White Paper on Remixes, First Sale, and Statutory Damages

The Internet Policy Task Force’s White Paper on Remixes, First Sale, and Statutory Damages (White Paper) was published on January 28, 2016.

In the report, the Task Force summarizes the comments and testimony received from stakeholders and sets forth its conclusions and recommendations on three important copyright topics:

the legal framework for the creation of remixes;
the relevance and scope of the “first sale doctrine” in the digital environment; and
the appropriate calibration of statutory damages in the contexts of individual file sharers and secondary liability for large-scale infringement.

The White Paper recommends amending the Copyright Act to provide both more guidance and greater flexibility to courts in awarding statutory damages by incorporating a list of factors to consider when determining the amount of a statutory damages award. In addition, it advises changes to remove a bar to eligibility for the Act’s “innocent infringer” provision, and to lessen the risk of excessive statutory damages in the context of non-willful secondary liability for online service providers. The report also notes that some concerns raised about damages levels in cases against individuals could be alleviated if Congress were to establish a small claims tribunal with caps on damages awards.

With respect to remixes and the first sale doctrine in the digital environment, the report concludes that the evidence has not established a need for changes to the Copyright Act at this time. The Task Force makes several recommendations, however, to make it easier for remixers to understand when a use is fair and to obtain licenses when they wish to do so. It also recommends the development of best practices by stakeholders to improve consumers’ understanding of the terms of online transactions involving creative works. Finally, it notes the need to continue to monitor legal and marketplace developments to ensure that library lending and preservation concerns are addressed.

In making its recommendations, the Task Force was mindful of the need to protect copyrights effectively while also promoting innovation on the Internet.

Additional Information:

Background:

In July 2013, the Department of Commerce's Internet Policy Task Force (Task Force), led by the United States Patent and Trademark Office (USPTO) and National Telecommunications and Information Administration (NTIA), issued a green paper (link is external) on Copyright Policy, Creativity and Innovation in the Digital Economy (Green Paper). The Green Paper was intended to serve as a reference for stakeholders, a blueprint for further action, and as a contribution to the digital copyright debates.

The Green Paper identified the following topics on which the Department would conduct more work:

the legal framework for the creation of remixes;
the relevance and scope of the first sale doctrine in the digital environment;
the appropriate calibration of statutory damages, in the contexts of individual file sharers and of secondary liability for large-scale online infringement;
improving the operation of the Digital Millennium Copyright Act’s (DMCA) notice and takedown system; and
how the government can facilitate the further development of a robust online licensing environment.

On the first three issues identified in the Green Paper—remixes, first sale in the digital environment, and statutory damages—the Department of Commerce hosted roundtables in four cities, following the 2013 Public Meeting and the Public Comments.

2014 Roundtable Information

Transcripts and additional information about the roundtable events are found below:

2013 Public Meeting

Public Meeting on Copyright Policy, Creativity, and Innovation in the Digital Economy (December 12, 2013)

Public Comments

2013-14 Public Comments on the 2013 Green Paper