[LORD CHANCELLOR:] As to what has been said by Mr. Attorney General of the [Statute of Anne] being a monopoly, and therefore ought to receive a strict construction, I am quite of a different opinion, and that it ought to receive a liberal construction, for it is very far from being a monopoly, as it is intended to secure the property of books in the authors themselves, or the purchasers of the copy, as some recompense for their pains and labour in such works as may be of use to the learned world.

Gyles v. Wilcox, 2 Atk. 141 (1740)

Online infringement hurts: interviews with Australian creators — Australian professor Melissa de Zwart writes, “What became very clear from the interviews was that our Australian creative people are under financial pressure. This is affecting their capacity to create. Many have to supplement their creative work, such as songwriting, with other jobs, such as teaching. While many joked that even if they didn’t receive any money they would still go on creating, those who had been in the industry longest made it clear that significant personal investment was required to do so. The question we have to ask is, do we want to foster an Australian creative industry and provide a fair reward to those who work in the industry – or are we prepared to sacrifice our culture for cheap downloads?”

The Cathedral of Computation — A great piece on the tendency for the computational aspect of new innovations to overshadow the very ordinary processes that go into making those innovations; e.g., Google Maps relies just as much on people driving cars as it does on software. “This attitude blinds us in two ways. First, it allows us to chalk up any kind of computational social change as pre-determined and inevitable. It gives us an excuse not to intervene in the social shifts wrought by big corporations like Google or Facebook or their kindred, to see their outcomes as beyond our influence. Second, it makes us forget that particular computational systems are abstractions, caricatures of the world, one perspective among many. The first error turns computers into gods, the second treats their outputs as scripture.”

CJEU says exhaustion only applies to the tangible medium of a work (so no such thing as a digital exhaustion?) — Eleonora Rosati writes, “Of course this case was not about digital exhaustion. However, by suggesting that exhaustion under Article 4 of the InfoSoc Directive only applies to the tangible support of a work, the Court appeared to imply that there is no such thing as a general digital exhaustion under EU copyright. In other words: the decision in UsedSoft was possible only because of the lex specialis nature of the Software Directive.”

We’re being stigmatized by ‘big data’ scores we don’t even know about — Soon, if you want a good job, a good education, or access to good credit, you’ll need to conform your speech and behavior to what “bosses, banks, or insurers” deem appropriate.

Collective Soul on Taylor Swift, U2, & Music’s Future — “While digital streaming has been a boon for consumers, it has had a chilling effect on musicians, the majority of whom argue that it has eroded their ability to earn back the money and time they’ve invested in creating their unique song catalogues. [Collective Soul lead singer Ed] Roland offers his take on some of the challenges facing young artists…”

Content Creators Coalition comes to APAP with plea for fair compensation — This week, the Association of Performing Arts Presenters hosted a panel on artist rights issues featuring artists like Rosanne Cash, Marc Ribot, and Melvin Gibbs.

More than 100 Creatives sign letter thanking Senator Leahy for urging credit card companies to cut ties with pirate sites — Over 100 actors, writers, directors, producers, and others applauded the Senator for his work imploring credit card companies to “implement voluntary steps that can prevent their services from being misused to fund pirate websites.”

Involuntary Distribution Business Subsidies — The Dead Kennedy’s East Bay Ray writes “One of the talking points that various tech company commentators, academics and bloggers have used to try to justify companies exploiting an artist’s work without consent (a loophole in safe harbor ) is that it would lessen the barrier for tech companies to start up. The idea is that creators should be required to give something up to facilitate this goal. Business start-ups are all well and good, but to require anyone to involuntarily subsidize a business, internet or otherwise, with something they have put time, effort, money, and skill into is extremely problematic.”

In defense of quality — “The web is working hard to change this—in particular, companies run by web entrepreneurs who so worship the God of Page Views as to drain life of qualitative meaning entirely. It’s all about quantity, all about getting the most people to click a link or like or follow.”

Artist Rights Leaders: Taylor Swift — “When we look back on the last year, there’s probably no one who did more for artist rights than Taylor Swift. She really did not need to take on these issues, she could easily have sat back and let the money roll in. And yet she did.”

Happy New Year, Copyhype readers!

