Copyright Office Q&A Session About The New Online DMCA Designated Agents Directory — Franklin Graves chats with US Copyright Office attorney-adviser Jason Sloane about the Copyright Office’s recently updated DMCA Designated Agent Directory. Service providers wanting to avail themselves of the DMCA safe harbors are required to provide current contact information with the US Copyright Office.

Statutory damages in copyright law: “On forgetting how to read a statute” — An interesting deep dive into language in the 1909 Act related to statutory damages. “The ‘shall not be regarded as a penalty’ clause becomes a parade example of why scholars need to know the contemporaneous legal-intellectual milieu to read statutory terms. Legal scholars are of course aware that to be good readers of a legal text, we need to read it in its legal context. But that point is usually expressed in terms of relatively specific and discrete categories, such as ‘terms of art’ and ‘background presumptions.’ Gómez-Arostegui’s essay is a reminder of how our appreciation for legal-intellectual context should not be reduced down to those categories.”

Cox Must Pay $8 Million to Cover BMG’s Legal Fees in Piracy Case — Last year, a jury found ISP Cox liable for willful infringement and awarded music publisher BMG $25 million in damages. This week, Judge O’Grady awarded an additional $8 million in attorney’s fees to BMG. The question of whether to award damages followed the standard set by the Supreme Court several months ago in its Kirtsaeng II decision.

The song remains the same: Exceptionalists against the application of the law — Neil Turkewitz shares a recent article he penned that “highlights the problems associated with a school of internet exceptionalism that would treat the internet as largely outside the reach of laws and regulations — not by affirmative legislative decision, but by virtue of jurisdictional default.”

Goodlatte Announces Agenda for 115th Congress — That agenda includes advancing the House Judiciary Committee\’s ongoing review of copyright law. Goodlatte says, “At the end of 2016, we issued our first bipartisan proposal to ensure the Copyright Office keeps pace in the digital age. Among the reforms contained in our first proposal are granting the Copyright Office autonomy and requiring it to maintain an up-to-date digital, searchable database of all copyrighted works. This proposal is the first of what we intend to be numerous policy proposals to reform aspects of our copyright laws.”

Creating a USCO Capable of Succeeding in a Changing World [PDF] — The Judiciary Committee policy proposal mentioned above also refers to the creation of a small claims process. In its comments to the Committee, an ad hoc coalition of visual artists—who are essentially shut out from enforcing their rights in federal court due to litigation costs—thoroughly cover the many details of the small claims process that would need to be addressed to make it a reality.

Police Seize Domains of Fifty ‘Pirate’ Newspaper and Magazine Sites — One tends to think of movies and music when one thinks of piracy, but any creative work that can exist in digital form is likely being distributed illegally online. TorrentFreak reports on a recent operation by Italian authorities that successfully shuttered a large scale pirate operation illegally distributing “‘vast quantities’ of material originally published by major newspapers and periodicals including Cosmopolitan, Fashion Magazine, and Vanity Fair.”

IP Scholars Explain Why We Shouldn’t Use SurveyMonkey to Select Our Next Register of Copyrights — “Rather than crowd sourcing the job description, the Librarian should review the Copyright Act and consider candidates that would be best qualified to fulfill the explicit and established standards of 701(b). By handing this over to anyone willing to fill out a SurveyMonkey form, the Library of Congress is politicizing a process that shouldn’t be politicized. The letter warns that ‘[w]hile it is often laudable to seek public input on important issues of policy, an online survey seeking input on job competencies from any internet user is an inefficient and inappropriate approach for developing selection criteria for this important role, particularly where such minimal background is provided to survey-takers and where there appears to be no mechanism to encourage constructive comments.'”‘

It’s Time to Modernize the Copyright Office — Gabriel Horwitz lays out the case for what needs to be done to make sure the Copyright Office can meet the challenges of a 21st century copyright system. Fortunately, the House Judiciary Committee has already begun work on the issue, issuing a policy proposal on Copyright Office reform last month, with public comments due Tuesday.

What Does an Independent Film Producer Do? A Conversation with Jeff Sharp — CreativeFuture sits down with Sharp, producer of films such as Boys Don’t Cry and You Can Count On Me, to discuss the role of the film producer, and the challenges and opportunities that indepedent film producers face.

Reading The Game: Red Dead Redemption — Jason Sheehan, writing at NPR, reveals that his favorite Western of all time is… a video game? A great reminder of the storytelling potential of a medium often perceived as shoot-em-ups and RPGs.

