Copyright review hearings end first phase as DOC Copyright Green Paper is released

On April 24, 2013, House Judiciary Chairman Bob Goodlatte (R-Va.) announced that the Subcommittee on Courts, Intellectual Property, and the Internet would “conduct a comprehensive review of U.S. copyright law over the coming months.” The first set of those hearings have just concluded.

The first of the hearings featured a panel of experts who participated in the Copyright Principles Project led by Professor Pamela Samuelson of Berkeley Law School.[1] The second panel, in contrast, emphasized representatives from the creative industries. The third hearing focused on the technology industries. The three hearings represent the Venn diagram of copyright policy: Creators, Disseminators, and Users. Each of these groups overlaps and the boundaries are very imprecise. Nonetheless, there remains a tension among these three spheres because greater legal protections in one sphere tend to affect the other spheres in unwanted ways. Since all three spheres are critical to the culture and to the creative economy, copyright reform is a matter of finding balance and cohesion within this matrix.

In addition to the hearings by the House Judiciary Committee, the Department of Commerce Internet Policy Task Force issued a green paper entitled “Copyright Policy, Creativity, and Innovation in the Digital Economy.”[2] The green paper emphasizes the need for balance between protections for creative rights ownership and the broad dissemination of information.

Some would argue that copyright protection and the free flow of information are inextricably at odds—that copyright enforcement will diminish the innovative information-disseminating power of the Internet, or that policies promoting the free flow of information will lead to the downfall of copyright. Such a pessimistic view is unwarranted. The ultimate goal is to find, as then-Secretary of Commerce Gary Locke explained, “the sweet spot on Internet policy – one that ensures the Internet remains an engine of creativity and innovation; and a place where we do a better job protecting against piracy of copyrighted works.” Effective and balanced copyright protection need not be antithetical to the free flow of information, nor need encouraging the free flow of information undermine copyright. In fact, as the Supreme Court has recognized, “the Framers intended copyright itself to be the engine of free expression.”[3]

While the green paper is very detailed, it emphasizes areas such as the public performance right for sound recordings, issues involving notice and takedown under the DMCA, online licensing of works, and online enforcement.[4] The green paper also expresses support for expanded fair use and related exclusivity exemptions, particularly with regards to teaching and access for persons with disabilities. The green paper was distributed as the first round of hearings came to a close. The green paper had little influence on the initial hearings but is likely to become increasingly influential as the process continues.

The green paper and the Goodlatte hearings, together with the many efforts by the Copyright Office and others, are creating significant energy around changes to the copyright statute. At the same  time, the proposals are tweaks rather than overhauls and the public may quickly grow tired of what will be a lengthy process. But it matters, so try to stay tuned.

[1] See Pamela Samuelson, The Copyright Principles Project: Directions for Reform, 25 Berkeley Tech. L.J., 1175 (2011)

[2] Copyright Policy, Creativity, and Innovation in the Digital Economy, Dept. of Comm. Internet Policy Task Force, July 2013 at See also USPTO & NTIA, Copyright Policy, Creativity, and Innovation in the Internet Economy, 75 Fed. Reg. 72790 (November 26, 2010) (notice of inquiry. The comments are available at

[3] Id. at 2, quoting Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558 (1985).

[4] Id. at 5.

ABA sends takedown request to ethics opinions; misses the irony

Sam Glover at the reported on a takedown request aimed at Ernie Svenson, Ernie the Attorney. The work in question is ABA Formal Ethics Opinion 06-442, which sells for $20.00 on the ABA website. The ABA store also encourages membership, stating

Members of the The Center for Professional Responsibility receive a discount on this book. Join the Center or visit the The Center for Professional Responsibility website to learn more about the valuable resources included with your membership.

 American Bar Association

The ABA asks lawyers to volunteer their time and intellectual efforts, only to commercialize those efforts and sell them at a premium. It has policies demanding copyright from its volunteers that limit the dissemination of knowledge and frustrate the values of open access and improvement for the profession.

Congress recognized the importance of free access to law. The federal government cannot obtain copyright in works it authors – such as laws and reports – because there is no public benefit. State laws are treated as works in the public domain by case law.

Model laws and advisory opinions such as those published here by the ABA are not works in the public domain, so the ABA has every legal right to claim copyright in the works. As a primarily volunteer organization which relies on members time and efforts to create this content, the high prices and limits on access are inconsistent the values of the organization. The irony that a trade professional association dedicated to equal access to justice and the betterment of the profession demands payments for its guidance on how to practice law ethically will not be lost on the public, so why is it lost on the ABA leadership.

