MLC, Digital Services Strike Deal to Fund Music Modernization Act-Mandated Database — The MLC, which must begin offering and administering blanket licenses under Section 115 of the Copyright Act, would get $33.5m in startup costs and $28.5m in annual operating costs from the digital music services if the settlement is approved by the Copyright Royalty Judges.
Google News Shutdown in Spain Was Not as Bad as Google Would Have You Believe — From the News Media Alliance: “For years, critics have attempted to make the case for why the EU should not adopt a similar law, arguing that the Spanish law and resulting Google News closure were disastrous for Spanish news publishers, with some publishers experiencing double-digit drops in web traffic… What we found was that much of the data contradict the narrative pushed by Google and other opponents of the Publishers’ Right.”
Congress can protect creative artists from piracy. Why won’t the Senate pass the bill? — Author Douglas Preston pens this op-ed in favor of the CASE Act, which passed the House 410-6 and is currently just a few steps short of a Senate vote.
‘Oh the Places You’ll Boldly Go!’ to Test the Bounds of Fair Use — Briefing is complete in the Ninth Circuit appeal concerning an unauthorized mashup of Dr. Seuss and Star Trek. Kyle Jahner of Bloomberg Law reviews the arguments on both sides.
Does a plaintiff claiming unlawful removal of copyright management information have to own a registered copyright? — No, says a district court in Texas. Attorney Evan Brown takes a look at the decision.
Creative community mourns the passing of entertainment lawyer Jay Rosenthal — Rosenthal was most recently a partner at the law firm Mitchell Silberberg & Knupp and previously served as general counsel at the National Music Publishers Association. More remembrances here.
Argument analysis: Justices pillage state arguments for sovereign immunity for copyright infringement — This week, the Supreme Court heard oral arguments in Allen v. Cooper, to determine whether Congress validly allowed states to be sued for copyright infringement. SCOTUSBlog takes a look at how they went. And check out Adam Mossoff’s op-ed in the Wall Street Journal on the case, Stop the States’ Copyright Plunder.
Purged: How a failed economic theory still rules the digital music marketplace — Remember “the long tail”? It didn’t hold up. “There wasn’t any volume in the ‘Long Tail’ and nothing had really changed – except for the worst. The actual sales data showed an even greater concentration of sales in the ‘Fat Head.'”
‘Appropriation Art’ or ‘Revenge Porn’? The Subject of a Richard Prince Instagram Portrait Slams the Artist’s Use of Her Image — Perennial copyright defendant Prince is back in the news. Naomi Rea of Artnet News reports, “An exhibition of Richard Prince’s portraits at Detroit’s Museum of Contemporary Art has renewed controversy over the artist’s use of appropriation after the subject of one of his latest Instagram works spoke out against the appearance of her image in the show without her consent.”
House Judiciary Committee Report on H.R. 2426, the Copyright Alternatives in Small Claims Enforcement Act of 2019 — The Committee report for the CASE Act, which overwhelmingly passed the House last month 410-6, is a great resource for understanding the bill. Along with a summary and section-by-section analysis of the bill, it provides general background, constitutional considerations (including the Copyright Clause, the Appointments Clause, Article III and Seventh Amendment rights, and procedural due process), and intended operation of the Act.
CASE Act passed the House of Representatives Tuesday 410-6. Congressional Record. Roll call vote.
Small Claims Copyright ‘CASE Act’ Passes US House of Representatives — “Advocacy organizations for publishers, authors, and copyright applaud the 410-to-6 vote in the House for the long-promoted CASE Act.”
For Marginalized Communities, the CASE Act Bridges Copyright’s Equity Gap — The morning of the vote, Morning Consult published this powerful piece from Lateef Mtima, summarizing what the bill is about. “The CASE Act is about access to justice, both for copyright owners and users who presently cannot afford the price of admission to the system. Access to justice should not be theoretical and mythical when the struggles that marginalized copyright owners and users face are real. For the creative community, the CASE Act means that true protection under the law will finally be within reach.”
