Ireland’s version of SOPA is not the equivalent of a Congressional bill; instead, it is a statutory instrument(SI), a piece of secondary legislation “made in exercise of a power conferred by statute.” What this means is that the legislation will not be considered by the Oireachtas, the legislature of Ireland, before passing into law. Instead, an emergency debate on the SI has been heard in the Dáil, the lower house of the Oireachtas.

A brief history of “Ireland’s SOPA:” In EMI Records v. UPC Communications, the High Court of Ireland determined that “Ireland is not yet fully in compliance with its obligations under European law.” As per the court’s analysis, European law requires the provision of injunctive remedies against internet service providers who facilitate copyright infringement, and such remedies are absent in Irish law. The proposed statutory instrument is being shepherded by Sean Sherlock, Minister for Research and Innovation of the Department of Jobs, Enterprise and Innovation. The SI would amend the Copyright Act of 2000, giving the judiciary broad powers to grant injunctions against “intermediaries,” such as ISPs, forcing the blocking of target websites.

The Internet Service Providers Association of Ireland has issued a letter objecting to the SI, and TJ McIntyre has posted a FAQ describing what is known about the text of the new instrument (not much, but he includes language from a previous draft) and what the implications of its passage may be. In a nutshell, Ireland’s SOPA may allow courts, when petitioned by copyright owners, to order ISPs and other “intermediaries” to block access to infringing content. He has also commented on the inadequacy of an emergency debate as a substitute for true deliberation.

In some ways this proposed SI is more insidious than SOPA – the provisions of SOPA allowed opposing groups to understand, to a point, how the legislation worked, and what it might allow copyright owners to demand. This SI does not define what the judiciary may order in any injunction, nor does it say what may not be ordered. Uncertainty and a lack of transparency is a large part of the argument against the SI.

During the debate, a number of deputies voiced the concerns noted by Mr. McIntyre and others – notably, the vague language of the SI, as well as potential negative effects on smaller ISPs and sites that post user-generated content. One of the centerpieces of Minister Sherlock’s defense was the idea that the SI “clarifies” preexisting policy – that the EMI v. UPC ruling: (1) exposes Ireland to legal action for alleged non-compliance with European law, and (2) the SI simply closes the hole exposed by the High Court ruling, rather than creating a new remedy for copyright owners. He also emphasized that there are no plans to change the wording of the SI, and that there are no plans to delay its enactment.

Despite the real – and significant –  differences between the proposed SI and SOPA, they both seek an expansion of governmental power to control what is available on the Internet, and they both do so in a manner that leads to legitimate objections including: overly broad remedies for copyright owners at the expense of the public interest; the imposition of burdensome costs on ISPs and other intermediaries; and a chilling effect on Web-based innovation, creativity, and business founded in legal uncertainties.

More information about a petition to stop “Ireland’s SOPA” here.

(Image by Mike Linksvayer)

The policy states that “[i]ndividual instructors retain copyrights to lectures and class presentations, class materials they create, and related material pursuant to U.S. copyright law, California Civil Code § 980 (a)(1), and the University of California’s Policy on Copyright Ownership.” This language invokes three separate wellsprings of authority – federal, state, and institutional. A brief look at each in turn:

Section 102 of the federal Copyright Act informs us that copyright protect subsists, in general, “in original works of authorship fixed in any tangible medium of expression . . . .” The key term for our purposes is “fixed,” which pushes many, if not most, typical classroom lectures out from under the copyright umbrella. Extemporaneous presentations, unless recorded in some manner, do not get copyright protection.

California Civil Code §980 does grant ownership rights on unfixed presentations: “[t]he author of any original work of authorship that is not fixed in any tangible medium of expression has an exclusive ownership in the representation or expression thereof . . . .”  Although the federal Copyright Act, in section 301, explicitly preempts state laws that provide similar rights, §980 avoids such preemption by dealing with works explicitly unprotected by federal copyright. It does look like a good foundation for the Berkeley policy, but the U.S. District Court for the Central District of California has found that §980 reflects a legislative intent “to deny copyright protection to ideas, as opposed to the manner in which they are expressed or represented.” (See page 1423 of the opinion) This preserves the core idea-expression dichotomy that prevents copyright law from protecting ideas and facts, rather than a specific expression of them. In essence, we can say that §980 effectively extends federal copyright-type protection, within the state of California, to unfixed works of authorship, but with limitations on subject matter analogous to those created by §102 of the Copyright Act.

