Sara Hickman — “There were many reasons why I retired from music last year. I’ve never explained them or felt the need to, so I’m not going to start today.”

AAP Pleased with Bipartisan Support of Marrakesh Treaty — Yesterday, a bill to implement the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled was introduced in the U.S. Senate. The treaty requires parties to adopt appropriate exceptions to copyright allowing authorized entities to reproduce and distribute literary works in accessible formats. The Treaty was adopted in 2013 and transmitted to the U.S. Senate in 2016.

U.S. Border Seizures of DMCA Circumvention Devices SurgesTorrentfreak reports, “New data released by Homeland Security shows that U.S. Customs and Border Protection seized significantly more DMCA circumvention devices in 2017. The seizures, which includes mod chips for gaming consoles, increased 324% compared to the year before, although the actual number remains fairly low.”

Fair Is Fair But Politics Is Complicated: Why Congress Must Pass the CLASSICS Act (Column) — Rob Levine pens an op-ed in favor of legislation that would update transitional rules to enable the owners of sound recordings made before 1972 to be paid for digital streaming under statutory licenses. The bill makes sense if you think artists should get paid for their work.

Piracy and Malware: There’s No Free Lunch — Researchers Michael Smith and Ruth Telang conducted a study to see if piracy harms consumers by exposing them to malware and other malicious code. “The results were clear. The more our users visited piracy sites, we found, the more often their machines got infected with malware. Specifically, whenever they doubled the time they spent on piracy sites, they increased the number of malware processes running on their machines by 20 percent.”

The Pirate Bay witnesses 40 percent drop in traffic in the Netherlands — Kavita Iyer of Techworm reports, “According to Dutch anti-piracy group BREIN, The Pirate Bay’s main domain has suffered a 40 percent drop in Dutch traffic due to local ISPs (Internet Service Providers), such as Ziggo and XS4ALL were forced to block the torrent site. This decrease of 40% was reported based on numbers from research company ComScore.”

Why almost no one is making a living on YouTube — “What’s happening on YouTube is occurring across the internet, where creators are finding that long odds of success in the online world are not so different from IRL (internet-speak for ‘in real life’). In fact, they might be worse. In music, song streaming services like Spotify and Apple Music have mostly benefited superstar acts. No one needs to fight a music label to get their song distributed, but getting listeners is a different problem. Less than one per cent of songs represented 86 per cent of the music streamed last year, according to the market research firm Nielsen. And since no one buys music these days, making even a little money from streaming requires songs to be played millions of times. That’s hurt the music industry’s middle-of-the-road acts the most, the kind of musician who once could eke out a decent living selling several thousand albums a year and touring without ever breaking into the mainstream. Increasingly, such acts face the pressure of going viral or going home.”

New study explores impact of user-centric music-streaming payouts — “‘User-centric’ streaming payouts refers to a proposed system where the royalties generated by someone’s subscription would be divided only between the artists that they listen to, rather than going into a central pool divided by market-share on the platform as a whole.”

For Two Months, I Got My News From Print Newspapers. Here’s What I Learned. — “We have spent much of the past few years discovering that the digitization of news is ruining how we collectively process information. Technology allows us to burrow into echo chambers, exacerbating misinformation and polarization and softening up society for propaganda. With artificial intelligence making audio and video as easy to fake as text, we’re entering a hall-of-mirrors dystopia, what some are calling an ‘information apocalypse.’ And we’re all looking to the government and to Facebook for a fix.”

Two photographers, unbeknownst to one another, shoot the same picture at the same moment — Finally, for copyright fans, a case study in the doctrine of “independent creation,” a tenet of copyright based on the rule that infringement is premised on factual copying, not identity alone.

Ensuring Only Good Claims Come in Small Packages: A Response to Scholarly Concerns About a Proposed Small Copyright Claims Tribunal — Sandra Aistars provides the definitive response to criticisms lodged against a proposed small copyright claims process. A bill to implement such a tribunal was introduced last October and would provide copyright owners who can’t afford federal litigation the ability to pursue remedies for their rights.

Fox News Wins Appellate Showdown Against Service That Facilitates Sharing of TV Clips — The Second Circuit issued its long awaited opinion in Fox News v TVEyes this week, and it is a solid win for balanced, common sense fair use. Eriq Gardner for the Hollywood Reporter has more on the decision.

