Author Archives: Rick Gell

DMLA Google Images Survey Results

The DMLA is publishing the initial results of our first Google Images Survey in anticipation of our 24th Annual DMLA Conference in LA. With our members representing over 80% of North American image and video licensing, and more than a third of our respondents C-level executives, the survey will provide the DMLA with data and member consensus to guide future engagement, advocacy and educational efforts.

Here are some of the key initial takeaways from the survey – 

The strongest consensus dealt with watermarks, with 85% of respondents wanting Google Images to either display a generic watermark or a watermark chosen by the source, at their option. Sixty percent of respondents felt the current “Usage Rights” pull down, currently with five options – Not filtered by License, Labeled for reuse or reuse with modifications, non-commercial reuse or non-commercial reuse with modifications –  was not so helpful or not helpful at all. Respondents were evenly split on the core rights message provided by Google Images with the higher resolution results “Images may be subject to copyrights (Learn More) – with approximately 50% satisfied or very satisfied, and 50% unsatisfied, very unsatisfied or wanting the rights line to be generated by the source. 

Sixty percent of respondents would like to see an additional field noting whether a licensable image was either Royalty Free or Rights Managed, and would prefer to provide their metadata directly to Google Images than having Google scrape the web, or require them to supply metadata according to a proprietary schema.

Fully 40% of respondents with knowledge, were allocating more resources to Image search and SEO, suggesting it is becoming a more important source of discovery and lead generation, and 40% believe there could be more transparency on criteria for rankings and SEO. 

The Google Images product team wants to work more closely with the DMLA and the licensing community, and now with information in hand, the DMLA Google Working Group will begin to craft and propose alternatives to provide more rights clarity for users. 

In the coming weeks, our friends at CEPIC will survey their members, with some additional questions geared to the European market. The DMLA will dig deeper into the survey and report more detailed results with responses filtered by size of licensors and role of respondents. The DMLA, along with CEPIC and the IPTC look forward to working cooperatively with Google Images to better guide users to publishers and licensors of images and videos. 


DMLA 24th Annual Conference to feature sponsors Google & PicRights and Opening Keynote Stan Pavlosky, Pres., Shutterstock

DMLA Conference

The Digital Media Licensing Association’s Navigating Disruption program is set in Marina Del Rey this October 27 – 29, 2019, as industry leaders network and learn how to profit and grow in content licensing.

Contact: Rick Gell


NEW YORK, Sept. 20, 2019 /Press Release/  —  The 24th Annual DMLA Conference will focus on “seizing the opportunity” as the content-streaming arms race generates more visual media production and visual content licensing – than ever imagined. 

The program will include 2 Keynotes, 6 full sessions and 15 roundtables delving into new technologies, sales and marketing strategies, hot legal topics, deep-dive educational opportunities and successful new business models, with all-day networking and evening events sponsored by Google and PicRights. 

On Monday, Stan Pavlovsky, Shutterstock’s new President and COO, kicks off our conference with a high-level look at how changes in technology and the economy are affecting the licensing community. On Tuesday, Chad Newell, Snapwire’s CEO explores the universe of on-demand custom production platforms and how technology transformed the space, driving a growing need for wholly-owned and exclusive content. 

Featured morning sessions will include: Speaking of Disruption: Free Content with Pexels and Unsplash’s #1 photographer; Trusted Content with executives from Getty Images, Vice News, SIPA  and Turner Broadcasting; Practical AI with IBM, Google Cloud, Imagga and CloudSight; Achieving Authenticity and Personalization with Adobe, Alamy and Hawke Media; Hot Topics in Legal with Shutterstock, Stocksy, CDAS and Dipchand LLP; and Google Images Update with Product Lead Francois Spies and Global Head of Partnerships Micheal Librizzi.

Each afternoon will feature three simultaneous roundtables and presentations where attendees can dig deeper into morning topics, learn new sales strategies, explore emerging tech, artist relations,or key IP issues and challenges. Topics include: Public Domain is Back; EU Copyright Directive Affects Everyone, Everywhere; Communicate Your Value Proposition and Obtain Market Value Pricing; Ready for VR? Use Cases for Immersive 360%; Copyright Enforcement Tales from the Trenches; How to Conquer Video Metadata; Platforms and Search: European and News Publisher Perspectives; Copyright Registration – Now More Than Ever, Keeping Creators Happy and Engaged and Embedding Ad-Supported Content. 