Finally, the University of California’s copyright policy is more a policy statement than a grant of unique institutional rights. It states, in part: “The University encourages the creation of original works of authorship and the free expression and exchange of ideas.” Reasonable minds may disagree on whether copyright protection promotes or stifles the creation of original works, but Berkeley’s policy is an incontrovertible shackle upon students’ ability to engage in any exchange of ideas based upon those works.

How might a judge apply these laws? Faulkner Press v. Class Notes, a federal case in the Northern District of Florida, in which the defendant (a notes reseller) sold note packages including a significant amount of material copyrighted by Professor Michael Moulton. This material was prepared and recorded beforehand, and properly the subject of federal copyright protection. Judge Mickle informs us that fair use is a potential stumbling block for the sort of broad prohibitions embodied by Berkeley’s policy:

Even though the film study questions and practice questions are protected by copyright, genuine issues of fact remain as to whether inclusion of the questions, as well as the lecture summaries, within Class Notes’ note packages constitutes fair use…. Dr. Moulton’s works as a whole are derivative, factual, and published. Furthermore, his film study questions and practice questions are factual compilations. Copyright protection extends only to the selection and arrangement, not to the underlying facts themselves, and “[t]his inevitably means that the copyright in a factual compilation is thin.” Feist. 499 U.S. at 349. So in determining fair use, this factor will weigh against Faulkner Press.

With respect to California state law, some proponents of expanded professorial control over academic presentations find support in the ruling of the California Supreme Court in Williams v. Weisser, a 1969 case in which the court ruled in favor of a plaintiff professor against a note reseller defendant. Two points tend to weaken that support: first, the case predates the Copyright Act of 1976, which expressly preempts state laws that grant analogous rights and remedies. Second, the Court in Williams did not rely upon the protection of unfixed works granted by §980:

This is, therefore, not a case where the concrete expression of the “composition” (Civ. Code, § 980, subd. (a)) consists solely of an intangible oral presentation. (Nimmer on Copyright § 11.1.) As far as this litigation is concerned, the chief importance of the oral presentation is that it provided defendant with access to plaintiff’s work and with an argument that there had been a divestive publication.

Taken together, these two points mean that the common-law copyright jurisprudence applied in this case, in favor of the plaintiff, would today be preempted by federal statute.

A good look at the statutes and their application by judges should be enough to demonstrate that, if they try to exercise the “rights” granted by the Berkeley policy in a court of law, professors shouldn’t rely on an easy victory.

In the next installment: a discussion of the public policy issues that underlie the Berkeley notes policy, and how a licensing-and-permissions-based policy is more in line with the interests of educators and students than a rights-and-restrictions-based one. Also – to what extent do students and professors actually care what school policies say, and how should that inform the content of such policies?

Late last year, UC Berkeley implemented a new policy regarding the taking and using of course notes and other class materials. It “sets forth the limitations on use of course notes and course materials and the making and use of recordings of instructors’ class presentations,” and proceeds to describe a rather draconian regime in which students’ use of their notes and class materials – indeed, their right to take notes at all – may be severely curtailed by their professors. Berkeley’s Office of Educational Development has also posted a set of cease and desist letters that professors may use, against students or third parties.

This is the first in a series of posts addressing Berkeley’s new class notes policy – in this introductory post, I will outline the issues involved and point to places where Berkeley’s policy conflicts with federal copyright law. Future posts will include a more detailed analysis of what rights copyright law provides compared to the rights Berkeley’s policy purports to take, as well as the benefits of a permission-based access and dissemination policy over a restriction-based one (essentially, telling people what they can do rather than what they can’t); I will also discuss the validity of the concerns the new policy seeks to address – specifically the professorial interest in repressing his work versus the social interest in open access; and finally, examine what terms a genuinely useful note-taking policy might include, one based on access rather than restriction.