Judge Saris Opines on Copyright Infringement in 3-D Greeting Card Case — Just for fun, a recent decision looking at alleged infringement of 3-d popup greeting cards. The opinion provides an excellent step-by-step analysis of substantial similarity, as the court distinguishes between uncopyrightable ideas and elements and protected expression. The opinion also relies frequently on puns.

Law of Copyright Reinterpretation Project Steers ALI Further Off Course — “ALI has built its reputation in the judicial and legal communities by releasing treatises that add value to an area of law. Re-wording a federal statute and offering commentary on which among many judicial interpretations of that statute’s provisions is ‘right’ doesn’t add such value. A Restatement that introduces greater confusion into its area of focus will not only be ignored by judges and lawyers, it will undermine the credibility of current and future ALI work. The organization should take the advice given to it and either suspend the Restatement project or recast as a Principles project.”

Text & Data Mining Exception For the EU Digital Single Market Proposal — “Text and data mining might well lead to important ativities and research results—and for this reason most STM journal publishers are on record and are strongly supporting academic research projects (some go further, as Dr. Rosati mentions). In fact by working with organizations such as CCC and CrosRef, they are actively enabling the normalization activities that Rosati mentions as still being critical to the technical processes (see also the STM Declaration covering twenty-one leading publishing houses. Other copyright sectors would be rightfully concerned about their works being caught up in an exception intended for scholarly research. Commercial beneficiaries are currently obtaining licenses and permissions, and doing so on a commercial and pragmatic basis, as demonstrated by Dr. Rosati’s own list of IBM Watson projects. It is not at all clear to me why an exception should be applied to an active and growing copyright market for the benefit of large technology companies.”

If there has been one constant with fair use throughout the history of the doctrine, it’s that no one can explain how to apply it in a consistent manner. That’s not to say most don’t have a rough sense of the purpose of fair use—to permit the reasonable use of copyrighted material when doing so is consistent with the goals of copyright law itself. And it’s also not to say merely that fair use is a challenging doctrine—the law is filled with challenging doctrines. What it does mean is that the doctrine lacks a sufficiently concrete standard that would aid judges to reach determinations in a roughly consistent and predictable manner.

Justice Story’s 1841 decision in Folsom v. Marsh serves as the spiritual forebear of the modern doctrine—the Copyright Act’s set of factors courts must consider when determining fair use is drawn almost directly from Story’s opinion. Yet Story states from the outset the absence of any sort of standard, writing,

This is one of those intricate and embarrassing questions, arising in the administration of civil justice, in which it is not, from the peculiar nature and character of the controversy, easy to arrive at any satisfactory conclusion, or to lay down any general principles applicable to all cases.1Folsom v. Marsh.

Nevertheless, courts in the decades that followed would take on the challenge of distinguishing between infringement and fair use.

Beginning in the mid 1950s, as part of its overall work on copyright law revision, the US Copyright Office considered recognizing the court-developed doctrine of fair use in statute. But that meant it had to figure out a way to state it in a manner that courts could apply. And as Alan Latman noted in his 1958 study on Fair Use of Copyrighted Works for the Copyright Office, “[F]air use is not a predictable area of copyright law.”

The drafters of the 1976 Copyright Act did eventually settle on a formulation of fair use—found in Section 107 of Title 17—but even then admitted the elusiveness of a clear standard. “Although the courts have considered and ruled upon the fair use doctrine over and over again, no real definition of the concept has ever emerged,” reads the House Report accompanying the 1976 Copyright Act.2H. Rep. 94-1476 (1976).

The next big shift in the fair use doctrine would come from the introduction of “transformativeness” by the Supreme Court in Campbell v Acuff-Rose Music.3510 US 569 (1994). There, the Court said that the central inquiry of the first fair use factor is to consider whether and to what extent the putative fair use “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” The Supreme Court pulled this idea of transformativeness from a 1990 article by Judge Pierre Leval, Toward a Fair Use Standard.4103 Harv. L. Rev. 1105 (1990). Leval was motivated to write the article after the Second Circuit reversed two of his fair use decisions. Like Justice Story one hundred and fifty years before, Leval began by noting the absence of guidance in the doctrine. He wrote, “[T]hroughout the development of the fair use doctrine, courts had failed to fashion a set of governing principles or values.” Leval intended transformativeness to play the role of fair use standard.

