NAFTA Emails Flood Gov’t — In the final stretches of NAFTA negotiations, opponents of modern copyright rules in trade agreements are pulling out all stops. From Canada, Blacklock‘s reports, “The Department of Foreign Affairs says it’s received tens of thousands of emails over NAFTA talks. About half originated from Open Media, an advocacy group one critic accused of using auto-email forms easily manipulated to manufacture a ‘grassroots backlash’.”

The Shaming of Geoffrey Owens and the Inability to see Actors as Laborers, Too — From Michael Schulman of the New Yorker: “As egregious as the story was, it was a fitting subject going into Labor Day weekend. We don’t tend to think of actors as laborers, despite the robust unions that represent them—Actors’ Equity and SAG-AFTRA.”

Opinon: Artists make magic for us, let’s be sure they’re all compensated — Tommy Thayer, lead guitarist for KISS, writes in support of the Music Modernization Act, which as of this morning has over 70 cosponsors in the Senate. Says Thayer, “It is critical that the act pass through the Senate without obstacle or delay. I would ask our Senators and everyone else considering this act to understand that for every hour a musician stands on stage in front of fans, there are thousands of hours spent practicing and rehearsing. Every hit song heard on the radio or streaming represents countless hours of work, creative effort and even failure before finding that perfect lyric, melody or guitar riff. It’s finally time to put a law in place ensuring that all music creators and recording artists – past, present and future – are fairly compensated for the music (and the magic) that we all continue to enjoy.”

Online immunities for Internet platforms under NAFTA — “While it is not objectionable for Internet platforms to have some immunity for damage claims where they act as passive, neutral intermediaries and are not aware and have no reason to be aware that their actions are causing damages, it would be a major extension of the law and contrary to the public interest to grant Internet platforms the types of immunities provided for by the CDA. In fact, even Google and other Internet platforms have recently acknowledged that such protection is not required for the Internet to flourish.”

With Canada’s economic future in the balance, NAFTA negotiators may be talking about Super Bowl ads — “Canadians, it seems, were desperate to see those much-hyped American advertisements during the Super Bowl telecast, and the CRTC obliged. Now the agency’s unusual decision to ban the substitution of Canadian ads during the game — and other issues around Canada’s sweeping regulation of culture — may be holding up down-to-the-wire NAFTA negotiations.”

New Balance is watching you — “On September 6, the first day of New York Fashion Week, the sportswear giant will set up a booth in Soho with cameras facing out in every direction, scanning the hoards of people walking the streets of the city…The company has worked with the marketing agency VML to develop technology specifically designed to identify people who don’t look like everybody else.”

Appeals Court Revives Lawsuit Against CBS over Pre-1972 Sound Recordings — The Ninth Circuit reverses a 2016 district court decision involving the copyrightability of remastered sound recordings in an opinion that delves deeply into the question of when a derivative work evinces enough originality to be independently protected.

NAFTA’s IP Protections Should Reflect Today’s Global Economy — The U.S. Chamber’s Global Innovation Policy Center reports, “Negotiations to modernize the North American Free Trade Agreement (NAFTA) offer an opportunity to harmonize and strengthen IP standards across North America. A more effective IP chapter in an updated NAFTA agreement will support the growth of innovative and creative industries, create jobs, and stimulate economic competitiveness across the continent. While the IP standards included in the existing NAFTA agreement were considered comprehensive when the agreement was originally negotiated, the rapid evolution of biomedical and technological innovation and the growth of the digital economy require a modernized 21st century IP framework to adequately protect the high-risk, high-capital investments of innovators and creators across North America.”

Why Netflix Dramas Sag Midseason — and How They’re Fixing It — An interesting interview with the streaming service’s VP of original programming Cindy Holland, which, as the headline suggests, touches on an issue that many viewers have observed. But as Holland points out, no matter how much Netflix may change the viewing experience, or how much data it may be able to harvest from its customers, it doesn’t change the need for good storytellers. As Holland says here, “Once we’ve had the initial conversation with the creators about what they wanna make, and we say yes, we’re pretty clear that it’s really their vision.”

Google data collection research — A study finds the tech giant’s data collection is more pervasive than users probably realise, a major part of it occurs without direct involvement with Google services, and much of the anonymized data collected through passive means can still be associated with specific users. In return, we get to see more ads for products we just looked at.

How Aretha Franklin’s ‘Respect’ Became a Battle Cry for Musicians Seeking Royalties — The NY Times‘ Ben Sisario writes, “It was Aretha Franklin’s first No. 1 hit, the cry of empowerment that has defined her for generations: ‘Respect.’ But for the roughly seven million times the song has been played on American radio stations, she was paid nothing.”

