The MPAA respectfully submits that such an interpretation of § 512(f) is wrong and threatens to cause significant harms that Congress could not possibly have intended. The MPAA's interest in this matter is not academic. The MPAA and its members confront the piracy of their works by Internet actors on a massive global scale. One of the only means that the MPAA and its members have to ensure that Internet services that carry, host, or link to such content take steps not to facilitate such rampant piracy is through the DMCA's notice-and-takedown provisions. The rule that Plaintiff and Amici advocate, if carried to its logical conclusion, would impose significant and unwarranted burdens on copyright owners like the MPAA and its members who unfortunately must send literally millions of takedown notices every year to combat the mass infringement of their works on the Internet.

Fair use is an affirmative defense. It excuses conduct that otherwise is actionable as infringement, as the Supreme Court, the First Circuit, and numerous other courts and the Copyright Act’s legislative history have made clear.

... the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

Here, the Court concludes that the plain meaning of “authorized by law” is unambiguous. An activity or behavior “authorized by law” is one permitted by law or not contrary to law. Though Congress did not expressly mention the fair use doctrine in the DMCA, the Copyright Act provides explicitly that “the fair use of a copyrighted work . . . is not an infringement of copyright.” 17 U.S.C. § 107. Even if Universal is correct that fair use only excuses infringement, the fact remains that fair use is a lawful use of a copyright. Accordingly, in order for a copyright owner to proceed under the DMCA with “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,” the owner must evaluate whether the material makes fair use of the copyright. 17 U.S.C. § 512(c)(3)(A)(v). An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim pursuant to Section 512(f) of the DMCA. Such an interpretation of the DMCA furthers both the purposes of the DMCA itself and copyright law in general. In enacting the DMCA, Congress noted that the “provisions in the bill balance the need for rapid response to potential infringement with the end-users [sic] legitimate interests in not having material removed without recourse.”

The video, a screencast of the investigation, showed a particular username accessing an Angel Falls FTP server. However, the corresponding text log for the same event showed a completely different username.

“When the IFPI investigator was asked about this he acknowledged that the names did not match. He said that the Finnish anti-piracy people and IFPI had collected the information together, but there was also an MPAA executive in the room while the evidence gathering took place,” Hietanen explains.

The IFPI investigator was then asked to reveal the name of the MPAA executive. He declined, but did offer an explanation for the inconsistencies in the evidence.

In an apparent attempt to hide the identity of one of their spies, the MPAA executive edited the evidence gathered during the session.

“The IFPI investigator handed over the evidence material to the MPAA senior executive who then changed the text file before the anti-piracy organization handed over the evidence to the Finnish police,” Hietanen says.

[L]obbyists for the MPAA and publishers have been all over the White House, demanding a retreat from compromises made in February, and demanding that the Obama Administration push new global standards for technical protection measures, strip the treaty text of any reference to fair use and fair dealing, and impose new financial liabilities on libraries that serve blind people...

Unfortunately, however, some groups have sought to use this meaningful treaty as a vehicle to weaken copyright and ultimately undermine the global marketplace WIPO is charged with strengthening. Such groups have advocated for the inclusion of certain provisions that would establish lower thresholds for copyright protection and weaken certain means used for protecting copyright works. When content owners voiced their concerns with these provisions, these groups attempted to inaccurately portray content owners as being opposed to the treaty.

We believe that access for the blind to books and other publications is a cause worth promoting.

We also believe in the fundamental principles of copyright that empower creators and encourage creativity around the world.

Unlike those who seek to weaken copyright protection, we believe these two objectives are not mutually exclusive.

Strong copyright laws also benefit consumers by promoting free markets and incentivizing innovation, both of which are hallmarks of a healthy global economy.

In Geneva this week the US government is taking a harder line in the WIPO negotiations for a treaty on copyright exceptions for the blind, and the reason is simple -- lobbyists for the MPAA and publishers have been all over the White House, demanding a retreat from compromises made in February, and demanding that the Obama Administration push new global standards for technical protection measures, strip the treaty text of any reference to fair use and fair dealing, and impose new financial liabilities on libraries that serve blind people. So far the industry lobbying has worked, and the White House has sided with publishers against blind people. Dan Pescod from the World Blind Union says the conditions the USA are imposing are so severe the treaty "won't work", if they are included in the final text.

Some US negotiators are uncomfortable with the intensive lobbying by the MPAA and other publishers, but dismayed by the lack of backbone in the White House to resist such pressures.

The Motion Picture Association has never acquiesced in the view that home videocopying is a fair use. An argument to the contrary in one of the amicus briefs is mistaken.