Following Campbell’s endorsement of transformativeness, lower courts began to place more of their emphasis on that concept. In his article Making Sense of Fair Use, law professor Neil Netanel observed that by 2005, transformativeness was “overwhelmingly” driving fair use analysis in courts, and the result he saw was that “in fundamental ways, fair use is a different doctrine today than it was ten or twenty years ago.” 5Neil Netanel, Making Sense of Fair Use, 15 Lewis & Clark L. Rev. 715 (2011).

But widespread adoption does not necessarily lead to progress, despite the best intentions of Judge Leval and the Supreme Court. Evidence that transformativeness may not provide the long-needed governing principle came from the Second Circuit’s 2013 Cariou v. Prince decision.6714 F.3d 694 (2013); see also Cariou v Prince: Transforming the Fair Use Inquiry. The court’s overly expansive conception of transformativeness drew sharp criticism from many observers. One wrote, “Cariou v. Prince confirms what academics have long noted and practitioners recognized: that the ascendancy of transformative use analysis has coincided with and become a justification for a judicial tilt toward fair use, but has failed to bring greater clarity and predictability to fair use decisions and has instead become an empty buzz-word.” 7Kim J. Landsman, Does Cariou v. Prince Represent the Apogee or Burn-Out of Transformativeness in Fair Use Jurisprudence? A Plea for a Neo-Traditional Approach, 24 Fordham IP, Media, and Entertainment LJ 320 (2014); see also Patricia Cohen, “Photographers Band Together to Protect Work in ‘Fair Use’ Cases“, New York Times, Feb. 21, 2014; Cindy Villanueva, “Cariou v. Prince: A Controversial Redefining of the Distinction between Parody and Satire“, National Law Review, March 2, 2015. Perhaps the most potent criticism came from a sister Circuit. In Kienitz v Sconnie Nation, Judge Easterbrook, writing for the Seventh Circuit, rejected efforts to consider whether the allegedly infringing work at issue was transformative, saying, “That’s not one of the statutory factors, though the Supreme Court mentioned it in Campbell.”8766 F. 3d 756 (7th Cir. 2014). Easterbrook went on to reference the Cariou decision, saying, “The Second Circuit has run with the suggestion and concluded that ‘transformative use’ is enough to bring a modified copy within the scope of §107,” but ultimately said, “We’re skeptical of Cariou’s approach.”

Within a few years, even the Second Circuit seemed to be shying away from its decision in Cariou. In TCA Television Corp. v. McCollum, it admitted that the Cariou decision “might be thought to represent the high-water mark of our court’s recognition of transformative works” and recognized that “it has drawn some criticism,” citing both Kienitz and Nimmer’s treatise, which was also critical of the decision. The panel went on to say, “We need not defend Cariou here, however, because…even scrupulous adherence to that decision does not permit defendants’ use…to be held transformative.” And just yesterday, in his concurrence in Fox News Network v TVEyes, Judge Kaplan observed,

It…is not at all surprising that attempts by alleged infringers to characterize their uses of copyrighted works as “transformative” have become a key battleground in copyright litigation, particularly as technological advances provide ever-new contexts in which the uncompensated use of copyrighted works is very attractive. And the law governing such controversies often is far from clear. As noted commentators have observed, courts “appear to label a use ‘not transformative’ as a shorthand for ‘not fair,’ and correlatively ‘transformative’ for ‘fair.’ Such a strategy empties the term of meaning.” Indeed…some of our own decisions on the issue are at least in tension with one another.

But until a new standard emerges, or “transformativeness” is given more structure, the buzzword-masquerading-as-a-standard continues to result in wildly divergent decisions. Just one recent example: at the beginning of this year, the Eastern District Court of Virginia held in one case that “defendant’s use of two of plaintiff’s photographs of famous musicians to accompany online articles about those musicians’ political views constitutes fair use of the photographs.”9Memorandum Opinion, Philpot v. Media Research Center Inc., 1:17-CV-822, Docket #36, Jan. 8, 2018. In that case, the defendant had not altered the actual photos in any way, and the photographs did not relate to defendant’s articles that they accompanied other than for the fact that the subjects in the photographs were the individuals (Kenny Chesney and Kid Rock) being discussed in the articles. Nevertheless, the court felt comfortable concluding that the use was transformative, saying that defendant’s purpose in using the photographs, “to identify the celebrities as pro-life advocates or conservative Senate candidates”, was different from plaintiff’s purpose in taking the photographs, “to depict the musicians in concert.” Even many ardent supporters of the broadest application of fair use would agree that the court got it wrong here, but when all you have to go on is an open-ended inquiry using the vague concept of transformativeness, it’s difficult to place the blame on the application of that concept.

