How Smart is the SMART Copyright Act? – Diff

“During March 2022, United States Senators Patrick Leahy and Thom Tillis introduced the Strengthening Measures to Advance Rights Technologies Copyright Act of 2022 (SMART Copyright Act). The bill is deceptively simple. It would require the Library of Congress to mandate that online platforms use certain “technical measures” (i.e., automated systems) to identify infringing content. Its simplicity masks its dangers, however. For that reason, though the Wikimedia Foundation agrees that technical measures to identify potentially infringing works can be useful in some circumstances, we sent a letter (reproduced below) on 19th April 2022 to the bill’s sponsors letting them know that we oppose it. 

Under the SMART Copyright Act, the Foundation and Wikimedia communities could be forced to accommodate and implement technical tools to identify and manage copyrighted content that may not be right for Wikimedia projects. This requirement could force the Foundation to change its existing copyright review process, even though the current process is working very well. …

While we fully agree that tools can be a helpful aid in identifying infringement, they should not be considered as a fix for all enforcement problems. There are two main reasons for this:

Technical tools are not good at determining when a work was “fairly used” or when a work has entered the public domain. This flaw leads to inappropriate censorship. Even YouTube’s Content ID identifies numerous false positives for infringement, and fails to catch a significant amount of problematic content. We worry that such tools would do far worse than the Wikipedia non-free content policy enforced by users.
Technical tools are often developed and owned by one company, and are not open source or freely available. If specific tools are mandated by the copyright office, this would make it difficult for smaller companies and nonprofits to use them without becoming overly reliant on those companies….”

Authors Alliance Opposes the SMART Copyright Act of 2022 | Authors Alliance

“Last week, Senators Thom Tillis and Patrick Leahy introduced new legislation regarding technical protection measures used to protect copyrighted works online, entitled the Strengthening Measures to Advance Rights Technologies (SMART) Copyright Act of 2022. This new legislative proposal represents the latest in a multi-pronged effort to fortify protections for copyrighted works online (coming on the heels of the Copyright Office’s recent notice of inquiry about the development of technical protection measures, about which Authors Alliance submitted a comment). If passed, the SMART Copyright Act of 2022 would establish a procedure for the Librarian of Congress to designate standardized protection measures (“STMs”) to be adopted by online service providers. 

Authors Alliance strongly opposes the SMART Copyright Act of 2022. By requiring that digital platforms and service providers implement technical protection measures which could monitor content uploaded by users, the SMART Copyright Act of 2022 could lead to content “filtering mandate[s]” interfering with authors’ and other creators’ abilities to speak freely online. Authors and creators are the parties that copyright law is designed to protect, making the proposal one that is inconsistent with the very purposes of copyright. 

The SMART Copyright Act of 2022 would enable the Librarian of Congress to designate STMs to be implemented across industries, supposedly based on input from a diverse group of stakeholders. While the bill’s sponsors claim that the legislation “ensures that any designation of existing measures requires input from all stakeholders and assessment of public interest considerations,” it is telling that groups representing the content industry have praised the proposed legislation, while proponents of fair use and the free exchange of knowledge have opposed it. Even if the Copyright Office were to develop STMs that reflect a broad consensus across a diverse group of stakeholders, this would leave out the stakeholders who do not favor the widespread implementation of STMs in the first place (like Authors Alliance). Mandating that service providers use content moderating technology would impede the free flow of information and would not serve the interests of authors and creators who prioritize seeing their works reach wide audiences. …”

Little mermaid, long copyright, big absurdity – Walled Culture

“The reason the heirs were able to bring the case is because Eriksen died in 1959, and so under Danish law his work remains covered by copyright until 2029. The statue was unveiled in 1913, which means that the sculptor’s heirs are still claiming payments well over a hundred years after it was made. Copyright is supposed to be an incentive to create, but it’s absurd to claim that artists are motivated by the thought of earning money for decades after they have died….”

Harvard Library Celebrates Ninth Annual Fair Use Week | Harvard Library

“February 21–25, 2022 is the ninth annual International Fair Use Week — celebrated at libraries, archives, museums and other institutions around the world in recognition of an element of copyright law critical to research, education and scholarship.

Without fair use, scholars would be unable to quote from sources; journalism would be unable to produce articles; thesis and dissertation writers would be unable to offer criticism or analysis of other works; professors would be unable to use music or film in classrooms; libraries would be unable to digitize their print materials — the list of necessary actions that would be affected goes on and on….

Harvard Library’s Office for Scholarly Communication (OSC) founded the first week-long celebration of fair use in 2014. As it was my first year as Copyright Advisor, in a new position, I was looking for something big to accomplish. The idea for a celebration was posted on the Fair Use Allies listserv by Prof. Pia Hunter, now Teaching Associate Professor at University of Illinois College of Law. That very year, Prof. Hunter bought the website fairuseweek.org ahead of the annual celebration. In the second year of Fair Use Week the site went live, and, now run by the Association of Research Libraries (ARL), it continues to serve as the central spot for covering all things Fair Use Week….”