This new policy is an unfortunately ironic development at UC Berkeley, the site of the 2008 Students for Free Culture conference. It was at this conference that the Wheeler Declaration was drafted, which included “open educational materials” as one of the five criteria of a truly “open” university. Needless to say, Berkeley’s new restrictions on the dissemination of such materials represent a step away from the open university movement. Given that all aspects of the University of California’s mission statement – to teach, research, and serve the public – are arguably better served by more distribution of knowledge, rather than less, there seems to be an internal dissonance here as well.

Berkeley and other UC faculty have, naturally, commented on the new policy. Richard Brenneman has an excellent post detailing some of their reactions. He includes e-mails objecting to the policy from Professors Amy Kapczynski and Ignacio Chapela, both at UC Berkeley, as well as comments supportive of the new policy from Professor Robert Meister, President of the Council of UC Faculty Associations. All following quotations from these professors are derived from Mr. Brenneman’s post.

In support of the policy, Professor Meister writes that “This seems to be a belated (and welcome) implementation of AB 1773, which was CUCFA’s response to UC’s (and especially UCLA’s) attempt to exploit a gap in copyright law to claim the right to record and re-use class presentations, such as lectures, and to get adjuncts to expressly agree to this as a condition of employment.” AB 1773 is a California state law, passed in 2000, that amended the California Education Code, adding sections 66450 – 66452. Section 66450 reads as follows:

66450.  (a) Except as authorized by policies developed in accordance with subdivision (a) of Section 66452, no business, agency, or person, including, but not necessarily limited to, an enrolled student, shall prepare, cause to be prepared, give, sell, transfer, or otherwise distribute or publish, for any commercial purpose, any contemporaneous recording of an academic presentation in a classroom or equivalent site of instruction by an instructor of record. This prohibition applies to a recording made in any medium, including, but not necessarily limited to, handwritten or typewritten class notes.

(b) Nothing in this section shall be construed to interfere with the rights of disabled students under law.

(c) As used in this section:

(1) “Academic presentation” means any lecture, speech, performance, exhibit, or other form of academic or aesthetic presentation, made by an instructor of record as part of an authorized course of instruction that is not fixed in a tangible medium of expression.

(2) “Commercial purpose” means any purpose that has financial or economic gain as an objective.

(3) “Instructor of record” means any teacher or staff member employed to teach courses and authorize credit for the successful completion of courses.

Professor Meister’s comments highlight some of the ideological motivations behind the Berkeley policy, which, in his view, has roots in a long-standing conflict of interest between instructors and administrators over who has control over materials created by professors in the employ of the University of California. Professor Meister ends his e-mail with a normative claim, that professorial – rather than institutional – ability to “set the terms on everything beyond note-taking” is a distinction between academics and other varieties of institutional employees that “lies at the heart of academic freedom.” But the language of the California Education Code requires that any claim to such a distinction must rest upon sound legal ground – Section 66452(a) stipulates that “[n]othing in this chapter is intended to change existing law as it pertains to the ownership of academic presentations.” §66450(c)(1) identifies academic presentations as being unfixed – precisely the sort of thing that, as Professor Kapczynski notes, federal copyright law does not protect.

Distilled, the problem Berkeley’s new policy seeks to address seems to run thus: Third parties, gaining access to class notes and materials, have been selling those materials to students and others for a profit. This has already been the subject of litigation, as in Faulkner Press, L.L.C. v. Class Notes, L.L.C., Case. No. 1:08cv49-SPM/GRJ (N.D. Fla., 2010). Disregarding, for the time being, the obvious pecuniary motivations faculty and administrators may have in curtailing such activity, there are normative considerations that are worth discussing – a professor’s right (or lack thereof) to privacy in the comments he makes to a closed classroom, for example, which will be discussed in a later post. Broadly stated, this policy, in attempting to protect the interests of some faculty members against note-selling groups, is most detrimental to students and anyone else interested in open education and technology as a route thereto.

Professor Kapczynski writes that “it’s not obvious that copyright policy offers the best (or an adequate) response to the challenges of peer-to-peer networks for our modes of teaching.” Berkeley’s policy, which responds to these challenges by asserting rights beyond those that federal copyright law actually bestows, and ignoring the availability of fair use defenses where valid rights exist, is almost certainly not the best means by which to balance the interests of institutions, faculty, students, and the public. In the next post on this topic I’ll be examining, in more detail, the interests of all parties affected, relevant copyright law and precedent, and how Berkeley’s policy interacts with both federal law and other UC policies.