Among the Disrupted — 2015 starts out strong with this searing call for a humanist dissent against technology. “We can no longer roll over and celebrate and shop. Every phone in every pocket contains a ‘picture of ourselves,’ and we must ascertain what that picture is and whether we should wish to resist it. Here is a humanist proposition for the age of Google: The processing of information is not the highest aim to which the human spirit can aspire, and neither is competitiveness in a global economy. The character of our society cannot be determined by engineers.”

How postmodernism destroyed journalism — Odd title aside, this is a great introduction to Scott Timberg’s soon-to-be released Culture Crash, which looks at the crumbling “middle class” of creators.

A Year in Empowering Creators: Artists Speak Out — All types of artists and creators were vocal in 2014 about the importance of their craft and the need to be fairly compensated for it. Here are some of the highlights.

Digital Business Models Should Have to Follow the Law, Too — “[B]y YouTube’s own analysis, removing infringing content would reduce video views by 80% or even more. Copyright compliance, or lack thereof, was the key battleground: Users wanted copyrighted clips, rights-holders and royalties notwithstanding, and the market tipped towards the service that gave it to them.”

Copyright 2014: the year in review — Barry Sookman provides a comprehensive look at court decisions from across the globe dealing with substantial issues in copyright law.

Court Filing Ends AG v. HathiTrust Copyright Litigation — “‘Our pursuit of this claim was ultimately a success,’ said Authors Guild Executive Director Mary Rasenberger. “It led directly to HathiTrust’s 2011 abandonment of the Orphan Works Project. Moreover, the stipulation filed today resolves one of our biggest concerns with the HathiTrust Digital Library—namely, that its copying wasn’t done in accordance with the rules for library copying laid out in the Copyright Act.'”

EFF Doubles Down on Barlow Declaration — “Cyberspace, like physical space, is a world in which people act like people; and unfortunately, this includes criminal, morally depraved, or just plain dumb behaviors, some of which were not possible prior to the opening of this new frontier. Human trafficking, identity theft, intellectual property theft, cyberstalking, the expansion of yellow journalism, terrorist propaganda, and child abuse are all beneficiaries of Barlow’s sacred “home of Mind.” We have to accept that and deal with it; and absent our participation in society through government, I am at a loss to know what realistic alternative might exist. Letting the six guys who own the most popular sites make all the decisions? Because that’s what’s happening now. Governance of cyberspace exists; it’s written in the Terms of Service, and you didn’t vote for anyone who wrote those terms.”

Building the Sets of Middle-Earth for the Battle of the Five Armies — “The creation of a film like Battle of the Five Armies is not only an adaptation of the source text, but hundreds of adaptations within the production itself. Howe and Lee produced thousands of Middle-earth illustrations, which are then adapted by Hennah into detailed designs, which are then adapted into practical sets. The illustrations are adapted by costume designers Anne Maskrey and Bob Buck who dress the actors, and then those actors are filmed in 3D by Lesnie at 48-frames-per-second using Red Epic digital cameras, and that imagery is augmented with the visual splendors (and horrors) created by Weta Digital, and on and on it goes.”

Reps. Chu and Collins Praise Economic Contributions of Core Copyright Industries — Representative Chu says of the recently released report, ““Employing more than 5.5 million people, our creative industries contributed more than a trillion dollars to our economy last year. This is a significant portion of our GDP, none of which would be possible without strong copyright protections. As co-chair of the Congressional Creative Rights Caucus, I am so proud of the talented minds and innovative workers that produce arts and entertainment admired around the world. We need to continue working to guarantee the protection necessary to help this industry continue to thrive.”

Flickr Sorry for Selling Creative Commons Photos as Wall Art, Will Stop and Refund All Sales To Date — Flickr originally rolled out a feature allowing Creative Commons images that were licensed to be reused commercially to be sold as wall art through the site, but the plan was met by outrage by a number of photographers.

2015: The year of blocking injunctions? — Eleanora Rosati notes, “Improving the legal framework for online enforcement of IP rights, notably copyright, has been probably the most debated policy topic in a number of jurisdictions in 2014, and will likely be so also in 2015. The recent decision of the Court of Justice of the European Union (CJEU) in Telekabel [here and here] clarified once and for all that blocking orders are compatible with EU law, and that it is left to the concerned internet service providers (ISPs) to determine how best to achieve the result sought by the relevant rightholder(s).”

