ARL Joins Coalition Letter Raising Concerns Over Compelled Scanning of E-mails

On Tuesday, October 25, ARL joined a coalition of civil society groups raising concerns regarding recent reports that Yahoo! had been compelled under the Foreign Intelligence Surveillance Act (FISA) to scan the emails of all of its users for a “signature” associated with a foreign power.  The letter raised serious concerns over user privacy and also noted that such scanning could violate FISA and the Fourth Amendment.

The letter calls on the Director of National Intelligence to publicly disclose the interpretations of law relied upon to justify the scanning order; to release FISA Court opinions that compelled such surveillance (and as required under the USA FREEDOM Act); disclose whether scanning of e-mail content occurred under this order; disclose the selectors the government believes are permissible; and to indicate the number of times such an order was issued compelling the scanning of all incoming emails.

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ICYMI: Maria Pallante Removed as Register of Copyrights

On Friday, October 21, 2016, Librarian of Congress Carla Hayden announced the removal of Maria Pallante as Register of Copyrights.  Hayden appointed Maria Pallante as Senior Advisor for Digital Strategy and Karyn Temple Claggett, currently the Associate Register, as the Acting Register of Copyrights.  Under Pallante’s direction, the Copyright Office made orphan works legislation and reform of Section 108, two areas where the library community has raised serious concerns, strong priorities. Pallante also advocated for the Copyright Office to become an independent agency, rather than being housed in the Library of Congress.

A press release issued today by House Judiciary Chairman Goodlatte (R-Va.) and Ranking Member Conyers (D-Mi.) indicates that Maria Pallante will be leaving the Copyright Office.  This press release also suggests that Congress may take this opportunity to “examine the selection process for the new register.”  Such an examination may be an issue considered as Congress continues to look at bills to modernize the Copyright Office.

Edited to add: On October 25, 2016, Politico confirmed news that Maria Pallante resigned.  Her resignation letter is available here.

Below are some articles covering this recent development:

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USPTO Hosts Unbalanced Global Intellectual Property Academy Copyright Seminar

Several weeks ago, the United States Patent and Trademark Office (USPTO) hosted a copyright seminar at its Global Intellectual Property Academy for two dozen intellectual property officials primarily from countries in Latin America, Asia, and Africa. While the first several days involved an “overview” of copyright and mostly time with United States government officials, September 22 was labeled “Industry Day.” The speaker list revealed a very heavy focus on rightholders, in several cases the panels did not have any voices advocating for the importance of consumers and the role of limitations and exceptions in copyright law.

Although I appreciated the opportunity to have participated on a panel on issues related to publishing, I was disappointed to learn that USPTO planned such a highly unbalanced lineup of speakers, overall. By hosting a day almost exclusively comprised of copyright maximalists, USPTO provides its audience, intellectual property officials in other countries, only one side of the story.

Balance is critical in a functional copyright system to ensure that user rights are protected. In addition to the numerous specific limitations and exceptionsin copyright law, the United States has a strong “safety valve” in its copyright system: fair use. This flexible doctrine accommodates new technologies and circumstances. It ensures that Congress does not need to pass new legislation each time a new limitation or exception is needed. Fair use, of course, is not limited to consumers of copyrighted goods and is essential to rightholders as well. Rightholders have successfully relied on the right of fair use in litigation, even though they often complain about consumers who rely on this doctrine. The U.S. Government also relies on fair use; the Patent and Trademark Office itself relies on it in the patent examination process and for photocopying materials. Despite the importance of fair use and other limitations and exceptions, the panels appeared to be heavily skewed only toward discussing the rights of rightholders. Absent from these panels were voices like documentary filmmakers, remix artists, consumer groups and others who would provide different perspectives from the traditional content industry and give the audience a more balanced view of the United States copyright system.

On my own panel, the other speakers included Allan Adler of the Association of American Publishers (AAP), Ryan Fox of the Authors Guild, and Michael Healy of the Copyright Clearance Center (CCC).  All of these groups strongly advocate for greater rights of rightholders and have been involved in recent cases opposing fair use (such as Authors Guild v. HathiTrust or the Georgia State E-Reserves Case), as parties to the case, as amici, or by funding the litigation (or some combination).