The facts, as best I know, go something like this: about 32 years ago, Seattle artist Jack Mackie used public funds to create the “Dance Steps on Broadway” sculptures. These bronze footsteps in the concrete taught pedestrians how to do dances like the Rhumba and Foxtrot on the sidewalks lining Broadway in Seattle’s Capitol Hill. Mackie showed his litigious side in 1996 when he stopped the Seattle Symphony Orchestra from using an image of his sculpture in a promotional mailer. ) In 1997, Seattle photographer Mike Hipple took a photograph of someone’s feet on Mackie’s sculpture and put it on a stock photograph website for sale. Mackie sent a cease and desist, which Hipple complied with and subsequently destroyed all copies of the contentious photo. However, this action was not enough for Mackie because last year he decided to sue Hipple for copyright infringement over the photograph. http://www.techdirt.com/blog.php?tag=mike+hipple&edition=techdirt Hipple decided to settle rather than fork over the time and money necessary to defend a claim of copyright infringement.

It was unfortunate that Hipple felt compelled to settle. (http://capitolhillseattle.com/2011/06/29/broadway-dance-steps-lawsuit-settled-not-worth-continuing-to-fight)However, it is understandable as Hipple would have been at the mercy of the courts, and thus faced a chance of being sued for the statutory damages. Under the copyright statute 17 USC § 504,(http://www.law.cornell.edu/uscode/uscode17/usc_sec_17_00000504—-000-.html) statutory damages for copyright infringement can range anywhere from $750 to $150,000. I am not aware of Hipple’s personal financial situation, but the chance of having to owe $150,000 is a hard pill to swallow for any artist. (http://hipple-ldf.blogspot.com/2011/06/settlement_29.html)

The unfortunate part is that Hipple stood a fairly strong chance to gain some revolutionary ground in copyright law. Had this claim escalated to litigation, a holding that Hipple’s photograph was transformative would have been groundbreaking. To have the statutory damages cause an artist to shy away from defending the progression of his art directly infringes on the main constitutional policy of copyright law to “promote the progress of …useful arts.” US Constitution, Article I, §8.

In his dissent written for Sony Corp of America v. Universal City Studios, Justice Blackmun stated that “the goal of copyright, is generally furthered by the creation of transformative works.” Hipple’s photograph has transformed Mackie’s sculpture in such a way that does not infringe on the sculpture’s copyright. Hipple’s photograph is a prime example of fair use:

The first factor of fair use requires analysis of the purpose and character of the use. Hipple had placed his photograph on a commercial, stock photograph website, the purpose of his use would be considered commercial by the courts. This factor would weigh in favor of Mackie; however, In Folsom v. Marsh, Justice Story stated that the character of the use should consider the transformation of the art. If one considers the transformative character in the first factor then this factor should actually weigh in favor of Hipple. Hipple’s photograph takes the original sculpture, puts feet on it to show its functional use, and photographs it; thus remixing and totally transforming the sculpture. Hipple’s remix of the sculpture creates a whole new expression in the photograph and that new expression should be protected. In a culture that builds off of itself, where no art is truly original, it is important for artists (like Mackie) to recognize and appreciate when other artists uses their art in a transformative way. If anyone should appreciate the transformative aspect of art building on itself it should be Mackie, as I am certain he was not the artist who created the Foxtrot or the Rhumba. Furthermore, the practice of drawing tutorial footsteps originated in dance studios long before Mackie took the idea to the streets.

When looking at the second factor of fair use, the nature of the copyrighted work, courts  evaluate the value of the materials used and how close that value is to the core of intended copyright protection. The closer the work is to the core values, the more difficult it is to establish fair use. The intent of copyright protection is to foster creative and original creation.  Mackie’s Dance Steps are not exactly novel, as mentioned previously, Mackie’s sculpture is remixed art.  Thus why does his reworking of previous art deserve stifling protection to hinder another artist from doing the same thing?

