A Slippery Slope: the Facilitation of Fair Use as Fair Use — “Even with the limited nature of the decision, it continues a worrisome trend – permitting a for-profit entity to commit direct copyright infringement because of potential downstream fair uses by third parties. While the fair use doctrine has long been nebulous, it should concern copyright owners that that downstream fair use could justify upstream infringement. Under the court’s reasoning, one could assert that it is not copyright infringement for a street vendor to pirate a copyrighted film and sell it to a film critic so that she may review it because criticism and comment are permissible fair uses.”

Himma on the Unlimited Supply of Information — A fascinating (an d brief) take on the scarcity and nonrivalrous arguments in IP.

An intellectual object of any kind can be reached only through the mediation of some intellectual activity.

This is all the more so of complicated intellectual objects like mathematical proofs, scientific theories, and novels. Intellectual objects are not like fruits on a tree that can simply be picked and consumed; someone has to do something to make them available for consumption. Indeed, it might take hundreds of years of concerted intellectual activity on our part to gain reasonable access to an intellectual object in logical space – as was the case with the proof of Fermat’s Last Theorem.

***

Moreover, and this is crucial, the available supply of intellectual objects can be increased in only the same way that the available supply of material objects can be increased – namely, by deploying a resource that is limited and valuable because it is limited: human labor. Every moment I spend in writing this paper has value to me because I will live for only a limited number of moments. To increase the number of novels available for human consumption, then, someone has to devote her time and her energy, resources of value to any being with a finite lifespan, to produce one. To increase the number of apples available for human consumption (beyond the small number that naturally occur), someone has to devote her time and her energy to it. This is no less true of intellectual objects than it is for material objects.

Copyright, the Internet and Efficient Risk Bearing — Stuart Brotman argues the DMCA could be improved by using an efficient risk-bearing standard. “One of the most basic principles underlying liability rules is that legal responsibility should fall on those who most cost-effectively can limit or eliminate harm. The shape of common law’s tort rules largely is organized around this principle, and so are rules for enforcement of contracts and property rights, including intellectual property rights.”

Streaming Is the Future, Spotify Is Not. Let’s talk Solutions. — “Isn’t it odd that companies like Pandora and Spotify that are not profitable and don’t support artists are thought to behold some kind of gnostic wisdom of economics that defies all logic and reason? Last year Twitter lost $645 million dollars. Record labels have been profitable for over half a century with a sustainable ecosystem that invests in artists and new talent, while also creating hits and stars. It’s time to leave the rainbow unicorn school of economics and faith healing behind and develop real business models based on real economics.”

Smile! Marketing Firms are Mining Your Selfies — So if you’re, say, eating chips in a photo, you’ll be targeted for ads for more chips. Because that’s just how the Internet works.

Common Ground Between Creativity and Innovation — Last week, I was at a conference that explored the similarities between copyright and patent. Here is a summary of that conference.

Is Amazon a Monopoly? — “But on the larger question of whether Amazon is literally and technically a monopoly: Probably not, but the distinction is not all that important. It’s a bully, it’s destroying important institutions, and it’s getting more and more powerful, and its founder now owns the dominant newspaper in the nation’s capital. Amazon controls roughly half the trade in books in the U.S. We may need a new word to describe what it is, but to sit around and debate terminology as we watch the creative destruction seems to me the worst kind of chattering-class hair-splitting.”

Profit, Not Ideology, Motivates Cyberlockers that Facilitate Copyright Infringement — “A vigorous debate has developed in recent years over numerous aspects of copyright protection. There can be little doubt, however, that cyberlockers are profitably inducing copyright infringement on a massive scale. The discussion should thus not be over whether infringement is occurring, but what measures legitimate businesses can take to deter and stop it.”

Creation is Not Its Own Reward: Making Copyright Work for Authors and Performers — Just a few days left to register for this symposium at Columbia Law School in NYC on October 10. The all day event features an impressive lineup of panelists, ending with a discussion featuring US Register of Copyrights Maria Pallante and the USPTO’s Shira Perlmutter.

Music consumption helps drive UK technology sales by £11bn — “A report published by the music industry body BPI suggests music has been a key influence in the demand for smartphones and tablets. The independent study calculates that every 1% increase in demand for music in the UK translates to a 1.4% lift in sales of smartphones, while for tablets the rise is 2.2%.”

Happy Together: Infringement as Conversion — Devlin Hartline takes a closer look at the conversion claim in the recent court opinion finding that owners of sound recordings made before 1972 (the year federal copyright law began securing copyright in sound recordings) have the exclusive right to publicly perform works. Be sure to catch the follow up, Further Thoughts on Infringement as Conversion, for a discussion about the impact (or lack thereof) of the Supreme Court’s decision in Dowling v United States on the analysis.

Veteran Location Manager S. Todd Christensen — Fascinating article on a key but not very well-known role in the making of a film. “First, Christensen reads and breaks down the script, looking at every single location and what it might require. His political skills are necessary as the location manager acts as a go-between, translator and mediator to get things done. They must secure permits and permissions, staff based upon the location’s particulars (this can be hiring anyone from a snake wrangler to a structural engineer), and then manage that location throughout production, making sure it’s left the way it was found.”

