New Media Rights joins filmmaker groups asking for copyright reform of Section 1201 of the Digital Millenium Copyright Act

Following up on our recent comments requesting reform of section 1201 of the Copyright Act, last Friday April 1 NMR filed a reply comment with the International Documentary Association, Film Independent, Kartemquin Educational Films, and Indie Caucus.

Section 1201 unecessarily restricts all kinds of otherwise legal reuses of content, including by filmmakers, consumers, and remix creators. 

This reply comment asks the Copyright Office to fix the ineffective section 1201 process, which does little to prevent actual copyright infringement. Our initial comment asks for a complete reform to section 1201 through legislative action. This is more focused on advising the Copyright Office of procedural changes it can make to section 1201’s rulemaking proceedings while we await legislative change.

We again want to thank 2L Rayman Khan and 3L Nicholas Petruolo for their research and work drafting New Media Rights' comments to this proceeding.

We appreciate the opportunity to offer the Copyright Office suggestions to improve the section 1201 DMCA processin light of our firsthand experience from working with clients who frequently deal with Section 1201 on a regular basis. 

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New Media Rights seeks reform of section 1201 Anti-circumvention provisions in Copyright Office study

Before the end of 2015 the Copyright Office issued a Notice of Inquiry and Request for Public Comment on Section 1201 of the Digital Millennium Copyright Act (DMCA). Section 1201 outlines the DMCA’s anti-circumvention provisions that make it illegal to bypass any technological protection measure (TPM) (also known as Digital Rights Management (DRM)) that restricts access to copyrighted content. But simply put, it is a broken and flawed area of copyright law.

Before we begin a rundown of our comments, we want to thank California Western School of Law 2L Rayman Kahn and 3L Nicholas Petruolo for their fantastic work helping draft these comments.

The Notice of Inquiry was intended to assess the operation of section 1201, along with the triennial (every three year) rulemaking process established under the DMCA to adopt exemptions to the prohibition against circumvention of TPM’s. Based on our long history of advocating for DMCA exemptions, New Media Rights (NMR) participated in this effort by filing a public comment on March 1, 2016. The comment addressed several questions laid out in the notice of inquiry, drawing directly from New Media Rights’s experiences from working with clients navigate 1201 on a regular basis.

The comment is organized into two main parts. The first section discusses the problems associated with the current language and triennial process established under Section 1201, specifically the provision’s effect on individuals looking to make fair use of copyrighted material. Additionally, this first section proposes an amendment as the most appropriate action needed to correct the many problems Section 1201 poses to technological innovation, consumer rights, and First Amendment protections. The second section of the comment, acknowledging that the legislative reform may take time, focuses on ways in which the triennial rule-making process can be improved more quickly by regulatory change at the Copyright Office.  

The first section touches on the key ways section 1201 is failing: (1) the high demands on time and resources for proving exemptions, (2) the unnecessarily high burden for proving exemptions, (3) examples of ways in which exemptions routinely fail creators making lawful uses of content, and (4) lastly the significance of excluding fair use from exempt status.

To exemplify how Section 1201 fails those who wish to lawfully re-use content, we highlight an example regarding the current exemption allowing documentary filmmakers the ability to circumvent TPM’s. In our comment to the 2015 1201 exemption proceeding, New Media Rights argued for expansion of this exemption to include broader protections for all films seeking to make fair use. Our comments throughout the proceeding reiterated the complications involved in distinguishing between genres of film. We pointed to the fact that many genres of film such as “biopics,” “inspired by,” “based on a true story,” and films shot in a “documentary type” style are hard to classify as either documentary or non-documentary type films. Not only do filmmakers need to correctly establish a fair use argument, but they also need to prove their film was in fact a “documentary” film in order to be exempt under the anti-circumvention provisions of Section 1201.

Our proposed solution included a legislative amendment to Section 1201, which would help clarify the role of fair use in relation to the anti-circumvention provisions. Such an amendment would negate many of the problems Section 1201 imposes on those seeking to make fair use of copyrighted content. Our comment also includes discussion on how such an amendment would not jeopardize any of the United States’ obligations under any international treaties or foreign trade agreements regarding prohibitions on circumvention.

The second section of our comment looks into the various regulatory changes the copyright office may be able to undertake in order to better improve Section 1201. We criticized the burdens of proof required under the rulemaking process and the current de novo review procedures when arguing for exemptions. We also make arguments in favor of less ambiguous language for the evidentiary standards, as well as establishing a basis of confidentiality when trying to provide detailed evidence in support of exemptions.

