A group of intellectual property professors (around 90 as of this writing) led by Mark Lemley, David S. Levine, and David G. Post have delivered a letter to Congress urging rejection of the PROTECT-IP Act of 2011 (S. 968). The professors stress that the bill’s drawbacks outweigh its benefits in terms of the way it addresses online copyright and trademark infringement.  They argue that the bill is not constitutionally sound, has the potential to damage the stability and security of the Internet’s addressing system, and flies in the face of the United States’s history of supporting free expression on the Internet.  Intellectual property owners currently have an array of tools to fight online infringement; this bill is unnecessary and a true threat to freedom of the Internet. Click here for more.

The Commercial Felony Streaming Act (S. 978), sponsored by Senators Amy Klobuchar (D-MN) and John Cornyn (R-TX), would reconcile the current legal disparity between the unlawful distribution of content through streaming and peer-to-peer (P2P) downloading. An entertainment industry coalition, including the Independent Film & Television Alliance® (IFTA®), the Motion Picture Association of America, Inc. (MPAA) and the National Association of Theatre Owners (NATO) urged the Senate to quickly pass the bill, stating that “The illegal streaming of motion pictures and television programming is as financially devastating for our industry as is illegal downloading. Stealing is stealing, regardless of the means in which the product is being received. This legislation is a critical step forward in the piracy fight and we commend the Committee for their support”

Under current federal law, a legal distinction exists between illegal streaming and downloading – two methods of distributing the same digital content. In March, the Office of U.S. Intellectual Property Enforcement Coordinator Victoria Espinel presented Congress with legislative recommendations to improve IP enforcement efforts, which included clarifying this aspect of intellectual property law.

The Commercial Felony Streaming Act would make the illegal streaming of copyrighted works a felony, thereby standardizing its criminal classification with that of illegal P2P downloading, already a felony. The bill would apply only in cases in which a website operator has willfully and knowingly violated a copyright and profited from it, and does not allow law enforcement to prosecute people who stream videos without intending to profit – a parent sharing a video of her child with friends and family, for example.

USTR Releases Annual Special 301 Report on Intellectual Property Rights

Washington, D.C. – Today, the Office of the United States Trade Representative (USTR) released its annual Special 301 Report on the adequacy and effectiveness of U.S. trading partners’ protection of intellectual property rights (IPR). This year, for the first time, USTR has issued an open invitation to all trading partners listed in the report to cooperatively develop action plans to resolve IPR issues of concern.

“This year’s Special 301 Report comes with a call to action for our trading partners. We are ready to work intensively with you to stop intellectual property theft that threatens IP-related jobs in the United States and other countries,” said Ambassador Ron Kirk. “Today’s report is a springboard for ambitious and collaborative partnerships in the coming year to strengthen protection for the innovation and creativity that drive jobs and exports for the United States and our partners around the world.”

In the report, USTR announced that in 2011 it will conduct an out-of-cycle review of Italy to monitor progress on IPR protection and enforcement, in particular in the area of piracy over the Internet. Today’s report also recognizes important examples of progress made by several countries, including through the enactment of significant IPR legislation in Mexico, the Philippines, Russia, and Spain. However, no trading partners are being removed from the two main categories in the report, the Priority Watch List and the Watch List.

America’s two largest trading partners, Canada and China, remain on the Priority Watch List. The report notes the failure of Canadian efforts in 2010 to enact long-awaited copyright legislation and to strengthen border enforcement. It highlights ongoing concerns about the prevalence of piracy and counterfeiting in China, and China’s implementation of “indigenous innovation” and other industrial policies that discriminate against or otherwise disadvantage U.S. exports and U.S. investors. Russia remains on the Priority Watch List as well. While Russia has taken significant steps to improve IPR protection by enacting important legislation, the report urges Russia to take additional steps to address Internet piracy concerns and enforcement more generally.

A copy of the report can be found here.

The recommendations make some sense, although increasing sentencing guidelines do little to deter crime and many would argue that prevention always makes more sense.  Take a look at Washington’s proposed law for an innovative prevention example.

Among the tough-on-crime-weak-on-prevention recommendations, a few deserve further discussion or outright elimination.

• Ensure that, in appropriate circumstances, infringement by streaming, or by means of other similar new technology, is a felony; and
• Give law enforcement wiretap authority for criminal copyright and trademark offenses.

