Stephanie Lenz’s effort to hold Universal Music Group accountable for abusing the Digital Millennium Copyright Act (“DMCA”) to take down a home video of her toddler “dancing” to Prince in the kitchen is one step closer to fruition. Today, EFF and co-counsel Keker & Van Nest LLP filed an opening brief on behalf of Ms. Lenz in the federal Court of Appeals for the Ninth Circuit. And, as we explain in the brief, the case concerns whether Internet users—from Ms. Lenz to remix artists to scholars to documentary filmmakers—have any real protection against wrongful accusations of copyright infringement.Privacy info. This embed will serve content from youtube.com
Over the years, the case has garnered a great deal of media coverage. One reason for the interest is that Ms. Lenz was accused of infringement for doing something parents do all the time: documenting and sharing precious moments in the lives of their children. And it was not infringement: Ms. Lenz’s video was an obvious fair use, and protected expression under the First Amendment. Unfortunately, Universal's takedown policy was blind to fair use, and, therefore, guaranteed to result in these kinds of takedowns.
Section 512(f) of the DMCA is supposed to prevent this kind of abuse, by allowing users to hold copyright holders accountable when they misrepresent, in a DMCA notice, that the copy posted online is infringing. Universal claims that Congress never intended to require content owners to consider fair use before sending such notices.
Universal is wrong. When it passed the DMCA, Congress didn’t intend to give copyright holders a broad power to make other people’s speech disappear, without robust protection against abuse. That’s why Congress required copyright holders to consider whether a given use is authorized by law, as well as whether the copyright owner or its agent gave permission.
The brief also urges the Court to clarify that the sender of a takedown notice is required make reasonable determinations about the law. In other words, if a copyright holder is going to claim someone violates copyright law, it should first have some idea of what qualifies as a violation. Too often, we have seen copyright owners send takedown notices informed by only the vaguest notion of what actually qualifies as infringement. As we explain:
A law that grants a private actor the power to do what even a court cannot—cause the prior restraint of speech based on a purely ex parte review—alters not only the traditional contours of copyright protection but of our fundamental free speech doctrines. Such a law can only be tolerated, if at all, if the exercise of that power is tied to an obligation to understand what the law is, and to make reasonable assertions based on that understanding.
Ms. Lenz’s case offers the Ninth Circuit an opportunity to confirm that the DMCA balance remains what Congress intended and what the statute plainly provides. Let's hope the court takes it.var mytubes = new Array(1); mytubes = '%3Ciframe src=%22http://www.youtube.com/embed/N1KfJHFWlhQ?rel=1%26amp;autoplay=1%26amp;wmode=opaque%26?autoplay=1%22 width=%22400%22 height=%22250%22 class=%22video-filter video-youtube vf-n1kfjhfwlhq%22 frameborder=%220%22%3E%3C/iframe%3E'; Files: lenz.opening.public.pdfRelated Issues: Free SpeechIntellectual PropertyDMCARelated Cases: Lenz v. Universal
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If House Republicans are looking for some Democratic votes to help ease Right to Life's initiative on abortion coverage through the chamber next week, they likely won't find many.
While about seven House Democrats may vote for some Right to Life causes, that number is much smaller when it comes to the particular proposal now facing the Legislature. The proposal, which comes through the state's initiated law process, would require that women purchase insurance coverage for elective abortions through optional riders outside of their basic plans.
According to a handful of House Democrat sources, there may be only two or three caucus members still considering voting "yes" on the proposal. And there's chatter that the caucus may take an official position against it.
For the full article, see "How Many House D's Would Back Right to Life Initiative?", Inside MIRS Today, December 6, 2013.
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We’re pleased to announce a new suite of Creative Commons licenses specifically designed for intergovernmental organizations (IGOs). IGOs produce a wide array of valuable information and content, ranging from scholarly and scientific papers to environmental data. Just like other creators who seek wide dissemination of their works to achieve maximal impact, IGOs benefit from using CC’s well understood and widely adopted licenses.
