Tag: Rebecca Cusey

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Copyright

Scalia Law Students and CPIP Scholars Make an Impact in Copyright Office Section 512 Study

the word "copyright" written on a typewriterThe U.S. Copyright Office released its long-awaited report on Section 512 of Title 17 late last week. The Report is the culmination of more than four years of study by the Office of the safe harbor provisions for online service provider (OSP) liability in the Digital Millennium Copyright Act of 1998 (DMCA). Fortuitously, the study period coincided with the launch of Scalia Law’s Arts and Entertainment Advocacy Clinic. Clinic students were able to participate in all phases of the study, including filing comments on behalf of artists and CPIP scholars, testifying at roundtable proceedings on both coasts, and conducting a study of how OSPs respond to takedown notices filed on behalf of different types of artists. The Office cites the filings and comments of Scalia Law students numerous times and ultimately adopts the legal interpretation of the law advocated by the CPIP scholars.

The Office began the study in December 2015 by publishing a notice of inquiry in the Federal Register seeking public input on the impact and effectiveness of the safe harbor provisions in Section 512. Citing testimony by CPIP’s Sean O’Connor to the House Judiciary Committee that the notice-and-takedown system is unsustainable given the millions of takedown notices sent each month, the Office launched a multi-pronged inquiry to determine whether Section 512 was operating as intended by Congress.

Scalia Law’s Arts and Entertainment Advocacy Clinic drafted two sets of comments in response to this initial inquiry. Terrica Carrington and Rebecca Cusey submitted comments to the Office on behalf of middle class artists and advocates, including Blake Morgan, Yunghi Kim, Ellen Seidler, David Newhoff, and William Buckley, arguing that the notice-and-takedown regime under Section 512 is “ineffective, inefficient, and unfairly burdensome on artists.” The students pointed out that middle class artists encounter intimidation and personal danger when reporting infringements to OSPs. Artists filing takedown notices must include personal information, such as their name, address, and telephone number, which is provided to the alleged infringer or otherwise made public. Artists often experience harassment and retaliation for sending notices. The artists, by contrast, obtain no information about the identity of the alleged infringer from the OSP. The Office’s Report cited these problems as a detriment for middle class artists and “a major motivator” of its study.

A second response to the notice of inquiry was filed by a group of CPIP scholars, including Sandra Aistars, Matthew Barblan, Devlin Hartline, Kevin Madigan, Adam Mossoff, Sean O’Connor, Eric Priest, and Mark Schultz. These comments focused solely on the issue of how judicial interpretations of the “actual” and “red flag” knowledge standards affect Section 512. The scholars urged that the courts have interpreted the red flag knowledge standard incorrectly, thus disrupting the incentives that Congress intended for copyright owners and OSPs to detect and deal with online infringement. Several courts have interpreted red flag knowledge to require specific knowledge of particular infringing activity; however, the scholars argued that Congress intended for obvious indicia of general infringing activity to suffice.

The Office closely analyzed and ultimately adopted the scholars’ red flag knowledge argument in the Report:

Public comments submitted by a group of copyright law scholars in the Study make a point closely related to the rightsholders’ argument above, focusing on the different language Congress chose for actual and red flag knowledge. They note that the statute’s standard for actual knowledge is met when the OSP has “knowledge that the material or an activity using the material on the system or network is infringing” or “knowledge that the material or activity is infringing,” while the red flag knowledge standard is met when the OSP is “aware of facts or circumstances from which infringing activity is apparent.” This difference, the copyright law scholars argue, is crucial to understanding the two standards: while the statute uses a definite article—“the”—to refer to material or activity that would provide actual knowledge, it drops “the” to speak more generally about facts or circumstances that would create red flag knowledge. “In Congress’s view,” the comment concludes, “the critical distinction between the two knowledge standards was this: Actual knowledge turns on specifics, while red flag knowledge turns on generalities.”

 

The Office went on to state that “a standard that requires an OSP to have knowledge of a specific infringement in order to be charged with red flag knowledge has created outcomes that Congress likely did not anticipate.” And since “courts have set too high a bar for red flag knowledge,” the Office concluded, Congress’ intent for OSPs to act upon information of infringement has been subverted. This echoed the scholars’ conclusion that the courts have disrupted the balance of responsibilities that Congress sought to create with Section 512 by narrowly interpreting the red flag knowledge standard.

Scalia Law students and CPIP scholars likewise participated in roundtable hearings on each coast to provide further input for the Copyright Office’s study of Section 512. The first roundtable was held on May 2-3, 2016, in New York, New York, at the Thurgood Marshall United States Courthouse, where the Second Circuit and Southern District of New York hear cases. The roundtable was attended by CPIP’s Sandra Aistars and Matthew Barblan. They discussed the notice-and-takedown process, the scope and impact of the safe harbors, and the future of Section 512. The second roundtable was held in San Francisco, California, at the James R. Browning Courthouse, where the Ninth Circuit hears cases. Scalia Law student Rebecca Cusey joined CPIP’s Sean O’Connor and Devlin Hartline to discuss the notice-and-takedown process, applicable legal standards, the scope and impact of the safe harbors, voluntary measures and industry agreements, and the future of Section 512. Several of the comments made by the CPIP scholars at the roundtables ended up in the Office’s Report.