Streaming illegal materials is a big activity for kids. Why not work with ISPs instead to prevent illegal content from being streamed? Wiretaps? For streaming media? Shouldn’t such a drastic invasion of privacy be authorized only in rare, criminal matters?

One interesting additional protection is also worth noting.

“We recommend creating a right of public performance for copyright owners for sound recordings transmitted by over-the-air broadcast stations which, in part, will allow copyright owners to obtain overseas royalties that are now denied to them.”

Currently, U.S. artists are not permitted to collect overseas royalties when radio stations abroad transmit their work. (Because they are not granted these rights in the U.S., they can’t claim them abroad, even though nationals of other countries have that right.) The U.S. stands alone among industrialized nations in not recognizing a public performance right in sound recordings. Harmonizing U.S. Copyright laws would level the playing field and would (in my opinion) make a lot of sense.

Washington Senate Bill 5449

On a 39-7 vote, the Washington State Senate sent to the House a bill designed to help the state’s software manufacturers keep other companies from illegally using their programs or other intellectual property in creating new products.

Yes China.  We mean you.

The bill’s sponsor, Sen. Lisa Brown, says it aims to make Washington a leader in combating information technology theft by encouraging retailers to make sure their supplies come from legitimate sources. It also allows Washington IT manufacturers to sue companies that use their stolen software in their products sold in the state, and collect up to $250,000 in damages.

That creates an “innovation subsidy” for foreign companies competing with Washington’s IT firms, said Brown, D-Spokane. They get the benefit of the research and development software companies spend on their products without paying for it.

Highlighting this problem, the Social Science Research Council  released the first independent, large-scale study of music, film and software piracy in emerging economies, with a focus on Brazil, India, Russia, South Africa, Mexico and Bolivia. “Media Piracy in Emerging Economies” tells two overarching stories:  one tracing the explosive growth of piracy as digital technologies became cheap and ubiquitous around the world, and another following the growth of industry lobbies that have reshaped laws and law enforcement around copyright protection.   It argues that these efforts have largely failed, and that the problem of piracy is better conceived as a failure of affordable access to media in legal markets. Click here for more.

Does URAA (specifically Section 514) violate the Progress clause and the 1st Amendment where it repossesses works that are in the public domain?  According to the 10th Circuit, it does not.  The 10th circuit found that the Government had demonstrated a substantial interest in protecting American copyright holders’ interests abroad, that Section 514 is narrowly tailored to advance that interest, and that Congress had the authority to extend copyright to works that were in the public domain. However, the Supreme Court has agreed to review the matter.

On its face removing works from the public domain seems a bit like giving national parks to private individuals.  It also implicates certainty concerns for artists.  If I create an adaptation of a work in the public domain, what happens to my work if the copyright to the original work is suddenly restored?  Perhaps the Supreme Court will split the baby and allow artists who have relied on the public domain status of existing works to continue their use.  It promises to be an interesting case to watch.

The simple answer–get a license.

You would need a Mechanical License for each composition you are using in the mashup.  For example, if Harry Fox Agency were the agent for a song publisher (the company that owns the licensing rights to a composition that you would like to use) you would use HFA’s Songfile® Application to license the work.

Songfile lets you obtain a mechanical licenses online for a limited quantity of CDs, cassettes, LPs, and permanent, full-length downloads (2,500 or less) and interactive streams (100-10,000). This site provides access to HFA’s entire database of songs, and most of the songs listed are available for immediate mechanical licensing.

If you cannot find a song in HFA’s database, you may ask HFA to add the song by using the link “Song Title Not Found? Click Here.” on the bottom of the song search results page. It may take up to six weeks for a song to be verified as belonging to an HFA publisher and made available on its website. Once the song is cleared, you can proceed with obtaining licenses.

Similar licenses are available–for performances, broadcasts, and other uses–from other publishers. (See ASCAP and BMI.)

So, Depending on your risk tolerance, the amount of material you plan to use, and how you plan to use it, licensing is always a safe bet.

With a Creative Commons license, you keep your copyright but allow people to copy and distribute your work provided they give you credit — and only on the conditions you specify.

For example, permits anyone to use your work, provided they give you credit.

Where allows others to download your work and share them with others as long as they credit you, but they can’t change them in any way or use them commercially. There are four other types of CC licenses that run the spectrum between these two.