These USPTO seminars would benefit from a more diverse groups of speakers who can provide meaningful balance.

Below is the full list of topics and speakers from “Industry Day”

Overview of Key Issues facing the Music Industry

Part 1: Efficient and fair licensing, collection and distribution of royalties

Tim Dadson, Assistant General Counsel, SoundExchange

Erich Carey, Vice President & Senior Counsel, Litigation at National Music Publishers’ Association (NMPA)

Part 2: Sound recording licensing

Steve Marks, Chief, Digital Business & General Counsel, RIAA

Greg Barnes, General Counsel and Director of Governmental Affairs, Digital Media Association (DiMA)

Overview of Key Issues facing the Audiovisual (Film) Industry

Kevin Rosenbaum, Of Counsel, Mitchell Silberberg & Knupp LLP; Counsel to the International Intellectual Property Alliance (IIPA)

Troy Dow, Vice President and Counsel, Government Relations and IP Legal Policy and Strategy, The Walt Disney Company

Paula Karol Pinha, Director of Public Policy, Latin America -Netflix (invited)

Overview of Key Issues facing the Software Industries

Ben Golant, Entertainment Software Association (ESA)

Christian Troncoso, Director of Policy, Business Software Association (BSA) | The Software Alliance

Chris Mohr, Vice President for Intellectual Property and General Counsel, Software and Information Industry Association (SIIA)

Overview of Key Issues facing Photographers and Visual Artists

Joshua J. Kaufman, Chair, Art, Copyright & Licensing Practices, Venable LLP

Tom Kennedy, Executive Director, American Society of Media Photographers (ASMP)

Overview of Key Issues facing the Publishing Industry

Michael Healey, Executive Director, International Relations, Copyright Clearance Center (CCC)

Allan Adler, General Counsel and Vice President for Government Affairs, Association of American Publishers (AAP)

Ryan Fox, Editorial Director, Author’s Guild

Krista Cox, Director of Public Policy Initiatives, Association of Research Libraries

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New ARL Advocacy and Public Policy Update Available

On September 26, 2016, ARL released a new Advocacy and Public Policy Update covering the period from July 15 to September 26. This update covers the following issues:

  • Appropriations
  • Emergence of new preprint services
  • White House release of policy on open source software
  • Patricia Flatley Brennan named Director of National Library of Medicine
  • Carla Hayden takes office as Librarian of Congress
  • Copyright and intellectual property (including Copyright Office activities around Section 108 and mandatory deposit, and the Georgia State University e-reserves case)
  • International issues (including the Marrakesh Treaty ratification efforts and India’s recent course pack case)

The full update can be accessed here:


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ARL Joins 33 Organizations Urging Congressional Oversight of Intelligence Activities

On September 13, 2016, ARL joined in a coalition letter of 33 organizations expressing concerns regarding congressional oversight of intelligence activities.  The letter calls on Congress “to provide a meaningful check on the executive branch and reform how it conducts oversight over intelligence matters.”  The letter calls for a number of reforms to the House Permanent Select Committee on Intelligence and to strengthen Congressional power, including to provide members with sufficient staff assistance.

The letter concludes:

In addition to the above reforms, we urge you to consider establishing a distinct, broad-based review of the activities of the Intelligence Community since 9/11, modeled after the 9/11 Commission or the U.S. Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities.

When questions were raised about the activities of the intelligence community in the 1970s, Congress reacted by forming two special committees, colloquially known as the Pike and Church committees. Reports preceded wholesale reforms of the intelligence community, including improving congressional-oversight mechanisms. The outcome improved congressional oversight and the perception of its efficacy. The House should provide the new select committee adequate staffing and financial support, and give it a broad mandate to review practices and structures associated with congressional oversight of intelligence matters.

The full letter can be read here.

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ICYMI: Library Copyright Alliance Files Comments Regarding Mandatory Deposit

On August 18, 2016, the Library Copyright Alliance (LCA) filed a response to the Copyright Office’s Notice of Inquiry regarding mandatory deposit of online-only books and sound recordings.  LCA’s comments support expansion of the 2010 interim rule, which applied to mandatory deposit of online-only electronic serials (newspapers, journals, etc.), to books and sound recordings.