Fair use is subjective, and it would not be served well by rigid, bright-line rules. But still, it would benefit from having some sort of standard to connect its overall principles to the statutory factors in a way that would ensure that Judge A and Judge B, both human individuals with their own sets of beliefs, idiosyncracies, foibles, and imperfect knowledge, reach roughly the same results given the same set of facts. Judge Leval—and the Supreme Court—had hoped that transformativeness would accomplish that goal, but after two decades, it’s difficult to make that case. At the very least, it doesn’t seem to be the silver bullet they had hoped for. At the very worst, it is a vague and ill-defined concept that courts have applied in an incommensurate fashion. Additionally, judges are told that the more transformative they can say a use is, the less weight they can accord the other statutory factors. This is bad for copyright owners, who may find their exclusive rights negated with little notice—but it’s also not great for critics, commentators, news reporters, teachers, scholars, or researchers, who may find the lack of clear boundaries between what is and is not permitted a disincentive to engage in what would otherwise be a fair use.

References   [ + ]

1. Folsom v. Marsh.
2. H. Rep. 94-1476 (1976).
3. 510 US 569 (1994).
4. 103 Harv. L. Rev. 1105 (1990).
5. Neil Netanel, Making Sense of Fair Use, 15 Lewis & Clark L. Rev. 715 (2011).
6. 714 F.3d 694 (2013); see also Cariou v Prince: Transforming the Fair Use Inquiry.
7. Kim J. Landsman, Does Cariou v. Prince Represent the Apogee or Burn-Out of Transformativeness in Fair Use Jurisprudence? A Plea for a Neo-Traditional Approach, 24 Fordham IP, Media, and Entertainment LJ 320 (2014); see also Patricia Cohen, “Photographers Band Together to Protect Work in ‘Fair Use’ Cases“, New York Times, Feb. 21, 2014; Cindy Villanueva, “Cariou v. Prince: A Controversial Redefining of the Distinction between Parody and Satire“, National Law Review, March 2, 2015.
8. 766 F. 3d 756 (7th Cir. 2014).
9. Memorandum Opinion, Philpot v. Media Research Center Inc., 1:17-CV-822, Docket #36, Jan. 8, 2018.

Goodlatte to unveil sweeping music copyright reform package next month — Looking to cap off his term as House Judiciary Committee Chairman and his five year copyright review process, Rep. Goodlatte is expected to move a package of bills aimed at updating music licensing provisions and addressing inequities in the current law.

Fixing Our Broken Small Claims System with the CASE Act — There’s is also hope that we will see legislation creating a copyright small claims process move through Congress this year. At IPWatchdog, Isaac Rubin lays out the case for the CASE Act.

The Father Of The Internet Sees His Invention Reflected Back Through A ‘Black Mirror’ — NPR interviews Vint Cerf about how the internet has turned out. “There is a kind of optimism that it takes to be an inventor. But the father of the Internet thinks inventors need the artists. ‘It’s the mind-stretching practice of trying to think what the implications of technology will be that makes me enjoy science fiction,’ Cerf says. ‘It teaches me that when you’re inventing something you should try to think about what the consequences might be.'”

Money Laundering Via Author Impersonation on Amazon? — Large internet platforms have enabled a new era of creativity in scams, fraud, and other criminal activity. Here, Brian Krebs notes one particular scheme that appears to use Amazon’s self-publishing platform to launder money. Unfortunately, the scheme involves impersonating innocent third parties, who then have to deal with 1099 forms showing income they’ve never received.

