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Copyright and Technology Conference Materials

2016 Copyright & Technology Conference

Presented by the Copyright Society of the USA, GiantSteps Media Technology Strategies and Musonomics

AGenda & Course Materials

Click here for speaker biographies

8:30-9:00 AM

Registration and Breakfast

  MORNING PLENARY SESSION
   
9:00-9:15 AM

Opening Remarks

9:15-10:15 AM

 

Keynote Address
Jacqueline Charlesworth
General Counsel and Associate Register of Copyrights, U.S. Copyright Office

Materials:

  1. United States Copyright Office, Strategic Plan 2016-2020: Positioning the United States Copyright Office for the Future (2015) (available at http://copyright.gov/reports/strategic-plan/USCO-strategic.pdf)
  2. United States Copyright Office, Copyright and the Music Marketplace (2015) (available at “http://copyright.gov/policy/musiclicensingstudy/copyright-and-the-music-marketplace.pdf”)
  3. Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 37 CFR § 201 (2015) (available at Section 1201 Exemptions to Prohibition Against Circumvention of Technological Measures Protecting Copyrighted Works – Final Rule 2015)
  4. Register of Copyrights, United States Copyright Office, Section 1201 Rulemaking: Sixth Triennial Proceeding to Determine Exemptions to the Prohibition on Circumvention (2015) (available at Section 1201 Rulemaking: Sixth Triennial Proceeding to Determine Exemptions to the Prohibition on Circumvention – Recommendation of the Register of Copyrights 2015)
  5. Section 512 Study: Notice and Request for Public Comment, 80 Fed. Reg. 81862 (Dec. 31, 2015) (available at Section 512 Study Notice of Inquiry)
  6. Section 1201 Study: Notice and Request for Public Comment, 80 Fed. Reg. 81369 (Dec. 29, 2015) (available at Section 1201 Study Notice of Inquiry)
  7. Software-Enabled Consumer Products Study: Notice and Request for Public Comment, 80 Fed. Reg. 77668 (Dec. 15, 2015) (available at Software-Enabled Consumer Products Notice of Inquiry)

10:15-10:45 AM

Networking Break

10:45-11:45 AM

Presentation: Incorporating Piracy Data into Everyday Business
Nathan West
Director of Business Intelligence, MarkMonitor

Beyond copyright compliance enforcement, piracy data offers a view into the demand for a digital product without consideration for difficult topics such as licensing arrangements or price sensitivity. P2P is a popular mechanism for sharing of digital content, becoming more important with BitTorrent browsers like Popcorn Time.With many of the same attributes as sales data, piracy data offers a glimpse into the demand for content in an area where the price is free.
Whether it is understanding the drivers of demand or closing distribution loopholes, digital content owners have been using piracy data in a variety of forms. In this session you will see examples for how piracy data is mapped to more traditional metrics and used by content owners as a way of recapturing revenue lost to piracy.

11:45-12:45 PM

Presentation: Notice and Takedown in Everyday Practice: Robots, Artisans, and the Fight to Protect Copyrights, Expression and Competition on the Internet

Joe Karaganis
Vice President, The American Assembly, Columbia University

Brianna Schofield
Teaching Fellow, Samuelson Law, Technology & Public Policy Clinic, UC Berkeley School of Law

Until now, very little empirical research has been done on the effectiveness of the DMCA’s notice and takedown provisions in addressing copyright infringement, as well as due process for notice targets. This talk will summarize research comprising three studies that draw back the curtain on notice and takedown: it gathers information on how online service providers and rightsholders experience and practice notice and takedown, examines over 100 million notices generated during a six-month period, and looks specifically at a subset of those notices that were sent to Google Image Search.

The findings suggest that whether notice and takedown “works” is highly dependent on who is using it and how it is practiced, though all respondents agreed that the Section 512 safe harbors remain fundamental to the online ecosystem. Perhaps surprisingly, a large portion of service providers still receive relatively few notices and process them by hand. For some major players, however, the scale of online infringement has led to automated systems that leave little room for human review or discretion, and in a few cases notice and takedown has been abandoned in favor of techniques such as content filtering. Further, a surprisingly high percentage of notices raises questions about their validity. The findings strongly suggest that the notice and takedown system is under strain but that there is no “one size fits all” approach to improving it. We’ll conclude with suggestions of various targeted reforms and best practices.