Senior executives of DMLA’s market leaders, including Bob Ahern, Director of Getty Images Archive, Candice Murray, VP Global Editorial Business Development at Shutterstock and Amanda Perrot, Senior Legal Counsel at Adobe, will be joined by Danielle Coffey, SVP, News Media Alliance, Sabtain Khan, Lead Product Manager, IBM Watson Visual Recognition, Alfonso Gutierrez, President of CEPIC and Jeff Goodman, President of Producers, one of LA’s oldest libraries. 

Leslie Hughes, VP of DMLA and this years Program Director assembled an expert curatorial program team that included Thomas Smith, CEO, Gado Images, Bruce Pales, CEO, 360Cities,  Christina Hawatmeh,  CEO, Scopio,  Joe Naylor, CEO, ImageRights International, Michael Masterson, CEO, Permission Machine and Nancy Wolff, DMLA Senior General Counsel who crafted our ever-popular legal sessions. 

The conference entertainment will include PicRights-sponsored Opening Reception at the Marriott, Marina Del Rey Bayview Ballroom, A History of Los Angeles in 100 Images presentation by historian Paul Ayers, Google-sponsored Cocktail Reception on Monday and Tuesdays’ Celebrate Cathy – to thank retiring Executive Director Cathy Aron, who transformed PACA, the 50-year-old image-agency trade association into today’s DMLA – whose members license images, video, motion graphics, audio and templates for millions of content creators worldwide. 

About DMLA:

We are the trade association for content licensors, their partners and the creators they represent. We advocate, educate and build community. At our annual conference, the DMLA promotes the interests of the media licensing industry and works to develop best practices and ethical business standards; actively advocates copyright and intellectual property protections; and explores hot topics, trends and business models in licensing.


Pixsy acquires blockchain-based copyright platform

The acquisition will deliver streamlined international copyright registration and image protection services to a wider community of photographers, artists, and designers

SAN FRANCISCO, Sept. 10, 2019 /PRNewswire/ — Pixsy, Inc. announced today that it will acquire blockchain-based copyright registration platform, strengthening its image protection offerings for a wider community of users (terms of the transactions were not disclosed).

The acquisition bolsters Pixsy’s market-leading position in image protection and gives the Binded community access to Pixsy’s full suite of copyright management tools, including Register, Monitor, Resolve, and Takedown.

The Binded community can now make use of international copyright registration and legal support, including recovering compensation and resolving infringement cases around the world with Pixsy’s network of copyright experts and partner law firms spanning North America, Europe, and Asia Pacific.

Binded (formerly Blockai) was the first to bring blockchain-based image rights registration to its community of creatives in 2017. Since then, they have grown to over 15,000 members offering simple blockchain copyright registration. Binded planned to offer registrations with the United States Copyright Office (USCO) in the future, given it’s the tried and tested way to ensure rights are protected and damages can be recovered if copyright infringement occurs.

“We are thrilled to welcome the Binded community to the Pixsy platform and believe they will benefit from the additional rights protection and enforcement tools that Pixsy has to offer. Our service delivers the proper level of legal protection that photographers deserve, empowering them to protect their images through comprehensive copyright registration and image monitoring technology,” said Pixsy CEO, Kain Jones. “Access to legal protection and support shouldn’t be complex and expensive, and this acquisition strengthens our offering to a wider community through a robust suite of tools and services.”

Binded CEO Nathan Lands stated: “Starting off in 2017 with our mission to democratize copyright, we’ve made it easier for creatives to take back control of their work by registering their images. Our goals align perfectly with Pixsy’s mission to fight for the rights of artists, and we’re glad our users can have greater access to legal protection through Pixsy’s international network of copyright experts and law firms. We want to thank our amazing community for their support and are excited for this next chapter.”

Binded’s plans for an USCO service integrate well with Pixsy’s rollout of the first international copyright registration service for the image industry. Pixsy recently launched major improvements to its Register product, with a streamlined process that enables rights holders to register with copyright bodies across multiple legal jurisdictions in one simple form. Pixsy’s expert copyright team manage the process end-to-end, offering up to 750 images per bulk registration, a fresh interface and easy-to-use dashboard, and new integrations with the United States Copyright Office (USCO), Canadian Intellectual Property Office (CIPO), Copyright Protection Center of China (CPCC) and Indian Copyright Office.