In November 2016, the Office published another notice of inquiry in the Federal Register seeking additional comments on the impact and effectiveness of Section 512. The notice itself included citations to the comments submitted by Scalia Law students and the comments of the CPIP scholars. Under the guidance of Prof. Aistars, the students from Scalia Law’s Arts and Entertainment Advocacy Clinic again filed comments with the Office. Clinic students Rebecca Cusey, Stephanie Semler, Patricia Udhnani, Rebecca Eubank, Tyler Del Rosario, Mandi Hart, and Alexander Summerton all contributed to the comments, which discussed their work in helping individuals and small businesses enforce their copyright claims by submitting takedown notices pursuant to Section 512. The students reported on the practical barriers to the effective use of the notice-and-takedown process at particular OSPs. Two problems identified by the students were cited by the Copyright Office as examples of how OSPs make it unnecessarily difficult to submit a takedown notice. Accordingly, the Office called on Congress to update the relevant provisions of Section 512.

Two years after the additional written comments were submitted, the Office announced a third and final roundtable to be held on April 8, 2019, at the Library of Congress in Washington, D.C. The purpose of this meeting was to discuss any relevant domestic or international developments that had occurred during the two prior years. CPIP’s Devlin Hartline attended this third roundtable to discuss recent case law related to Section 512, thus ensuring that CPIP scholars were represented at all three of the Office’s roundtables.

CPIP congratulates and thanks the students of Scalia Law’s Arts and Entertainment Advocacy Clinic for their skillful advocacy on behalf of artists who otherwise would not be heard in these debates.

Categories
Copyright

Oracle v. Google: Expansive Fair Use Harms Creators

The following post comes from Rebecca Cusey, a third-year law student at Antonin Scalia Law School, George Mason University, and a movie critic at The Federalist.

Rebecca CuseyBy Rebecca Cusey

The fair use doctrine has expanded far beyond its purpose, according to an amicus brief filed this past Friday on behalf of 13 law professors in Oracle v. Google, a copyright case currently before the Federal Circuit. Scalia Law alumnae Antigone Peyton and Jennifer Aktins of Cloudigy Law worked in conjunction with CPIP Senior Scholar Sandra Aistars to file the brief, and I had the pleasure of helping them draft it.

While there are several related decisions for the court to make, the primary issue before the Federal Circuit is whether Google’s use of Oracle’s software code, known as an API, is excused by the fair use defense. This case is long and complex, as would be expected from two software giants battling over the use of important code. Phones don’t run themselves, after all, and there’s a huge, lucrative market.

In 2014, the Federal Circuit held that Oracle’s API code was copyrightable because it contained protectable, original expression. The court reasoned that the software code resembled a taxonomy instead of a system or method of operation, which would be unprotectable. The issue of functionality versus creativity was addressed, and the court found that the creative code in question was not precluded from copyright protection even though it was also functional.

The Federal Circuit remanded the case to the district court on the issue of whether the use of the API code was excused by the fair use defense. A jury found in May of 2016 that fair use did indeed excuse Google’s use of the protected code in its phones. Oracle now appeals this fair use finding to the Federal Circuit.

The amicus brief argues that the fair use defense does not cover Google’s use of the software code. The fair use doctrine was intended to balance the rights of creators to profit from and control their work with the public interest to be derived from critique, scholarship, and parody. In this case, there is no critique. Rather, Google seeks to sell a product using code it could have licensed but did not.

It matters, as all intellectual property matters, because the more we allow the fair use defense to expand and take money off of the table for creators, the more it destroys their incentive for creating original content in the first place. Why would a person or a company invest time, effort, and money in writing a song, developing a drug, or coding a program if someone else could simply take that song, drug, or code and sell it as their own? Fair use doesn’t excuse that, nor should it.

Although software code is complex and difficult to understand for the average person, there are no special rules in this area of copyright law, nor should there be. Just as copying a portion of a song and inserting it into one’s own song can be infringement, so too can taking a portion of code and selling it as part of one’s own product. Just as it takes creativity to use words to create a book, so too it takes creativity to create new and exciting code.

It may be obtuse to many people, but coding is a highly creative endeavor that brings astonishing and exciting products to market, products that have shaped and improved the world around us. It is in the interest of everyone, both software coders and society at large, that the incentive created by copyright to produce such advancement remains strong.

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Copyright Internet Legislation Uncategorized

Middle Class Artists Want a DMCA System That Works

The following guest post comes from Rebecca Cusey, a second year law student at George Mason University School of Law.

By Rebecca Cusey

Rebecca_Cusey_HeadshotMason Law’s Arts & Entertainment Advocacy Clinic filed comments today with the U.S. Copyright Office detailing the frustrations and futilities experienced by everyday artists as they struggle with the DMCA system to protect their copyrights online.