Studios Must Face Trimmed Lawsuit Over CG Characters in Blockbuster Movies — This case has so far flown under the radar, somewhat surprisingly, given that the plaintiffs had alleged a novel claim of copyright infringement: that, as owners of the motion capture technology that allows filmmakers to translate a human actors body movements into fantastical computer-generated characters, they owned the copyright in the final output. This week, a federal judge in California rejected those copyright claims, though patent and trademark claims survived the motion to dismiss.

Judge Rules News Publishers Violated Copyright by Embedding Tweets of Tom Brady Photo — The second decision in three months from a court outside the Ninth Circuit that has expressly reject that Circuit’s 2007 decision in Perfect 10 v Amazon, which created the “server test” for the public display right. The court here said, “The plain language of the Copyright Act, the legislative history undergirding its enactment, and subsequent Supreme Court jurisprudence provide no basis for a rule that allows the physical location or possession of an image to determine who may or may not have ‘displayed’ a work within the meaning of the Copyright Act.”

TickBox Injunction Targets Blatant Inducement of Infringement — “TickBox TV is a device sold by a Georgia-based company that, in many ways, is similar to the popular name-brand set-top devices such as the Roku, Amazon Fire Stick, or Apple TV. It’s an internet connected box that is easily hooked up to a television or computer monitor via USB cable, and, like other streaming devices, acts as a media platform that allows users to download software and apps which then deliver content to the device. But unlike its counterparts which support apps featuring licensed content, TickBox was sold with pre-loaded applications dedicated to delivering infringing content. Furthermore, in case there were any questions about the device’s capabilities, TickBox’s website and promotional materials encouraged piracy and offered step-by-step instructions on downloading the latest illicit ‘add-ons.'”

Pallante Stresses Copyright Protection at IPA — Association of American Publishers CEO Maria Pallante delivered the keynote address at the 32nd annual International Publishers Congress in New Dehli. According to Publishers Weekly, “She then went on to warn publishers to be skeptical of those who seek to weaken copyright law by claiming that doing so would be good for the public. ‘They frame the public interest as though it is separate from the rights of copyright owners or worse yet, that publishers and other copyright owners are an obstacle to progress… This is false.”

The Cloverfield Paradox — You may not know the name Bear McCreary, but chances are you’ve heard his work, as he is responsible for scoring numerous films and television series. He also writes a blog where he discusses some of that work. Here, McCreary delves into his work scoring the recent Netflix release The Cloverfield Paradox.

Historic Coalition of 213 Musical Artists Calls on Congress to Pass CLASSICS Act, Fix the Pre-1972 Loophole for Legacy Artists — “Digital radio makes billions of dollars a year from airplay of music made before Feb. 15, 1972. Yet, because of an ambiguity in state and federal copyright laws, artists and copyright owners who created that music receive nothing for the use of their work. The CLASSICS Act (H.R. 3301 / S. 2393) would correct this inequity and finally ensure that musicians and vocalists who made those timeless songs finally get their due. We urge Congress to pass the CLASSICS Act and other pro-artist reforms quickly.”

Focusing on Value — 102 Things Journal Publishers Do (2018 Update) — The internet has not rendered commercial journal publishers obsolete. Here’s a comprehensive list of things they do to add value to scientific, technical, and medical research.

The Faery Tale Adventure: A personal history — For someone who lived and breathed the video game Faery Tale Adventure as a kid, the even-more-wondrous-than-you-can-imagine story of its creation was a joy to read. It should be of interest to copyright fans too, given that the sprawling game was almost exclusively the work of a single individual—including programming, graphics, and music. It’s also fun to read about the creativity that went into coding around the Amiga’s technical limitations.

Can You Copyright a Pose? — Michael Risch takes a closer look at the Ninth Circuit’s recent decision in Folkens v Wyland Worldwide, concerning the protectability of a certain element of an image: the “pose” of two dolphins. Risch writes, “The idea that we ignore near identical poses with near identical subjects simply because the pose might occur in nature troubles me a bit.”

Cloudflare Terminates Service to Sci-Hub Domain Names — Perhaps a sign of progress, as the domain service provider, which had previously balked at disabling sites that have been found liable for infringement by courts, has terminated service to an infringing site after it received a court order.

What Does a Prop Master Do? A Conversation with Elisa Malona — The head of props for The Tonight Show With Jimmy Fallon discusses all the work that goes into creating those objects that actors hold, touch, or interact with.