The home videocopyist makes no independent or creative effort; he contributes nothing to advance science or culture. He merely chisels -- by making a copy for nothing. That is not fair use.

What is fair use? Fair use is not a law. There's nothing in law.

No matter how socially beneficial Google's search engine may be in general, the activity at issue in this case -- making unauthorized copies solely to direct users to other unauthorized copies -- hardly deserves the label "transformative."

Copying a copyrighted program or film with a digital video recorder is a violation of the exclusive rights of the copyright owner under Section 106 of the Copyright Act. Such copying is entirely distinguishable from the type of copying which, in narrow and different circumstances, might be defended as a fair use.

Real cannot rely on the alleged "fair use" defense that consumers can make copies of DVDs to avoid liability for trafficking in a circumvention product.... As the Second Circuit held, the plain language of the "DMCA targets the circumvention of digital walls guarding copyrighted material (and trafficking in circumvention tools), but does not concern itself with the use of those materials after circumvention has occurred.".... the "DMCA does not have a 'fair use' exception."

The district court’s very brief discussion of the third factor simply observes that because the defendant’s purpose was making and distributing copies of whole works, copying of entire works was necessary. Defendants who copy whole works will almost always be able to argue that doing so was necessary to their purpose. Surely in a case involving the most massive, systematic copying of copyrighted works in history, the district court should have addressed whether the amount and substantiality of the copying was really justified.

In evaluating the fair-use defense, the Court should reject attempts to overly expand, or give disproportionate weight to, the fair-use factor one concept of “transformative” use. Contrary to the assertions of defendants and their amici, a defendant does not meet his burden to show that an unauthorized sequel is a fair use merely by showing that it has crossed a threshold of “‘add[ing] something new, with a further purpose or different character, altering the first with new expression, meaning, or message,’”

The compatibility of the fair use doctrine with the three-step test has recently been the subject of a good deal of scholarly commentary and controversy; but no definitive determination on that subject has ever been made. At the time the U.S. first became subject to the three-step test, when it adhered to the Berne Convention in 1989, there seemed to be no serious consideration of whether Section 107 was incompatible with Article 9 (2) of Berne. Since the mid-1990s, the WTO dispute settlement process has provided a potential forum for claims that fair use is to broad or too ill-defined an exception to satisfy the three-step test. But no such claims have ever been brought, even though there are doubtless a number of WTO members whose nationals could claim to have been injured through fair use decisions by U.S. courts that unauthorized uses of their works were “fair” and therefore sheltered by Section 107. It is worth noting that the one provision of U.S. copyright law that has been found to exceed the bounds of the three-step test, by decision of a WTO dispute settlement panel, is not Section 107, but rather Section 110 (5), a specific exception involving the public performance of music in bars and restaurants.

Since it is inconceivable that, as part of any new system of copyright exceptions in Australia, its courts would be directed to slavishly follow U.S. precedent, it is inescapable that there would be considerable uncertainty about the resolution of claims based on the new system in Australian courts. This is likely to create a deleterious level of unpredictability for copyright owners, copyright users, and the public. Whatever social benefits might fairly be attributed to the fair use doctrine under U.S. law would be unlikely to survive the passage across the Pacific to Australia.

But the MPAA is focusing elsewhere, and no longer citing the earlier studies, after an internal review that followed the SOPA debate, MPAA spokesman Howard Gantman said. “At the current time we do not actively cite the figures directly relating to movie piracy, as the landscape has changed significantly since these studies were conducted both regarding the growth of broadband and the development of streaming technology, as well as the introduction of hundreds of new sites world-wide for viewing legal online content,” Gantman said.

Then, in 2008, Bouchat sued the NFL and the Baltimore Ravens again. This time, he objected to use of the old infringing logo in highlight films, on the stadium's display of old players and memorabilia. Then, a few years after that, he sued yet another time over use of the logo in documentary videos, in pictures on the stadium wall and in the Madden NFL football game, which allows users to compete with throwback uniforms.

Last November, a federal judge declared most of the uses -- including in NFL television series and documentaries such as one that featured the player draft -- to be covered as "fair use." The judge factored in the purpose and character of the use, the nature of the copyrighted work, the amount used in relation to the copyrighted work as a whole and the effect of the use upon the potential market for the copyrighted work. The only use that fell outside of fair use was the way in which Bouchat's logo was incorporated into a video game.

Bouchat asks this court to adopt a rule that would depart from well established precedent and would have the potential to interfere with important speech and expression rights. Bouchat seeks nothing less than a de facto right to control the depiction of facts—in this case, events that actually happened on the football field—simply because those facts include the fact that the players wore uniforms that include Bouchat’s copyrighted logo. It is antithetical to the purposes of copyright to use it to force an inaccurate depiction of actual events.

