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).
Continue Reading Comments Sought on Commerce Department Green Paper on Copyright Policy, Creativity, and Innovation in the Digital Economy – Including Issues of User Generated Content and Appropriate Damages for Copyright Infringement