Mini-Post: A Brief and Notes of the Argument in Wheaton v. Peters via Justice Baldwin — Zvi Rosen points to a number of documents he has recently made online, including an “abstract of the argument” from plaintiff in Wheaton v. Peters, the first Supreme Court copyright decision. Essentially a brief at a time when briefing was not common, the document touches on arguments that are still relevant today.
A European perspective on paparazzi photographs of celebrities and lawsuits against celebrities over the posting of photographs of themselves — Copyright disputes between celebrities and photographers seem to be increasingly common these days. Eleonora Rosati takes a look at the copyright issues under European law.
New Fees Proposed for U.S. Copyright Office Services — No one likes it when fees go up, but it’s often a necessity to ensure that services can continue to recover costs. The US Copyright Office this week published its new fee schedule, which, unless disapproved by Congress, goes into effect 120 days from now. The fee schedule is modified in a number of ways based on public comments received by the Office after it published a proposed fee schedule last year, and the Office should be commended for the tough task of finding ways to minimize the burden on individual creators—the fee increase on the standard and single applications, which many individual creators use, has been cut in half due to public comments, and the fee for group registration of photographs, which was initially set to increase, will now remain the same.
Advocacy group launches effort to fund freelance stories by laid-off journalists about Big Tech — “The Save Journalism Project, an advocacy group that works to expose how tech companies have harmed the journalism industry, on Tuesday told The Hill it is launching an effort to fund freelance stories about Big Tech’s effect on vulnerable communities.”
How The Music Modernization Act Has Already Benefited Legacy Artists — The Recording Academy writes, “One of the most talked-about benefits of the Music Modernization Act, which was signed into law on Oct. 11, 2018 and recently celebrated its one-year anniversary, has no doubt been the closure of the ‘pre-1972’ loophole. Put simply, this means that digital services are now paying legacy artists for sound recordings fixed before Feb. 15, 1972. Prior to the MMA being signed, the quirk in the law denied older artists from receiving compensation for their work and had to be eliminated to ensure level compensation regardless of when an artist first laid down a track.”
Monarch of All I Survey…Copyright Excepted (What are the Purposes and Limits of Government Copyright?) — Hugh Stephens discusses a recent Canadian Supreme Court decision, Keatley Surveying v. Teranet, Inc., which touched on the issue of Crown copyright. Stephens also considers some of the parallels with a pair of US Supreme Court cases currently pending which also deal with government ownership of copyrighted works (Georgia v. Public.Resource Org) and government infringement of copyrighted works (Allen v. Cooper).
The CASE Act: Your Questions Answered — The Authors Guild has a handy resource answering common questions regarding the CASE Act, which would establish a sorely needed small claims process within the Copyright Office.
Copyright in State Legal Materials – Looking Back to 1888 — Zvi Rosen takes a closer look at the three 19th century decisions that Public Resource is relying on in a case the Supreme Court will hear this term. The question involves the scope of the “edicts of law” doctrine, which excludes copyright protection for material that has the force of law. Public Resource filed its opening brief with the Supreme Court on Wednesday.
Two Photographers Sue NYC Parks for Publicizing ‘Unearthed’ 1978 Photos — The photographers are claiming the parks department picked a whole bouquet of oopsie-daisies when they ran a heavily publicized campaign with the photos without having permission from the copyright owners.
Court Denies Audible Request for Settlement Conference in ‘Captions’ Case — The latest in the lawsuit brought by publishers against ebook distributor Audible. ” In a letter to the court on Thursday, lawyers for Audible suggested a 30-day hold on the litigation over its Captions program, and a referral to a magistrate judge to oversee settlement talks during that period. But the plaintiff publishers threw cold water on that proposal, prompting federal judge Valerie Caproni to deny Audible’s request.”
