Copyright law grants creators a number of rights and powers. Unfortunately sometimes these are abused. For example, this abuse can take the form of suppressing speech that an author disagrees with, even if that speech doesn’t infringe his copyright. Additionally, copyright owners can stifle free speech by claiming rights and powers they do not have.

How Copyright Works Now

Copyright is a government-granted monopoly that prevents others from being able to display, copy, perform, modify, or distribute an original work without the owner’s permission. There are certain powers and privileges, however, that do not come with this monopoly and need to be clarified in law. Control over a copyrighted work does not extend to everything that touches that work, nor should it be abused to suppress free speech.

How to Prevent these Kinds of Abuses

This bill is designed to prevent rightsholders from claiming powers that the law does not grant them and to protect against abuses. It also forces rightsholders to notify the public of steps taken that might make it harder to make full use of the works. Finally, it clarifies the legal status of brief copies made as part of the functioning of a computer or network.

1. Increase Protections Against Copyright Abuse

Too often, copyright infringement lawsuits are used not to enforce an author’s rights, but as a pretext for the suppression of disfavored speech. This amendment would create an expedited procedure, called a “motion to strike,” by which a defendant can ask a court to rule more quickly on copyright suits that misrepresent the plaintiff’s rights over the speech in question, as well as suits that, if they succeeded, would have a significant harmful effect on free expression. While the motion is pending, discovery—a major source of expense in litigation and one of the big reasons frivolous lawsuits themselves can chill speech—is suspended while the judge evaluates the motion to strike. Anyone who invokes the motion to strike frivolously will be forced to pay the plaintiff for the costs of dealing with it.

2. Prohibit Unfair and Deceptive Warning Notices

Businesses are currently prohibited by section 5 of the Federal Trade Commission Act from engaging in business practices that are “unfair” or “deceptive.” This proposal would ensure that unfair and deceptive trade practices will be defined to include the issuing of warning notices that unfairly or deceptively overstate a copyright holder’s rights. For instance, it’s blatantly false when the NFL says during a game:

This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or of any pictures, descriptions, or accounts of the game without the NFL’s consent, is prohibited.

Descriptions and accounts of the game cannot be prohibited by any law, and there are many cases of pictures from or reproductions of the telecast, let alone the game, that will also be lawful. These overstatements deceive the public about the nature of copyright law and chill legitimate speech and uses of works.

3. Notify Consumers of Digital Locks

This proposal requires DRM-equipped media to be clearly labeled as such. Many consumers who buy media—movies, music, ebooks or software—are not aware of the particular restrictions placed upon their purchase. These include the inability to make backup or space-shifting copies, the inability to resell the media, or the inability to use it on a limited number of devices.

Therefore, this proposal requires a full and conspicuous disclosure of these restrictions in plain language before the media is sold. As an incentive for companies to label their DRM-equipped products clearly and conspicuously, this proposal also says that failing to properly disclose DRM on a product means that users will be allowed to circumvent the undisclosed DRM in order to make lawful uses of the work.

4. Clarify that Essential Transient Copies Are Not Infringements

A simple fact of digital devices is that they necessarily make copies of the things that they process. This technicality creates liability where there should be none—for instance, it should be uncontroversial that a CD player with a buffer to prevent skipping shouldn’t need a license in order to play a CD. This proposal creates an exception for “transient” copies that are necessarily made as part of a technological process and whose primary purpose is to enable a lawful use. This would, for instance, ensure that RAM copies of software don’t raise copyright infringement concerns, unless they are being used for some infringing use (like making unauthorized reproductions of the software for further distribution).

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