The potential impact of Bouchat’s claims is not limited to the Baltimore Ravens or the NFL. Many historical subjects cannot be discussed effectively without the use of copyrighted material. It would be difficult, for example, to make an effective biography of an actor without including audiovisual clips depicting his work, in order, for example, to illustrate a point about his career and impact, Hofheinz v. A & E Television Networks, 146 F.Supp.2d 442, 446–47 (S.D.N.Y. 2001) (finding transformative film footage used for the purpose of enabling the viewer to understand the actor Peter Graves’ modest beginnings in the film business), or to create a comprehensive study of surrealist art without including works by Salvador Dali, to accompany the author’s commentary, see Warren Publ’g Co. v. Spurlock, 645 F.Supp.2d 402, 419 (E.D. Pa. 2009). It would be nearly impossible to document any sliver of life in a major American city without capturing vast numbers of logos, signs, billboards, and other copyrighted works along the way. Cf. ESS Entm’t 2000 v. Rock Star Videos, 547 F. 3d 1095, 1100 (9th Cir. 2008) (“Possibly the only way, and certainly a reasonable way, to” recreate “look and feel” of city was “to recreate a critical mass of the businesses and buildings that constitute it,” even if protected by trademark). It would be similarly impossible to make a documentary about the healthfulness of McDonald’s food (Super Size Me) or Wal-Mart’s business practices (Wal-Mart: The High Cost of Low Price) without depicting each company’s logo.

Bouchat asks this Court to set forth a rule that would require permission for uses like these. That rule would have a profoundly negative impact on free speech and expression because rights-holders would demand some control over the way individuals or organizations are portrayed, or simply choose to prohibit unflattering or disfavored depictions.

From the printing press, to motion pictures, to recorded sound, to the Internet, for its entire history, copyright law has evolved and developed in response to new developments in technology and the marketplace.

The result is that today the U.S. copyright system is a cornerstone of a vibrant creative economy that is unparalleled in the world – adding $631 billion and over 7.5 million direct and indirect jobs in 2010 [Department of Commerce, IP and the U.S. Economy study], and making the United States a world leader in creativity, technological innovation and economic growth.

MPAA member companies welcome a continuation of the ongoing discussion of the importance of copyright. We welcome a discussion based on facts, experience, and rational analysis.

And we are confident that such a discussion will result in a renewed affirmation of the benefits to all of a copyright law that encourages and rewards creativity and breakthrough innovation, promotes distribution and enjoyment of America’s most beloved stories and characters, and takes a firm stand against the criminals who would rob us of those.

Copyright Empowers Creativity, Innovation and the Dissemination of Knowledge
The promise of the opportunity to make a living doing what they love is what gives a creator incentive to transform his or her new ideas into reality and to take that new creation to the public. Creators deserve to be secure in the knowledge that they have a fair chance to earn a wage from their work and investment -- the works that contribute both to our shared culture and our national economy. The Constitution itself recognizes that the public’s interest in creativity and the dissemination of knowledge is best served by the incentives that result from recognizing authors’ and creators’ rights. If our creative sector is to remain the envy of the world, the law must ensure these public-interest purposes of copyright are not undercut.

Take Digital Rights Management technology, for example. Without the protection of effective DRMs, the business incentive to develop new and innovative distribution models, like UltraViolet, across multiple devices and platforms is lost. The technological and legal protections provided by current law allow content to be portable, enabling consumer flexibility on how to access it. Under current copyright law, the choice and cost curves are both bending in the consumer’s direction.

Copyright Benefits Consumers by Promoting Free Markets and Competition
Copyright as it is reflected in both the Constitution and in current law recognizes that the public benefits from a competitive environment in which clearly-defined property rights enable the market to drive the creation and dissemination of creative woks. These rights foster competition because they incentivize creators to take risks. They encourage economic development and economic diversity. That’s good for the consumer and good for the economy.

Enforcement of existing copyright laws is also essential to ensure that illegitimate websites that profit from the illegal sale of content do not have an economic advantage over the innovative platforms that our companies develop to deliver high-quality content to consumers. Undermining copyright law would serve as a disincentive for future technological development and would harm consumers.

Copyright Supports an Internet that Works For Everyone
There are those who would place the value of the Internet at odds with copyright. We reject that false choice. Freedom of expression is at the bedrock of both the Internet and the creative community. In considering policies surrounding the Internet, we need to recognize what the Supreme Court has stated repeatedly – that copyright is itself an “engine of free expression.” Not only does copyright itself promote creativity, but creative content has plays an important role in helping to promote the growth of the Internet. As we look at policy affecting the Internet, we must advance policies to promote an Internet that reflects the values that have been fundamental to us for hundreds of years, including freedom of expression, property rights, and protection of the rights of individuals. Good policy stays true to these values, resisting efforts that would pit one against another and recognizing instead that these values are mutually reinforcing.