Further, the court in Campell v Acuff Rose states that the second factor is of less (or even no) importance when assessed in the context of certain transformative uses. Hipple’s photograph is merely taking Mackie’s transformative sculpture, of tutorial dance steps, a step further; thus any “creativity” Mackie had in placing the Dance Steps in concrete should be irrelevant in a fair use analysis. Like the parody protected in Campell, it was necessary for Hipple’s photograph to use Mackie’s sculpture; the feet needed the Dance Steps. By placing the feet in the photograph with the Dance Steps, Hipple transformed a three dimensional sculpture into a two dimensional photograph catching a pair of feet putting the sculpture to the functional use of original dance tutorials. Hipple’s photograph essentially catches the dance steps serving a practical purpose, to teach pedestrians how to do the dances sculpted. Due to this practical use, the Dance Steps on Broadway should receive a very low level of copyright protection, in any. Hipple’s photograph can also be compared to a criticism of Mackie’s sculpture, alluding to its natural predecessor.

The third factor of fair use requires the court to analyze the amount and substantiality of the portion of the copyrighted work taken and whether that amount was reasonable in relation to the purpose of the copying. Mackie filed one registration for the several Dance Steps on Broadway sculptures with the United State Copyright Office. (http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?v1=2&ti=1,2&SC=Author&SA=Mackie%2C%20Jack%2C%201946%2D&PID=DrhimXv0qR34QHdIdM7aY3B6hGFO&SEQ=20110801120756&SID=3) (What I believe to be) the infringing photograph uses merely a blurred out portion of one of these sculptures.(http://seattlest.com/2011/07/09/a_quiet_seattle_lawsuit_settlement.php

*All images were added under fair use.  This is a noncomercial, educational post.

“This Video contains content from a Sony ATV Publishing. It is restricted from playback on certain sites. Watch it on youtube”

Sony… what are you thinking?
viral = good
restricted payback /= viral
Okay Go left EMI over this!
By putting restriction on a video like this your are making it tougher for people to give you free press.

Beyond that the video remix/parody here is likely fair use and the restriction equals more then just bad policy it equals censorship.

Thanks Game Girl ESQ for sharing these videos!

For the cover of the album he had someone remix the original cover art to turn it into an 8 bit version.

The original cover art was based on a photo Jay Maisel.  For remixing Jay Maisel’s photo, Andy was hit with a copyright suit asking for $150,00 per infringement plus legal fees. To put this in context the project only cost 2k to license all the music involved and to create the tribute. Andy also explicitly stated that the whole project was being done for fun and that he was not keeping the proceeds:

To create this album, I hope to raise $2,000 to pay royalties, pay the artists, and print CDs. Legally releasing cover songs requires paying mechanical licenses to the song publishers through the Harry Fox Agency, totaling about $420 for every 250 downloads and a $75 processing fee. I’ll be using the remainder to print a very limited run of CDs for Kickstarter backers, and split the rest evenly among the five musicians for their painstaking work. (This is a labor of love for me, so I won’t be keeping a dime.)

This was basically a noncommercial venture made at cost.

When you look at the legal threat asking for 75x the cost of production it is clear that the legal threats were not about a fair license agreement, but about controlling art. When faced with these legal threats Andy decided settled out of court for $32,500 and Andy is “unable to use the artwork again” as part of the settlement. Read that again, this is not a 32k license agreement. This is a 32k penalty, that comes with a censorship agreement. The settlement is 4x the total that was brought in by the kick starter to fund the whole project and is extremely troubling for three reasons:

• The remixed cover art is likely a transformative fair use and should not have to be licensed - Andy does a good job of making the transformative point in is post, and pointing out that fair use.
• Licensing an image for remix is very difficult as there is no compulsory license mechanism. Fred Beneneson makes this point well in -There’s No Such Thing as a Compulsory License for a Photo

• Copyright is being used here as censorship not at a way to encourage new works to be created. This is where I am joining the discussion.