Terrica Carrington and I wrote the comments on behalf of middle class artists, that group of creative professionals who invests in and lives off their art and yet does not have the kind of revenue stream or corporate backing of more well-known artists. These photographers, filmmakers, musicians, and other artists are squeezed between infringement that directly affects their ability to pay for things like a mortgage or orthodontics bill and the exorbitant cost of using the notice and takedown system to fight infringement.

Terrica and I spoke with four artists: Filmmaker Ellen Seidler, news photographer Yunghi Kim, musician Blake Morgan, audiovisual creator David Newhoff. These artists make works of value and have followings, and thus infringement. They make a profession of their art.

A middle class artist must do it all on her own – find infringement by hours of searching the web, compile lists of infringing posts on each site, navigate each site’s confusing DMCA notification system, and send takedown notification after takedown notification. And that’s all just sending the notifications. Monitoring to see if the infringing content has been removed or if it has simply been uploaded in another spot is a whole other job in itself.

The artists with whom we talked said it was not unusual in the least for a song, photograph, or film to be posted illegally in a thousand places, even tens of thousands of places. Finding infringement and sending notices took hundreds and thousands of hours, hours they could have spent taking photographs, making movies, or writing songs.

After all the time spent fighting infringement online, they felt the task was futile because the content simply reappeared, sometimes in a different place on the same site, other times because of counternotices filed with the ISP hosting the content claiming to have the right to post it.

These artists felt the notice and takedown system mandated by Section 512 of the Copyright Act was both all-consuming and futile, all-consuming because it ate hours upon hours and futile because it yielded little to no results. Ultimately, all of them decided to stop spending time trying to enforce their copyrights under the procedures of Section 512. It simply was not worth it.

Our comments were filed in response to a request by the U.S. Copyright Office for comments on the effectiveness of Section 512 in fighting infringement online. The Copyright Office wanted to know in particular if the provisions of Section 512 balanced the needs of ISPs to host content with the needs of copyright owners to control their work.

Middle class artists feel the balance is off and the scale tipped in favor of ISPs. These artists do not object to bearing some responsibility for protecting their copyrights online. They simply want a system that works.

To read our Section 512 comments, please click here.

Categories
Innovation Inventors Patent Law Uncategorized

Jennifer Lawrence Movie “Joy” Highlights the Need for Patent Protection

The following guest post comes from Rebecca Cusey, a second year law student at George Mason University School of Law and a movie critic at The Federalist.

By Rebecca Cusey

Rebecca_Cusey_Headshot

There are two patents in the movie “Joy”: the one the titular character failed to get and the one for which she is willing to fight tooth and nail.

The first, for an idea she had in high school to improve dog collars, fills her with regret as she sees a similar product successfully sold in shops. As a single mother working to care for not only her children, but her extended family, Joy instinctively knows that owning that idea and marketing the product would have put her life on a different track.

When she has an idea to vastly improve the household mop, she sets out to found a new business empire on ownership of her idea. Joy has a million ideas and the passion to see them through. What she does not have is experience with patents. Her main investor, who happens to also be her father’s girlfriend, gets some bad advice from a lawyer with no patent expertise. His cursory patent search turns up an owner of a similar idea in Hong Kong and his legal advice is to pay advance royalties to this owner.

The owner’s United States representative is only too happy to take her money and, furthermore, he has connections with a factory that can make the parts for her product. A match made in heaven!

However, Joy increasingly loses confidence in the manufacturer. When she flies out to investigate, she discovers the representative is taking steps to fully patent her idea himself and freeze her out. She learns that paying him royalties may have weakened her legal claim to the patent.

That’s when Jennifer Lawrence goes all black leather and aviator sunglasses. She becomes a bad-to-the-bone (but still legal) heroine, an infringer avenger, and a crusader for intellectual property rights. Joy is going to fight to own her idea for a better mop.

The movie does an excellent job of showing why it matters. The mop is more than a mop. It is literally the roof over her kids’ heads. She has taken financial risks, put all her assets into her invention. That alone is enough, but there is more to it than that. Her lifelong dream has been to invent ways to make the world better. An innovator is who she is, down in her core. If some fly-by-night outfit can just take her idea, they take something from her that is the essence of who she is.

Sadly, perhaps, for patent lawyers, and probably only for patent lawyers, the final battle of the film does not happen in a courtroom. Joy finds, shall we say, alternate means of protecting her property. The point stands, however, in a surprisingly ringing endorsement of intellectual property rights. The idea for the mop belongs to Joy and no one has the right to take it from her.

In fact, the movie notes that, in the years after winning her first battle, Joy Mangano secured over a hundred patents. One became the highest selling product ever on the Home Shopping Network. Not bad for a girl who started with just with an idea and a dream.

Written and directed by David Russell and starring Jennifer Lawrence, Bradley Cooper, and Robert Di Nero, Joy is currently playing in theaters.