Copyright Provides Creators with Modern Protections
Copyright law evolves over time. The last major overhaul of copyright law was the result of decades of Congressional work, much of it focused on fashioning a law that would be flexible enough to accommodate future technological change. But technology and the marketplace often evolve faster than the law. Fortunately, copyright law also provides the space for the private sector to collaborate to develop more immediate solutions. Content creators and intermediaries can and do engage in meaningful conversations about how to protect a secure, legitimate online environment for both creators and audiences. Any discussion of copyright law must include recognition of the critically important role that voluntary agreements play in ensuring the content and tech industries can both remain nimble in a rapidly-changing world.

Copyright Provides for Incentives and Accountability
The public interest in the creation of and dissemination of creative and innovative products cannot be served in an environment in which some are free to build businesses based on the infringement of the rights of others. As infringement grows more widespread, sound copyright policy must recognize that the solution to such problems is in society’s broad interest. Any review of copyright must focus on whether the system as a whole provides for meaningful accountability on the part of those who infringe the rights of others, and whether there are adequate incentives for cooperation and accountability among other stakeholders.

Because movies matter—to more people, in more places, who want to watch them at more times, across multiple platforms—the film and television industry is continuously innovating to meet that demand.

Today movies and TV shows can be viewed in theaters, on the big screen, or at home on TV screens, laptops, iPads, Kindles and smart phones.

There are more than 375 unique licensed online distribution services around the world that provide high-quality, on demand film and television shows, offering the easiest, fastest, safest, highest quality product and viewing experience possible.

These innovations are great for consumers. I'm not exaggerating when I say a new golden age in television and film is being ushered in. You can watch more content than ever, through more channels, and the quality of the movies and TV shows is outstanding.

This is why it's so crucial that we protect this content from theft. Because consumers deserve to enjoy first-generation versions of their favorite films—not secondhand, pirated films-of-films shot and recorded inside a movie theatre on a mobile phone.

We must strike a balance between the desire for a free and open internet and the protection of intellectual property. The future cannot be about choosing one over the other—between protecting free speech OR protecting intellectual property—it must be about protecting both

We can and must have an Internet that works for everyone, and we can and must have protection for the creative industry’s genius that intellectual property represents.

To protect IP, and the openness and freedom of the Internet, we must together innovate our way through these challenges. Fortunately, Silicon Valley and Hollywood are making some progress on this front.

On [Hollywood's] case, a copyright owner's claim would not even be limited to the infringer's profits: in principle, the entire proceeds of sale would be held on trust for the copyright owner. That might both be unfair and stultify enterprise. The proceeds of an infringement might be out of all proportion to the profits generated (e.g. because of the cost of raw materials used in the infringing product). It might not seem just for even a deliberate wrongdoer to have to pay the copyright owner the amount of his gross receipts, and an infringer need not have known that he was breaching copyright. Further, were Mr Spearman's [lawyer for the studios] submissions correct, a person might be deterred from pursuing an activity if he perceived there to be even a small risk that the activity would involve a breach of copyright or other intellectual property rights. As was submitted by Miss Lambert, that could have a chilling effect on innovation and creativity.

Suppose, say, that a market trader sells infringing DVDs, among other goods, from a stall he has set up on someone else's land without consent. The owner of the land could not, as I see it, make any proprietary claim to the proceeds of the trading or even the profit from it. There is no evident reason why the owner of the copyright in the DVDs should be in a better position in this respect.

Also circling is the latest addition to Dotcom’s ever-expanding legal team: Robert Amsterdam of Washington, DC and London-based Amsterdam & Partners. The human rights lawyer says his key work has been in Venezuela, Russia, and Nigeria. Now he's contracted by Kim Dotcom to investigate a possible human rights angle on the Megaupload case—in particular whether one human, former Senator and current MPAA head Christopher Dodd, breached Dotcom’s rights by going out of his way to engineer what Amsterdam said could be seen as a “contract prosecution.”

Amsterdam agrees his work could help Dotcom seek redress from the US government down the track. But his immediate aim is to publicize Dodd’s role. “This prosecution should not be afforded the presumption of regularity," he says. "The way this was done—the helicopters; the rappelling down the buildings [of Dotcom mansion]; the over-reaction—all of these are signs of a classic political prosecution.”

Amsterdam will spend the next two days interviewing the Megaupload team as part of his preparations for a “white paper” he will publish in around two months’ time.