Materials:

  1. Daniel Seng, The State of the Discordant Union: An Empirical Analysis of DMCA Takedown Notices, 18 Va. J.L. & Tech. 369 (2014)
  2. Joe Karaganis & Jennifer Urban, Law and Technology: The Rise of the Robo Notice, 58 Comms. of the ACM 28 (2015)
  3. Jennifer M. Urban & Laura Quilter, Symposium Review: Efficient Process Or "Chilling Effects"? Takedown Notices Under Section 512 Of The Digital Millennium Copyright Act, 22 Santa Clara Computer & High Tech. L.J. 621 (2006)
  4. Annemarie Bridy, Copyright’s Digital Deputies: DMCA-Plus Enforcement by Internet Intermediaries, in Research Handbook on Electronic Commerce Law (forthcoming 2016)

 

12:45-2:00 PM

Lunch

  AFTERNOON TECHNOLOGY TRACK
   

2:00-3:00 PM


Is Personal Live Streaming Changing the Game for Live Video?

Moderator:David Leibowitz
Managing Partner, CH Potomac

Michael Potenza
VP and Intellectual Property Counsel, NBA

Clint Cox
VP Technical Operations,Ultimate Fighting Championship

Rajan Samtani
Senior Advisor, MarkAny

Chris Wagner
Co-Founder & EVP, NeuLion

Pulin Thakkar
CEO, Marketly

Broadcasts of live events such as sports and concerts are major sources of revenue for traditional pay television operators as well as over-the-top Internet services.Yet new free apps like Periscope and Meerkat, along with new live streaming capabilities on Facebook, enable consumers to stream these events from their mobile devices to followers around the world. These new offerings present both threats as well as new business and creative opportunities for traditional pay and OTT services. On this panel, we’ll discuss programming providers’ responses to these developments as well as various techniques to detect and thwart unauthorized rebroadcasts.Broadcasts of live events such as sports and concerts are major sources of revenue for traditional pay television operators as well as over-the-top Internet services.Yet new free apps like Periscope and Meerkat enable consumers to stream these events from their mobile devices to followers around the world, depriving the service providers of revenue and opportunities to build relationships with their customers. On this panel, we’ll discuss programming providers’ responses to these developments as well as various techniques to detect and thwart unauthorized rebroadcasts.

3:15-4:15 PM






From Takedown to Staydown

Moderator: John Delaney
Partner, Morrison Foerster

Devlin Hartline
Assistant Director, Center for the Protection of Intellectual Property,
George Mason University School of Law

Howie Singer
SVP & Chief Strategic Technologist, Warner Music Group

Vance Ikezoye
CEO, Audible Magic

Matt Schruers
VP Law & Policy, Computer and Communication Industry Association

The Digital Millennium Copyright Act is based on the idea of “notice and takedown,” in which service providers can remove allegedly infringing material to avoid copyright liability. Copyright owners have become frustrated at the need to play “Whac-a-Mole” games when their content is repeatedly reposted after they send takedown notices. Is it possible that when a copyright owner asks for material to be taken down, there’s a way to ensure that it stays down? Discussions of “notice and staydown” need to consider the effectiveness of technologies and processes that purport to solve the problem, as well as the relative burdens that they place on service provider and copyright owners alike. The experts on our panel will tackle these issues and discuss whether sensible solutions are available.

Materials:

  1. Digital Millennium Copyright Act, 17 U.S.C § 512 (available here: http://www.law.cornell.edu/uscode/17/512.html)
  2. Boyden, B. “The Failure of the DMCA Notice and Takedown System: A Twentieth Century Solution to a Twenty-First Century Problem”, Center for the Protection of Intellectual Property, (available here: http://cpip.gmu.edu/wp-content/uploads/2013/08/Bruce-Boyden-The-Failure-of-the-DMCA-Notice-and-Takedown-System1.pdf)
  3. Hartline, D. (January 14, 2016). “Endless Whack-A-Mole: Why Notice-And-Staydown Just Makes Sense”, Center for the Protection of Intellectual Property, (available here: http://cpip.gmu.edu/2016/01/14/endless-whack-a-mole-why-notice-and-staydown-just-makes-sense/)
  4. Ikezoye, V. “MySpace Launches “Take Down Stay Down” Copyright Protection”, AudibleMagic.com, (available here: https://www.audiblemagic.com/2007/05/11/myspace-launches-take-down-stay-down-copyright-protection/)
  5. Schruers, M. (May 23, 2013). “Observations on DMCA Reform and Notice & Takedown Abuse”, The Disruptive Competition Project, (available here: http://www.project-disco.org/intellectual-property/052313observations-on-dmca-reform-and-notice-takedown-abuse/)