Temple and Hayden Respond to Tillis on Copyright Modernization Efforts — IPWatchdog reports on a letter from Librarian of Congress Hayden and Register of Copyrights Temple to Senate IP Subcommittee Chairman Tillis in response to a series of questions regarding the ongoing modernization efforts in the US Copyright Office. And also, happy 20th anniversary to IPWatchdog.
The Future of What | Episode #165 : Unpacking The C.A.S.E. Act — The latest episode of the podcast from Music Business Association president Portia Sabin features Register of Copyrights Karyn Temple and Copyright Alliance CEO Keith Kupferschmid to talk about the copyright small claims bill and other recent developments of interest to independent creators.
At ‘Captions’ Hearing, Judge Hammers Audible’s Fair Use Argument — “When it was Audible’s turn, attorney Emily Reisbaum never really had a chance. ‘First, let me say the product is good,’ Reisbaum began, attempting to explain that the publishers’ portrayal of the product and its error rate was not accurate. Captions is designed to work alongside an audiobook, not ‘divorced’ from it, she argued, and it does not provide a reading experience. ‘What do you mean it’s not a reading experience?’ [Judge] Caproni interjected. ‘It’s words.'”
A Few Observations From the Ninth Circuit En Banc Argument in Skidmore v. Led Zeppelin — On Monday, the full Ninth Circuit heard arguments in the closely watched case concerning allegations Led Zeppelin copied another artist’s work when creating Stairway to Heaven. Attorney Lee Gesmer shares some thoughts on the issues.
Denmark Blocks Sci-Hub Plus Streaming, Torrent & YouTube-Ripping Sites — “Rights Alliance Director Maria Fredenslund informs TorrentFreak that this latest action represents ‘blocking wave 14’ in Denmark and more sites will be targeted in the future. ‘We file about 5-6 cases per year targeting the most popular infringing sites,’ Fredenslund concludes.” And the internet has not broken.
Steal this book? There’s a price — This op-ed from the New York Times details the costs of book piracy, not just in economic terms, but in cultural terms. “We have surrendered our lives to technocrat billionaires who once upon a time set out to do no harm & have instead ended up destroying the world as we knew it. Convenience & the lowest possible price, or no price at all, have become our defining values.”
Mechanical Licensing Collective Requests Over $37 Million for 2021 Launch — The Music Modernization Act called for the creation of a new entity to administer and distribute royalties for the mechanical reproduction of songs by digital services. In July, the US Copyright Office designated the entity to carry out those functions, and now the process of figuring out what everything costs (and who will pay for it) has begun.
Led Zeppelin’s ‘Stairway’ Copyright Battle, Explained — A thorough look (with links to the actual court filings!) at the copyright infringement case involving Stairway to Heaven. Oral arguments for an en banc rehearing in the Ninth Circuit are scheduled for Monday.
Deezer plans to experiment user-centric payment model — Emmanuel Legrand reports that the music streaming service may become the first to adopt a fairer royalty payout model.
The Constitution, Annotated: The Constitution Explained in Plain English — Finally, this week was National Constitution Day, so be sure to check out this wonderful online resource to see how the founding document’s various provisions have been interpreted by courts over the past two centuries. Maybe check out, oh I don’t know, Article I, Section 8, Clause 8.
CASE Act Ready for Full Vote in Congress; Law Would Ease Financial Burden of Fighting Copyright Theft — The big news this week is that HR 2426, which would create a copyright small claims tribunal to help creators settle disputes easily and cheaply, sailed through the House Judiciary Committee. Earlier this summer it had done the same in the Senate Judiciary.
Publishers v Audible: VCRs and DVRs to the Rescue? — Devlin Hartline examines the complaint by publishers against Audible over a feature that automatically converts the licensed audio of an audiobook into unlicensed text, particularly how the direct infringement claim pans out. Also check out Kevin Madigan’s companion piece on how a potential fair use defense would hold up.