Recent developments in the US have meant that rights holders must have a USCO registration before they can pursue a litigation case, following a ruling in Fourth Estate Public Benefits Corp. v.

With 68% of images being used in the US*, regardless of where in the world a photographer lives, it’s important that they legally register their images with USCO to enjoy the protections and statutory damages this can afford if a case goes to litigation. When an infringement does occur, rights holders of registered images are entitled to up to US$150,000 in statutory damages per image for willful infringement.

Pixsy plans to increase its offerings to the photography industry following this acquisition, developing new image protection and copyright management features with the needs of creatives in mind. 2019 continues to be a year of growth for Pixsy, after announcing a strategic partnership with Flickr, which offers Flickr members a fully integrated end-to-end solution to monitor and protect their images with Pixsy.

Binded’s platform will close on September 30th, 2019, with users transitioning to the Pixsy platform. Pixsy will maintain current registrations made by Binded users through the blockchain. Binded users will receive more information directly by email.

* Based on internal Pixsy match data.

About Pixsy:
Founded by photographers in 2014 to fight for the rights of artists and photographers, Pixsy is an award-winning legal-tech service for online image protection and copyright enforcement. Actively protecting the images of photographers, agencies, artists, and illustrators, their pioneering AI-powered solution has uncovered more than 250 million image matches. This 24/7 image monitoring solution is coupled with an expert case resolution service that recovers lost revenue for creatives. Pixsy partners with 26 law firms across the world and has handled 75,000 copyright infringement cases.

Pixsy is the only service to offer international copyright registration, enabling users to register their images with multiple government bodies in one simple form.

About Binded:
Founded by Nathan Lands and Oli Lalonde in San Francisco in 2017, Binded (formerly Blockai) makes it easy for creators to protect their images. With its unique blend of integrations with the United States Copyright Office, Instagram and Twitter, Binded’s mission is to democratize copyright and make creativity the world’s most valuable asset. Backed by Sterling.VC, Social Starts and Vectr Ventures, angel investors Scott and Cyan Banister (IronPort, PayPal) and Brian Cartmell (Creator of Spam Arrest), Binded was the first to bring blockchain-based image rights registration to the creative community.

Pixsy, Inc.
Rebecca Burgess, +1 (323) 284-9404 (ext 518)

SOURCE Pixsy, Inc.

Case Act Unanimously Passes House Judiciary Committee

The CASE Act (Copyright Alternative in Small Claims Enforcement) took another critical step towards becoming a law as the House Judiciary Committee passed the bill unanimously. The law is ready now for a full vote by both chambers of Congress. The support in Congress has been bipartisan, along with a wide swath of the publishing and content licensing industry.

According to Ed Christman at Billboard “Industry sources say they are hopeful it will come to a full vote in both legislative arms before the October recess.” With the Senate Judiciary Committee passing the bill out of committee on July 19th, this would be a swift conclusion to a law the DMLA and other industry advocacy groups have been working towards for a very long time.

To learn more about the CASE Act please read the DMLA CASE Act Q & A with our Senior Legal Counsel Nancy Wolff.

Our friends at Copyright Alliance provide additional detail on the level of support in Congress.

If you want to immerse yourself, dive into the American Society of Media Photographers’ CASE Act Central with a blow-by-blow account of the bill’s progress.

You can also watch the entire mark up session of the House Judiciary Committee on YouTube. The bill is addressed starting at the 8:26:25 mark in the video.

And of course, there are the current House and Senate versions of the bill itself.

Happy watching and reading.

Hopefully, there will be a bill to celebrate at our DMLA 24th Annual Conference this October in LA.


State Rights and Copyright Q & A – Allen v Cooper  

Rick Gell, interim Executive Director of the DMLA back again with our Senior Legal Counsel Nancy Wolff of CDAS. Welcome back Nancy.

We have a ruling in Allen v Cooper heading to the Supreme Court in November, and once again, realize how much there is to learn about copyright law. Nancy, to start, what the hell do state rights and state sovereignty have to do with copyright law?

Well Rick, according to case law, the 11th amendment gives states immunity from damages under copyright.

 If State Sovereignty is applied to copyright, how broadly does it affect copyright holders?

State sovereignty means that states are exempt from being liable for monetary compensation for infringing copyright. This immunity could have a significant impact on content creators and their licensing representatives as states use content in many of their operations. States create many publications through university presses, and create many materials, online and in print. This disregard for copyright means that states can use works with impunity with little risk of a legal action. Most content owners will not bring a claim to just “stop” a work, as litigation is too expensive to merely achieve an injunction. This erodes the licensing model.

