A perpetual "revolving door" at the Copyright Office is allowing major entertainment industries to capture the agency and significantly influence its policies, Public Knowledge said Thursday in a report. PK said the CO “regularly contorts” copyright law issues to “further the monopoly interests of major rightsholders” and regularly advocates for an expansion of copyright law that allows for fewer exemptions and consumer protections. The CO repeatedly inserted itself “into more and farther-flung policy debates," including via its 2015 Digital Millennium Copyright Act Section 1201 exemptions triennial review, PK said. The CO prioritized its own views over those of other stakeholders, the group said. Congress, other federal agencies and federal courts also have noted the CO's failings by ignoring or overturning the agency's decisions, PK said. “With limited accountability [and] a pattern of favoritism toward industry and rightsholder groups, it is unsurprising that they have staked out tenuous positions and advocate for expansive copyright monopolies,” said PK Policy Advocate Meredith Rose in a news release. “It is clear from its positions … that the [CO] often acts more as an advocate for profit-maximizing entertainment industries, rather than as an impartial organ of government.” The CO didn't comment.

The National Academies of Sciences, Engineering and Medicine has put together a group of 14 academic, civil liberties, law enforcement, privacy and technology experts to study government encryption and surveillance. In a summary about the 12-month project, the National Academies said the group will examine tradeoffs in mechanisms for giving government "access to the plaintext version of encrypted information." The study will include identifying alternative ways government can get such information and seek ways to measure risks weighed against potential law enforcement and intelligence benefits. "The study will not seek to answer the question of whether access mechanisms should be required but rather will provide an authoritative analysis of options and tradeoffs," it said Wednesday. Chaired by Indiana University law professor Fred Cate, the group includes Scott Charney, Microsoft vice president-trustworthy computing group; David Kris, general counsel of Intellectual Venture; David Hoffman, Intel director-security policy and global privacy officer; Worcester Polytechnic Institute cybersecurity professor Susan Landau; Richard Littlehale, Tennessee Bureau of Investigation special agent; Crowell & Moring privacy and cybersecurity attorney Harvey Rishikof; and Google software engineer Peter Weinberger. The William and Flora Hewlett Foundation, the John D. and Catherine T. MacArthur Foundation, and the National Science Foundation sponsored the project.

Mozilla is pushing the EU to revamp copyright laws to reflect changes in the internet's development, launching a petition Wednesday asking the EU to use its planned update of its copyright legal framework to “bring copyright law into the 21st century.” The European Commission is to release its copyright law rewrite proposal this fall as part of its larger digital single market policy strategy (see 1606010011). “The current copyright legal framework is outdated,” said Mozilla Chief Innovation Officer Katharina Borchert in a blog post. “It stifles opportunity and prevents, and in many cases legally prohibits, artists, coders and everyone else creating and innovating online.” Borchert focused on the need for the inclusion of an EU-wide fair-use exception in any copyright law revision, saying “in some parts of the EU, making a meme is technically unlawful.” The EU needs to “update and harmonise the rules so we can tinker, create, share and learn on the internet,” Borchert said. “Education, parody, panorama, remix and analysis shouldn't be unlawful.” Some proposals for the EU's copyright law update would threaten innovation, including “licensing fees and restriction on internet companies for basic things like creating hyperlinks or uploading content,” Borchert said. “Others are calling for new laws that would establish gatekeepers and barriers to entry online, and would risk undermining the internet as a platform for economic growth and free expression.”

No factual evidence supports Public Knowledge's accusation that the Copyright Office is more dedicated to helping copyright holders than accurately interpreting the law, said the Copyright Alliance in an FCC filing in commission docket 16-42 on PK's response (see 1608040062) to CO (see 1608050053) on commission-proposed set-top box rules. “The mere fact that the Copyright Office’s analysis conflicts with the policy positions of Public Knowledge and its supporters does not mean that that the Copyright Office is biased; and Public Knowledge’s unsupported claims only underscore their inability to address the substance of the analysis,” the alliance said in a release. It's “incumbent” on the FCC to “take into account the Register’s views on the Proposal,” the alliance said. The plan outlined in the set-top NPRM would “harm” content creators, it said. Members include 21st Century Fox, CBS, Disney, the NBA, Newspaper Association of America, RIAA and Sony Pictures, said the group's website.