Flickr’s Wall Art Program Exposes Weaknesses in Licensing Automation — “The fact that a hosting website might exploit a Creative Commons-licensed work for its own commercial gain doesn’t sit right with many content creators who have operated under two assumptions that, as Flickr has shown, are naive. One is that these big Internet sites just want to get users to contribute content in order to build their audience and that they will make money some other way, such as through premium memberships or advertising. The other is that Creative Commons licenses are some sort of magic bullet that help artists get exposure for their work while preventing unfair commercial exploitation of it.”

Authors Guild Opposes Google’s Fair Use Claim in Federal Appeals Court — Last week, a Second Circuit panel heard oral arguments in the Google Books litigation, on appeal after the district court held that Google’s massive commercial operation was a fair use. Here’s the Author Guild’s report on the arguments.

Korean cultural export success rooted in freedom and democracy, industry insiders say — Freedom of expression and a sustainable, professional creative sector go hand in hand, as this report demonstrates. “The mania reaffirmed the success of Korean cultural and creative industries that, industry heavyweights say, owe their accomplishments to the freedom guarded by a democratic society that is seeking to cultivate a creative economy.”

Paying A Legitimate Toll To Ease On Down The Road — “I’m not suggesting that everyone get schooled in the intricacies of copyright law, but that as part of the process of creating and performing shows, students should come to understand that there is a value in the words they speak and the songs they sing, a concept that’s increasingly frayed in an era of file sharing, sampling, streaming and downloading. Creative artists try to make this case publicly from time to time, whether it’s Taylor Swift pulling her music from Spotify over the service’s allegedly substandard rate of compensation to artists or Jason Robert Brown trying to explain why copying and sharing his sheet music is tantamount to theft of his work. But without an appreciation for what copyright protects and supports, it’s difficult for the average young person to understand what this might one day mean to them, or to the people who create work that they love.”

10 FAQs on Twitter (Music Piracy Research Blog) — “What I won’t accept are the weak excuses to justify piracy. That’s all they are. Excuses. Piracy is easy, you get free stuff, and the chance of being caught is slim. That’s it. Don’t forget that when you obtain copyrighted media illegally, someone somewhere is profiting from that. Illegally. Rightsholders are denied money they are legally and morally entitled to. If you are happy to go see ‘Fast and the Furious 12′, or listen to Two/Three/Four Direction, then keep at it. Investment in new talent is down (BPI) because the return on investment has no guarantee anymore. And it looks like the cost of live concert tickets keeps rising in response to music piracy, so if you like concerts, start saving up for 2015.”

“blame the author” — John Degen talks about a “stock free-culture tactic – assert loudly and without any shame that anyone defending copyright hates the user community.”


Second Circuit Hears Google Books Case — This week, the 2nd Circuit heard arguments in the dispute between authors and Google over the search giant’s mass digitization program. While this specific dispute has been going on for nearly a decade, the dispute over this issue is at least half a century old. A draft bill for copyright revision in 1964 provided that a copyright owner’s exclusive right to copy included “the right to reproduce the work in visual copies, to make or duplicate sound recordings of it, to make a translation, adaptation, or any other derivative work from it, and to reproduce it in any form in the programming or operation of an information storage and retrieval system.” This language did not appear in the final bill, passed in 1976.

The Strand’s Stand: How It Keeps Going in the Age of Amazon — A fascinating look at the legendary used bookstore in Manhattan.

‘Investing in Music’ report shows record labels invest US$4.3 billion in A&R and marketing — The report shows the significant contributions the global recorded music industry makes to promoting the progress of science and the useful arts.

Electronic Frontier Foundation (EFF) uses copyright law as censorship canard again — “Sutton lists 9 instances in which content was removed for allegedly political reasons via a DMCA notice. Not to minimize any wrongdoing in these particular instances, but has Ms. Sutton bothered to examine the millions of legitimate removals that occur each week worldwide? In any enforcement system there exist errors and potential for abuse, but the the truth is that the volume of legit DMCA notices far outweighs illegitimate ones.”