How Aretha Franklin Earned ‘Respect’ by Flipping Gender Roles — “Aretha Franklin’s ‘Respect’ is one of the most iconic songs of all time. When it was released in 1967, it topped both the Billboard Pop Singles and Black Singles charts. In 1968, it earned two Grammys: ‘Best Rhythm & Blues Recording’ and ‘Best Rhythm & Blues Solo Vocal Performance, Female.’ It was adopted as a soundtrack by both the civil rights and feminist movements. And in 2002, the Library of Congress added it to the National Recording Registry. This last distinction marks the song as ‘culturally, historically, or aesthetically important’ for eternity. Enough said.”

Aretha Franklin dead at 76: SiriusXM pays tribute to the ‘Queen of Soul’ — Here’s the best way SiriusXM can pay tribute to Franklin: pay her the same royalties that artists who recorded after 1972 get. There is no reason artists like Franklin should be prevented from sharing in the incredible value that they created. SiriusXM is one of the few companies standing in the way of the Senate passing the Music Modernization Act, which in part will correct this bad policy and injustice.

Citi’s Music Industry Report, Dissected: What the Financial Giant Gets Right and (Very) Wrong — Rob Levine tears into a recent report released by financial institution Citi, which gets a good deal wrong about the music industry.

The Real Impact of Getting Rid of the Paramount Consent Decrees — Eriq Gardner reports, “There’s a good argument to be made that the U.S. Supreme Court’s 1948 decision in United States v. Paramount Pictures is the most misconstrued legal decision ever. The case forever changed Hollywood — but it did not ban studios from owning theaters. The misconception that there is a ban in place is important in light of the Department of Justice announcement Aug. 2 that the government would review the Paramount Consent Decrees. No matter what happens, don’t expect Disney to make a bid for AMC or Regal for the simple reason that Disney could have acquired either theater giant anytime during the past few decades and hasn’t seen any need to get into the popcorn business. What, then, would be the ramifications for Hollywood of ending the Paramount Decrees?”

This week marked the 8th anniversary of this site. 🎉

Carol Kaye: Rock’s Most Prolific Session Musician — I sheepishly admit that until this video, I was unaware of Carol Kaye. If you’re in the same boat, drop everything until you’ve watched this.

Musicians Line Up In Opposition To Wyden’s Royalty Bill — “Music industry professionals are lobbying Sen. Ron Wyden, D-Ore., to stand down and allow a bill updating music rights laws to pass. Musicians and industry groups have worked for years to update how music royalties are paid in the digital era. The resulting Music Modernization Act passed the House unanimously in May.”

Taking Common-Law Copyright for Pre-1972 Sound Recordings Seriously — Zvi Rosen discusses his recently published and highly recommended article on “Common-Law Copyright.” Rosen writes, “[W]e’ve really failed to think through the doctrinal consequences of using common-law copyright to protect older sound recordings, or even really what common-law copyright is. In my article I believe I document pretty clearly just how different common-law copyright is from statutory copyright, and how we’ve fairly to take it seriously as a doctrine and ended up with a muddle of unpredictability and confusion.”

Brexit and Copyright: An Update on the Road to D-Day — Hugh Stephens takes a look at what changes Britain can expect to copyright law in that country should it leave the European Union. “In the area of copyright, these impacts–while not negligible–are relatively minor compared to some of the adjustments that other sectors of the economy will have to face.”

CJEU rules that unauthorized re-posting of protected content may be an infringement — A summary of the opinion from the Court of Justice of the European Union, which was asked, “Does the inclusion of a work — which is freely accessible to all internet users on a third-party website with the consent of the copyright holder — on a person’s own publicly accessible website constitute a making available of that work to the public within the meaning of Article 3(1) of [Directive 2001/29] if the work is first copied onto a server and is uploaded from there to that person’s own website?” The CJEU answered yes.

SESAC strikes deal with songwriters, publishers putting Music Modernization Act back on track — The bill, which passed the House unanimously in April and reported favorably out of the Senate Judiciary Committee (also unanimously) in June, is now within striking distance of a Senate vote and getting signed into law.

Gerda Taro: A Female War Photographer in the Spotlight — “Eighty-one years after Gerda Taro was killed while covering the Spanish Civil War, the pioneering photojournalist is finally getting the recognition she deserves, in the most contemporary way possible: On her birthday, August 1, she is the subject of a Google Doodle. While she has long been recognized as one of the first female photographers to cover conflicts from the front lines, Taro’s images from the Spanish Civil War remained relatively unknown until they were rediscovered in 2007. Here, a look back at the forgotten photographer who paved the way for countless other women in her field.”

9th Circuit Rejects Courts’ “One Size Fits All” Bit Torrent Ruling — Stephen Carlisle looks at last week’s Ninth Circuit opinion in Glacier Films (USA) Inc. v. Turchin, an infringement lawsuit brought by a filmmaker against an individual alleged to have illegally downloaded the film. The lower court had declined to award attorneys fees to the filmmaker after the parties agreed to a settlement, a decision the Ninth Circuit held was incorrect.

