for the upcoming year. Don’t forget that you can subscribe to Copyhype’s RSS Feed, sign up for email updates, follow me on Twitter, or Like me on Facebook. Here’s to 2013!

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This is actually a few days late — I first began Copyhype on August 8, 2010, meaning it has just marked its second year, though it seems like just yesterday.

The second year has been even more exciting than the first. Readership has nearly doubled. I was very honored that this site was named one of the ABA Journal’s top 100 legal blogs in 2011. Citations to articles have also begun cropping up in published and forthcoming law review articles — though I’m still looking forward to being cited in a court opinion.

Much of the past winter was dominated, of course, by the now-dead Stop Online Piracy Act. I was somewhat amused that this site made it onto a list of organizations supporting the bill that circulated heavily around the internet — I even got a handful of emails from people claiming they would no longer buy my products and/or services if I didn’t withdraw support.

It’s always interesting to see which articles have ended up being the most viewed; there are always a few surprises. These are the most popular posts written during the past year:

  1. Hey, What happened to Wikipedia? An introduction to SOPA — other popular SOPA posts include Dispatches from the SOPAcolypse, Why I support the Stop Online Piracy Act, Stop Online Piracy Act walkthrough, and How the Stop Online Piracy Act will hit what it aims at
  2. Justin Bieber is not going to jail
  3. Was Hollywood built on piracy?
  4. More evidence for copyright protection
  5. What is technology?
  6. The ‘copyright infringement isn’t theft’ trope
  7. Who cares what Jefferson thought about copyright?
  8. Megaupload and the DMCA
  9. Copyright and web fonts: Santorum web developer sued for typeface infringement
  10. Copyright and the First Amendment: the unexplored, unbroken historical practice, part 4 — for whatever reason, this was notably more popular than part 1, part 2, part 3, and part 5.

I want to say thanks to all my readers for continuing to stop by here, and to everyone who has shared their thoughts in the comments. If you’re new to the site, remember you can subscribe for updates by RSS or email, follow me on Twitter, or “like” my Facebook page.

Copyhype’s third year promises to be even more exciting. I will be launching a new look in the upcoming weeks. Nothing too dramatically different — just a little fresh paint that will be more readable, faster loading, and responsive — so the page should look relatively the same whether you’re on a smartphone, a tablet, or a regular computer.

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On August 8, 2010, I wrote the first post for Copyhype.

When I began this site exactly one year ago, I wasn’t sure what to expect from it. I find copyright law fascinating and enjoy writing about it. I also felt there was room in the blogosphere for thoughtful legal analysis of copyright issues, analysis that doesn’t necessarily require you to have a law degree to understand.

I don’t know if I’ve achieved that, but I have been genuinely surprised and encouraged by this blog’s reception. I want to thank all my readers, those who’ve commented here, and those who’ve linked here. I also want to thank everyone who has followed me on Twitter and Facebook.

Some stats: In the first year, Copyhype has had over 40,000 visits from 142 countries.

The most popular posts in the first year have been:

  1. Kind of Bamboozled: Why ‘Kind of Bloop’ is not a Fair Use
  2. Demonizing Copyright
  3. Is Copyright Infringement Theft
  4. Fears of Felony Streaming Bill Overblown
  5. The “Fallacy of Intellectual Property” Fallacy

Since August 8, 2010, I’ve written 104 posts with a total of 163,728 words. If this was a book, assuming an average of 250 words per page, then it would be 655 pages long.

New stuff: I’ve added a page for online copyright resources. They include many resources I use when writing for this site, as well as ones I’ve culled from previous articles. You may also notice a few cosmetic changes on the page. Nothing major, I just wanted to spruce things up a bit after a year.

What’s in store for the next year of this site? You tell me! Let me know if there are news items or issues you would like to see addressed, or subject matters you’d like to see more of. I love hearing from readers.

With that said, I’m excited to enter the second year of Copyhype, and I hope to continue to improve the quality of coverage and analysis that this site is becoming known for. Thanks for a great first year!