The comments point out the critical role mandatory deposit plays in the Library’s mission to collect, preserve and provide access to all types of works, regardless of publication type.  LCA’s comments point out:

Without mandatory deposit, works created in the digital age could be lost forever. We have seen this loss happen in the film industry. Approximately half of all films made before 1950, and most silent films, are unavailable because no effective mechanism existed at the national level to preserve these important pieces of our cultural heritage and history. The Library is actively and commendably trying to ensure that such enormous permanent losses are not replicated in the digital era. Mandatory deposit of online-only works is the necessary and appropriate solution. Although the present Notice of Inquiry presents only the issue of extending the interim rule to online-only books and sound recordings, serious consideration also should be given to applying the rule to other categories of works, such as photographs and films, to ensure that all types of works are adequately preserved and included in our national Library.

The comments also support expanding access to works collected through mandatory deposit and:

limiting simultaneous access to two on-site users at dedicated terminals is too restrictive and not in accord with current practices in the library community. Access is an essential component of the Library’s mission and such a limited policy hampers the spread of knowledge and culture. Extension of the applicability of the interim rule should involve reconsideration of the current, overly conservative limitation of accessing materials to two on-site terminals at the Library.

In total, there were fifteen submissions to the Copyright Office with respect to this notice of inquiry.  Libraries submitting comments include the University of Michigan, University of California Los Angeles, and University of Virginia.

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A New Approach to Copyright Exceptions and Limitations

*Guest post by Jonathan Band, policybandwidth*

Any discussion with policymakers or rightsholders concerning the possible adoption of new copyright exceptions and limitations invariably centers on how to make sure that the exception is not abused. This leads to lengthy negotiations resulting in complex, difficult-to-use provisions that resemble the tax code. This pattern has been repeated in connection to the exceptions to section 1201 of the Digital Millennium Copyright Act, the TEACH Act for distance education (17 U.S.C. § 110(2)), the Chafee Amendment for the print disabled (17 U.S.C. § 121), and orphan works legislation, to name just a few of the more salient examples.

It’s time for this pattern to be broken. Rightsholders have nothing to fear from exceptions and their possible abuse. Infringement deriving from abuse of exceptions likely would be a tiny fraction of the overall incidence of infringement. At the same time, preventing the public benefits that flow from exceptions undermines the purpose of the copyright system.

Section 108

Unfortunately, this pattern of developing overly restrictive exceptions may soon repeat itself in the context of the exception for libraries and archives in 17 U.S.C. § 108. In 2005, the Library of Congress and the Copyright Office convened a study group consisting of librarians and publishers to consider how to update section 108 for the digital age. After three contentious years, the study group issued a report recommending several possible amendments to section 108, but could not reach consensus on the details of those amendments, nor on how to handle other important issues such as copies for users or license restrictions.

Notwithstanding this lack of consensus, and over the objection of most libraries and archives, the Copyright Office has decided to urge Congress to revise section 108. This past June, the Copyright Office issued a notice of inquiry stating that it seeks “to finalize its legislative recommendation” concerning a “re-drafting” of section 108. In meetings with stakeholders pursuant to this notice of inquiry, the Copyright Office stated that it hopes to complete its legislative recommendation and transmit it to Congress this fall.

Although the Copyright Office hopes to make section 108 simpler and more user-friendly, the Office’s likely concern about “leakage” almost certainly guarantees that the re-drafted section 108 will be complicated and not understandable by librarians without law degrees. And even if the Office somehow manages to produce a streamlined and comprehensible proposal, the rightsholders can be expected to insist on changes to eliminate possible abuse that will inevitably make the proposal more complex.

There is no doubt that digital networks have facilitated copyright infringement. And while the adverse impact of this infringement probably has been overstated by rightsholders, it is perfectly legitimate for rightsholders to take reasonable measures to address infringement. The operative word here is reasonable. And making exceptions for libraries, educational institutions, or the print disabled difficult to use in order to reduce potential leakage is not reasonable.

There are approximately 200 million smartphone users in the United States, and 2 billion smartphone users worldwide. Each smartphone has the capability of reproducing entire copyrighted works and uploading them to the Internet, where they can be disseminated globally. In a world where this technological capability is literally at the fingertips of so many users, what possible difference could it make if there is a small amount of leakage from a library?