The Information Technology and Innovation Foundation pushed back against oft-repeated claims that anti-piracy efforts like the failed 2012 Stop Online Piracy Act would “break the internet,” saying in a report there's little evidence to substantiate such claims. ITIF said Monday its analysis of five years of data from 25 countries found there were no “dire outcomes” from those countries' efforts to block piracy websites. ITIF referenced an April Carnegie Mellon University study saying the U.K.'s blockage of 53 piracy websites in 2014 caused a 90 percent reduction in visits to piracy websites and a rise in visits to websites legally featuring content.

The leaders of five Virginia universities’ libraries urged House Judiciary Committee Chairman Bob Goodlatte, R-Va., to proceed with caution in evaluating the Copyright Office’s anticipated legislative recommendation on a digital-age revamp of Copyright Act Section 108, which includes an exemption allowing libraries and archives to reproduce and distribute copyrighted works. The CO told stakeholders in meetings earlier this summer that it plans to proceed with the rewrite recommendation (see 1608100054). The suggestion “may not be the best approach for seeking consensus, which has proved elusive over the past decade,” the Virginia university libraries wrote Tuesday. “While Section 108 may show its age in some ways, it adequately protects core library activities like preservation and interlibrary loan, and includes enough flexibility to accommodate digital innovation, especially in combination with Section 107, the fair use doctrine.” Signatories were College of William & Mary Dean-University Libraries Carrie Lynn Cooper, Virginia Commonwealth University Librarian John Ulmschneider, University of Virginia Librarian John Unsworth, Virginia Tech Dean-University Libraries Tyler Walters and George Mason University Librarian John Zenelis.

U.S. District Judge Liam O'Grady's ruling last week denying Cox Communications' motion for judgment or a new trial of the BMG Rights Management copyright infringement lawsuit (see 1608090047) shouldn't worry “law-abiding” ISPs, said Tom Sydnor, visiting scholar at American Enterprise Institute’s Center for Internet, Communications and Technology, in a blog post Wednesday. A federal jury in Alexandria, Virginia, found against Cox in BMG's lawsuit, which alleged Cox failed to penalize its Internet customers who repeatedly infringed copyrighted materials. The jury awarded BMG $25 million in damages (see 1512180012). O’Grady said Cox was right that there was no evidence on how its users ended up using the content of more than 100,000 copies of BMG works, but there was enough proof "from which a reasonable jury could find Cox users violated BMG's reproduction right." Sydnor countered Public Knowledge’s assertions that O’Grady’s ruling threatens reliable internet access, saying the ruling “merely” confirms that law-abiding ISPs should now “cooperate with copyright owners and others to use new technologies to deter internet infringement more efficiently than take-down or service-termination remedies devised in the mid-1990s do,” as devised in Copyright Act Section 512. BMG v. Cox likely will be appealed, but the evidence presented in the district court “must now be interpreted in the way most favorable to the jury’s verdict,” Sydnor said: Cox’s “thirteen-strike” user-access termination program meant “a family could pay Cox for years without learning that Cox had long known that their teenager was using their account to pirate hundreds or thousands of songs and movies. The problems with such a program go well beyond the copyright laws. For example, concealing from parents offers to settle potentially devastating claims for a few dollars could violate the many U.S. laws that outlaw deceptive or unfair trade practices.” PK “just misses the point of Section 512,” Sydnor said. “Congress intended to create a set of rough, even mutually inconvenient, ground rules that would strongly encourage responsible copyright owners and ISPs to work together, through open, fair, and voluntary multi-industry standard-setting processes, to create the sort of ‘standard technical measures’ envisioned in Section 512.” The termination-of-service policy required by Section 512 “is really just one of many efforts to encourage ISPs to cooperate, rather than litigate, terminate or use their subscribers as human shields,” Sydnor said. “If the result in BMG v. Cox reminds ISPs of the many advantages of cooperating, then it is entirely consistent with congressional intent.” PK didn't comment.