Updating the UCI IPAT Fair Use Jurisprudence Project for Fair Use Week 2022

“Last year, in celebration of Fair Use Week, the IPAT clinic took a deep dive into fair use. We looked at every written judicial opinion that discussed fair use from the beginning of 2019 through February 2021, and made them available in a searchable, sortable database with abstracts and commentary and links to copies of every single case. We learned a lot, and the resources we made available were used by many scholars, students, and attorneys across the country….

For Fair Use Week 2022, we’ve returned to the Fair Use Jurisprudence Project to analyze and present another year’s worth of fair use cases. Our first observation is that the rate of fair use activity has continued to increase. We logged 64 opinions discussing fair use in 2021, increasing from 45 in 2020 and 22 in 2019. Go here for the abstracts.  Photographs continue to be the most common type of work at issue in these disputes, with 67 of the 132 total cases from 2019 to 2022 relating to their use. Of course, not all photograph cases come out the same way. Online news sites, web storefronts, bloggers and artists have all claimed fair use as a defense against photograph infringement claims, with varying results….”

 

Singapore starts making its copyright law fit for the digital world; others need to follow its example – Walled Culture

“Singapore’s previous copyright law provided a broad “fair dealing” right that allowed a range of general uses.  The title of this exception has now been changed from “fair dealing” to “fair use.” That might seem a trivial change, but it’s significant.  Fair dealing rights are, in general, more limited than fair use ones.  The adoption of the latter term is further confirmation that Singapore’s new Copyright Law is moving in the right direction, and aims to provide greater freedoms for the general public, rather than fewer, as has so often been the case in this sector.”

Can Nigeria lead the way in modernising outdated copyright laws through expanded exceptions? – Walled Culture

“Nigeria, is in the process of reforming its outdated 1988 copyright law….

As the IPKat post explains, the executive Bill is particularly strong when it comes to exceptions to copyright. These are increasingly seen as a legal way to break down the walls locking up so much creative material, freeing them for myriad new uses. The executive Bill proposes some general exceptions, including a “fair dealing” provision that is similar to the powerful US “fair use” approach….”

Giant, free index to world’s research papers released online

“In a project that could unlock the world’s research papers for easier computerized analysis, an American technologist has released online a gigantic index of the words and short phrases contained in more than 100 million journal articles — including many paywalled papers.

The catalogue, which was released on 7 October and is free to use, holds tables of more than 355 billion words and sentence fragments listed next to the articles in which they appear. It is an effort to help scientists use software to glean insights from published work even if they have no legal access to the underlying papers, says its creator, Carl Malamud. He released the files under the auspices of Public Resource, a non-profit corporation in Sebastopol, California that he founded.

Malamud says that because his index doesn’t contain the full text of articles, but only sentence snippets up to five words long, releasing it does not breach publishers’ copyright restrictions on the re-use of paywalled articles. However, one legal expert says that publishers might question the legality of how Malamud created the index in the first place….”

No Fear Fair Use: Practical Fair Use for Cultural Institutions

“Imagine if all creators had to wait for a copyrighted work to be in the public domain before they quoted that work? Or if users always had to seek permission, and that permission could be denied with no recourse? Copyright law’s fair use doctrine provides flexibility in the copyright system, allowing use of copyrighted materials during the copyright term without permission from the copyright owner.

 

The famous fair use four factors outline the ambit of this right, but there is still uncertainty about how to apply the factors in practice. This uncertainty often leaves cultural institutions with policies that are either overly restrictive, limiting patron services and discouraging new creations, or overly permissive, potentially subjecting the organization to liability.

 

This class aims to dispel the myths surrounding fair use and empower, enhance, and increase attendees’ confidence when handling the wide array of fair use focused questions and policies….”

Internet Archive motion to the court

“Pursuant to Local Civil Rule 37.2, Defendant Internet Archive respectfully requests a pre-motion discovery conference regarding a motion to compel the production of information regarding the commercial performance of books published by Plaintiffs. In the above-captioned lawsuit, Plaintiffs contend that the Internet Archive infringed Plaintiffs’ copyrights by the non-profit digital lending of library books. The Internet Archive maintains that the challenged lending constitutes fair use under 17 U.S.C. § 107. In considering fair use, one factor courts consider is “the effect of the use upon the potential market for or value of the copyrighted work.” Plaintiffs claim that the Internet Archive’s digital library lending has a negative effect on the market for or value of the works. The Internet Archive disagrees, and wishes to bring forward evidence showing that lending had little or no effect on the commercial performance of the books being lent, compared to books that were not lent….”