Sony Taken to Court Over ‘Slender Man’ Threats — Slender Man, the most spookiest of memes, finds himself at the center of a copyright dispute. Unlike some memes, Slender Man has a clear providence: he was created by Eric Knudsen in 2009. The issue here, however, has to do with alleged similarities between Slender Man, the subject of a spooky movie being developed by Sony’s Screen Gems, and the monster appearing in the film Flay, produced by Phame Factory. Phame Factory filed a declaratory judgment action against Sony following a series of cease and desist letters from Sony alleging similarities between the two spooky monsters.

This case fits squarely within the tradition of copyright enforcement. Turchin’s conduct—pirating and distributing dozens of copies of Glacier’s film—does not “promote the Progress of Science and useful Arts” by “assur[ing] authors the right to their original expression” and “encourag[ing] others to build freely upon the ideas and information conveyed by a work.” This is not a case of the infringer creating something new and incorporating a copyrighted element into that new, creative work. Rather, this case is the digital equivalent of standing outside the neighborhood Redbox—or Blockbuster Video, for fans of history—and giving away copies of the movie for free.

Glacier Films v Turchin, 9th Circuit (July 24, 2018)

The AG Opinion in Levola Hengelo: more questions than answers? — Can the taste of cheese be protected by copyright? This week, the Advocate General for the European Court of Justice advised that court that the answer is “no.” IPKat’s Eleonora Rosati takes a closer look at that opinion.

Nintendo Sues Console ROM Sites For ‘Mass’ Copyright Infringement — Torrentfreak reports on the lawsuit filed in the federal district court of Arizona against two websites alleged to offer a “vast library” of unauthorized copies of Nintendo video games. The suit is perhaps unsurprising given Nintendo’s new line of retro consoles for sale.

Five Reasons Why I Went from Making Films to Fighting for Those Who Make Them — Ruth Vitale, film producer and CEO of CreativeFuture, writes, “Creativity is at the heart and soul of our culture, of ideas that challenge us, and change our perception. Creativity is innovation. It’s the fabric of shared understanding that brings cultures together. And its success depends on strong copyright protections that ensure artists get fairly compensated for what they do. That’s been the American way for two centuries, and it is why we are global leaders in creativity. For a long time, I helped to tell stories about the human condition. Now, I do this work to help protect those very same storytellers, because I do not want to live in a world that doesn’t value creativity.”

Finally, today’s helpful tip comes from Vinton Cerf:

Copyright Alliance survey on copyright registration fee increase — If you register works with the Copyright Office, take five minutes to complete this survey, which will be used in response to the Copyright Office’s proposed fee schedule, which would raise fees an average of 41%.

Breaking the wall: copyright conflict reaches the Supreme Court — On the topic of copyright registration, the Supreme Court recently agreed to hear a case concerning when the registration requirement for filing a lawsuit has been met. Courts have split over whether the statute requires the Copyright Office to either complete or reject a registration application before a copyright owner can get into court, or whether the requirement is met earlier, when the copyright owner has submitted her registration materials to the Office.

As Clock Ticks, New Hurdles Mount Against the Music Modernization Act — Billboard’s Ed Christman has the latest on the Music Modernization Act, which was voted out of the Senate Judiciary Committee last month and has a few short months left to make it to the Senate floor before the Congressional term concludes.

Copyright found after brief search — Newhoff: “Nevertheless, having established an incomplete, if not outright false, premise for the purpose of copyright, [law professor Glynn] Lunney sets out in search of evidence to support his theory that higher revenue consistently fails to yield “more and better” works. And unsurprisingly, he finds exactly what he’s looking for in data that not only fails to prove his point, but actually has little to do with copyright.”

Google and the ennui of learned helplessness — The Supreme Court is set to hear a case concerning cy pres class action settlements. This article looks at an amicus brief filed by several artists who argue that Google has abused the process “to pay academics and nonprofits who support its causes instead of class members, avoid liability and damage payments to the public, and get a tax break for payments made to non-class members through use of the cy pres distribution vehicle.”

New Paper Takes on the Myth of Free — David Newhoff looks at a new paper by law professor John M. Newman that critiques the idea that the internet has ushered us into a post-scarcity economy.

Controversial Fair Use Copyright Ruling Faces Appeal — It’s rare to see a court decision that is so consistently erroneous. But we got one last month with Brammer v Violent Hues Productions, which held that defendant’s copying was protected by fair use. That decision is now being appealed.