The problem of Internet piracy and the sale of counterfeit products online has not gone away. Senator Leahy continues to monitor law enforcement actions, significant developments in the courts and voluntary industry practices, and all those pieces will help determine what next steps are appropriate.
— spokeswoman for Sen. Patrick Leahy (D-Vermont), chairman of the Senate Judiciary committee and author of the Protect IP Act

We can all agree about the importance of protecting American innovation from foreign thieves, but I think it is critical that all parties have a seat at the table and work together to solve important policy issues. As chairman of the Judiciary committee, I look forward to working with both the technology and content communities to find ways to protect America's competitive advantage while promoting internet freedom and growth.
— Rep. Bob Goodlatte (R-Virginia), chairman of the House Judiciary committee and original sponsor of SOPA

Hollywood and Silicon Valley have more in common than most people realize. We share a commitment to innovation, to our consumers, and are working together to develop new platforms to make that content easily and legally accessible. Like the tech industry, the well-being of the film community is dependent on a vibrant First Amendment and we would never support any legislation that limits this fundamental right. We can all agree no one wins if everyone loses. Preserving freedom of speech and protecting intellectual property rights are not mutually exclusive efforts. Intellectual property protection is essential to creators and makers in both industries and we need to discuss it rationally. Let's use this anniversary to forge a path toward the future where the creative content and technology industries work together to develop meaningful solutions that ensure an Internet that works for everyone.
— Michael O'Leary, senior executive vice president for global policy and external affairs at the Motion Picture Association of America

It's a new day for a new music business and for the RIAA. For the better part of the last year, we have focused on being an evangelist for the dynamic, exciting legal online marketplace that now exists for fans. That will continue to be our priority in 2013. We earn more than half of our revenues from digital services and platforms. Not many creative industries can say that. Music helps drive social media trends and device sales. In fact, in 2012, the two top Google searches were music-related. Currently, 19 of the top 20 YouTube videos are music videos. And according to Twitter, seven of the top 10 Twitter accounts are held by artists.

What does this all tell us? Music is at the center of cultural and commercial phenomena. We are not stuck in the past but looking ahead at a promising, bright future teeming with new music options. Which is why we created, along with our online retailer partner NARM, WhyMusicMatters.com, a one-stop educational guide for digital music so fans can know where to get their favorite music in a variety of different ways. And we expect that this bright future will offer access to music in ways currently unimaginable but will perhaps seem commonplace a year from now.

Yes, piracy still continues to plague us and is a continuing threat to our business. But instead of looking to Congress for help, we are tuned in to the marketplace and actively seeking out voluntary partnerships with intermediaries like ISPs and advertisers to help curtail illegal downloading. Moving forward, we want to simplify music licensing to make it easier to develop music business models. We know that music models continue to evolve - access and listening models are becoming more prevalent and it's imperative we derive a fair market return for the music that is the foundation of those businesses. And as always, we'll continue to find new ways to promote the dynamic music marketplace.
— Mitch Glazier, senior executive vice president at the Recording Industry Association of America.

Protection of intellectual property and Internet freedom are critically important. The Chamber will work with members on both sides of the aisle to find an effective and commercially reasonable solution to address this ongoing problem.
— U.S. Chamber of Commerce spokeswoman

If you had asked me how I felt on January 18, 2012, about the prospects for protecting the creative work of artists and innovative businesses in the wake of the internet revolt against the Stop Online Piracy Act and the Protect IP Act, my response might have involved some muttering under my breath and a request for a stiff drink. In the coming week, many who seek to exploit the work of creators without their consent will be looking backwards and celebrating last year's defeat of those bills. So one might expect advocates for artists and creators to be in a dour mood again, but there is ample cause for optimism among members of the creative community...

At least some of the goals of the legislation have been achieved through increased private and government action since the introduction of the first version of the bills in 2010:

• More credit card companies are engaging in best practices. In June 2011, major credit card companies and online payment processors (American Express, Discover, MasterCard, PayPal and Visa) reached an agreement on voluntary best practices to reduce sales of counterfeit and pirated goods by cutting off sites that distribute infringing goods from conducting financial transactions through these processors.
• More advertisers are engaging in best practices. On May 3, 2012, the Association of National Advertisers and the American Association of Advertising Agencies issued a statement of best practices to address online piracy and counterfeiting.
• Internet service providers, movie studios and record labels are collaborating on a Copyright Alert System. Under this system ISPs have agreed to notify users when their accounts appear to be used for illegal downloading activity and to impose real consequences on users who refuse to stop after receiving multiple notices.
• Google finally started considering whether sites are rogue websites when doing search rankings. In August 2012, Google announced a change in its search algorithm that takes into account the number of "valid copyright removal notices" when determining the ranking of search results. In its announcement, Google indicated the goal was to help its users find legitimate sources of content more easily...