Since the 2011 CC Global Summit in Warsaw, and in tandem with our 4.0 license development process, we’ve been working closely with IGOs to understand and find acceptable ways to address their unique needs in our licenses. The process mirrored the porting process used for the 3.0 licenses, which addresses specific needs of jurisdictions. Additionally, we have been working closely on adoption opportunities so that the valuable content IGOs produce can be reused around the globe under our standard licenses. For example, the World Bank leverages CC’s licenses as part of its impressive open access policy, and Commonwealth of Learning has adopted an OER policy under which it will release its own materials using CC licenses.
CC and IGO working group participants announced the results of this effort today. From the press release:
“The more that everyone can access and use the important work of IGOs, the more impactful they are,” Creative Commons co-founder Lawrence Lessig said. “By publishing their information and data under Creative Commons licenses, these organizations are giving anyone on the planet the right to read and share those materials.”
Congratulations to everyone! We look forward to seeing more and more IGOs joining the commons.
Legislation creating a letter grading system for Michigan public schools is coming under scrutiny because it contains a provision that may speed the transfer of failing schools into the troubled Education Achievement Authority.
The legislation mandates that schools with an “F” letter grade under the new system with low test scores twice in three years be placed under control of the state school reform office.
That office has the contractual power to place failing schools under the control of the EAA, a fledgling school system that operates 15 schools formerly part of Detroit Public Schools under an agreement with DPS and Eastern Michigan University.
For the full article, see Jennifer Chambers and Chad Livengood, "Critics rip school grading bill; Some say system to determine failing schools is a way to expand EAA without legislation", Detroit News, December 6, 2013.
Patent reform is moving along nicely on Capitol Hill, but today we got some more really big news. The Supreme Court has agreed to take on the question of patentable subject matter. Specifically, it's time to talk about software patents.
A brief refresher: under the law, one cannot patent laws of nature, natural phenomena, or abstract ideas. Recently, the Supreme Court clarified this standard in two cases (here and here) that dealt with laws of nature. Despite clear guidance from the Court, when the Federal Circuit addressed the question as it relates to abstract ideas (read, software), it basically punted, failing to produce any meaningful rule of law for lower courts to follow. Even worse, it continued to muddy the waters by upholding crazy abstract patents like the one for watching an advertisement online before getting access to copyrighted content.
Today, the Supreme Court stepped in. It agreed to hear a case called Alice v. CLS Bank. We wrote about why that mattered here, but suffice it to say that the Court will be facing fundamental questions about whether many so-called software patents are impermissibly abstract.
We're glad that patent reform has momentum and that policymakers are targeting patent trolls. But the root of that problem, which has largely been missing from the public debate, is patent quality, specifically of software-related inventions. There can be no doubt: we have a problem with low-quality, abstract software patents in this country. We are incredibly glad to see the Supreme Court take on this important question and we look forward to weighing in.Related Issues: PatentsRelated Cases: Abstract Patent Litigation
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Henry Samueli, CTO of Broadcom, makes the same point about Moore's Law. As the feature size of successive chip generations decreases, the cost of the manufacturing technology increases. And the techniques needed, such as FinFET and other 3D technologies, also slow down and increase the cost of using the manufacturing technology:
Process nodes themselves still have room to advance, but they may also be headed for a wall in about 15 years, Samueli said. After another three generations or so, chips will probably reach 5nm, and at that point there will be only 10 atoms from the beginning to the end of each transistor gate, he said. Beyond that, further advances may be impossible.
"You can't build a transistor with one atom," Samueli said. There's no obvious path forward at that point, either. "As of yet, we have not seen a viable replacement for the CMOS transistor as we've known it for the last 50 years."
... the ongoing bargain of getting more for less eventually will end, Samueli said. "We've been spoiled by these devices getting cheaper and cheaper and cheaper in every generation. We're just going to have to live with prices leveling off," he said.Both of these are simply applications of the Law of Diminishing Returns.