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On Friday, this site was the target of a distributed denial of service attack (DDoS) by a group operating under the umbrella of Anonymous. I first became aware of the attack through a tweet, and a look at my server logs confirmed it.

The attack was apparently a part of an operation to protest the Protect IP Act, a bill that moved to the Senate floor last week after unanimous approval by the Senate Judiciary Committee and supported by 43 state Attorneys General and nearly 200 companies, trade associations, and labor unions — unions that include over 400,000 members in the craft and creative fields. The main target appears to have been the US Chamber of Commerce, and other tweets indicate that the Independent Film and Television Alliance and the Copyright Alliance had also been hit.

Had it not been for the tweet, I would probably never noticed my site had been hit by a DDoS. There was no permanent damage, it only lasted for a few minutes, and it didn’t seem to prevent anyone from accessing the site. But the attack does highlight the sheer hypocrisy of those opposed to the bill.

The opposition is based in part on the idea that the Protect IP Act will usher in a new era of internet censorship with no recourse for those affected. In reality, the bill addresses conduct, not speech. Limited, narrow legal remedies are available against sites dedicated to copyright infringement — sites that have no other purpose but to copy, distribute, and stream other’s expression. The remedies are designed not to suppress speech, but to reduce the ability to profit off this type of infringement.

The censorship predicted by opponents of the bill is purely hypothetical and unsupported by the actual text of the legislation. And in order to voice their opposition, opponents are engaging in actual censorship — arbitrary action designed specifically to suppress the opinions of those who support the bill solely based on the message they are conveying. They have met the enemy, and the enemy is them.

That’s all I’ve done — expressed my opinion on pending legislation. I’m merely an individual blogger. I don’t get paid by anyone to write this blog. I do it only to share my thoughts with anyone willing to read them, like millions of others around the world who blog.

Some may claim that engaging in DDoS attacks is a form of civil disobedience. But where’s the civil disobedience in trying to silence a private individual?

Others may claim that the specter of government censorship justifies taking away another’s right to speak — that freedom of speech can only be infringed by the state. Not true. It is a bedrock principle of our society that one may not infringe on another’s liberty. It has also been established since the Enlightenment era that government exists primarily to enforce this principle. The rule of law protects against the rule of man, or “might makes right.” Any deprivation of liberty is only legitimate when it occurs within the due process of law.1

To coerce someone into silence because of disagreement over their message is repugnant to civil democratic society. To do so under the guise of protecting free speech is pure cant.

Complicit in this coercion are those sites that breathlessly report on every minute action by Anonymous, providing publicity and legitimacy to the group. Perhaps they have not been more vocal in condemning the actions of Anonymous because thus far the writers agree with the ideology of the members — embracing an Orwellian notion that freedom of speech means “you’re free to agree with me as much as you want.” But the DDoS tactics of Anonymous are easily adoptable by any ideological movement; one wonders how happily these sites will publicize the censorship of individuals by people they disagree with.

One would think one of the many public interest groups dedicated to protecting the freedom to speak one’s mind online would decry any attempt to coerce someone into silence, but not so with Anonymous. To its credit, the Electronic Frontier Foundation, the “first line of defense” against such attacks, has publicly stated that it “doesn’t condone cyber-vigilantism.” However, co-founder and current board member of the EFF John Perry Barlow has publicly voiced his support for the efforts of Anonymous.2 They, in return, embrace many of the ideas he has expressed in his famous essay, “Declaration of the Independence of Cyberspace.”3

This is the essay that proclaims, without a hint of irony, “We are creating a world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity.”

It’s unfortunate that critics of copyright law and efforts to better protect creators cast aside the principles they purport to uphold and resort to such tactics. There’s an old saying among lawyers, “When the facts are on your side, pound the facts. When the law is on your side, pound the law. When neither is on you side, pound the table.” Attempts to censor individual bloggers like me are ultimately just table-pounding. Despite this, I’ll continue to do my best to reasonably present the facts and the law so that my readers are free to make up their own minds.