Virginia Woolf Goes to the Movies — Originally published in 1926, a year before the first talkie, The Jazz Singer, was released, the esteemed author pens a prognostic look at the brand new medium. “Yet if so much of our thinking and feeling is connected with seeing, some residue of visual emotion which is of no use either to painter or to poet may still await the cinema.”

Not a good week for Sirius XM:

While the Court is largely unpersuaded and sometimes baffled by Sirius XM’s repetitive or off-point theories about how reasonable jurists might read an unwritten exclusion into §980(a)(2), the Court will not analyze the potential grounds for difference of opinion because certification of this Order suffers from an even more basic deficiency.

Disney’s global success with ‘Frozen’ took lots of translation, investment — “The company put a huge investment into making the animated film as accessible in Beijing as in Buenos Aires. The movie is translated into 41 languages, which included an international cast of more than 900 people. They worked on 1,300 recording sessions.”

Top 113 Congressional Copyright Review Moments — While the 113th Congress still has a few more days in session before the end of its term, there are no more copyright review hearings planned. Here is a look back at some of the top moments of the past year.

Landmark Trade Deal at Risk Without Strong Intellectual Property Laws — “The nature of the TPP’s IP provisions matter greatly to the United States because America’s competitive advantage in the global economy increasingly lies in innovation-based industries—such as life sciences (pharmaceuticals and medical devices), information and communications technologies, digital services, music and film, aerospace, and advanced manufacturing—that at their core depend on the production, and protection, of intellectual property.”

Fair Use and Market Harm: Use It or Lose It? — Thomas Young has an in-depth look at the Eleventh Circuit’s troubling conclusion concerning market harm in the GSU e-reserves case, one of the issues the publisher plaintiffs are asking the full bench to review in their petition for an en banc rehearing.

Social Media Bots Offer Phony Friends and Real Profit — “‘This all points to social media advertising being one giant bubble,’ said Tim Hwang, chief scientist at the Pacific Social Architecting Corporation, a research group that focuses on bots. ‘Everyone is really happy to say, ‘Look at the numbers that we got, it must have been successful,’ even though the retweets and favs are inflated by bots.'”

The Creepy New Wave of the Internet — Sue Halpern says in the New York Review of Books, “In other words, as human behavior is tracked and merchandized on a massive scale, the Internet of Things creates the perfect conditions to bolster and expand the surveillance state.”

Go back forty-four years, to 1970, when NJ Representative Cornelius Gallagher said much the same thing: “By weaving a web of data representing all of an individual’s experience, it seems to me that we are creating a suffocating sense of surveillance in this country.” 1)Fair Credit Reporting Hearings on H.R. 16340 Before the H. Subcomm. on Consumer Affairs of the Comm. on Banking and Currency, 29, 91st Cong. (1970) (Statement of Rep. Cornelius E. Gallagher). Gallagher went on to say, “Files which are economically unfeasible to computerize now will undoubtedly yield to further generations of computing machines in a vast nationwide, even worldwide network of information. The question is no longer science fiction.”

References   [ + ]

1. Fair Credit Reporting Hearings on H.R. 16340 Before the H. Subcomm. on Consumer Affairs of the Comm. on Banking and Currency, 29, 91st Cong. (1970) (Statement of Rep. Cornelius E. Gallagher). Gallagher went on to say, “Files which are economically unfeasible to computerize now will undoubtedly yield to further generations of computing machines in a vast nationwide, even worldwide network of information. The question is no longer science fiction.”

“Because the more people that touch a story, the more that story touches the world.” In conjunction with the launch of Wheretowatch.com, which provides a slick and easy way to find TV shows and movies online, the MPAA also posted this great look at the people working behind the scenes.

In Twist, Publishers Appeal Their ‘Win’ in GSU Copyright Case — The publishers primarily want review of the 11th Circuit’s view that fair use should not be media neutral, agreeing with Judge Vinson’s remarks in his concurrence that “The use of a copyright-protected work that had previously required the payments of a permissions fee does not all of a sudden become fair use just because the work is distributed via a hyperlink instead of a printing press.”

Mission Creep-y — Public Citizen this week issued a scathing report on Google’s practices, concluding the company “is so rapidly expanding both its information-collecting capabilities and its political clout that it could become too powerful to be held accountable.” The public interest group examines both Google’s increasingly pervasive surveillance of the world’s population along with its rapidly expanding hard and soft lobbying and PR.

