Congress is currently considering whether copyright law needs to be overhauled for the digital era. Despite the explosion in innovation and creativity on the Internet since passage of the DMCA 15 years ago, tensions have been growing between content owners and technology providers, leading to high profile clashes that will impact the future of the Internet, innovation, and creativity. We will review ongoing Congressional hearings and recent cases that set the stage for these policy discussions and future legislation.

1. The Future of Internet Copyright:
Recent Cases and Congress
Presented by Wade Savoy

2. Growing Tension
The Congress shall have Power . . . [t]o
promote the Progress of Science and useful
Arts, by securing for limited Times to
Authors and Inventors the exclusive Right to
their respective Writings and Discoveries.
U.S. Constitution, Article I, Section 8
2

3. Road Map
Set the stage for reform
Congressional hearings
Copyright Act of
1976
DMCA Cartoons SOPA
3

4. 4
The Copyright Act of 1976

5. DMCA
5
Digital Millennium Copyright Act
Passed 15 years ago

6. 6
DMCA
Digital Locks Safe Harbors

7. Online Service Providers
Life Before DMCA Safe Harbors
7
Content Owners
@
Tracking down service providers
Being ignored or slow responses
Reluctance to remove infringing
materials
Inconsistent responses
Not copyright experts
Cannot afford to be copyright
experts
Missing information
Liability from users
Direct liability? Contributory?
Vicarious?

8. 8
The DMCA Compromise
Notice requirements under section 513(c)(3):
Statements of good faith belief that the material is infringing, of the accuracy of
the notice, and that the person complaining is authorized to act for the owner
Signature
Identification of the copyrighted work
Identification of the infringing material and where it’s located
Contact information for the complaining party

9. 9
DMCA in Context: Google
"How Google Fights Piracy"
In 2012, Google received requests to remove more than 57 million web pages
from its search engine
Removal on average in less than six hours

10. DMCA in Context: MPAA
“Understanding the Role of Search in Online Piracy”
10
About 80% from Google

11. 11
Viacom v. YouTube (2012)
Do we really, really have to put YouTube on
notice of every single infringement?Q
Yes.
Isn't general knowledge of all that infringement
we all know is there enough?
Nope.
But why?
The magic dance we call the DMCA.
Q
Q
A
A
A

12. 12
Second Source of Tension: Cartoons
Cartoon Networks v. Cablevision (2008)
Cablevision Warehouse
DVR
DVR
DVR
DVR

13. Cartoon Networks
Public performance? Copy?
13
Cablevision Warehouse
DVR
DVR
DVR
DVR

14. 14
Cartoon Networks
Mai Systems v. Peak Computer (1993)
Cablevision Warehouse
DVR
DVR
DVR
DVR

15. 15
WNET v. Aereo (2013)
Aereo Warehouse
DVR
DVR
DVR
DVR

16. WNET v. Aereo (2013)
16
Aereo Warehouse
DVR
DVR
DVR
DVR
Progress?

17. 17
Third Source of Tension: Angry Mob
Stop Online Piracy Act (SOPA)

18. The Stage for Reform
18
Tensions between tech and content – promote what kind of progress?
Public directly engaged and implicated in copyright
Decline in public perception coupled with social media

19. 19
Hearings
The Courts, Intellectual Property and the Internet Subcommittee
of the House Committee on the Judiciary
“The goal of this hearing . . . will be to
determine whether the copyright laws are still
working in the digital age to reward creativity
and innovation. ”
-- Chairman Goodlatte
Image courtesy of politico.com

20. First Hearing
“A Case Study for Consensus Building:
The Copyright Principles Project”
May 16, 2013
20
Testifying:
Jon Baumgarten
Former General Counsel
Copyright Office (1976-1979)
Prof. Laura Gasaway
University of North Carolina
School of Law
Prof. Daniel J. Gervais
Vanderbilt University
School of Law
Prof. Pamela Samuelson
University of California Berkley
School of Law
Jule Sigall
Assistant General Counsel
for Copyright, Microsoft

21. First Hearing
21
“The goal of the CPP was to explore whether it was possible to reach some
consensus about how current copyright law could be improved and how the
law’s current problems could be mitigated.”
Report issued in 2010
Twenty five recommendations
THE
©OPYRIGHT
PRINCIPLES PROJECT

22. THE
©OPYRIGHT
PRINCIPLES PROJECT
22
First Hearing
Recommendation #1
Copyright law should
encourage copyright owners
to register their works so that
better information will be
available as to who claims
copyright ownership in which
works.
Recommendation #2
The Copyright Office should transition
away from being the sole registry for
copyrighted works and toward certifying
the operation of registries operated by
third parties, both public and private.