 Ok, so now, let’s unpack what the courts recently ruled in Allen v Cooper?

 In Allen v. Cooper, the Fourth Circuit reversed the Eastern District of North Carolina’s holding that photographer/videographer Frederick Allen was entitled to sue the State of North Carolina for allegedly infringing his copyrights.

Allen, and his production company Nautilus Productions, were the exclusive photographers of the shipwreck of Queen Anne’s Revenge since 1998. In 2013, Allen found out the State had been using his videos online without permission. Although he entered into a settlement agreement, requiring the State to pay Allen fees for the use of the photographs/video, the State continued to use his works after the agreement without compensation. In addition, the NC government passed a law making all photographs and video material of shipwrecks in the custody of North Carolina a public record and available for use without limitations, essentially placing them in the public domain.

Allen filed an action for declaratory judgment, arguing the NC statute violates the “Takings and Due Process” clauses of the Constitution.

Time out. Sounds like we have conflicting laws here. Can you explain the Takings and Due Process clause in the Constitution?

The Fifth Amendment to the U.S. Constitution limits the power of the Federal Government of the United States by saying that “no person shall be deprived of life, liberty, or property, without due process of law.” And “nor shall private property be taken for public use, without just compensation.”

Due process means that a person is entitled to the fair administration of justice and the government cannot take, in this instance “property” in the form of photographs, without a fair hearing, and the takings clause prevents the government from taking property without compensating the owner.

And what did North Carolina have to say about Allen invoking the Taking and Due Process clause?

NC also argued the Copyright Remedy Clarification Act did not waive state sovereign immunity, and that individuals were precluded from suing states for copyright infringement. After the lower court found for Allen, the State appealed to the US Court of Appeals for the Fourth Circuit.

The U.S. Court of Appeals for the Fourth Circuit held that the Copyright Remedy Clarification Act does not validly abrogate Eleventh Amendment immunity from Copyright Damages. This decision is being appealed and the Supreme Court agreed to hear the case. The case will be heard on November 5, 2019.

My head is spinning. The Constitution says States have sovereignty, and people have rights in their property, and there is yet another law that specifically addresses Copyright as an exception to state sovereignty – and that is the Copyright Remedy Clarification Act?

 The Copyright Remedy Clarification Act (CRCA) is a United States copyright law that attempts to abrogate sovereign immunity of states for copyright infringement. The CRCA amended 17 USC 511(a):

In general. Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity, shall not be immune, under the Eleventh Amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal Court by any person, including any governmental or nongovernmental entity, for a violation of any of the exclusive rights of a copyright owner provided by sections 106 through 122, for importing copies of phonorecords in violation of section 602, or for any other violation under this title.

 So, if there is a law that specifically carves out copyright from state sovereignty, how is NC even making a case?

The court said that Congress did not have the authority under the Constitution to abrogate  the states’ sovereign immunity and would not enforce the Copyright Remedy Clarification Act. 

What about the additional law stating all photos and videos of shipwrecks in custody of North Carolina Public Record couldn’t be copyrighted?

After the lower court held that Allen could sue NC  for copyright for using his images of the shipwreck, North Carolina state lawmakers passed §121-25(b) —which treats all photographs, video recordings and other documentary materials of a derelict vessel or shipwreck or its contents as “public record.”  Allen called it “Blackbeard’s Law”.

Lastly, the DMLA is part of a group of visual arts organizations who help cover costs for filing and printing the Amicus Brief, correct?

 Yes, we call ourselves the Coalition of Visual Artists, and the group includes the Copyright Alliance, APA, ASCRL, ASMP, Graphic Arts Guild, NPPA and PPA.

 I can’t help myself, here is a little plug. You will be participating in the 24th Annual DMLA Conference in LA October 27-29 – as part of the Hot Topics in Legal  session with other big IP guns in the licensing industry – correct?


Can we go now? 




End of Summer Update – Our 24th Annual Conference in LA

While you’ve been chilling on the beach, we’ve been curating our Program….

A battle to rival Infinity Wars lies ahead with Netflix, Disney, Apple, Amazon, Google, Facebook, Comcast, AT&T and ViacomCBS spending more money on more visual content than ever seemed imaginable!