In contrast to the ABA’s approach, law schools around the country, including Harvard, Birkbeck, and Universidad de Puerto Rico have created open access to scholarly works. Perhaps the most expansive of resources is the Social Science Research Network, a global library of scholarship across most academic disciplines.

The ABA should continue to sell sophisticated content to willing purchasers written by volunteer authors. But any reports, opinions, or general information should be free to the public. If we wish to remain a self-regulated profession, then it is time to look past the short-term income opportunities and begin to embrace the ideals of the profession.

New fair use code helps libraries expand research with confidence

Patricia Aufderheide and Peter Jaszi of American University have provided critical guidance on fair use for documentary filmmaker, artists and other creative industries.  They have done it again with a new tool for academic libraries. Today, the Association of Research Libraries (ALR) announced the release of the next project to be developed in partnership with the Center for Social Media and the Washington College of Law at American University.

The Code of Best Practices in Fair Use for Academic and Research Libraries provides a guideline of fair and reasonable approaches to fair use developed by and for librarians. The Code is not a legal brief so much as a statement of reasonable use practices developed by scholars and researchers to help clarify the legal issues.

As with other areas of copyright fair use, the seemingly byzantine rules can be rationalized when viewed in the context of a particular industry. Moreover, many of the fair use rules are highly normative, meaning that the very reasonableness of the use is dependent on how others in the same market view such unauthorized copyright exploitation. Against this practical reality, the Code will provide a powerful statement of accepted practices that will provide guidance for libraries and a significant barrier to any rights holder that seeks to be overly aggressive in the protection of its rights.

The ALR announcement describes the scope of the project:

The Code deals with such common questions in higher education as:

  • When and how much copyrighted material can be digitized for student use? And should video be treated the same way as print?
  • How can libraries’ special collections be made available online?
  • Can libraries archive websites for the use of future students and scholars?

The Code identifies the relevance of fair use in eight recurrent situations for librarians:

  • Supporting teaching and learning with access to library materials via digital technologies
  • Using selections from collection materials to publicize a library’s activities, or to create physical and virtual exhibitions
  • Digitizing to preserve at-risk items
  • Creating digital collections of archival and special collections materials
  • Reproducing material for use by disabled students, faculty, staff, and other appropriate users
  • Maintaining the integrity of works deposited in institutional repositories
  • Creating databases to facilitate non-consumptive research uses (including search)
  • Collecting material posted on the web and making it available

In the Code, librarians affirm that fair use is available in each of these contexts, providing helpful guidance about the scope of best practice in each.

Law firm loss of computer drive highlights duty to protect firm data

Earlier this month, the Baltimore Sun and ABA Journal reported that the law firm of Baxter, Baker, Sidle, Conn & Jones lost a back-up hard drive containing 161 stent patient files. The firm properly recognized it should have off-site storage of its sensitive data to protect from risk of fire and flood but chose to have an employee take the drive home each night via commuter train.

According to the Baltimore Sun, “[t]he storage device held a complete back-up copy of the firm’s data, including medical records related to the stent malpractice claims, along with patient names, addresses, dates of birth, social security numbers and insurance information.”

The hard drive was password protected but not encrypted. While password protection provides some protection, it is a rather minimal level of protection. Law firms have a duty to protect confidential information both under their general ethical duties and under more specific state and federal laws. Here, the protected health information put at risk by the loss of the hard drive implicates regulations under HIPAA and the HIGHTECH Act.

Although it is unlikely the law firm is regulated as a health care provider, the law is much less clear whether the law firm must sign a Business Associate Agreement regarding the data. If the law firm was given access to the data on behalf of its client, then a Business Associate Agreement – and all the HIPAA data protection provisions – would be required. Where the data was collected in an adversarial matter from an opposing party, however, such a duty may not attach.

The niceties of HIPAA are only one of the problems. If the hard drive included all of the firm’s data, then there will be client names, and may also be client trade secrets and other confidential information.

The American Bar Association has recognized that lawyers have an ethical duty to take reasonable measures to protect a client’s confidential information from unintended disclosure and unauthorized access. In fact, a draft proposal will codify this existing obligation under a new ABA Model Rule 1.6(c).

1.6 (c) A lawyer shall make reasonable efforts to prevent the unintended disclosure of, or unauthorized access to, information relating to the representation of a client.

Factors to be considered in determining the reasonableness of the lawyer’s efforts include the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use).

As illustrated by the lapse at Baxter, Baker, Sidle, Conn & Jones, security starts with the physical safeguard of data – in the firm, its physical files and its electronic storage. Trains, backpacks, and car seats are never good ideas for the systematic ongoing protection of data. Secure, encrypted off-site storage is no longer expensive and likely the minimum standard.