We wrote about the Department of Commerce’s Green Paper on Copyright Policy, Creativity, and Innovation in the Digital Economy that was released back in July. While our article principally addressed the music issues raised by the Green Paper, many other issues were discussed in its 120 pages. The questions raised by the Aereo case (about which we wrote here, and we wrote about the similar service, FilmOnX, here) were also discussed in the paper. Many other issues were also addressed, and the Commerce Department, through NTIA (the office within Commerce that advises the Executive Branch of the government on Telecommunications issues) and the Patent and Trademark Office, is now beginning the process of asking for public comment on some of the many issues raised in the Green Paper. The NTIA released a Public Notice, dated September 30 and still available on the NTIA website despite the Federal government shutdown, asking for comment on a number of these issues.
The specific issues on which comments are sought (with our explanation of some of the issues involved) are the following:
- "the legal framework for the creation of remixes" – the only music issue specifically teed up for comment. The Green Paper had asked if consideration should be given to some sort of compulsory license for remixes, mash-ups and similar uses of music, or if other steps could or should be taken to allow for the creation of such works;
- "the relevance and scope of the first sale doctrine in the digital environment." This is asking for comments on questions including whether consumers should be able to re-sell downloads that they purchase, as they have the right to do in a physical world;
- "the appropriate calibration of statutory damages in the contexts of individual file sharers and of secondary liability for large-scale infringement." This question seemingly stems from the issue raised by the huge statutory damage requests in mass-infringement cases, damages that in one case alone could exceed the entire revenue of many industries whose works are infringed. Questions have been raised as to whether the full amount of statutory damages should be available for each and every infringement, particularly where such infringement is done on a limited basis. Obviously, though, copyright holders are concerned about large scale infringement, and want to preserve and even expand penalties in such cases;
- "whether and how the government can facilitate the further development of a robust online licensing environment." It is unclear exactly what this question is looking at. Perhaps it is seeking comments on ideas such as the one the that government create some sort of copyright hub that would facilitate the identification of copyright holders and the licensing of their works; and
- "establishing a multistakeholder dialogue on improving the operation of the notice and takedown system for removing infringing content from the Internet under the Digital Millennium Copyright Act (DMCA)." Next to the question on damages, this issue is likely to be among the most controversial of the proposals, and we’ll address that below in a little more detail below.
The reform of the DMCA notice and takedown system is looking to reform the current system where operators of websites generally have immunity from liability for copyright infringement for user generated content – unless the sites knew specifically about the infringing content and did not take steps to take it down, or unless they actively solicited or encouraged such uses. This is often referred to as the "safe harbor" for sites that feature user-generated content. The safe harbor has allowed many of today’s most popular services, including YouTube and even Facebook to thrive, allowing millions of consumers to have an outlet for their interests through social sharing, without the sites having to review each and every post to determine if there is infringing content in the material that users have shared. We have written about this safe harbor before (see, for instance, our posts here and here).
However, many copyright holders have argued that the system requires too many resources for them to provide notice to site operators of each instance of an infringing use of their copyrighted content. They argue that it is especially true for some of the larger sites, where notice of an infringing use may be provided to the site, the use is taken down by the site, only to reappear on the site in a new post (or multiple ones) soon thereafter. Suggestions have been made that site owners should be required to use some sort of filtering technology to prevent such a reemergence of the infringing content.
These issues will be sorted out in initial comments due on November 13. However, the Notice indicates that an open hearing on these issues will be held on October 30, and that comments that are filed by October 15 will be considered at the open hearing. However, due to the government shutdown, this meeting has been postponed to December 12. While comments can still be filed at the US Patent and Trademark Office, one of the few Federal government agencies still operating despite the Federal government shutdown, the comments no longer need to be filed by next week to be considered at the open meeting given the delay in the meeting date. It was also announced that reply comments will be permitted, at some point after the December 12 meeting.
This will no doubt be just one step in a long process of defining government policy on digital media issues for the future. If you are affected, you should consider making your voice heard by filing comments in this proceeding, and watching for future opportunities to comment on the many issues raised in the Commerce Department’s Green Paper.
Update – October 11, 2:00 PM – this item has been updated to note the delay in the meeting scheduled for October 30 – now scheduled for December 12. The Patent and Trademark Office, which is still operating despite the Federal government shutdown as they have funds to operate through the end of this month, announced that delay today on its website.