Consider the following examples. Under existing section 108(c), a library is permitted to make a replacement copy of a published work that is damaged or lost if the library determines that an unused replacement cannot be obtained at a fair price. While the library may circulate a physical replacement copy, it cannot make a copy available in a digital format outside the library premises. The Section 108 study group recommended modifying the prohibition on off-site lending of digital replacement copies only to allow the lending of a copy reproduced in a digital physical medium if the library’s original copy was also in a digital physical medium. In other words, if the library owned an audiobook CD that was deteriorating, the study group proposal would allow the library to make and lend a replacement CD, but it would not be able to stream the digital file to a user. Similarly, if its original copy wasn’t digital, the library would not be able to make a digital copy viewable outside of the library premises.

The publishers in the Section 108 study group insisted on these restrictions because they were afraid that the digital files would be retransmitted on the Internet. This concern overlooks four facts. First, the exception would only be available if a replacement copy couldn’t be purchased, i.e., the work was out of print so there would be no market harm, even if unlawful retransmission occurred. Second, unlawful copies of any work for which there is current and likely future demand are already available online, so how much incremental harm could be caused by unlawful retransmission of the library’s replacement copy? Third, technological measures exist to make retransmission difficult. Fourth, as fair use jurisprudence has evolved, making the digital copy available outside the library premises with appropriate technological protections likely would be a fair use. In other words, the library could probably engage in the activity anyway under a fair use theory, so why not save the library the burden of performing the fair use analysis and simply permit it under an explicit exception?

A similar analysis could be performed for many of the study group’s other recommendations. For example, the proposed exception for the archiving of publicly accessible websites was unnecessarily regulatory, especially considering that commercial entities such as Google and Microsoft routinely engage in this activity under a fair use theory.

It is the awareness that section 108 reform will be extremely contentious and unlikely to produce positive results that has led to library opposition to the Copyright Office’s initiative.

Section 1201 Rulemaking

Likewise, the exemptions that the Library of Congress has adopted during the course of the triennial rulemaking under section 1201 of the DMCA reflect an unhealthy obsession with possible abuse. The current exemption, adopted in 2015, permits circumvention of the technological protections on lawfully acquired motion pictures by college and university faculty and students, for use of short portions for educational purposes “in film studies or other courses requiring close analysis of film and media excerpts…where the person engaging in circumvention reasonably believes that screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content.” Thus, an instructor or a student may circumvent only after determining that no alternative to circumvention will produce the “level of high-quality content.” This would necessitate that the instructor or student determine: 1) whether the course requires “close analysis of film and media excerpts;” 2) what level of quality excerpt she needs to satisfy her educational purpose; 3) what are the various available alternatives to circumvention; and 4) whether any of these alternatives will produce the required level of quality excerpt. In the K-12 context, this exemption is available only to instructors, not students.

The Copyright Office designed an exemption that requires educational users to jump through many hoops so as to ensure that the exemption is not abused. At the insistence of rightsholders, the Copyright Office evidently considers circumvention to be a highly dangerous activity that leaves films vulnerable to widespread infringement, and thus must be regulated carefully. However, there is no evidence that any infringement resulted from earlier iterations of the exemption that were more straightforward. Further, the software necessary to circumvent the technological protection measures on DVDs or other storage media is widely available on the Internet and easy to use. Moreover, infringing copies of most films can be found on the Internet soon after release. Thus, a simple, broad circumvention exemption for any educational use would not harm the market for the films in any meaningful way. (At one time, some film studios planned to create a market for licensing film clips to educational institutions, but the enormous number of works educators need to access made development of such a market infeasible.)

A New Approach

Rightsholders’ frustration with their loss of control over their content is understandable. It also is understandable that this frustration would fuel a desire to exercise control wherever they can, even though it makes no difference to their bottom line.

Although the rightsholders’ frustration is understandable, it is bad copyright policy to impose the costs of overly restrictive exceptions on libraries and educational institutions where there is no offsetting benefit to rightsholders or society at large. As the Supreme Court recently stated in Kirtsaeng v. Wiley, “copyright law ultimately serves the purpose of enriching the general public through access to creative works.” The Supreme Court then explained that “the statute achieves that end by striking a balance between two subsidiary aims: encouraging and rewarding authors’ creations while enabling others to build on that work.” Exceptions and limitations are the means to achieve the aim of enabling others to build on a work.

