This is the original version of the presentation I did at SCLA in 2012. I still need to add citations and I'm already updating it for my next scheduled presentation of it since there were changes in the DMCA just last week!

1.  

2.  Manager York County
Headquarters Library
 Reference / Outreach /
Circulation / Collection
Development
 Still a Systems Librarian
 rogan.hamby@yclibrary.net

3.  www.copyright.gov/title17/
 Relies heavily on judicial interpretation
 Extremely busy field
 This is only thirteen arbitrary
elements of current events
with a bias towards libraries
 Depends heavily on legislative intent

4.  I’m going to skim a lot. There is easily content I am going to
skip over that could make another twenty hours of
presentations so I apologize in advance.
 IANAL should be IANACL or I Am Not A Copyright Lawyer.
Most Lawyers are not Copyright Lawyers.
 Put five copyright lawyers in a room and you’ll get at least
seven different opinions. This is why the courts are so busy.
 If I sound like a nut case alarmist it’s only because I care.

6.  Section 107, Title 17
Limitations on exclusive rights: Fair use
 Broad and highly open to interpretation
 The principles derive from the opinions
of Joseph Story, Folsom v. Marsh (1841)
 Was only common law until Copyright Act of 1976
(Statute of Anne, 1709)

7. “for purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use),
scholarship, or research, is not an infringement of
copyright”
To be considered:
(1) The purpose and character of use, commercial or for
non-profit education
(2) The nature of the copyrighted work
(3) The portion used in relation to the copyrighted work as
a whole
(4) The effect of the use upon the potential market or value
of the copyrighted work

8.  Judges must consider the elements of fair use but will
decide case by case what applies and doesn’t
 This is being contested constantly right now from ring
tones to scholarly papers
 May 2012, Cambridge University Press, Oxford
University Press and SAGE Publications vs. Georgia
State University – 99 counts of infringement, found only
5 in favor of the publishers
 Took four years and ruling was granular analysis in 350
pages

10.  Section 108 of Title 17 provides limitations on exclusive
rights of reproductions to protect libraries and archives
 8,440 characters long
 The legend that you can make one copy rule has
caveats
o Items must be open to public or specialized researchers
o Must provide copyright notices if not already present
 You can make three copies under very broad criteria!
o You can do this for lost, stolen, or format is obsolete

11. Exemptions to copyright would
a presentation in it’s
be
own right!

13.  A number of library specific exemptions but most are
pretty useless
 The temporary copy exemption only applies to
circumventing protection mechanisms not to copying the
work, i.e. DMCA not Title 17
 The infamous “photocopier” rule and knowledge of willful
infringement

15.  Laws still vary widely nation to nation as to scope
covered and penalties
 Enforcement varies widely nation to nation as well
 As a result things like Project Gutenburg have national
chapters because a book perfectly legal in Australia may
still be covered by copyright here in the United States
 The U.S. is a member of the Buenos Aires & Berne
Conventions

16.  Instituted by Victor Hugo, heavily influenced by French
“right of the author” which isn’t the same as copyright
 The U.S. joined in 1988 after they allowed it to make
statutory damages and attorney’s fees only available for
registered works
 Provides a series of baselines for what is covered
 Requires that nations recognize copyright as France did
 Coverage is automatic and does not require registration

17.  165 countries have signed including most of the
developed world

18.  Every year the Office of the United States Trade
Representative (USTR) does a Special 301 report
 Every year the IIPA representing the BSA, MPAA, RIAA
and others submit recommendations to the USTR
 This year they recommended most countries for hosting
cyberlockers
 This year they recommended thirteen including …

21. “One copyright trade agreement to bring them all together,
One copyright trade agreement to in the darkness bind
them”

22.  Remember me saying that one thing that varied a lot
was enforcement?
 The answer is ACTA, the Anti-Counterfeiting Trade
Agreement
 Opponents argue that it goes far beyond enforcement to
rewriting copyright laws under the guise of a trade
agreement which doesn’t have the same congressional
scrutiny
 And can be kept private from the public

26.  Copyright Act of 1790 - 14 years with 14-year renewal
 Copyright Act of 1831 – 28 years with 14-year renewal
 Copyright Act of 1909 – 28 years with 28-year renewal
 Universal Copyright Convention
 Copyright Act of 1976 – 75 years of life of authors plus
50 years
 Berne Convention Implementation Act of 1988
 Copyright Renewal Act of 1992
 Uruguay Round Agreements Act of 1994
 Copyright Term Extension Act of 1988 – 95/120 years or
life plus 70
 Digital Millennium Copyright Act of 1998

27.  PIPA is the Protect IP Act
 Broadly expands the power of copyright holders to act
against potentially or allegedly infringing material
 Largely seen as a US version of ACTA
 Already DMCA tools are dangerous – President
Obama’s speech, birds apparently sound a lot like heavy
metal
 What do you think it will do to research?