Footnotes

  1. See, for example, John Locke’s Two Treatises of Government: “The liberty of man in society is to be under no legislative power but that established by consent in the commonwealth, nor under the dominion of any will, or restraint of any law, but what the legislative shall enact according to the trust put in it. Freedom, then, is not what Sir Robert Filmer tells us, O.A. 55, ‘A liberty for everyone to do what he lists, to live as he pleases, and not to be tied by any laws,’ but freedom of man under government is to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it. A liberty to follow my own will in all things where the rule prescribes not, not to be the subject to the inconstant, uncertain, unknown, arbitrary will of another man, as freedom of nature is to be under no other restraint but the law of nature.” []
  2. http://twitter.com/#!/JPBarlow/statuses/12835190019727360http://twitter.com/#!/JPBarlow/status/12897738307928064. []
  3. See http://anonnews.org/?a=item&i=661&p=press: “Anonymous has no leader and no government (per John Perry Barlow’s Declaration of Independence of Cyberspace).” []

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Wow, I can’t believe it’s been nearly two months since I began this blog!

Today’s post will be brief. I want to welcome all the new readers and subscribers who have found this site over the last few weeks. I hope to continue to provide the same quality of content that brought you here in the future.

Since this is a relatively new site, there are still a few wrinkles. For example, the commenting procedure is still on the WordPress default mode, meaning I have to manually approve all comments before they appear. The good news is, I believe that once you’ve had a comment approved, future comments are automatically approved. For now, I have it this way to keep out spam comments, and even a new site like this attracts quite a bit of spam! But bear in mind that if you’re a first time commenter, your remarks won’t show up immediately.

Also, be sure to check out the sites on my Blogroll if you haven’t already: the 1709 Blog, Copyright Litigation Blog, Copyrights & Campaigns, Music Think Tank, Plagiarism Today, and The Cynical Musician – they all consistently provide excellent articles about copyright and the content industries, from a variety of perspectives. The list will likely be growing in the  next couple weeks as there are plenty of great sites out there.

I did want to point out a couple of new – and “new to me” – sites that may be of interest to my readers:

Clannco: Art and Law is a blog devoted to exploring the relationship between art and law written by Sergio Muñoz Sarmiento, an artist and a lawyer. I originally came across the site after seeing Sergio’s response to my piece on artistic expression, the first amendment, and copyright law. The rest of the site provides an insightful look at issues and topics which don’t often garner much attention on other sites.

Copygrounds is an “academic discussion forum” maintained “through the collective effort of Brett Caraway and students from the Department of Radio-Television-Film at The University of Texas at Austin.” The site is set apart by its attraction of some notable guest bloggers so far. Be sure to check out the latest posts from Matt Oppenheim, former VP at the RIAA and plaintiff’s attorney at the Joel Tenenbaum trial, discussing the Tenenbaum trial and statutory damages in P2P cases.

John Degen, Literature Officer for the Ontario Arts Council, has a personal blog I recently came across. He’s one of many Canadians who have noticed that online discussion of Canadian copyright law is heavily dominated by one particular law professor; his blog covers a variety of issues from a creator’s perspective.

What other good sources of information about copyright and the digital world are there? And what topics would you like to see covered here?

Let’s make this an “introduce yourself” slash “open thread” entry. Plug yourself, plug your work, or just say “hi” in the comments. I’d like to hear from everyone reading!

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Now with more footnotes1

William Patry has said we are in the midst of a “copyright war.” Now that high-speed internet has become the norm, debate over the future of entertainment, culture, knowledge, and communication is heating up. Traditional content providers – book publishers, newspapers, the music industry, film studios, etc – struggle to adapt to rapid technological changes while a new generation has access to an entire universe of information with a few clicks of a button.2 At the heart of these debates is the issue of copyright. Copyright law has emerged from the little-travelled sidestreets of lawyerville into the arena of public discussion.