 


4:15-4:45 PM

Networking Break

4:45-5:45 PM


The Importance of Copyright Management Information

Moderator: Bill Rosenblatt
President, GiantSteps Media Technology Strategies

David Hughes
Chief Technology Officer, RIAA

Andreas Gebhard
Director, Editorial Strategy and Product Management, Getty Images

Michael Simon
President and CEO, HFA

David Donahue
Partner, Fross Zelnick Lehrman & Zissu

The key to automating a lot of copyright-related processes – royalty payments, piracy monitoring, rights licensing, and others – is Copyright Management Information (CMI). On this panel, we will look at CMI and its benefits to all participants in the content value chain. We’ll discuss how it is created, managed, and communicated; laws such as Section 1202 of the Copyright Act that protect it; and why it’s so important to the future of online content.

Materials:

  1. Opinion, Agence Fr. Presse v. Morel, 769 F. Supp. 2d 295 (S.D.N.Y. 2011)
  2. Opinion, Agence Fr. Presse v. Morel, No. 10-cv-2730 (AJN), 2014 U.S. Dist. LEXIS 112436 (S.D.N.Y. Aug. 13, 2014)
  3. Opinion, Med. Broad. Co. v. Flaiz, No. 02-8554, 2003 U.S. Dist. LEXIS 22185 (E.D. Pa. Nov. 25, 2003)
  4. Opinion, I.M.S. Inquiry Mgmt. Sys. v. Berkshire Info. Sys., 307 F. Supp. 2d 521 (S.D.N.Y. 2004)
  5. Opinion, Imageline, Inc. v. CafePress.com. Inc., No. CV 10-9794 PSG (MANx), 2011 U.S. Dist. LEXIS 39828 (C.D. Cal. Apr. 6, 2011)
  6. Opinion, Ward v. Nat'l Geographic Soc'y, 208 F. Supp. 2d 429 (S.D.N.Y. 2002)


  AFTERNOON LAW & POLICY TRACK
   
2:00-3:00 PM

Pleasures of the Harbor: DMCA Safe Harbor Eligibility

Moderator: Matthew Barblan
Executive Director, Center for the Protection of Intellectual Property,
George Mason University School of Law

Joseph DeMarco
Partner, DeVore & DeMarco

Hillel Parness
Founder, Parness Law Firm

Thomas Patrick Lane
Partner, Winston & Strawn

Although the DMCA has been law for over a decade and a half, legal requirements around service providers’ eligibility for the safe harbors remain unclear in various respects. Recent cases, includingBMG v. Cox and the appeal of Capitol Records v. Vimeo, hold the promise of further clarity in certain areas, such as willful blindness, repeat infringer termination policies, and others. On this panel, we discuss the body of opinions that the courts have left us so far in helping to inform service providers’ operating policies, the ambiguities and risks that remain, and the prospects that future developments will make the waterclearer rather than muddier.

Materials:

  1. Digital Millennium Copyright Act, 17 U.S.C § 512 (available here: http://www.law.cornell.edu/uscode/17/512.html)
  2. Opinion, BMG Rights Mgmt. (US) LLC v. Cox Communs., Inc., No. 1:14-cv-1611, 2015 U.S. Dist. LEXIS 161091 (E.D. Va. Dec. 1, 2015)
  3. Opinion, Elsevier Inc. v. WWW.Schi-Hub.org, No. 15-cv-4284, 2015 U.S. Dist. LEXIS 147639 (S.D.N.Y. Oct. 28, 2015)
  4. Opinion, Viacom v. YouTube, 940 F.Supp.2d 110 (S.D.N.Y. 2013)
  5. Opinion, UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006 (9th Cir. 2013)
  6. Opinion, Ellison v. Robertson, No. 02-55797, 357 F.3d 1072 (9th Cir. 2004) (available here: http://www.freelawreporter.org/flr3d/f3d/357/357.F3d.1072.02-55797.html)
  7. Opinion, CoStar Group, Inc. v. LoopNet, Inc., No. 03-1911, 373 F.3d 544 (4th Cir. 2004) (available here: https://law.resource.org/pub/us/case/reporter/F3/373/373.F3d.544.03-1911.html)
  8. Opinion, Hendrickson v. eBay, Inc., 165 F.Supp.2d 1082 (C.D. Cal. Sept. 4, 2001)(available here: https://www.ravellaw.com/opinions/6938b88da220cfad3902a706189dc74a)
  9. Opinion, A & M Records, Inc. v. Napster, Inc., No. C 99-05183 MHP, 2000 U.S. Dist. LEXIS 6243 (N.D. Cal. May 5, 2000) (available here: http://www.tomwbell.com/NetLaw/Ch07/A&M-DMCA.html)