The most disturbing part of Andy’s post was the reaction to the 8 bit art work cover by the photographer:

And it’s worth noting that trying to license the image would have been moot. When asked how much he would’ve charged for a license, Maisel told his lawyer that he would never have granted a license for the pixel art. “He is a purist when it comes to his photography,” his lawyer wrote. “With this in mind, I am certain you can understand that he felt violated to find his image of Miles Davis, one of his most well-known and highly-regarded images, had been pixellated, without his permission, and used in a number of forms including on several websites accessible around the world.” (emphasis added)

Remix art work that is disturbing to the original artist is just the type of art work that needs to be protected by fair use!  Fair use is the codification of the free speech in the copyright act.  Disturbing transformative art work that targets the original work has a stronger fair use claim if it is criticizing the original work, ie parody.  Now this is not a typical case of parody as the remixer here likes the original work, but it bares several similar aspects with regard to how the artist reacts and the art5ist unwillingness to license at any price.

When one can not license to create art work we must have an exception or copyright becomes a blunt instrument of censorship.

This is the third another example of a remix case that has gone horribly wrong for remix artists.

• AP v.  Shepard Fairey for basing his famous Obama Hope poster on a news photo. (Fairey faked evidence harmed the fair use claim)
• JK Rowling  v. RDR – Lexicon ruled not fair use, never appealed

One Thing to learn from all of these cases though is that the law fails to kill remix culture.  Even with Fairey’s bad faith the court pushed for a license over censorship.  In the case of RDR books the unauthorized lexicon is on the book self just in an a shorter version.

In the case of Jay Maisel photo the threats only served to more widely distributed the work he was trying to suppress.  The remix has even been transformed into a vector graphic, enlarged and placed across his home.

Appropriation artist targets Jay Maisel

Thanks to:

Students for Free Culture, for bring this issue up

Jennifer Sanchez, 3L @ Seattle University Law, for legal research for this post.

Closing thought:
“A parodist need not demonstrate that the copyright owner would prohibit the use in order to qualify the copy as fair use under Campell.” Leibovitz v. Paramount Pictures, 137 F. 3d 109, 115, C.A.2 (N.Y.), 1998.

We need the same rights for remixer, even if they love the art they are remixing!

Edit: title changed to Jay Maisel: Copyright Misused as Censorship

No mention of free speech or the value of critical commentary.  Even mash-ups and remixes are slammed. Who wrote this a room full of  RIAA advocates that took the heart of youtube (remix and memes are the heart not some mythical unicorn called purely original content) and reduced that heart to a poorly written law review article footnote…

I would love to see a remix oft his video that takes the copyright trolls and warns them that sending takedowns without considering fair use may cause them to lose fans, with key phrases like the first amendment, free speech, censorship, everything is remix and building on the shoulders of giants.

Shared by Public Knowledge.

Hear is an idea:  How about a remix challenge.  I am willing to offer a free lunch to best remix of this video that incorporates the values of remix and free speech while educating people on there rights.  Upload a remix and tag it with remixCopyrightSchool or post a link in the comments or email me Brian@BrianRowe.org to be considered.  I will judge the results on April 30th and post the winner May 1st.  (If you are outside a city I am in this summer I will send you $  to buy lunch)

Update: the copyright school has a video that tries to explain fair use and it is terrible.  Bad 70′s music. Lots of legal ease. The recommendations are use the public domain or write original content.  Pardoy is mentioned once, but never explained.  It reads like a lawschool text book with no concrete examples.  I the video is design to confuse and encourage people to get a lawyer. It even tells people to go to the copyright office to find the rights holder then go buy insurance and permits.  This is licensing not fair use.

The film is aimed at professional film makers and is useless for 99% of you tube users. (the only bright spot is they mention the American University’ Center for Social Media which has much better resources)

PS I was divided on what to offer as a prize as I do not want to make the challenge commercial and endanger your fair use claim.

The key right is a right of publicity or a commercial endorsement right along the lines of misappropriation.

It troubles me how we are seeing more copyright claims regarding political speech with few free speech counter arguments. If the song were used in a car commercial that is clearly an issue, but political speech should have a stronger free speech argument.

We are creating a dangerous social norm here that limits political speech which is at the core of free speech.

Thanks Denise Crouch for point this out at www.patentlyo.com/patent/2011/04/copyright-versus-free-speech.html

You can read the whole opinion here:

SUPREME COURT OF THE UNITED STATES
No. 08–1423
COSTCO WHOLESALE CORPORATION, PETITIONER v. OMEGA, S. A.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[December 13, 2010]
PER CURIAM. The judgment is affirmed by an equally divided Court.
JUSTICE KAGAN took no part in the consideration or decision of this case.

