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Devlin Hartline

is Legal Fellow at the Hudson Institute’s Forum for Intellectual Property in Washington, D.C. His research agenda spans a broad spectrum of doctrinal and political issues in intellectual property law, with particular focus on advancing and protecting the rights of creators and innovators.

Recent Articles by Devlin Hartline

The Year in Copyright: From Google v. Oracle to the Takings Clause

One of the greatest attributes of copyright law is the never-ending abundance of exciting new developments, including those in Congress, the courts, and at the Copyright Office. On the surface, copyright seems straightforward in that it advances the public good by securing property rights to authors. But underneath this simple veneer lies centuries of debate about how best to balance the rights of authors with the public interest, where each distinct issue presents a veritable rabbit hole of metaphysical distinctions. For the copyright connoisseur, keeping up with the latest events can be an exhausting endeavor, though the thrill of solving new puzzles makes it intellectually rewarding. Thankfully, one need not be a member of the copyright cognoscenti to appreciate the major developments in copyright law this past year. From the Supreme Court’s decision in Google v. Oracle to the implementation of a small copyright claims tribunal to attempts to rein in state infringements, 2021 has certainly provided many wonderful events worth highlighting.

Cloudflare Tests Limits of Contributory Copyright Infringement

One recurring thorn in the side of copyright owners is Cloudflare, the San Francisco-based web performance, optimization, and security company. Cloudflare offers many services to its customers, including a content delivery network that utilizes hundreds of servers around the world to cache its customers’ content. When an end user requests content from one of Cloudflare’s customers, it is delivered to that user from the cached copy on the nearest Cloudflare server—not the customer’s own web host server. This saves on bandwidth costs, improves security, and decreases page load times. It also raises important questions about Cloudflare’s liability for contributory copyright infringement when it knowingly allows infringing content to remain on its cache servers. Under Ninth Circuit precedent, web hosting services like Cloudflare can be held contributorily liable for assisting in the infringement under the material contribution theory. However, a recent district court decision misconstrued the case law to conclude otherwise in Mon Cheri v. Cloudflare.

Controlled Digital Lending Thwarts Democratic Process and Rights of Authors

One of the latest controversies in copyright law concerns the practice of controlled digital lending (CDL) by libraries. The idea is simple: Libraries take the physical books on their shelves, digitize them, and then share the digital copies with members of the public. Under the CDL theory, there is no permission needed to make the digital copies, nor is permission needed to share them publicly. The theory instead posits that all these things are perfectly legal—and presumably they have been legal for decades, though people are just now starting to notice. If this sounds too good to be true, that’s because it is. Ultimately, the CDL theory is really just the CDL fantasy. It’s an example of wishful thinking by supposed do-gooders who have figured out yet another way to give away other people’s copyrighted works for free. Except, this time, it at least comes with the fig leaf of a library.

Capitol Records v. Vimeo: Courts Should Stop Coddling Bad Actors in Copyright Cases

Just how much knowledge about piracy on its system does an online service provider need before it loses its safe harbor protection, which severely limits its potential liability for copyright infringement, under the Digital Millennium Copyright Act (DMCA)? In Capitol Records v. Vimeo, the Second Circuit sets the bar very high, further blurring one of most important lines in copyright law—the line between actual and red flag knowledge—and protecting a not-so-innocent service provider in the process. Worse still, the Second Circuit leaves copyright owners with little chance of a remedy in the face of rampant piracy, even against a service provider that welcomes the infringement.