CJEU rules that only requirement for copyright protection of designs is their originality — Eleonora Rosati reports on this week’s CJEU decision in Cofemel, regarding the standard of copyright protection for designs. Shades of the 2017 US decision in Star Athletica v Varsity Brands.
Nintendo Wins Blocking Injunction Against Four Piracy-Enabling Sites — “Justice Arnold said that in his opinion it is ‘beyond dispute’ that the sites use Nintendo’s marks in order to promote circumvention devices. He also agreed that the devices were made available to the public on the basis they would be used to provide access to infringing content, since they all mention piracy in promotional material.”
ASCAP & BMI Consent Decrees Review Expected to Conclude This Year While Both Sides Argue Worst-Case Scenarios — Finally, just yesterday public comments in the DOJ’s review of the ASCAP and BMI consent decrees were made public. Read all 877 yourself, or check out this overview from Billboard.
Video Post: Irwin Karp on Drafting the 1976 Copyright Act — The storied copyright attorney and author advocate speaks in this video about the process that led to the current US copyright law, as well as his role in it. A fantastic narrative that puts context and color on the legislative history of the Act.
Pirate Site Blocking Boosts Netflix Subscriptions, Research Suggests — Torrentfreak reports on recently published research that demonstrates that anti-piracy enforcement not only reduces copyright infringement but shifts individuals to legitimate sources of copyrighted works, which is the ultimate goal of any copyright regime.
Congress Members Ask to Grill Google in Roundtable on ContentID Tool — Eileen McDermott reports, “Eight members of Congress have sent a letter to Google Chief Executive Officer Sundar Pichai requesting that the company participate in ‘a roundtable with Congressional offices and members of the creative community’ to discuss its responses to a series of questions relating to Google-owned YouTube’s Content ID tool. The tool is meant to prevent copyright infringing material from appearing on YouTube but has come under scrutiny for its failings in recent years.”
The changing economics of electronic music — An interesting look from Resident Advisor about how the dance music industry fares in a streaming world. “Undeniably, it is easier to publish your music online and hypothetically receive compensation for the downloading or purchase of that music. That is undeniably easier. The fallacy of that kind of logic, which we have been hammered over the head with, of this being this great democratising time, is that people don’t really find that stuff.”
The harsh reality of life as a musician: an interview with Miranda Mulholland — From WIPO Magazine, “Award-winning Canadian musician, record-label owner and festival founder Miranda Mulholland offers a personal account of the realities that artists are facing in the digital era.”
A small claims program for copyright violations? It’s an idea the ABA supports — “The ABA supports legislation that would create a new copyright small claims program within the U.S. Copyright Office to adjudicate copyright small claims more efficiently and economically than federal courts, according to a resolution passed overwhelmingly by the House of Delegates on Monday at the annual meeting in San Francisco.”
Fleet of copyright groups support pirate ship photographer before SCOTUS — “This week, more than a dozen groups including The Copyright Alliance and non-profit the Washington Legal Foundation filed briefs in support of the photographer, who has urged the US’s highest court to revive the Copyright Remedy Clarification Act of 1990 (CRCA) and its abrogation of state immunity.”
SoundExchange Teams With SourceAudio to Help Podcasters License Music — “In a new alliance with the music licensing platform SourceAudio, SoundExchange will give digital music marketplace Podcastmusic.com access to its membership of music creators, and help podcasters secure global licenses for label and publisher-owned music with the click of a button.”
Ads on Pirate Sites Can Hurt Sales, Survey Finds — “The survey in question polled 1,017 adults in the United States. These respondents were asked whether they believe that advertisers should prevent their ads from showing up on dubious sites. In addition, the survey asked whether they would buy less if they saw a brand’s ads on these sites. The results of the survey, perhaps unsurprisingly, show that many people would like advertisers to prevent their ads from appearing on ‘dangerous’ sites. Hate speech, porn, and hacked sites were seen as most troublesome, and pirate sites follow at a distance, with 53% of the respondents urging advertisers to take action for this category.”