Google v. Oracle: Takeaways for Software Preservation, Cultural Heritage, and Fair Use Generally (2021 Reflection) | Software Preservation Network (SPN)

“On April 5, 2021, the Supreme Court issued its opinion on the long-running litigation between Oracle and Google over the reuse of aspects of Oracle’s Java programming framework in Google’s Android mobile operating system. The majority opinion, written by Justice Breyer and joined by five of his fellow justices (Chief Justice Roberts, and Justices Kagan, Sotomayor, Kavanaugh, and Gorsuch), sided with Google, saying its use was lawful because it was protected by fair use. Justice Thomas wrote a dissent, joined only by Justice Alito, arguing that Google’s use was infringing. The newest Justice, Amy Coney Barrett, did not participate in the arguments or decision of the case as it predated her joining the Court. More background on the case can be found in my earlier blog post for SPN summarizing the oral arguments.

Justice Breyer’s opinion is already a landmark for the reasons I laid out there: it is the first Supreme Court opinion to address fair use in nearly thirty years—the last one was Campbell v. Acuff-Rose in 1994. And it is the first Supreme Court opinion to address copyright’s protection for software—ever. And now we know that the opinion will be a milestone for another reason: it is a confident, erudite treatment of the issue by a Justice who has been thinking about copyright and software for more than half a century. As a law professor, Stephen Breyer earned tenure at Harvard based on his 1970 article, “The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs.” The opinion is thus a very happy coincidence: a thorny and consequential issue confronted by a subtle and experienced thinker. The results are quite encouraging for software preservation and for cultural heritage institutions and fair users generally….”

AAP Vows to Protect Copyright from All Challengers

“Challenges to copyright protection are also happening at the state level, Pallante warned, where library lobbyists and “tech-funded” special interest groups are working to “divert copyright protection away from Congress to state assemblies,” an apparent reference to Maryland’s passage of a law late last week that would force publishers to make any digital content they license to consumers available as “an electronic literary product” to public libraries in the state “on reasonable terms.” The AAP opposed the law, and in her remarks, Pallante argued that these state efforts “are clearly preempted by the express language of the federal Copyright Act,” while also spinning a “false narrative.”

Pallante said libraries are an important part of the publishing ecosystem, but added that, “authors, publishers, and bookstores also have policy equities, which is why Congress enacted a singular cohesive federal copyright system that has address the ownership and sale of books since 1790.” She also hit back against what she said are lobbyists pushing states to fund open educational resources “through ugly misinformation campaigns aimed at publishers” and designed to replace publishers’ materials.

In a final point about copyright, Pallante said that the lawsuit the association filed a year ago against the Internet Archive for copying 1.3 million scans of books is still in discovery, but said the IA’s activities “are well outside the boundaries of both the law and copyright commerce, and ultimately pose an existential threat to the copyright framework on which authors and publishers rely.”…”

AAUP Addresses Opposition to Copyright Exemption for Researchers | AAUP

“On March 10, 2021, the AAUP signed onto a reply comment addressing opposition to its previously submitted long-form comment seeking an exemption from a prohibition on circumventing technological protection measures for text and data mining (TDM) of lawfully accessed motion pictures and lawfully accessed literary works distributed electronically….

The AAUP continues to support the exemption because faculty and academic researchers are and will continue to be adversely affected in their ability to make fair use of motion pictures and literary works if they are prohibited from accessing certain classes of works. The AAUP is delighted to be working with the Berkeley Clinic for the first time.”

Amazon’s Refusal To Let Libraries Lend Ebooks Shows Why Controlled Digital Lending Is So Important | Techdirt

The Washington Post tech columnist Geoffrey Fowler recently had a very interesting article about how Amazon won’t allow the ebooks it publishes to be lent out from libraries. As someone who regularly borrows ebooks from my local libraries, I find this disappointing — especially since, as Fowler notes, Amazon really is the company that made ebooks popular. But, when it comes to libraries, Amazon won’t let libraries lend those ebooks out:

When authors sign up with a publisher, it decides how to distribute their work. With other big publishers, selling e-books and audiobooks to libraries is part of the mix — that’s why you’re able to digitally check out bestsellers like Barack Obama’s “A Promised Land.” Amazon is the only big publisher that flat-out blocks library digital collections. Search your local library’s website, and you won’t find recent e-books by Amazon authors Kaling, Dean Koontz or Dr. Ruth Westheimer. Nor will you find downloadable audiobooks for Trevor Noah’s “Born a Crime,” Andy Weir’s “The Martian” and Michael Pollan’s “Caffeine.”

I’ve seen a lot of people responding to this article with anger towards Amazon, which is understandable. I do hope Amazon changes this policy. But there’s a much bigger culprit here: our broken copyright laws. In the physical world, this kind of thing isn’t a problem. If a library wants to lend out a book, it doesn’t need the publisher’s permission. It can just buy a copy and start lending it out. Fowler’s correct that a publisher does get to decide how it wants to distribute a work, but with physical books, there’s the important first sale doctrine, which lets anyone who buys a book go on and resell it. And that meant that in the past, libraries have never needed “permission” to lend out a book. They just needed to buy it.

Unfortunately, courts seem to take a dim view of the first sale doctrine when it comes to digital goods.