That is it! The block quote is the whole thing we do not even know who voted how or why…. I do not know what else to say, the court passed on a really important case that affects copyright distribution, owner rights, and international imports.

In the case take note of the term PER CURIAM it is very important (from wikipedia with minor edit by me under cc-by-sa):

a per curiam decision (or opinion) is a ruling issued by an appellate court of multiple judges in which the decision rendered is made by the court (or at least, a majority of the court) acting collectively and anonymously.^[1] In contrast to regular opinions, a per curiam does not list the individual judge responsible for authoring the decision,^[1] but minority dissenting and concurring decisions are signed.^[2]

Per curiams are not the only type of decision that can reflect the opinion of the court. Other types of decisions can also reflect the opinion of the entire court, such as unanimous decisions, in which the opinion of the court is expressed with an author listed.^[3] The Latin term per curiam literally means “through the court”.

This means that the court is not making a ruling that clarifies or speaks to the issues brought up.

This brings up two big issues why such a short decision and what is the impact.

1) Why the court passed?

This is pure speculation, but I thing it has to do with New York.  The Southern District of New York has 4 case currently under consideration on this issue:

John Wiley & Sons, Inc. v. Kirtsaeng, argued on May 19, 2010.

Pearson Education, Inc. v. Liu, petition for leave to appeal deferred pending resolution of Kirtsaeng.

Pearson Education, Inc. v. Arora, briefed, oral argument on January 12, 2011.

Pearson Education, Inc. v. Kumar, not yet briefed

2) What is the impact? This is a big setback for American retailers and consumers. Given that the ruling in the 9th circuit (the west coast) stands importing good could now make you liable for copyright infringement even if you legal own the goods. In areas of the country this is unsettled law and we will not know how it work till we have litigation.

More about costco v. omega w/ court filings and New in IP video explaining Costco v. Omega in plain English.

2. How Many Individuals or Web Sites Have Been Suspended? The legislation was passed on April 22, 2009 and came into force on July 24, 2009. By the end of July 2010, there has been no suspension against an individual user or a web site by the order of the Minister. However, the Copyright Commission has recommended ISPs to suspend accounts of copyright infringing users in thirty-one cases, and all of the individual users have been disconnected to the corresponding ISPs for less than one month. Recommendations by the Copyright Committee (Source: Report of the Minister to the National Assembly, September 2010)

Recommendations by the Copyright Committee (Source: Report of the Minister to the National Assembly, September 2010)
	Warning	Deletion or Blocking	Suspension of User Account	Total
July 2009	0	0	0	0
August 2009	0	0	0	0
September 2009	2,701	2,524	0	5,225
October 2009	3,750	3,650	0	7,400
November 2009	3,694	3,552	0	7,246
December 2009	2,275	2,248	0	4,523
January 2010	2,555	2,500	0	5,055
February 2010	2,518	2,444	0	4,962
March 2010	3,170	3,128	0	6,298
April 2010	3,520	3,505	8	7,033
May 2010	2,837	2,828	11	5,676
June 2010	3,387	3,383	0	6,770
July 2010	2,471	2,447	12	4,930
Total	32,878	32,209	31	65,118

Compliance by ISPs with the Commission’s Recommendations
Recommendations	Compliance	Non-Compliance (by only one ISP)
65,118	65,078	40 (Warning: 20 / Deletion or Blocking: 20)

One of my many problems with this law are the due process concerns, Heesob Nam sums these up well with regard to commission actions:

Unlike the suspension by the Minister’s order, a suspension by the Copyright Commission’ recommendation can be made without requiring that the unauthorized reproduction or transmission takes place at least three times. Nor is required a prior notice. When the Copyright Commission determines the user’s unauthorized activity being repeated, the Commission may recommend the corresponding ISP to suspend the user’s account. In this regard, the suspension by the Commission’s recommendation is neither a three-strike rule nor a notice-suspension system. The Korean government also does not call this a three-strike rule. But the reason is quite different. It is not a three-strike rule because the suspension is a voluntary measure taken by an ISP (See page 7 of APAA Annual Report 2009 (Korea)).

Read the full report: Facts and Figures on Copyright Three-Strike Rule in Korea