28.  ICE – Immigrations and Customs Enforcement
 They used to seize cargo containers of pirated books
from China. Now they seize domain names
 84,000 domains at mooo.com were
accused wrongly of having child
pornography
 Has seized domains with legitimate
content

30.  Founded in 1870 when Congress removed it from the
court system and placed it with the Library of Congress
 450 employees
 In 2011 they processed more than 700,000 claims

31.  Title 17 section 701 gives critical power to Register of
Copyrights including involvements in all levels of
discussions
 Often given other
arbitrary powers
 Maria A. Pallante
 www.copyright.gov/docs/priorties.pdf

34. “Orphan works are works whose copyright holders cannot
be identified or found – and are not made publicly available
by libraries for fear that rights holders will come forward,
initiate legal action, and demand statutory damages of up
to $150,000 a work.”
- ALA

36. Although everyone agrees that orphaned works are a
problem (EFF, ALA, researchers, publishers, readers,
congress) little is done. No legislative effort has happened
in the 111th or 112th Congress so far.
When legislative change happens to protect current
commercial works it tends to make orphaned works even
less accessible.

38. Libraries have been sued for libel when digitizing and
republishing content and that’s even where copyright is
clear!

40.  Copyright has expanded.
 In 1856 Congress expanded
copyright to include public
performances for playwrights. Over time that has
expanded to include other kinds of performance.
 Those same laws are applied to re-transmissions now
and affecting cloud based businesses.
 Cable telecommunications and copyright have become a
black hole of esoteric regulation that logic can’t escape
from.

41.  While Netflix and Hulu are fighting over what is a cable
company and what side of the fickle
FCC sword they want to grab …
 Judge Posner in MPAA vs. Flava Works
ruled that embedding video is not
copying and viewing is not copying
 This means that there is a type of
public performance that is not covered
by copyright law

43. Copyright cases have been
filed over Rolling Stones
songs and advance copies
of Harry Potter books
But it has been the adult
industry suits that have
filled up the industry in the
last ten years

44.  A multitude of lawsuits against John and Jane Does
users have caused conspiracy laws to be reviewed and
the limits of blanket lawsuits and judicial limits
(geographically)
 Wifi has been reviewed as a public property with
responsible access laws applying
 Statutory damages are in constant flux
 Common carrier and provider protections are being
tested against publishers like Tumblr

45. Some suit happy parties are finding that their methods are
earning the ire of the courts, and they are being charged
with racketeering and being disbarred
Judges are increasingly wise about these issues and the
technical issues are being broken into legal translations
Liuxia Wong vs. Hard Drive Productions is challenging if
certain works can be copyrighted

49.  When you buy an electronics device you aren’t just
buying hardware – you’re buying software that can’t be
functionally separated.
 If you want to modify your device you have to be able to
change the code – these modifications are often called
rooting or jailbreaking.
 While copyright of digital files are challenged under the
doctrine of first ownership this is a whole other problem.

50.  Since copyright also includes the right to create
derivatives you can’t modify a modern device (say your
smart phone) without violating copyright
 Right now we can do that because
the U.S. Congress opened up that
privilege and it can go away
 Who is in charge of making
the recommendation to extend it?
The Register of Copyrights at the
Library of Congress

51.  … we are talking about code
 Did you know that while an algorithm can’t be
copyrighted a search result can be?
 In fact any evaluation or ranking can by copyrighted
 Ironically, the less useful a result is the more you can
protect your copyright on it!

54.  Maria Pallante: “Without
enforcement like SOPA … the
US copyright system will
ultimately fail.”
 She has said that copyright
policy has to start with
enforcement, not with insuring
the rights of researchers and
the public.

55.  From Napster to Megaupload the major copyright policy
advocates, those paying the biggest lobbyist, have said
that the Internet would destroy their income
 In fact their past estimates have become so unreliable
that their language has changed to “inhibit growth” from
“piracy will destroy us”

56.  Pays better than most American jobs
 Has outperformed the US economy
through the recession
 Sells record-setting amounts of product
overseas, earning more foreign
revenue than the entire US food
sector or US pharmaceutical industry

58.  In fact the copyright industries are adapting to new
markets
 Just as they’ve done before when new licensing needs
were created to respond to new technologies
 Once both Juke Boxes and Radio were
considered to be the death of
copyright – now the very things being
defended