As more artists and creators stand with their peers and highlight what is really happening on the Internet, more people will listen and think twice. If there is a silver lining to the blackout, it has been the people who we have met this year: artists, reformed 'pirates' academics and lawmakers who want to begin meaningful conversations about promoting creativity and ensuring it finds a place in all of our lives.
— Sandra Aistars, executive director of the Copyright Alliance

There is a staggering amount of copyright infringement taking place every day online and much of it is facilitated by Google, as their own data shows. According to Google, they receive 2.5 million takedown requests per week – and that data does not even include YouTube, where an enormous amount of infringement takes place. That means that by Google’s own accounting, millions of times each week creators are forced to raise a complaint with Google that the company is facilitating the theft of their work and ask that the infringing work or the link to that work be removed. Often, even when the links are removed, they pop right back up a few hours later. That’s not a reasonable -- or sustainable -- system for anyone....

We couldn’t agree more with Google that this data shows that our current system is not working – for creators, or for Google. But we can’t lose sight of the fact that it also confirms the important role that Google has to play in helping curb the theft of creative works while protecting an Internet that works for everyone. We look forward to continuing to work with them to tackle this urgent challenge.

One thing that’s important to make clear in any serious discussion about tackling online theft: absolutely no one is advocating for the restriction of speech on the Internet. Freedom of expression is a cornerstone of the Internet, and a cornerstone of the film community, which has spent the last century advocating for artists to be able to express themselves freely on the screen. Removing infringing works online isn’t limiting access to information or ideas, it's ensuring that the creativity and hard work that went into making a film is encouraged to flourish.

I first met Howard Berman when I was with the Motion Picture Association of America. I remember Jack Valenti uttering a phrase that I would hear repeatedly over 20 years: “What does Howard think?” When we have an idea for a compromise, someone runs it by Howard. When we develop a strategy, someone is tasked to get Howard’s reaction. When we speak with his congressional colleagues, the usual response from Democrats and Republicans alike is, “Let me grab Howard on the floor and see what he is thinking.”

While both the Terms of Reference and the “Guiding Principles” make reference to Australia’s copyright law obligations with respect to copyright, it is important to recognize that these are not simply random or uncoordinated requirements with which Australia has agreed to comply. Australia is an active participant in an evolving international dialogue that articulates comprehensive norms and minimum standards for participation in an dynamic global marketplace in works of authorship and other copyright materials... In addition, the copyright and enforcement provisions of the Australia-United States Free Trade Agreement (AUSFTA) are of particular significance, not only because AUSFTA was, at the time of its adoption, a state-of-the-art pact between Australia and one of its most important trading partners, but also because it has contributed significantly to the template for the Trans-Pacific Partnership (TPP) Agreement negotiations, in which Australia is now actively engaged along with ten other trading partners around the Pacific Rim.

The enactment as part of Australian law of a new system based on the fair use doctrine would not bring with it this century and a half of judicial precedent that allows counsel, and the companies and individuals they advise, to rely upon the doctrine. Indeed, at its introduction, the new system would be unsupported by any binding precedent at all.

Since it is inconceivable that, as part of any new system of copyright exceptions in Australia, its courts would be directed to slavishly follow U.S. precedent, it is inescapable that there would be considerable uncertainty about the resolution of claims based on the new system in Australian courts. This is likely to create a deleterious level of unpredictability for copyright owners, copyright users, and the public. Whatever social benefits might fairly be attributed to the fair use doctrine under U.S. law would be unlikely to survive the passage across the Pacific to Australia. 

An additional uncertainty involves the impact of a change in Australian law on existing licensing agreements. Since the likely purpose, and even more likely a result, of borrowing from fair use to amend Australian law would be to expand, at least to some degree, the scope and applicability of exceptions to copyright protection, it is almost inevitable that some licensees would be compelled to re-examine whether they any longer needed to obtain a license for particular uses, or whether they could instead rely upon the expanded exception resulting from the new fair use provision. 

This year's seizures of Megaupload.com and Megavideo.com by the Department of Justice illustrate the extent and impact that hosting hubs have on the online landscape. Prior to the seizures, Megavideo.com (Alexa 177) and Megaupload.com (Alexa 72) were estimated to receive 3,447,7741 and 2,640,8452 unique visitors each month, respectively. Megaupload.com alone was estimated to have consumed 11.4% of the Internet bandwidth in Brazil. When these two websites were taken down, many linking websites, custom search engines, and custom streaming scripts that relied on the sites for content became inoperable. Some websites were abandoned by their operators, others lost traffic, while still others shifted their business model. For example, Wupload.com (Alexa 918), which was featured in MPAA's filing last year, disabled file sharing. Affiliate programs that paid uploaders for content were also discontinued or removed by many hubs. Further, infringing content was purged by operators in bulk, which was followed by uploaders who deleted their own files to prevent the hubs from profiting on the uploads without paying incentives. In sum, the impact of these seizures was massive and the hub landscape is still recovering.