Taylor Swift — There was a bit of discussion this week about Swift. Here are a few of my favorite takes on it. Robert Levine on why Swift’s decision makes sense for Swift and why it’s not the end of the world if we respect that. The consistently quotable Taylor Swift and the Myth of the Mean Greedy Artist (e.g., “You are not helping the underprivileged by making it impossible for anyone who isn’t already rich and privileged to take up artistic careers.”). Phillip, I disagree, which points out that “cutting out the middle man” should more accurately be described as “taking on the middle man’s responsibilities”; “So yeah, you can do a lot of things without needing a record company, but if you want to do music full time and make a living, maybe even put a couple bucks away for retirement or your kids college fund, then you are going to need help from a lot of people.” Or, finally, Blake Morgan on CNN, figuratively dropping the mic on the Swift discussion.

Exclusive: Taylor Swift on Being Pop’s Instantly Platinum Wonder… And Why She’s Paddling Against the Streams —

But all I can say is that music is changing so quickly, and the landscape of the music industry itself is changing so quickly, that everything new, like Spotify, all feels to me a bit like a grand experiment. And I’m not willing to contribute my life’s work to an experiment that I don’t feel fairly compensates the writers, producers, artists, and creators of this music. And I just don’t agree with perpetuating the perception that music has no value and should be free.

Giorcelli on Italian Opera & Copyright — A fascinating article that looks at empirical data on Italian operas created between 1790-1900, a time period where Italian states were adopting copyright laws at different times. The authors found that adoption of copyright led to a “significant increase” in both quantity and quality of operas created.

Fall of the Banner Ad: The Monster That Swallowed the Web — “Because they are so ineffective, banner ads are sold at low prices for high volume, which means to make any money from them, sites need to pull in major traffic. This business model instilled the idea that page views were a paramount goal of the web, thus spawning millions of low-rent, me-too sites bent on getting your click.”

NPPA Member Justin Cook Reaches Agreement with UNC — The University had originally claimed that since it had found Cook’s photo on the internet, it assumed it was free to use.

Police In Germany Are Trying To Stop Armed Warfare Between Rival File-Sharing Gangs — Yeah, but if you can’t compete when your business is set on fire, than perhaps your business model is outdated.

The Psychological Comforts of Storytelling — The Atlantic looks at why humans have been telling stories for thousands of years and why that’s important.

George R. R. Martin’s Sister: The Economics of Being a Writer — “The implications of this growing inequity for the writing industry are this: in the future, you will need to either a have a wealthy patron, or already be wealthy if you wish to become a writer. Indeed, this is not merely a question for the future; it is the grim reality facing working class and poor writers now.”

I got a rock.

Charlie Brown (1966).

Old Masters — A fantastic series of vignettes from the New York Times Magazines of individuals over the age of 80, many of them artists and craftspeople, who are still hard at work.

Will Google finally admit search a factor in online piracy? — This is the question Ellen Seidler asks of the search giant, which had long maintained that search was not a factor in online piracy. However, after a recent tweak in its algorithm to downgrade sites receiving large numbers of DMCA takedown requests, traffic to those sites has plummeted.

Taking Pictures: A Way for Photographers to Protect Their Work — The New Yorker profiles photojournalist Yunghi Kim, who over the years has documented events and conflict in places like Somalia, Rwanda, Kosovo, and Iraq, and who has seen first hand the damage online infringement causes to photographers trying to bring these photos to the public.

No Lemonade for Aereo’s Lemons — Devlin Hartline looks at the recent decision involving streaming service Aereo, enjoined by a court that rejected its latest argument that it was a “cable service” under the Copyright Act and thus eligible for a compulsory license (immunizing it from copyright liability).

Copyright at Common Law in 1774 (via the 1709 Blog) — An important contribution to the history of copyright. Tomas Gomez-Arostegui presents a compelling case that the “revisionists” who’ve argued in recent decades that a seminal decision in 18th century England held copyright was solely a creature of statute are wrong.

Back to the Future Wouldn’t Have Been the Same Without Spielberg — The film might have been called “Spaceman from Pluto”, for one thing.