New Media Rights appreciates the opportunity to provide the Copyright Office with insight based on our first hand experience with clients who frequently navigate Section 1201, but it’s past time to make some changes. 

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See you at SXSW 2016!

Thanks to your votes, New Media Rights is heading to SXSW interactive in Austin, Texas. On Tuesday March 17th at 2:00PM in room 5ABC of the Austin Convention Center we’ll be presenting our panel “Can We Just Play? The Legality of Let's Play Video”.

Let's play videos are more popular than ever, however, for many creators what's legally okay and what isn't is more unclear than ever. Come learn the basics of copyright and trademark law that you need to know to keep your videos and streams up. Also get a chance to hear from legal experts and video creators about hot topics like Easter Egg Videos, Esports and using in-game music.

Joining Art and Teri will be Wikimedia Legal Counsel and lifelong gamer Jacob Rogers, as well as Angelo Alcid attorney and writer of the Journal of Geek Law.

So if you'll be at SXSW come check it out! Don't have a badge? No worries! SXSW gaming is open to the public so if you happen to be in Austin and are willing to brave the SXSW crowds come on by! If you can’t make it, you can follow our panel on twitter using #NMR.


 

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Donate to New Media Rights

Make a donation now to get all the benefits of being a New Media Rights Supporter, included expedited response time if you have a legal question. Donations may be tax-deductible, and will be used solely to support the work of New Media Rights, a 501(c)3 non-profit program of California Western School of Law.

Fair use = millions of individuals exercising their freedom of expression every day. Happy #fairuseweek2016!

At New Media Rights we work to make sure artists, creators, and innovators can exercise fair use on a daily basis, regardless of their ability to pay for a lawyer. We also help clients fight back against content bullies that don’t respect fair use. It comes down to this simple equation... Fair use = freedom of expression.

We thought we’d share some of our decade's long work supporting fair use.

The Fair Use App

Of course, there’s our fair use app, which has been visited by thousands of video creators since its launch in July 2015.  Check it out to learn how to make good decisions when making fair use.  Pro tip: it's not just a fair use app!  The app also helps you ask the right questions about whether you may already have permission to use a work, say if its public domain or openly licensed.  Also, if you want to give us feedback on the app, we're always making improvements, so share that with us here.

Bringing fair use to the big and small screen

Before documentary films can get distributed through streaming services, New Media Rights makes sure that insurance companies will insure the films by providing filmmakers with fair use opinions. These opinions are often required by distributors, and can even keep insurance costs down. Our clients like directors Michael Singh (Valentino's Ghost) and Shannon Sun-Higginson (GTFO) epitomize the importance of telling a story with fair use.

Fighting Copyright Bullying

New Media Rights also spends quite a bit of time standing up to content bullies who try to monetize or take down videos and other creative examples of fair use. We helped remix artist Jonathan McIntosh get his amazing 'Buffy Versus Edward' remix back up after it was repeatedly taken down. We also helped the Media Literacy Project stand up to a bogus copyright claim from a third party. We even helped the Lansdowne Library Teen Advisory Board get a group of middle school kids' Beat It parody video unmuted after it was disabled for the second time through YouTube’s Content ID system. We've also helped many web services and apps understand their roles in protecting fair use.  Every time we stand up to a content bully, we stand up for fair use to ensure that this generation of creators have ample breathing space for unexpected and innovative expression.

And heck fair use is fun, so enjoy this classic from Jonathan McIntosh, Buffy v Edward.

And this video from Kirby Ferguson, Everything is a Remix

Policy Work advocating for fair use

Since 2009, we've advocated at the Copyright Office for many exemptions to the United States' fair use trampling Anti-Circumvention laws so that filmmakers, remixers, and consumers can make fair uses of copyrighted works.  Right now we're working to make sure all fair uses are exempted from Anti-Circumvention laws.

If you have a question about fair use you can contact us here. And if you’d like to support our work for fair use you can donate here. You can also follow us on Twitter, Facebook, and YouTube. You can also follow fair use week here.

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Executive Director Art Neill talks ransomware and the recent Hollywood Presbyterian Medical Center hacking with Good Morning San Diego

Executive Director Art Neill talked ransomware and the recent Hollywood First Presbyterian Hospital hacking today with Good Morning San Diego's Lisa Remillard on KUSI.