Rather than fight reasonable adjustments to Title 17 to accommodate digital technology, rightsholders should embrace them. This not only would better meet the objectives of the copyright system, it also would be in the long run best interest of rightsholders. Instead of advocating for narrow section 1201 exemptions for educational uses of film clips, studios should encourage the broadest possible use of films in classrooms. Doing so would more deeply entrench the role of films in American culture and society.

Similarly, publishers should facilitate libraries making the robust use of their collections. Libraries spend $4 billion a year acquiring books and other materials. The more access libraries are able to provide to their collections—the more libraries are used—the easier it is for libraries to secure the budget they need to purchase more materials. Additionally, greater access to written materials encourages literacy, which in turn leads to greater demand for written materials. Finally, for many users, the alternative to accessing materials through libraries would not be to purchase the materials, but to find infringing copies on the Internet.

The same logic applies to remixes and fan fiction. More enlightened rightsholders have recognized that these activities deepen fan loyalty and result in increased sales. Additionally, these activities train the next generation of artists. And of course, reasonable exceptions enhance the credibility of the copyright system generality.

In short, rightsholders should stop treating libraries and educational institutions—their biggest customers—as their copyright enemies, and instead assist them in promoting the creation and dissemination of culture by supporting the broadest possible copyright exceptions. If rightsholders can’t change direction on their own, policymakers in Congress, the Copyright Office, and the Executive Branch should lead the way. But until rightsholders and policymakers change their approach to exceptions, attempts to fashion new exceptions will largely be exercises in futility.


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Why is the Copyright Office Trying to Reform Section 108?

On July 26, the Library Copyright Alliance (LCA) met with the Copyright Office, in response to the Office’s Notice of Inquiry, to give our views on Section 108—namely, LCA’s opposition to amendment. LCA previously released a statement, consistent with previous documents and statements, expressing deep concern over efforts to reform Section 108. As LCA noted in its most recent statement on Section 108, the library community opposes reform of this section because: 1) Section 108 is not obsolete; 2) fair use provides a sufficient update when necessary; 3) amending Section 108 has inherent risks and could limit what libraries currently do today, including the possibility of affecting fair use; 4) amendment of this section would be highly contentious and a time and resource intensive process.

LCA opened the meeting by reiterating our opposition to reform of Section 108, expanding on the points made in the written statement. Many libraries similarly voiced opposition to Section 108 reform during their meetings with the Copyright Office. Given that the vast majority of the community benefiting from the exception does not want to see Section 108 amended, it is disconcerting that the Copyright Office is planning to go ahead with a recommendation to reform this provision of the Copyright Act. Archives, the other beneficiaries of Section 108, have also voiced opposition to Section 108 reform (see: Society of American Archivists and the Internet Archive statements and blog posts). Given that beneficiaries of this provision oppose any updates to Section 108, that—according to those who actually rely on the provision on a daily basis—Section 108 is not obsolete and continues to function well forty years after its enactment, on what basis is the Copyright Office going forward with its recommendation?

When LCA met with the Copyright Office, we were given two answers. The first, the Copyright Office said, is to add museums as a beneficiary to Section 108, a recommendation made by the Section 108 Study Group. The Copyright Office argued that as a potential beneficiary, museums were strong advocates for reform. The second reason was decidedly less persuasive. Supposedly, authors who benefit from library access and are therefore beneficiaries of Section 108 have advocated for amendment to this provision. While authors may certainly be affected by the various limitations and exceptions under copyright law, it is doubtful that groups such as the Authors Guild want reform because of insufficient access to works under Section 108. Of course, because of the way the Copyright Office structured the process—requiring in person meetings or, if necessary, phone discussions—there is no written record.