CBS, Paramount Settle Lawsuit Over ‘Star Trek’ Fan Film — In the wake of a court ruling putting a damper on the production of an unauthorized Star Trek derivative work, the two parties have settled. According to Eriq Garnder at THR, the producers of Axanar will continue production of their film after agreeing to make “substantial changes” as part of the settlement.

Bandcamp Reports Strong Growth, Adding 2000 Indie Labels, Hundreds of Thousands of Artists in 2016 — The site, which is open to any recording artist and focuses on physical and digital sales of music rather than subscriptions and streaming, announced positive performance over the past year.

VidAngel: It’s Not About Filtering — Jonathan Bailey takes a look at a case that has so far flown a bit under the radar. Currently on appeal to the 9th Circuit after a District Court granted the plaintiff’s motion for a preliminary injunction, Disney v VidAngel raises a number of issues, including Section 1201, first sale, and fair use, but defendants argue their video on demand service is authorized by an obscure provision in the Copyright Act that allows viewers to filter out mature elements from authorized copies of movies.

Digital copyright laws must protect content creators — Neil Turkewitz writes, “In a recent Hill op-ed, Public Knowledge’s Charles Duan and R Street’s Sasha Moss call for the Supreme Court to weigh in on a ten-year-old copyright case involving notice and takedown, copyright and a dancing baby. But their piece dances around inconvenient truths, and is predicated upon a rather ‘transformative’ use of reality.”

Lee staying on as patent chief under Trump administration — Yesterday, news broke that the Obama-nominated Michelle Lee will remain on board as Director of the US Patent and Trademark Office in the incoming administration. Despite its name, the USPTO also advises other Federal agencies on copyright policy.

Newman on Vested-Use Privileges in Property & Copyright — A common criticism of copyright is that it impinges on a person’s personal property rights. That is, if a copyrighted work is embodied in some material object like a book or a toaster, the owner of that object is limited by copyright law by what they might otherwise be able to do with that object. In this law review article, Christopher Newman offers a compelling argument in response to that criticism.

On January 12, 1977, Barbara Ringer, the register of copyrights, was presented the President’s Award for Distinguished Federal Civilian Service in 8 ceremony at the White House. This award, the highest honor for extraordinary achievement in the federal career service, cited the leading part taken by her in the movement to revise the copyright law and pointed out that her “energy, ability, and concern for the property rights of those who create literature, the arts, and science have ensured continuation of that creativity, thus enhancing life for all people.” Ms. Ringer had already received from the Librarian of Congress, shortly after the revision bill was cleared for passage, the Distinguished Service Award, the highest award offered by the Library, in recognition of her contribution to the quest for modern copyright legislation.

Library of Congress, 80th Annual Report of the Register of Copyrights, For the Fiscal Year Ending September 30, 1977

Peter Bart: How Content Creators Are Exploited By Monoliths Apple, Google, Facebook — Bart writes, “Why is it that, while vastly more creative content is being consumed worldwide, less revenue is flowing to the people who create it? This is the issue probed by Jonathan Taplin in an important new book that demonstrates how intellectual property has been hijacked by what he calls the new ‘marketing monoculture’ led by Facebook, Amazon and Google.”

Photographer Gets Cyberbullied After Defending Photo Copyright — As this story demonstrates, as important as it is for artists and creators to stand up for their rights, it’s rarely easy.

Transcribed Proceedings of CONTU — Zvi Rosen has provided another goldmine of copyright geekery reading pleasure: hundreds of pages of transcripts from the Commission on New Technological Uses of Copyrighted Works, established by Congress in 1974 as part of its broader copyright revision effort to focus on novel issues of technology such as photocopying and copyrightability of computer software.

A Bunch of Weak Anti-Piracy Measures Are Still a Pest to Pirates — Torrentfreak reports, “Clearly, none of these measures are good enough to hit piracy hard enough to kill it, but the barriers to entry are being raised. In addition to a fast broadband service, a decent VPN provider is now almost essential for many file-sharers, whether that’s for circumventing blockades or avoiding those pesky sharing warnings. Equally, keeping on top of the latest news, changes, developments, and domain switches can be a time-consumer in itself. That certainly wasn’t the case ten years ago. And if that isn’t enough, running the junk ad gauntlet requires a skill set all of its own, one that can potentially affect all sites running in a browser, whether they’re guilty of bad behavior or not.”