Within two months, 24 movies had signed up to film in Michigan — up from two the entire year before. The productions estimated that they would spend $195 million filming there, and in return they would be refunded about $70 million in cash.

Before long, residents were rushing out on their lunch breaks to catch a glimpse of celebrities like Drew Barrymore, who was filming her movie “Whip It” in Ann Arbor, and Clint Eastwood, who was shooting “Gran Torino” in the Detroit area. Even Michael Moore, who was filming a movie about corporate welfare called “Capitalism: A Love Story,” sought and received incentives.

Ms. Granholm declared the city in a financial crisis in February 2009 and appointed an emergency manager, Fred Leeb. The city’s budget was $54 million a year, but it was overspending by an estimated $7 million to $12 million. Pontiac was also still weighted down by old incentives it had given to businesses like G.M.

The movie studio was an added challenge, since it was seeking financial incentives from the city — not to mention from other branches of the government. It won redevelopment tax credits from the federal government and separate aid from the state that included incentives for technology companies that hire residents.

Job creation became a point of contention with beleaguered Pontiac, which was being asked to waive virtually all property taxes for the studio. The investors claimed that thousands of people would be employed, but Mr. Leeb said that when he asked for job numbers to be written into the contract, the investors refused. “We started seeing some backpedaling,” said Mr. Leeb, who added that the negotiations featured “knock-down, drag-out fights.”

Over the objections of some local officials, the state agreed to use the state workers’ pension funds to guarantee the bonds. If the investors failed to pay, the retirees would be on the hook.

The studio had created only 200 positions by the summer of 2011, according to correspondence between the company and local officials. And when temporary construction workers were excluded from the tally, Pontiac’s records show, the studio reported only two employees in 2010 and 12 the next year.

The city later had problems collecting some of the taxes because Disney operated through a separate business entity that was difficult to track down, he said.

“This is a glamorous industry if you want to talk about Hollywood, but it’s not very glamorous for the municipality that wants to collect something,” Mr. Schimmel said. Pontiac, he said, was outgunned.

Disney declined to comment.

When the bill for the studio’s bond interest came due in February this year, it paid only a portion, $210,000. The state pension fund had to pick up the remaining $420,000....

In August, the studio defaulted on the entire $630,000 payment on the bond, despite a decision by Mr. Snyder to temporarily allocate some film incentives.

From: Teller, Paul
Sent: Saturday, November 17, 2012 04:11 PM
Subject: RSC Copyright PB

We at the RSC take pride in providing informative analysis of major policy issues and pending legislation that accounts for the range of perspectives held by RSC Members and within the conservative community. Yesterday you received a Policy Brief on copyright law that was published without adequate review within the RSC and failed to meet that standard. Copyright reform would have far-reaching impacts, so it is incredibly important that it be approached with all facts and viewpoints in hand. As the RSC’s Executive Director, I apologize and take full responsibility for this oversight. Enjoy the rest of your weekend and a meaningful Thanksgiving holiday....

Paul S. Teller
Executive Director
U.S. House Republican Study Committee
Paul.Teller@mail.house.gov
http://republicanstudycommittee.com

It's hard for Hollywood to explain to consumers about the losses to the movie industry caused by piracy. Especially when talking heads like studio moguls and government officials try and fail. So kudos to Ted Gagliano, president of 20th Century Fox feature post-production, who began putting end cards on the studio's movies like this one.

I agree. It is hard to explain to consumers about these losses, especially when so many highly successful movies have failed to turn a profit. It's also hard to explain things using imaginative interpretations of severely extrapolated data that turns the kid bagging your groceries into the equivalent of an executive producer.

This bit of information could conceivably deter a few people from rushing right home and onto the internetz for the "home version." When they see that many people worked many hours, the few not shouting "Citation, needed!" will sleep the sleep of angels, knowing their full retail price ticket purchases will keep the grocery bagger off the street at least one day longer. Their sleep will be even more angelic when they realize who's behind this new idea.

Twentieth Century Fox Film Chairman/CEO Jim Gianopulos tells me that the end card anti-piracy project was suggested by the Obama administration. "It was actually an idea of Vice President Biden's when we visited him during a MPAA Board meeting earlier this year. We thought it was an excellent suggestion and adopted the idea and will continue for all movies going forward."