I read a tremendous number of well-written blogs that deal with current topics concerning copyright law, many of which you can find to the right. To those, I add my own voice. I plan on doing more in-depth writing, provide analysis to some of the headlines that fly through the 24-hour news cycle, and examine some of the deeper issues in the discussion on the role of copyright. And I hope to do this all in a way that is understandable to non-legal types – the general public, and the artists and authors whose lives are affected by these issues.

Just a note, as I am in the US, this blog will be primarily about US copyright law. I may look at other countries in future articles, but unless otherwise noted, assume I’m talking about the US.

Balance

There is a lack of balance online when it comes to talking about copyright. Writer and attorney Ben Sheffner noted this lack as one of his motivations for starting Copyrights and Campaigns in 2008, which has since become one of the most popular blogs about copyright. But still, copyright skeptics continue to dominate the blogosphere.

The result is that anyone wishing to learn more about, say the proposed Anti-Counterfeiting Trade Agreement will walk away with little more than the repeated notion that it is bad bad bad. This one-sidedness extends everywhere online. If you read the Wikipedia entry on digital rights management, you’re bound to wonder why companies continue to use it, and why it’s protected by law, if it’s so bad bad bad.3

Other writers, such as The Cynical Musician, have noted that the promises of “Web 2.0″ to new creators have failed to materialize, despite the proliferation of hype that continues unabated.4 “The internet can make anyone a famous author/filmmaker/musician!” You would think we’d be a little more skeptical of people claiming that “the internet will solve all our problems” ten years after the dot-com bubble. But the hype remains, leaving a void for creators looking to leverage their careers online.5

Finally, analysis of legal issues is scant in most media. Reporting is often superficial, alarmist, or just plain wrong.6 Online, the “reporting” is even worse. There are many well-written legal blogs, but they are aimed primarily at other lawyers – most laypeople find them too technical or boring to regularly read. But the law affects all of us; it’s fair to say that we all need some understanding of the law to function as a democratic society.

Practioners of law play a role in aiding the public with understanding of the law. The American Bar Association says in the preamble to the Model Rules of Professional Conduct

As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.

As a soon-to-be practicing lawyer,7 one of my goals in starting this site is to provide some insight into understanding copyright issues to those outside the legal field.

“Long-form” Blogging

The accepted wisdom is that attention spans are shrinking: we’ve gone from books to magazines to blogs to tweets.8 But is this necessarily true?

The Nieman Journalism Lab released a case study of Slate magazine’s embrace of “long-form” journalism that challenges this notion. The idea is that

in order to really thrive, in order to have the kind of committed, excellent, well-educated, media-engaged audience that we’ve always had — and to build that audience — we had to do something more than just 1,500 word pieces, and more than just explainers.

There’s nothing wrong with short, frequent posts. It’s just that the web is filled with blogs that do just that. It’s easy to stay on top of the latest news, but more difficult to take a step back and analyze the issues in a larger sense. It’s my hope that this site will add to the discussion rather than the chatter.

Until Next Time

I hope you find this blog interesting, useful, or both. If you have any topics you’d like to see discussed, send them my way.

Footnotes

  1. I love footnotes. []
  2. Although, even buttons are becoming quaint. I’ll keep using the term, though, until someone comes up with an elegant way to describe all the finger-sliding and whatnot you use on touchscreens. []
  3. A recent discussion of the page on Wikipedia highlighted this problem. []
  4. Full disclosure: I’ve once bought into the hype as an amateur musician, even writing about the subject on a now-defunct blog. But after 15 years of hearing the same claims, and particularly as a result of some research work I’ve done, I’ve realized that it is just hype. []
  5. It’s striking how similar the claims made in this CNN segment on IUMA from 1994 are to claims made today. []
  6. The same is true in science reporting. Chocolate is good for you! Now it’s bad for you! []
  7. I sat for the July 2010 Illinois Bar Examination []
  8. In the future, people will literally “send a letter.” []

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