Fix the value gap – a reply to Michael Geist — Canadian attorney Barry Sookman discusses the value gap, the reallocation of value from creators to internet platforms due to free-riding on unauthorized content. Writes Sookman, “Online providers of services such as YouTube and Facebook would unquestionably be liable for substantial copyright infringements but for the safe harbours established around the world including in the U.S. under the DMCA. These legislative exceptions – which were pushed for by technology companies precisely to limit their liabilities – have enabled technology companies to avoid paying licensing fees (or fair market value fees) for which they would otherwise have been liable.”

2016: The Year We Stopped Listening To Big Tech’s Favorite Excuse — Charlie Warzel at BuzzFeed writes, “But in 2016, Big Tech’s well-practiced excuse became less effective. The idea that their enormous and deeply influential platforms are merely a morally and politically neutral piece of the internet’s infrastructure — much like an ISP or a set of phone lines — that should remain open, free, and unmediated simply no longer makes ethical or logical sense.”

‘Star Trek’ Fan Film Dispute Goes to Jury Trial in Big Ruling — In a ruling on motions for summary judgment, District Court Judge Klausner rejected Axanar’s talismanic “fan fiction” fair use argument. He also ruled that the planned Star Trek spinoff film was objectively substantially similar to Paramount and CBS’s works but the question of subjective substantial similarity was necessarily a question for the jury.

Breaking Windows — At CreativeFuture, film distributor Meyer Shwarzstein discusses the critical importance of “windowing” to indie films. “Do we need independent distributors? In 1948, the US Government became concerned that there was too much power in too few people’s hands. Once the chain of distribution was broken, more voices found their way into the marketplace and more talent was developed. And while this benefited viewers by bringing them more, diverse content, it also benefited the studios that are continually looking for emerging talent.”

Disney’s multiplane camera, an innovation in illusion — A great example of how those in the creative fields are also responsible for technological innovation as well.

Standing up for Songwriters: A Journey Through Recovery — Finally, in the must-watch video below, entertainment attorney Dina LaPolt talks about her recovery and how it informs her advocacy for songwriters.

I hope all my Copyhype readers are enjoying the holidays. As we get ready to ring in the New Year, I’ve posted below a number of articles either looking back at copyright news in 2016 or looking forward to 2017. Enjoy!

Year End Review: Insiders Reflect on the Biggest Copyright and Trade Secret Moments of 2016 — IP Watchdog asks a number of experts to take a look back at the major US developments over the past year in copyright and trade secrets.

2016 the Copyright Year — The 1709 Blog recaps notable developments in copyright law from courts in the US, UK, Europe, and beyond.

2016 Was the Year Torrent Giants Fell — TorrentFreak notes that a number of major sources for distributing infringing movies, music, and other creative works ceased operations over the past year, either voluntarily or because of enforcement actions.

President Obama’s IP Advisor Talks Reform Efforts and a New Administration — USPTO Director Michelle Lee talks with The Hollywood Reporter about ongoing copyright policy work and what the US may expect under a new Administration.

Trump on Copyright: How the Trump Administration will approach copyright law and potential copyright reforms — Marla Grossman makes some “educated guesses” about what a Trump Administration might mean for the US copyright agenda.

Industry executives reflect on 2016 — MusicWeek’s Emmanuel Legrand sits down with a number of music industry execs to look at major developments in that space over the past year, as well as what to look out for over the upcoming year.

RIAA Exec: 2017 Will be a “Critical Year” for Music Law (Q&A) — Finally, The Hollywood Reporter speaks with RIAA General Counsel Steve Marks to get his take on what litigation and legislative efforts the recording industry is keeping an eye on in 2016.

Everyone is handing in their reports before the holidays. This week, the Intellectual Property Enforcement Coordinator published its 2017-2019 Joint Strategic Plan on Intellectual Property Enforcement, while the US Copyright Office released a report on Software-Enabled Consumer Products.

Congressional panel calls for independent Copyright Office — Last week, the House Judiciary Committee released a policy proposal that would give the Copyright Office the autonomy over IT, staff, and budget that it needs in order to bring the Office into the 21st century. The Washington Post’s Peggy McGlone looks at the proposal in more detail, including reactions from constituents.