One of the big complaints LCA has had about the current process is this utter lack of transparency regarding the meetings. LCA’s written statement noted, “LCA is concerned about the lack of transparency relating to this inquiry. LCA expects the Copyright Office to publish a list of the interested parties it meets in the course of this inquiry as well as a detailed summary of what each of these parties advised.” While the Copyright Office has agreed to release a list of everyone they have met with regarding Section 108 reform, it will not be issuing a summary of what was discussed in those meetings. The lack of substantive information regarding the topics of conversation and recommendations by various stakeholders is disappointing. We will not know the substance of the reforms proposed by stakeholders. While authors may indeed be pushing for 108 reform, as the Copyright Office stated in LCA’s meeting, whether it is because they find a lack of access to works in libraries (as the Copyright Office implied) or because they want to restrict library activity (as the Authors Guild certainly tried to do as evidenced by their lawsuit and briefs in its litigation against HathiTrust) cannot be confirmed.

Furthermore, without a written record, comments made during the meeting may be misunderstood. LCA did, for example, discuss some substantive changes to 108 that might be beneficial while trying to reiterate opposition to reform. However, could the Copyright Office construe it as support for reform? Could the Copyright Office issue a legislative proposal and state that the Library Copyright Alliance was supportive of certain concepts, such as contract preemption (a provision which would specify that contracts cannot override limitations and exceptions), and therefore supportive of reform? Hopefully, the Copyright Office will be upfront in any recommendation it makes by putting its proposal in the proper context, explaining that stakeholders have differing approaches and positions with respect to 108 reform efforts.

Ultimately, it seems like a waste of time to put in so much effort to try to reform a section of the copyright law that is actually functioning pretty well. Contrary to the Copyright Office’s repeated assertions that Section 108 is “obsolete,” libraries rely on this provision every day to make preservation copies, to replace items in older formats, to engage in inter-library loan, to reproduce copies for patrons, and more. Copyright Office resources would be better spent addressing areas of copyright that are in greater need of reform, like Section 1201 and the incredibly burdensome process by which one must go through to request an exemption (which the Copyright Office is indeed reviewing), statutory damages, or truly outdated sections of the Copyright Act that refer to things like coin-operated equipment and players (a comment brought up by Jonathan Band during LCA’s meeting).

What’s next? Instead of focusing on the areas in true need of reform or sections that are obsolete, the Copyright Office is pushing forward with a proposal to reform a functioning section of the law. The Copyright Office noted that it was wrapping up its meetings with stakeholders and that it was unlikely to solicit any written comments. The Copyright Office stated that it would prepare a legislative recommendation to be released in the fall or winter. ARL and LCA will carefully review the proposal once it is released. Ultimately, however, the inherent risks in reforming Section 108 are unlikely to outweigh what may be modest benefits in an update to a section of the copyright act that is actually working.

For Further Reading: TechDirt recently released a great post explaining, “Copyright Office Intent on Changing The Part of Copyright That Protects Libraries & Archives, Even Though No One Wants it Changed.”

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Moving from SSRN to SocArXiv

In May, Elsevier acquired SSRN, an open access repository heavily used in fields of law, economics and other social sciences. A number of great articles raising serious concerns about this acquisition were written following Elsevier and SSRN’s announcement, including posts by Brandon Butler and Ellen Ramsey, Kevin Smith, Paul Gowder, the Authors Alliance, and TechDirt, among others.

More recently, reports surfaced that SSRN started removing articles from its database even when the author to the posted article retained copyright and had explicit permission to post to SSRN. Articles posted under a CC license or originally posted in green open access journals were similarly removed, even where the article contained an explicit footnote asserting that the authors retained copyright. After a huge backlash, SSRN started restoring the papers upon the request of authors claiming a mistake in enforcing their copyright policies. SSRN also indicated that faculty posting final papers would need to add a statement in a footnote asserting copyright and open access permissions or submit their publication agreements to SSRN in order to have their papers posted.

Authors Alliance—as well as numerous academics—responded by asking whether it is time for authors to remove their papers from SSRN and find alternatives. Authors Alliance pointed out:

SSRN authors: you have not committed to SSRN. You can remove your papers from their service, and you can opt instead to make your work available in venues that show real commitment to the sharing, vetting, and refinement of academic work.

Alternatives obviously include an academic’s institutional repository or personal website, but authors might also consider the new, non-profit open access archive for social science research, SocArXiv. The recent announcement of this new archive comes at an opportune time given Elsevier’s May acquisition of SSRN and the ensuing changes to SSRN policies regarding posting of papers. SocArXiv, in partnership with the Center for Open Science, explained:

The initiative responds to growing recognition of the need for faster, open sharing of research on a truly open access platform for the social sciences. Papers on SocArXiv will be permanently available and free to the public.