... the available record already shows that the government acted (and continues to act) with a callous disregard for third-party property rights in data stored on Megaupload. For example, the government knew Megaupload operated a data storage business, and thus held the property of third parties lawfully using Megaupload’s storage services. The government knew its search and seizure of Megaupload’s assets would deprive such third parties of the ability to access and retrieve their property. In seizing domain names and executing the search warrant at Carpathia, the government took constructive possession of all the third-party owned data it had seized and to which it had prevented (and continues to prevent) access by their owners. The government then “released” the third-party owned data in a manner that deliberately made the data both inaccessible to property owners and subject to government-sanctioned destruction, while at the same time blocking all reasonable efforts to allow access.

These failings are striking given that the government is well familiar with the need to accommodate third-party Fourth Amendment rights through minimization when it executes searches and seizures, especially of electronic material.

... any remedy granted should not compound the massive infringing conduct already at issue in this criminal litigation.... Additionally, if it would be helpful to the Court to consider evidence from the MPAA or its members on such issues as the lack of authorization for the reproduction and/or distribution of their works via Megaupload, or the overwhelming amount of infringement of the MPAA members’ copyrighted work on Megaupload, they will of course cooperate.

ISPs caving to copyright holders- could shut off your Internet if you're accused of piracy...!

If there is one key point I hope the audience left with, it’s this: Despite what the media and the advocates on the extremes would have you believe, the content and technology communities are not adversaries, we’re partners. Our companies call them audiences and tech companies call them users, but giving consumers the best possible experience is our shared goal. In the end, we all report to the same people: consumers.

We both share a commitment to innovation. Developing fresh and interesting content, and new platforms for seamlessly delivering that content to audiences, is the lifeblood of both of our industries. That’s why Hollywood is partnering with Silicon Valley and others — from YouTube to Facebook to Netflix to Roku — to deliver our great content to screens of all sizes. In fact, every one of the studios that I represent at the Motion Picture Association of America has a distribution deal with Google. Partnerships with these tech companies are only growing. There are currently more than 350 unique, licensed online services that provide motion picture content to viewers around the world, including more than 60 in the U.S. alone.

Take UltraViolet, for example. UltraViolet is technology that allows customers to purchase content in one form — digital or physical — and then watch it on any of their devices. UltraViolet is the result of a coordinated effort between dozens of content and tech companies — because all of these companies understand that it is in the best interest of their customers to ensure that people do not have to buy multiple forms of movies or shows.

The tech community will be integral to helping solve this problem. It’s going to require cooperation and voluntary best practices from all interested parties. We saw some of that earlier this summer when Google altered its algorithm to de-emphasize pirated content. That was an important step because it recognizes the problem, and it recognizes Google’s ability to do something about it. It was not a silver bullet, and there’s much more to be done — but it was a good acknowledgment from Google that content theft is a problem and one that can be tackled.

Copyright protection is essential to the health of the motion picture and music industries and the U.S. economy as a whole. Like the sale of “pirated” copies, unauthorized importation of copies of protected works made overseas and intended only for sale in a foreign market can undercut or eliminate the economic benefit that Congress intended to provide under the Copyright Act.

Extending the first sale doctrine to copies made abroad for distribution in a foreign market could impede authors’ ability to control entry into distinct markets, limit their flexibility to adapt to market conditions, or undermine territorial licensing agreements. If accepted, Kirtsaeng’s view of the first sale doctrine could thus prevent U.S. copyright holders from obtaining the economic reward Congress intended to provide under U.S. law to motivate investment in creative activity.

When copyright owners distribute tangible copies of creative works in a foreign market, they recoup the economic benefit made possible by the copyright law of that country, which may be substantially less generous or well enforced than U.S. copyright law. They do not realize the separate benefit Congress intended them to derive from their U.S. copyright. If those copies are imported into the United States without permission, the copyright owner might never obtain that full benefit.

Those harms, in turn, could have deleterious consequences for the U.S. economy as a whole. As of 2010, the motion picture and television industry supported 2.1 million jobs and nearly $143 billion in total wages in the United States.... In addition to the major motion picture studios, the industry supports a nationwide network of nearly 95,000 businesses throughout the 50 States. Id. The music industry employed over 25,000 paid employees as of 2004.... The industry supports many smaller businesses such as retail stores, distribution companies, recording studios, and music professionals. The retail trade alone generates over $7 billion from the sale of sound recordings... Maintaining robust copyright protection is thus crucial to preserving not only the health of these creative fields themselves, but also their substantial contributions to the national economy.