Public Knowledge’s Lonely Echo Chamber of Copyright Advocacy — Geoffrey Manne and Neil Turkewitz write, “Public Knowledge’s implication that it is a better defender of the ‘public’ interest than those who actually serve in the public sector is a subterfuge, masking its real objective of transforming the nature of copyright law in its own, benighted image. A questionable means to a noble end, PK might argue. Not in our book. This story always turns out badly.”

Breaking Down the Fairness for American Small Creators Act — Last week, we also saw the introduction of HR 6496, the Fairness for American Small Creators Act. Jonathan Bailey takes a deep dive into the bill, which would set up a voluntary copyright claims process as an easier and less costly alternative to federal litigation.

Hollywood Studios Win Injunction Against Streamer VidAngel — A federal judge rejected all of the opportunistic arguments against VidAngel, finding the service not a clever workaround of copyright law, but rather an unlicensed video-on-demand service. VidAngel has vowed to take the case all the way up to the Supreme Court.

Fair Use… The Final Frontier? — Finally, next week, the Central District Court of California will hear arguments on motions for summary judgment in Paramount v Axanar, a case involving an allegedly unauthorized spin-off of Star Trek. Paramount argues that the film at issue is little more than an infringing derivative work of the many Star Trek television episodes and films, while Axanar argues either that their film does not share substantial similarities with any of Paramount’s works or that any infringement is excused by fair use. By Grabthar’s Hammer, expect many clumsy Star Trek references when the hearing is reported.

Goodlatte & Conyers Release First Policy Proposal of Copyright Review — A lot of copyright developments this week! Leading the pack, members of the House Judiciary Committee released a document outlining the first proposal to arise out of its copyright review process, which began in 2013 and included 20 hearings. The proposal addresses the Copyright Office itself in an effort to modernize it for the 21st century. It also calls for the creation of a small copyright claims process.

Reps. Judy Chu and Lamar Smith Introduce Small Claims Reform for Creators — Speaking of small copyright claims, the same day the above proposal was released, Reps. Chu and Smith announced their own bill for a small claims process. The process is modelled on the recommendations of the Copyright Office in its 2013 report on the issue, and the bill joins a similar one introduced this summer by Reps. Jeffries and Marino.

Core Copyright Industries add $1.2 Trillion to US Economy and Employ 5.5 Million American Workers — The International Intellectual Property Alliance this week released its 2016 report on the economic contributions of the core copyright industries. Along with the headline figures, the report finds that sales of US copyright products in overseas markets topped $177 billion in 2015, outpacing other major industries such as chemicals, aerospace, and agriculture.

Masnick Makes a Hash of Fair Use & Censorship — David Newhoff writes, “As a general statement, it is true that fair use is a free-speech-based exception to copyright, but most speech-related, or press-related, uses almost always relate to other forms of expression, including journalism, and they rarely implicate the ‘transformative’ standard being referred to by the News Media Alliance.”

A Lawyer Digs Into Instagram’s Terms of Use — A quick primer on what you are agreeing to when you upload images to the popular social network.

Our civilization, too, will largely survive in the works of our creation. There is a quality in art which speaks across the gulf dividing man from man and nation from nation, and century from century. That quality confirms the faith that our common hopes may be more enduring than our conflicting hostilities.

Pres. Lyndon B. Johnson, Remarks at the Ground-Breaking Ceremony for the John F. Kennedy Center for the Performing Arts, December 2, 1964.

Protect America’s Creative Future — Sugar Ray’s Mark McGrath and musician Billy Morrison pen this op-ed to coincide with the US Chamber’s IP Champions event this week. “Our greatest achievements will depend on our ability to give tomorrow’s artists, innovators and inventors the tools to protect their intellectual property. Not only will it benefit creators, it may also help ensure that the next great artist gets to share their next big hit with you.”

New DMCA Registration Regime Starts Today. Don’t Delay! — Rick Sanders has the “breakdown” on the Copyright Office’s new system for registering agents to receive DMCA takedown notifications. If you run a website or other online service that fields such notices, you need to re-register to maintain safe harbor protections. If you’ve never registered an agent, it’s worth considering whether you should.

Focus on Creators — Thousands of Canadian authors, artists, and creators have signed a letter to Canadian Heritage Minister Mélanie Joly asking her to put creators at the heart of ongoing and upcoming reviews of copyright policy. It’s not too late for others to sign on to the letter.

The Demise of the TPP and its Impact on Copyright — Hugh Stephens discusses the international copyright implications that result from the (probable) failure of the Trans-Pacific Partnership to cross the finish line.