News and Commentary
Following the passage of the European Union’s Copyright Directive in 2019, it goes to the EU member states to implement its provisions, the most controversial of which would functionally require “upload filters” under Article 17 (making it in practice “notice-and-staydown” system). In Techdirt, Glyn Moody writes about the German implementation text, which includes a number of safeguards for archives and similar institutions and relies on the idea of “use presumably authorized by law” which cannot be automatically automatically.
Bad news for Twitch streamers. As reported by Jay Peters in The Verge, the Amazon subsidiary received a new “batch” of about 1,000 DMCA takedown notices related mostly to background music streaming. Twitch “strongly recommend[ed] that [users] permanently delete anything that contains” protected material.
An article in The Guardian discusses how the recent acquisition of MGM by Amazon exposes the commodification of cultural history. While the author, Nicholas Russell, criticized Bezos’ statement that “MGM has a vast, deep catalogue of much beloved intellectual property. We can reimagine and develop that IP for the 21st century” such commodification isn’t new for show business. However, the rise of streaming and the End of Ownership does create new problems for preservation.
A class action complaint brought by named plaintiffs Alexis Hunley and Matthew Scott Brauer against Instagram for mass copyright infringement related to the practice of Instagram allowing third-party websites to embed photographs on their websites to expand the reach of Instagram. A ruling in favor of plaintiffs would have significant implications (“undermine/kill” in the words of Annemarie Bridy) for the “server test,” the rule where–at least for copyright liability purposes–content posted by the host server (in this case, Instagram), not a website which merely links to or embeds it.
In Patently-O, Paul Gugliuzza and Jonas Anderson discuss the latest moves by Judge Alan Albright, famous for his antics to bring (and keep_ patent litigants into his District Court for the Western District of Texas. Recent decisions by Albright have been designed to manipulate the venue so patents are assigned for use only in the Western District of Texas, making it, technically, the only district where a case could be brought. “If Judge Albright’s decisions are allowed to stand, patentees will be able to guarantee their cases are never transferred away from the Western District of Texas by simply creating a shell company that has an exclusive license to the patent only in the Western District of Texas” write Gugliuzza and Anderson.
A new paper from the National Bureau of Economic research by Song Ma, Joy Tianjiao Tong, and Wei Wang looks at how Chapter 11 restructuring by bankrupt firms manage their portfolio of patents. The authors find that firms are more likely to sell off “core” technology via secured creditors taking control of collateralized patents. While this could be beneficial for technology diffusion, it appears that those technologies diffuse more slowly and the patents are more likely to be purchased by trolls.