National Association of Broadcasters Signs on to Support Music Modernization Act — NAB’s support means that there is broad support for the MMA, which was introduced in the House and Senate over the past several weeks. The bill would, among other things, create a licensing collective to administer and distribute mechanical royalties under a newly created blanket license that digital music services can use to reproduce and distribute songs.

How Lamar Alexander brokered deal that led to Music Modernization Act — A compelling behind the scenes look at one of the Senators involved in crafting, and ultimately introducing along with a number of other Senators from both parties, the Music Modernization Act in the Senate.

Project to “Restate” Copyright Law Under Scrutiny — “The hope was that the drafters would take their responsibility and the Advisors’ comments seriously, especially since the Advisory group includes some of the nation’s leading copyright experts, and that at the end of the day a clear, accurate, and balanced Restatement might be produced. As it turns out, very few of the Advisors’ comments have been adopted to date, even though many comments address the accuracy of the draft and/or the need for balance.” For more on the ALI project, check out Concerns over ALI Copyright Restatement Leave Project in Limbo, by Kevin Madigan.

Appeals Court: ISPs Don’t Get Copyright Shield Without Enforcement of Meaningful Repeat Infringer Policy — A fairly significant decision from the Fourth Circuit, which held, among other things, that Section 512’s repeat infringer policy requirement is not limited to only “adjudicated” infringers. The court also rejected Cox’s argument that the Sony Betamax decision acts as an absolute shield from liability rather than, as the Supreme Court held in Grokster, merely one rule among many for establishing fault.

Major Studios, Streamers Win Early Battle in War With TickBox — Although the decision came on a preliminary injunction motion in a district court, it is still significant as it is one of the first decisions to consider the liability of “illicit streaming devices”. The court had little difficulty finding that distributing devices with ready access to infringing content and promoting their use for infringement creates liability.

These Fantastic Oscar Videos Visualize Each Craft Category — These really are fantastic and a wonderful way to showcase some of the behind the scenes craft that goes into making films.

Disney Fights Over the Meaning of “KMPW8WJ7YW6” — Disney sued movie rental service Redbox, after the company began separately selling the codes to access digital copies of movies that accompany many DVD and Blu-ray titles. Disney is now seeking a preliminary injunction, with a hearing on the motion scheduled for February 5.

David Lowery on Spotify Lawsuits and the Battle For Creators’ Rights — “Lowery got his start as an indie rocker in the 1980s with Camper Van Beethoven (best known for the off-kilter “Take the Skinheads Bowling”), then became a presence on MTV in the ’90s with Cracker (“Low”). He still tours and records with both bands. But he started something of a second career at the 2012 SF MusicTech Summit, where he gave a speech — “Meet the New Boss, Worse Than the Old Boss” — that punctured any illusions that YouTube and download sales would leave creators better off. He then started a website called The Trichordist, where he blogs about the music business with the same sarcasm he brings to some of his lyrics, and he has become a prominent voice for creators in the digital age. Now, Lowery has organized the Artists’ Rights Symposium, which will bring policymakers and musicians together on Jan. 22 and 23 at the University of Georgia (UGA) in Athens, Ga., where he teaches about the music business.”

Grumpy Cat owner awarded over $700,000 in lawsuit. Cat still won’t smile. — I suppose I would consider having a cat if it made that much money.

Termination of a Public License — Pamela Chestek looks at a recent decision out of the Eastern District of Virginia dealing with a photographer who posted several photos online under a Creative Commons license alleging infringment against a site operator who copied the photos without providing attribution, as required by the Creative Commons license.

Fred Waring and the Pennsylvanian Litigation — Zvi Rosen looks at litigation during the 1930s involving the protection of sound recordings under Pennsylvania common law.

How Google is Killing the Independent Movie Industry — Independent film producer Cassian Elwes writes, “NAFTA should protect the rights of working Americans in the creative industries – and copyright supports millions of them. 84 percent of all businesses in entertainment employ under ten people – truck drivers, editors, production assistants, writers, caterers, makeup artists – and they all rely on copyright protections to keep their doors open.”

New Rules! (for photo © registrations) — Attorney Leslie Burns discusses the US Copyright Office’s new procedures for registering groups of photographs on a single application, which were released yesterday. There are some important details to keep in mind, but the process will save photographers a good deal of expense when registering.