Our sessions will focus on the big issues – from Free Content to Trusted Sources to Image Search to Practical AI to the growing call for Authenticity and Personalization in content.

Our keynote speakers Stan Pavlovsky, President of Shutterstock and Chad Newell, CEO of Snapwire, will dig into the strategic market opportunities ahead.

Our speakers from Adobe, IBM, Getty, Turner, Shutterstock, Vice News, Pond5, Google – plus 40 more senior-level licensing executives and thought leaders – will engage in 6 lively sessions and 15 deep-dive roundtables over two days, along with networking at the Marina Del Rey Bayview Penthouse overlooking the Pacific Ocean. 

Our ever-popular Hot Topics in Legal, where senior legal counsels dissect the Case Act, EU Directive and the latest on privacy and publicity law is sure to generate some heat.

Our great sponsors led by Platinum Sponsor PicRights, along with Shutterstock, ImageRights, CDAS, Picha, Oodls, Smartframe and Capture – make it all possible.

And did we mention – VR 360? Copyright Enforcement Best Practices? Keeping Creators Happy? Video Metadata? Ad-embeds? The Return of Public Domain?   

Check out the entire schedule here..

Now, back to the BBQ.


Artist v. Artist

The Andy Warhol Foundation for the Visual Arts, Inc. v. Lynn Goldsmith Et. Al.

Fair Use broadens in Artist Works

A recent court decision in the Second Circuit solidified the expanding and evolving scope of fair use in appropriation art, showing that obtaining a license to use other copyrighted works as artistic inspiration is not always necessary. In the opinion, published on July 1, 2019, Manhattan Federal Judge John G. Koeltel held that Andy Warhol’s use of a photograph of Prince as “source art” is fair use and requires no license, credit or compensation to the original photographer.

Original Warhol works

The history of the case is as follows. In 1984,Vanity Fair obtained a $400 license from celebrity photographer, Lynn Goldsmith, to supply her portraits of Prince as source art to another artist for one of their upcoming articles, none other than Andy Warhol. Warhol took the portraits Goldsmith had taken of Prince years prior and used them as inspiration to create sixteen new works – twelve silk-screen paintings, 2 screen prints on paper, and 2 drawings. In classic Warhol fashion, the works cropped the original photo and added bright, unnatural coloring to Goldsmith’s black and white originals. One of the pieces was chosen to accompany a Vanity Fair article about Prince titled “Purple Fame,” and the magazine included a small source credit to Goldsmith.

Above: Goldsmith’s portrait; 1984 Vanity Fair article 

When Prince passed away in 2016, Vanity Fair republished the Warhol work; this time, without a license and without giving credit to Goldsmith. According to Goldsmith, it was not until this 2016 republication that she became aware of the Warhol works based on her photograph. Soon after, Goldsmith notified the Andy Warhol Foundation (AWF), which manages Warhol’s works, sharing that she believed there had been an infringement of her copyright. In disagreement, AWF filed a motion for declaratory judgement that the Warhol works do not constitute copyright infringement under the affirmative defense of fair use. She counter-sued for infringement.

Vanity Fair 2006 reprint of Warhol’s work

According to Goldsmith, her black and white portraits were intended to capture Prince’s vulnerability and demeanor as “not a comfortable person.” Meanwhile, the court found that the Warhol works transforms Prince “from a vulnerable, uncomfortable person to an iconic, larger-than-life figure.” Such transformation is essential to the outcome of this case.

To analyze a fair use defense and allow for circumvention of traditional copyright requirements, courts will balance the following factors (The Copyright Act of 1976, 17 U.S.C. §107):

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

In the decision, Judge Koeltel emphasized that the more transformative a work is, the less important each factor becomes and the more likely it is that a work is covered by fair use. In this case, the purpose and character of Warhol’s work was to accompany a commercial article discussing Prince’s fame – not his vulnerability. The purpose of the work was so transformed that the works are not substantially similar or likely to be confused. Similarly, although substantial use of an original can weigh against a finding of fair use, the court emphasized that a transformative work, by nature, needs to copy a substantial amount of the original in order to transform it, justifying Warhol’s substantial use of Goldsmith’s work as source art.

Ultimately, while the Warhol works in this case merely cropped and added colors to Goldsmith’s original portrait, the court found that the overall result was transformative such that there was no copyright infringement issue. Giving rise to public controversy, the court also considered factors outside of fair use, such as the public benefit of having access to Warhol’s works and the fact that Warhol’s works are immediately recognizable as his own.