3:15-4:15 PM

Collective Licensing: The Future of the ASCAP/BMI Consent Decrees

Moderator:Larry Miller
President, Musonomics LLC and Director, Music Business Program, NYU Steinhardt

Bruce Rich
Partner, Weil Gotshal & Manges

 

Richard Reimer
Senior Vice President, Business and Legal Affairs, ASCAP

 

Stuart Rosen
Senior Vice President and General Counsel, BMI

 

The Justice Dept. consent decrees around ASCAP and BMI may have seemed simple enough back in the 1940s. Yet they are widely viewed as inadequate in today’s world of rapidly expanding licensing options for musical compositions, and movement is afoot to change or eliminate them. We’ll deliberate the pros and cons of abolishing, tinkering with, or maintaining the consent decrees from the perspectives of songwriters, PROs, and service providers alike.

 

Materials:

  1. Comments of Pandora Media, Inc. in Response to the Department of Justice's Review of the ASCAP and BMI Consent Decrees (available here: http://www.justice.gov/sites/default/files/atr/legacy/2014/08/27/307973.pdf)
  2. Comments of the Radio Music License Committee, Inc. and the Television Music License Committee, LLC in Response to the Department of Justice's Review of the ASCAP and BMI Consent Decrees (available here: http://www.justice.gov/sites/default/files/atr/legacy/2014/08/13/307977.pdf)
  3. Comments of Media Licensees in Response to the Department of Justice's Review of the ASCAP and BMI Consent Decrees (available here: http://www.justice.gov/atr/public/ascapbmi2015/ascapbmi19.pdf)
  4. Comments of Broadcast Music, Inc. in Response to the Department of Justice's Review of the ASCAP and BMI Consent Decrees
  5. Comments of Broadcast Music, Inc. Concerning Fractional Licensing in Response to the Department of Justice's Review of the ASCAP and BMI Consent Decrees
  6. Comments of the American Society of Composers, Authors and Publishers in Response to the Department of Justice's Review of the ASCAP and BMI Consent Decrees
  7. Comments of the American Society of Composers, Authors and Publishers Regarding Pro Licensing of Jointly Owned Works

4:15-4:45 PM

Networking Break

4:45-5:45 PM

Mass Digitization: Progress, Goals, and Roadblocks

Moderator:Christopher Kenneally
VP Business Development, Copyright Clearance Center

Jacqueline Charlesworth
General Counsel and Associate Register of Copyrights, U.S. Copyright Office

Devereux Chatillon
Partner, Chatillon Weiss LLP

Roy Kaufman
Managing Director of New Ventures, Copyright Clearance Center

Technology companies today are willing and able to digitize copyrighted works on a scale never imagined before. Copyright owners have raised serious concerns over their right to do so and the consequences of mass digitization on publishers’ businesses and accessibility of copyrighted material to the public. On this panel, we will discuss recent developments such as the Second Circuit decision in Authors Guild v. Google and the Copyright Office report on Orphan Works and Mass Digitization, and consider how copyright law can accommodate mass digitization in the future.

Materials:

  1. United States Copyright Office, Orphan Works and Mass Digitization (2015)
  2. Comments of Columbia University School of Law’s Kernochan Center for Law, Media, and the Arts in Response to Notice of Inquiry on Orphan Works and Mass Digitization, 79 Fed. Reg. 7706 (Feb. 10, 2014)
  3. Opinion, Authors Guild, Inc. v. HathiTrust, 755 F.3d 87 (2d Cir. 2014)
  4. Comments of the Authors Guild, Inc. in Response to Notice of Inquiry on Orphan Works and Mass Digitization, 79 Fed. Reg. 7706 (Feb. 10, 2014)
  5. Opinion, Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015)
  6. Comments of the American Association of Law Libraries in response to the Mass Digitization Pilot Program, 80 F.R. 32614, Docket No. 2015-3


5:45 -7:00 PM

Cocktail Reception Sponsored by MarkAny

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