KUSI News - San Diego, CA

Art shared some tips, including basics like keeping your anti-virus / anti-malware software up to date and running it often, as well as making consistent, incremental backups on-site and remotely online that go back months rather than days. Since malicious software usually gets installed inadvertently by an employee or authorized user of the network, it's important for businesses and organizations to provide adequate training to staff to minimize these incidents. California Western School of Law

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USPTO/NTIA offer up practical steps to sow the seeds of copyright reform

Over two years ago when we submitted comments in the United States Department of Commerce, United States Patent and Trademark Office and National Telecommunications and Information Administration copyright reform proceedings and again in our roundtable testimony, we advised a cautious approach that avoided the collateral damage that can come with hasty reforms. The final report takes a cautious balanced approach and shows support for many of the points we emphasized including:

  • The importance of developing a flexible criterion to help judges and juries determine the amount of statutory damages awarded. Particularly criteria that: consider whether the defendant use was non-commercial, had reasonable fair use argument and the financial means of the infringer. With flexible standards Copyright Trolls are much less likely to be able to exploit small-scale defendants’ lack of sophistication and resources to extract inappropriate settlements from them. (see pg 75 of the report for some of our thoughts)
  • The need for more public education on matters of copyright law, including fair use, to promote creativity.
  • The creation of easy to read fair use best practices developed within specific creative communities by creators, lawyers and other practitioners working in that specific area to help creators make informed decisions about fair use.
  • Recognizing the importance of having a small claims copyright court to help independent creators resolve disputes that doesn’t sacrifice important copyright safeguards, like fair use, in the process.(see pg 78 of the report for some of our thoughts)

The report also includes many ideas that we’re excited about including:

  • Making sure a copyright symbol doesn’t complete bar innocent infringer status, which is particularly important for the reuse of older archival works where the version with the copyright notice may not be readily accessible to the public.
  • Creating voluntary microlicensing schemes for remixers and creators whose works would not qualify as fair use, that would allow remixers and creators to share profits with content owners.
  • Developing best practices and educational resources to make users aware of what they’re actually purchasing when they buy digital goods like books and music online.
  • Including greater flexibility on claims of non-willful secondary copyright infringement to help spur technological innovation around copyrighted content.

While none of these suggestions are binding, it’s heartening to see practical suggestions for sowing the seeds of a more creative and innovative future.

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Erin Murphy Girard

Clinical Intern

Joined NMR in: 

January 2016

Erin P. Murphy joined New Media rights in January, 2016.  After a fast-paced sales career at a pioneer internet company, she decided to pursue a legal degree.  Tired of the cold winters in Boston, Erin headed west for San Diego and is currently in her 4th semester at California Western School of Law.

Erin is extremely interested in internet law and how it can protect works without stifling technological and creative advancement.  She is specifically concerned about how the law can better keep up with technology. 

When Erin is not working or studying, she is likely spending time with her new husband.  She loves dogs, poker, and the New England Patriots.

Rayman Khan

Clinical Intern

Joined NMR in: 

January 2016

Ray attended the University of San Diego where he majored in environmental studies. As much as he loved the field work involved in his major, he developed an affinity for the social implications related to environmental forces. In order to one day become a liaison between people and the environment, he decided to obtain a legal education at California Western School of Law. Now as a matured second year student and because of his fascination with social entrepreneurship, Ray's interests have broadened to include the legal aspects of intellectual property and business law alongside his environmental focus.

In school, he currently acts as the social media chair for both the Environmental Law Society and the Middle Eastern Law Student Association. He is also a competitor for the school's Alternative Dispute Resolution team. As a tutor, he teaches first year students the basics behind contract law. Outside of school, Ray tries his best to keep active by joining pick-up Frisbee and Basketball games (#ballislife), hiking the various landscapes around San Diego, or jogging around Mission Bay.

Daniel Marin

Clinical Intern

Joined NMR in: 

January 2016

Daniel studied international relations at Florida International University, where he developed an interest in the legal field. Daniel has always had a passion for technology, and the entrepreneurial spirit of musicians, software designers, game developers and more.                                                                                                                                                                 

After his first semester of law school he was part of the dean’s list for his academic success. As a second year law student he has been an active member of the international law society, and the student intellectual property law association. His passion for technology, entertainment, music, and software development has driven him to pursue a concentration on intellectual property. Daniel started the journey into the intellectual property field at the beginning of his second year when he began working at the Intellectual Property Tribunal of Chile for his summer internship. Furthermore he has written an extensive research paper on e-Sports, as that is one of his major areas of interest.

Upon graduation Daniel wants to pursue a career in intellectual property law. Specifically he would like to work for a video game company, software developer, or a startup that he believes in.

Outside his studies, Daniel enjoys playing guitar and bass, working with his brother in developing a YouTube channel, reading, and when time allows play video games.

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