Fair use is decided on a case by case basis, no two cases are alike. How one judges whether a use is transformative and non-infringing or derivative and infringing can be a close call. It is helpful in comparing works to consider the following. Is the purpose of the final product or project similar to the original? How much of the copyright-able elements (e.g., lighting, positioning, imagery, etc.) of the original will be retained? Would the other work create legitimate and direct market competition to the original work, including a license for a derivative? If the new use is a work of visual art and does not retain much of the underlying copyright-able elements of the original, it is likely that the use will be considered transformative and non- infringing, especially if created by Warhol.


To read the full case, see:


Case Act Takes Big Step Forward

June 24, 2019 — DMLA board member Rick Gell, spoke briefly with Nancy Wolff, DMLA’s Senior Legal Counsel, who has been in the trenches fighting for the CASE Act on behalf of our content licensing community. The Case Act just took a big step in Congress.

Nancy, briefly, what happened last week?

The Case Act was marked up by the Judiciary Committee of the Senate and will now move to the full Senate. We are still waiting for the House Judiciary Committee to mark up a similar bill.

I know a thing or two about IP Law, but nothing about Small Claims Courts. Can you provide a little background?

Because copyright is a federal law, copyright disputes can only be resolved in federal court, which is an expensive forum for the typical disputes involving the misuse of images and video. Just to start a claim, the filing fee is $400 and you need to use an experienced federal court attorney. Litigation can cost hundreds of thousands of dollars. Small claims courts most people are familiar with cannot be used because they are only for claims that can be brought in state court.

The UK established a copyright Small Claims Court in 2012 which is dedicated only to copyright cases. What is being proposed in Congress is to have claims of relatively lesser value resolved by a special tribunal at the Copyright Office. You would not need to have a lawyer and the claims could primarily be resolved on paper or by telephonic calls, without travel expenses.

So, if I understand this correctly, in a proposed copyright small claims court, both parties agree to appear before this tribunal and wave a trial by jury, therefore it is “voluntary”?

Yes. You can bring a claim in the copyright Small Claims Tribunal, and the other side can agree to use the tribunal or “opt out”. If the other party opts out, it can still be sued in federal court.

It creates a new pathway for those who allege their copyright has been infringed and those who are facing a claim of infringement. If your copyright claim is less than $15,000 for each instance, $30,000 in total – you are eligible.

When did the idea of using a Small Claims Court for IP start?

Many of us, including myself, have worked on enacting a copyright Small Claims Court for over ten years. The Copyright Office began studying this issue, conducted hearings and wrote a report in September 2013 recommending a separate copyright tribunal. The DMLA has been working with a coalition of associations of visual artists for many years, as well as the Copyright Alliance, Songwriters Guild, Authors Guild and many others, meeting with Congress and encouraging grassroots efforts by members to obtain sponsors for the CASE Act in both the House and Senate and to ultimately get this bill passed.

Who will the judges be?

The US Copyright Office will create a panel of three officials, who are experts in copyright law to oversee the process. This should encourage registration as there may finally be an affordable venue for enforcement.

There has been some recent opposition, primarily from the Electronic Frontier Foundation about encouraging copyright trolls. Can you speak to their concern?

The CASE Act in both the House and Senate have precautions against abuse and excessive filings. Creators are entitled to enforce copyright when their works are infringed. The use of the terms copyright troll is often misused and attributed to anyone trying to enforce copyright. Courts have generally reserved this term for attorneys who file a high volume of cases without trying to settle first, in order to obtain higher fees than are reasonable. It is not likely these attorneys will participate in this tribunal. If creators have a viable option, they can bring standard copyright claims in this tribunal without attorneys.

As the tribunal is optional, the EFF should not have any concerns as anyone can elect to opt out. The EFF often portrays copyright infringement as infringing on free speech, without properly recognizing copyright owners legitimate right to control the use of their works. The DMLA and our members are strong supporters of free speech and the Copyright Act provides limited use without permission under the fair use doctrine in keeping with the First Amendment. Copyright enforcement and free speech are not mutually exclusive and copyright infringement is not equivalent to censorship.

What is the next step?

When the full senate returns from vacation, hopefully Mitch McConnell will bring the measure to the floor for a full vote. Then on to the House.