Social scientists want their work to be broadly accessible, but it is mostly locked up from the public and even other researchers—even when the public has paid for it. SocArXiv wants to help change that. In recent years, academic networking sites have offered to make preprints available and help researchers connect with each other, but the dominant networks are run by for-profit companies whose primary interest is in growing their business, not in providing broad access to knowledge. SocArXiv puts access front and center, and its mission is to serve researchers and readers, not to make money.

Immediately after news broke that SSRN was removing papers, I checked my own author page to see if my dozen or so journal articles and briefs were still posted.  They are and I will use my author page one final time: to download my papers (they’re easier for me to find this way since I placed all of them on SSRN and won’t have to look through different files on my computer to collect them all) before moving them to try out SocArXiv. I hope other others consider moving their works to SocArXiv, as well.

For further reading, see Richard Poynder, “SocArXiv debuts, as SSRN acquisition comes under scrutiny.”

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Assessing the DMCA’s Notice-and-Takedown Regime

*Guest post by Jonathan Band, policybandwidth*

There is an escalating war of words between supporters and detractors of the notice-and-takedown regime of the Digital Millennium Copyright Act (DMCA). The content providers argue that the notice-and-takedown system is broken and advocate for its replacement with a notice-and-staydown system. The Internet industry responds that notice-and-takedown is essential to the vibrancy of the Internet, and that the regime demanded by the content providers would require costly and ineffective filtering and monitoring.

This debate about whether the legislative compromise reflected by the notice-and–takedown system still works misses the larger context in which Congress created the notice-and-takedown system and in which the system must be evaluated. Congress enacted the notice-and-takedown system in 1998 as one title of the much broader DMCA. This broader statute, in a separate title, established prohibitions on the circumvention of technological protection measures. These two titles were adopted together to create a balanced approach to copyright enforcement in the Internet environment. Thus, the effectiveness–and fairness–of the notice-and-takedown system should not be considered in isolation, but in relation to the effectiveness and fairness of the anti-circumvention provisions.

The Latest Round of the Debate

For years the content providers have complained about various provisions of the DMCA’s safe harbors for Internet service providers, but their primary target has been the notice-and-takedown system codified at 17 U.S.C. § 512(c) and (d). The latest round of attack started with a full-page ad on June 20, 2016, in the Washington D.C. newspapers The Hill, Politico, and Roll Call placed by music industry organizations such as the Recording Industry Association of America and well-known recording artists including Taylor Swift and Paul McCartney. The ad asserted that the DMCA “is broken and no longer works for creators.” It claimed that the DMCA “was written and passed in an era that is technologically out-of-date compared to the era in which we live.” The ad did not specify precisely why “the DMCA simply doesn’t work,” but observed that “it’s impossible for tens of thousands of individual songwriters and artists to muster the resources necessary to comply with its application.” Based on earlier statements by the RIAA and other music industry associations, this presumably was an allusion to the burden of copyright owners sending notices to a platform every time a user uploads infringing content—a burden that would be alleviated by a notice-and-staydown regime. The ad further stated that “the tech companies who benefit from the DMCA were not the intended protectorate when it was signed into law nearly two decades ago.

The ad provoked a quick response from the tech sector. Matt Schruers with the Computer & Communications Industry Association noted that RIAA was asking Congress “to upend one of the legal cornerstones of the Internet.” Schruers observed that the DMCA’s safe harbors “allowed the Internet to become what it is today—a worldwide democratizing platform for communication, creativity, and commerce.” Schruers stated tens of thousands of Internet platforms relied on the safe harbors to provide millions of creators a cost-free means of reaching a worldwide audience without the interference of traditional gatekeepers such as record labels, movie studios, or book publishers.

Michael Beckerman with the Internet Association similarly asserted that “If you love the Internet, you should thank the DMCA.” He explained that Internet companies should not be responsible for “policing every single piece of online content” because they “don’t have access to constantly changing licensing information, nor are they the appropriate party to make legal judgments about whether content qualifies as fair use….” He added that many Internet companies voluntarily employ “DMCA-plus” programs to provide greater flexibility to copyright owners to address infringing activity.