23. THE
©OPYRIGHT
PRINCIPLES PROJECT
23
First Hearing
Recommendation #5
A small claims procedure
should be available for
resolving small-scale
copyright disputes.
Recommendation #21
Congress should limit
remedies as to those who
reuse in-copyright works
whose rights holders
cannot be found after a
reasonably diligent search.
(Orphaned works.)

24. THE
©OPYRIGHT
PRINCIPLES PROJECT
24
First Hearing
Recommendation #10
If copyright law is to retain the right
to elect to recover statutory
damages in lieu of actual
damages, guidelines for awarding
statutory damages in a
consistent, reasonable, and just
manner should be developed.
Recommendation #11
To give courts discretion to award up to three
times the amount of actual damages and
infringer profits in exceptional cases as long as
the copyright owner registered the infringed
work(s) before the infringement commenced.
(Treble damages.)

25. THE
©OPYRIGHT
PRINCIPLES PROJECT
25
First Hearing
Recommendation #6
Commercial use or
commercial effect should
be given weight in
assessing whether an
exclusive right has been
infringed.
Recommendation #18
Personal uses of
copyrighted works should
be privileged to some
degree.

26. THE
©OPYRIGHT
PRINCIPLES PROJECT
26
First Hearing
Recommendation #7
Copyright owners should
have the exclusive right to
control communications of
their protected works to the
public, whether by
transmission or otherwise.

27. The professors are ready for a major overhaul: “Next great Copyright Act”
Better registration system leveraging new technology
Focus on maximizing authorized uses rather than minimizing unauthorized uses
Orphaned work
Statutory damages
Safe harbors for consumers making ordinary uses of legitimately purchased works
Microsoft: DMCA is the right approach
First Hearing
27

28. 28
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29. Second Hearing: Content Owners
“Innovation in America: The Role of Copyrights”
July 25, 2013
29
Source: Getty Images
Sandra Aistars
Executive Director, Copyright Alliance
Eugene Mopsik
Executive Director, American Society of Media
Photographers
Tom Hansen
Co-Founder, Yep Roc Records/ Red Eye Distribution
John Lapham
General Counsel, Getty Images
William Sherak
President, Stereo D
Testifying:

30. Fair compensation
Combative, defensive tone
Love-hate relationship with technology
Economic viability of copyright owners drives innovation
30
Second Hearing: Content Owners

31. Second Hearing: Content Owners
31
Copyright works at its core
But concerned about
Expansion of
fair use Ease of file sharing
Stronger statutory
damages provisions
Cutting off ad and
credit card revenue
to infringing sites
Search
engines
1 2 3
4 5

32. Small claims
system
32
Second Hearing: Content Owners
Better, easier
registration system
needed

33. Third Hearing: Tech Companies
“Innovation in America:
The Role of Technology”
August 1, 2013
33
Testifying:
Danae Ringelmann
Founder & Chief Customer
Officer, Indiegogo
Jim Fruchterman
President and CEO, Benetech
Nathan Seidle
CEO, SparkFun Electronics, Inc.
Van Lindberg
PV Intellectual Property, Rackspace
Rakesh Agrawal
Founder & CEO, SnapStream Media

34. Third Hearing: Tech Companies
34
A new attitude about intellectual property:
Innovation (i.e., progress) is not dependent on intellectual property.
Make money by innovating and iterating.
Don’t enforce, compete.
Intellectual property is not the only option.
One business model should not be baked into the Copyright Act.
Law should not focus just on traditional creators.
Scrap copyright law altogether?

35. 35
Questions?
wade.savoy@rimonlaw.com
504.267.1665 ext. 237
Wade Savoy