Cox Communications must pay BMG Rights Management $25 million, after a federal judge Monday denied Cox's motion for judgment or for a new trial. A jury in 2015 found against Cox in BMG's lawsuit alleging the cable company failed to penalize its Internet customers who repeatedly infringed copyrighted materials (see 1512180012), with the cable ISP then seeking a new trial and BMG an injunction (see 1602160025). In his memorandum opinion (in Pacer) Monday, U.S. District Judge Liam O’Grady of Alexandria, Virginia, dismissed Cox arguments that BMG's claim failed from lack of proof, saying the evidence that Cox IP addresses uploaded more than 100,000 copies of BMG works "can form the basis of a distribution claim." O’Grady said Cox is right that there was no evidence on how Cox users ended up with the BMG works, but there was enough proof "from which a reasonable jury could find Cox users violated BMG's reproduction right." There also was sufficient evidence for the jury to decide the operator was aware of the infringing activity and "acted recklessly or with deliberate disregard," O’Grady said. He dismissed Cox arguments with the jury instructions, such as that they didn't require the jury to find the direct infringers acted while using Cox's service. But O’Grady said the jury instructions said BMG had to prove by a preponderance of the evidence that Cox internet subscribers used that service to infringe on BMG's copyrighted works.

Senate Judiciary Antitrust Subcommittee Chairman Mike Lee, R-Utah, praised DOJ Thursday for the “thoroughness” of the Antitrust Division's review of the department's American Society of Composers, Authors and Publishers and Broadcast Music Inc. consent decrees, which concluded Thursday with Justice's release of its final decision. The decision not to alter the existing consent decrees to allow music publishers to partially withdraw from the decrees and its language clarifying that the department continues to believe the existing decrees mandate 100 percent licensing already faces a legal challenge from BMI in the U.S. District Court in New York (see 1608040066). “The complicated nature of the consent decrees and of the market for musical licenses requires such an exhaustive review,” Lee said in a statement. “As we emphasized [in a 2015 Antitrust Subcommittee hearing on the consent decrees (see 1503090051 and 1503100068), any government oversight of this market must encourage creativity by recognizing the value of copyrights and ensure that prices for music remain competitive for consumers.” The decision shows “that the bullet has been dodged,” said copyright and music licensing lawyer Karyn Ablin of Fletcher Heald in a blog post Friday. “DOJ acknowledged that license pricing and royalty distribution have historically been based on fractional ownership interests. But it also recognized that an important pro-competitive benefit offered by ASCAP and BMI is granting music users immediate access to works in those PROs’ respective repertories without fear of infringement liability. It found that fractional licensing would undermine that access and protection from liability.” The combination of a ASCAP-led lobbying push on Capitol Hill and BMI's litigation make it “much harder to predict” whether the decision ultimately will stand, Ablin said. “This division of labor was no accident -- conventional wisdom has it that the rate court overseeing BMI’s operations is more favorable to PRO interests than is the court charged with monitoring ASCAP.”

The Electronic Frontier Foundation and a coalition of consumer groups and content industry stakeholders asked the FTC Friday to label e-books and other digital content that has embedded digital rights management “locks” aimed at preventing copyright infringement. The other signatories on the EFF-led letter included the Consumer Federation of America, the Free Software Foundation and Public Knowledge. Amazon, Google and other tech sector companies are duty-bound to inform consumers about the presence of digital locks on products since such locks are not universally used, the EFF-led coalition said. “This matters because the public has demonstrated a strong preference for DRM-free ebooks and other electronic products,” the coalition said. “For example, in 2014, independent DRM-free ebooks across all marketplaces outsold DRM-locked ones 2:1.” The use of DRM is controversial but “what should not be controversial is that a purchaser should be able to tell whether she is buying a DRM-encumbered product before she spends her money,” the coalition said. “DRM advocates argue that the sales of their products are proof that the public accepts DRM as a proportionate remedy for concerns about copyright infringement, but if that’s so, the existence of a consistent labeling process will not reduce their sales.” If consumers are unaware of the use of DRM on products at the point of purchase, “they are being mis-sold a product that comes with unexpected, unpredictable restrictions,” the coalition said. “That buyers prefer DRM-free at the rate of 2:1 suggests that the market would benefit from better labeling across all categories and storefronts.” An e-retailer's indication of the use of DRM in a product should include a “clear explanation of the restrictions imposed on that product,” the coalition said.