Neil Fried with the Motion Picture Association of America replied by arguing that “Congress did not intend the DMCA to create a relentless game of Whac-A-Mole.” Fried further complained that “content creators must still endlessly notify technology companies of the presence of unauthorized content, even when it is the same parties posting the same material.” However, unlike the RIAA and the other music industry associations, Fried did not call on Congress to amend Section 512. Instead, it urged the Internet companies to “engage voluntarily and collaboratively with the creative community on solutions that work for everyone….” Fried asked for “better help from technology companies to steer traffic away from websites dedicated to theft….” Fried provided “automatically removing duplicative copies of the same unauthorized content” as an example of how effective notice and staydown could be achieved.

What’s Missing From This Discussion?

The Internet Association’s Michael Beckerman stated that “the bargain” at the heart of the DMCA “is a simple: rightsholders have a mechanism to address infringement without engaging in a lengthy and expensive battle, and internet platforms that respond quickly to remove infringing content are held harmless for the actions of their users.” MPAA’s Fried referred to this bargain as the DMCA’s “grand design.” And CCIA’s Matt Schruers described it as “a compromise between copyright holders and online services.”

Judge Leval, in his recent decision in Capitol Records v. Vimeo, agreed with this characterization of Section 512 as a compromise:

what Congress intended in passing § 512(c) was to strike a compromise under which, in return for the obligation to take down infringing works promptly on receipt of notice of infringement from the owner, Internet service providers would be relieved of liability for user-posted infringements of which they were unaware, as well as of the obligation to scour matter posted on their services to ensure against copyright infringement. The purpose of the compromise was to make economically feasible the provision of valuable Internet services while expanding protections of the interests of copyright owners through the new notice-and-takedown provision.

But the compromise embodied by Section 512 is part of a larger compromise embodied by titles I and II of the DMCA. Title II created Section 512. Title I implemented the World Intellectual Property Organization’s Copyright Treaty and Performances and Phonograms Treaty by creating prohibitions on the circumvention of technological protection measures and the removal of copyright management information. These provisions now constitute Chapter 12 of title 17, including the controversial Section 1201.

Title I and title II originally were introduced as separate bills (the WIPO Copyright and Performances and Phonograms Treaties Implementation Act and the Online Copyright Infringement Liability Limitation Act, respectively). The WIPO implementation bill was supported by the content industry and opposed by sectors of the technology industry. The safe harbor bill was supported by the online service providers and opposed by the content industry. In the face of this opposition, both bills stalled. Senator Orrin Hatch, then Chairman of the Senate Judiciary Committee, in a bold legislative move, merged the two bills into one. He calculated that the content industry would be willing to accept the safe harbors in exchange for WIPO implementation. This calculation proved correct.

The content providers believe that Section 1201 has benefitted them enormously. In response to a notice of inquiry recently issued by the Copyright Office concerning Section 1201, the Association of American Publishers, the Motion Picture Association of America, and the Recording Industry Association of America filed joint comments stating that “the protections of Chapter 12 have enabled an enormous variety of flexible, legitimate digital business models to emerge and thrive….” BSA|The Software Alliance, the Copyright Alliance, the Software and Information Industry Association, the Entertainment Software Association, and Microsoft similarly asserted that Section 1201 has facilitated the secure online distribution of content.

In other words, the content providers applaud title I of the DMCA (Section 1201) as much as they complain about title II of the DMCA (Section 512). This is not surprising. Although Congress attempted to achieve a degree of balance within each title—although each title contains internal compromises–at the end of the day, the grand bargain of the DMCA was the marriage of the WIPO implementation and the safe harbor bills. According to the content providers, title I has “enabled an enormous variety of flexible, legitimate digital business modes to emerge and thrive.” And according to the Internet industry, title II has “allowed the Internet to become what it is today—a worldwide democratizing platform for communication, creativity, and commerce.”

Given the tradeoffs that Congress made in assembling the DMCA, policymakers should not assess the impact of any title in isolation. In particular, any adverse impact content providers claim they suffer on account of the safe harbors in Section 512 must be weighed against the benefit they receive from Section 1201 (which has had an adverse impact on other stakeholders).

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