Surprise! Pirate Sites Are Affected By Market Forces Too — Torrentfreak writes, “Pirate sites are regularly painted as places where markets are turned on their heads, with premium content being made available for free to the sounds of birds tweeting and lambs skipping across meadows. But try telling that to the users of FreeTutorials and KissAnime, who are now expected to pay for content using either hard cash or enforced advertising.”

The Death of the Public Square — Franklin Foer, author of the recent book World Without Mind, writes, “t took centuries for the public sphere to develop—and the technology companies have eviscerated it in a flash. By radically remaking the advertising business and commandeering news distribution, Google and Facebook have damaged the economics of journalism. Amazon has thrashed the bookselling business in the U.S. They have shredded old ideas about intellectual property—which had provided the economic and philosophical basis for authorship.”

All EFF’d Up: Silicon Valley’s Astroturf Privacy Shakedown — Author and journalist Yasha Levine offers a blistering account of EFF’s role in facilitating the large internet platforms’ policies. “On a fundamental level, these companies were like tapeworms—digital parasites that sunk their hooks into our networks of culture distribution and siphoned value as quickly as possible for themselves, without giving anything back to the people who produce culture. And just as these new platforms would asphyxiate without other people’s creative output, they wouldn’t stand a chance of turning a profit without a massive surveillance campaign on their own users. Naturally, as these companies grew and matured, two threats to their business loomed large: copyright and privacy. To make sure these never became a problem, Silicon Valley built up a powerful lobbying and public relations machine.”

What a Google Email to News Publications Means for the Music Business — Rob Levine writes, “The battle over the proposed European Union Copyright Directive is heating up — and technology companies have returned to their usual playbook. That means mobilizing nonprofit groups and academics they support, warning that policies will ‘break the internet,’ and trying to get some creators and media companies on their side. The latest example: An email from Google to news publications in its Digital News Initiative, a program the company established to help journalism online, asking them to lobby against parts of the Copyright Directive that are intended to help them.” This week, after publication of this article, the European Parliament declined to adopt the amendments and sent them to a plenary vote this September.

All the Forgotten IP Cases, Where Do they All Come From… — Zvi Rosen looks at Perris v Hexamer, an 1878 Supreme Court decision on copyrightability that has largely been forgotten.

Kim Dotcom loses appeal against extradition, will take case to Supreme Court — The New Zealand court held that Dotcom could be extradited to face criminal copyright infringement charges in the US, dismissing Dotcom’s argument that New Zealand lacks criminal copyright infringement provisions.

Kitty Pryde Owns the Trademark on the X-Men — It’s canon.

‘Critics of Article 13 are Weaving a Narrative with no Relation to Fact’ — Article 13 is part of a proposed update to EU’s copyright directive and would place more responsibility on certain online service providers providing content to users to make sure that content is authorized by copyright owners. BASCA’s Crispin Hunt responds to the avalanche of hyperbolic nonsense that critics of the article are pumping out, saying, “The reality is that Article 13 is hardly revolutionary. It is a modest proposal that returns some sense of fairness and responsibility to the manner in which internet platforms operate. We have had almost 20 years of experience under the existing regime where platforms have almost no accountability to the public, and in which they are rewarded for wilful blindness and inaction.”

Supreme Court to Resolve Split Over Copyright Registrations — The Supreme Court picked up its first copyright case this term on the last day of the term. The question: given that copyright registration is required before filing a lawsuit, does the statute allow copyright owners to sue once they’ve sent their registration application to the Copyright Office, or must they wait until the Copyright Office has reviewed the application and either granted or denied registration? Courts have split on the question.

Senate Judiciary Committee Unanimously Passes Music Modernization Act — The bill previously passed the House 415-0.

IP Norms’ Dark Side — “The early legal literature on law and social norms tended to paint a rosy picture. Social norms were generally depicted as an optimal set of organically developed rules, informed by the experience of a close-knit community, and thus superior to formal law as a way to regulate behavior. Later scholars came to realize that nothing guarantees the optimality of social norms: they may perpetuate practices that no longer make sense, or they may advance the interests of certain groups but not social welfare. In such cases, formal law holds the promise of overriding suboptimal norms and moving society to a better place.”

Putting “Fair” Back in “Fair Use” — “Partly to blame perhaps for an expansion of the boundaries of fair use was the lack of a coherent economic framework for evaluating secondary uses under the ‘transformative’ concept. A new academic paper entitled Fair Use in the Digital Age by scholars at the Phoenix Center for Advanced Legal & Economic Public Policy Studies and Auburn University’s Economics Department in the Journal of the Copyright Society of the U.S.A. (65 J. Copyright Soc’y U.S.A. 1 (2018)) offers a practical economic framework closely tied to the statute, judicial precedent, and Judge Leval’s ‘transformativeness’ idea. The analysis in this article is rich, but it generally points to two key steps in analyzing fair use disputes.”