The Department of Commerce’s Internet Policy Task Force, comprised of representatives of the United States Patent and Trademark Office (USPTO), the National Telecommunications and Information Administration (NTIA) and other Commerce Department agencies, has released a “White Paper on Remixes, First Sale, and Statutory Damages: Copyright Policy, Creativity, and Innovation in the Digital Economy.”
The most far reaching recommondations of the White Paper were its call for amending the Copyright Act to rein in some of the excessive damage awards and abuses like Righthaven.
The Task Force proposes a new clause in subsection Section 504(c)526 as follows: FACTORS TO CONSIDER — In making any award under this subsection, a court shall consider the following nonexclusive factors in determining the appropriate amount of the award:
- The plaintiff’s revenues lost and the difficulty of proving damages.
- The defendant’s expenses saved, profits reaped, and other benefits from the infringement.
- The need to deter future infringements.
- The defendant’s financial situation.
- The value or nature of the work infringed.
- The circumstances, duration, and scope of the infringement, including whether it was commercial in nature.
- In cases involving infringement of multiple works, whether the total sum of damages, taking into account the number of works infringed and number of awards made, is commensurate with the overall harm caused by the infringement.
- The defendant’s state of mind, including whether the defendant was a willful or innocent infringer.
- In the case of willful infringement, whether it is appropriate to punish the defendant and if so, the amount of damages that would result in an appropriate punishment.
When calculating the total award, all of these factors should be weighed holistically, in the context of the entire case, to ensure that the overall award is appropriate.
The report did not recommend any changes on the first sale doctrine (i.e., the extent to which consumers own and can transfer digital goods which often have licenses saying otherwise) and remixes. On remixes, the report did offer the following:
Remixes make valuable contributions to society in providing expressive, political, and entertainment content. It is important that the copyright framework continues to allow the broad range of remixes to thrive, ensuring that a vibrant fair use space coexists with effective licensing structures. The Task Force concludes that the record has not established a need to amend existing law to create a specific exception or a compulsory license for remix uses. We have several recommendations that would make it easier for remixers to understand when a use is fair and to obtain licenses when they wish to do so. Specifically, the Task Force recommends pursuing three goals:
- The development of negotiated guidelines providing greater clarity as to the application of fair use to remixes;
- Expanding the availability of a wider variety of voluntary licensing options; and
- Increasing educational efforts aimed at broadening an understanding of fair use.
“We have long advocated a balanced approach to copyright protection in the digital age,” said Lawrence E. Strickling, Assistant Secretary for Communications and Information and Administrator of the NTIA. “These updates will continue to provide meaningful protection for intellectual property and also support the innovation that has fueled unprecedented growth in the Internet-based economy.”