Policy update: New Media Rights files amicus brief in Capitol Records vs Vimeo & participates in Los Angeles copyright roundtable

This week has been a busy week for copyright reform and New Media Rights has been in the thick of it to make sure that the voices of independent creators, entrepreneurs and internet users are represented.

Tuesday, Staff Attorney Teri Karobonik participated in the Los Angeles round of the USPTO/NTIA’s ongoing series of roundtables about copyright reform. Teri participated in both the statutory damages roundtable and the panel regarding laws around remixes.

On the statutory damages panel:

• We emphasized the need for a set of flexible criteria to help judges and juries determine the amount of statutory damages awarded. Particularly criteria that consider whether the defendant use was non-commercial or had reasonable fair use argument.
• We warned against the danger of awarding statutory damages based primarily on what type of entity committed the infringing act rather than the specific facts of their case. Doing so could be particularly detrimental to smaller companies and non-profits without access to the types of legal resources that a larger entity of the same type may have.

On the remix panel:

• We repeatedly emphasized the importance of a strong fair use doctrine to freedom of expression online.
• We called for additional comprehensive copyright education that includes in-depth lessons on things like fair use and creative commons so the average remix creator has the tools to remix within the bounds of fair use.
• We encouraged the creation of easy to read fair use guidelines developed within specific creative communities by creators, lawyers and other practitioners working in that specific area. Because fair use is so fact specific any fair use guidelines must reflect the needs of a specific creative community.

A recording of the roundtable can be found here. In addition to following our work in these proceedings, you can also keep up to date on the USPTO's website.

Wednesday, New Media Rights joined the Electronic Frontier Foundation and a coalition of other public interest groups to stand up for DMCA safe harbors by filing an amicus brief in the case of Capitol Records v. Vimeo. The bounds of the DMCA safe harbors have once again been challenged in this case in ways that could do serious damage to creators of online audio visual works and user generated content sites if an appeals court does not intervene.

In this particular case, a large coalition of record labels sued Vimeo alleging that dozens of videos hosted on its site containing infringing sound recordings.  The district court agreed for two particularly dangerous reasons.  First the court took unprecedented steps to lower the bar for “red flag knowledge”, the type of knowledge that would prevent a user generated content site from relying on DMCA safe harbors. Second the court declared that a service provider could not rely on the DMCA’s safe harbors to protect them from liability for sound recordings created prior to 1972.  Practically speaking these two holdings would require websites to perform unprecedented monitoring of content on their site and would effectively ban creators of online audio visual works from using sound recording created prior to 1972  on user generated content sites, thus dangerously chilling online speech.

Also joining EFF's brief are our friends at the Center for Democracy and Technology, the Organization for Transformative Works, and Public Knowledge. The full brief is attached below. For more on this amicus check out the EFF and OTW posts about the brief.