Meet Washington Times’ Andrew Harnik, the man behind the camera and photos on your front page — The political and sports photographer talks about his career in this video interview. “It takes years of dedication to perfect this craft.”

When Russians thought the Internet would make them free — “Two decades later and it’s hard to find the traces of our belief in the Russian Internet. The only thing we inherited from the nineties and the Samizdat are the torrents and e-libraries. Copyright is dead: almost any film and any book can be downloaded for free after a five minute search. The film distributors have to make arrangements with pirates about ‘two week vacancies’ after theatre premieres, but the small publishers are just bankrupt. I’m not sure it’s the great result we dreamt in early years of the Internet.”

Bugging Out: How rampant online piracy squashed one insect photographer — Ars Technica presents this story from Alex Wild, telling the far too common tale of the difficulties of earning a living as a photographer. An absolute must-read.

Vast Majority of Top Films, TV Shows are Available Legally Online — You often hear that piracy is caused by a lack of legal options, but a study released this week shows that nearly all recent popular and critically acclaimed television shows and films are available online, legally. The study, by KPMG, found that 94% of 808 top films and 85% of 724 top TV shows were available through at least one of 34 competing legal online video-on-demand services like Netflix or iTunes.

Seventh Circuit Criticizes Second Circuit’s ‘Transformative Use’ Approach to Fair Use — “Kienitz is not the first critique of Cariou‘s interpretation of the fair use doctrine or, in particular, the significance of a work’s ‘transformative use’ on the fair use analysis. … However, as Kienitz is the first Circuit-level critique of Cariou, the opinion represents the genesis of a noteworthy Circuit split on the correct application and significance of a work’s ‘transformative use’ on the fair use inquiry.”

Stanford Promises Not to Use Google Money for Privacy Research — The search giant is essentially paying academic institutions to not study privacy. “Stanford’s Center for Internet and Society has long been generously funded by Google, but the center’s privacy research has proved damaging to the search giant in the past two years. Two years ago a researcher at the center helped uncover Google privacy violations that led to the company paying a record $22.5 million fine. Stanford and Google both said that the change in funding was unrelated to the previous research.”

The Various Views of Volitional Conduct — Devlin Hartline takes a look at responses to a recent Copyright Office inquiry on “volitional conduct” in direct copyright liability.

Dotcom’s Internet Party Fails to Enter New Zealand Parliament — After nearly a year of bluster, the Dotcom founded Internet Party only managed to secure 1.26% of the vote in the New Zealand Parliamentary elections, which, coincidentally, is roughly the same percentage of content on his former MegaUpload service that was non-infringing (joke).

The Little-Known Story of How The Shawshank Redemption Became One of the Most Beloved Films of All Time — A fascinating recap of how the box office dud, released twenty years ago, steadily moved to the top of many people’s list of favorite movies.

Building the Sensational Sets of the Maze Runner — From The Credits, this a-maze-ing behind the scenes look at all the hard work that went into creating the maze landscape of the current box office film. “Fisichella and his team built the Maze walls sixteen feet tall to allow room for lighting above. Visual effects then extended those walls to a hundred feet in post. One of the art department’s biggest engineering tasks was creating a set of practical gates for the Maze. ‘The doors themselves were each 20 feet deep and 20 feet tall, with a 20 foot opening,’ Fisichella said. ‘They were mechanical, so they actually opened and closed on cue and we could have the actors running through them, which makes the film more dynamic than shooting it on blue screen.’ The gates weighed seven thousands pounds each, and the doors were moved by the set’s visual effects crew. ‘It was a challenging installation, to say the least, since we did it out in a field far from our home base,’ he adds.”

The Cult of Jeff Koons by Jed Perl (via CultureCrash) — Jeff Koons is known in the copyright world as a defendant in at least two major decisions involving appropriation art (Rogers v Koons and Blanch v Koons). Here, the New York Review of Books runs a gutting critique of his latest exhibition, a retrospective of his work at the Whitney Museum of American Art in New York City. “Koons, simply put, is Duchamp with lots of ostentatious trimmings. This is not a pretty sight. Duchamp’s readymades have an almost monastic austerity. Koons has bulked them up, transforming the ultimate insider’s art into the art that will not shut up.”

U2 and the Irony of “Permission Rage” — “All those folks busy downloading all that music for all those years that just seemed to be out there for the taking: do you think they were getting anyone’s permission? All the music sitting there on all the torrent sites, waiting to be taken, 24 hours a day—how much of that is up there with anyone’s permission? But oh my goodness, dare to insert 11 U2 songs into my iCloud storage area and suddenly I am Lord High Minister of Permission? Ironic, ain’t it?”

Using Search Results to Fight Piracy — Smith, Sivan, and Telang released a new study this week that examined how the prominence of pirate and legal sites in search results impacts consumers’ choices for infringing versus legal content. Their “results suggest that reducing the prominence of pirate links in search results can reduce copyright infringement.”

Common Ground: How Intellectual Property Unites Creators and Innovators — And if you’re in the DC area in October, consider attending this CPIP conference, with a keynote by Richard Epstein and two days of fascinating panel discussions.

Monkey Selfies & Animal Artists — An interesting take on the frequently discussed monkey selfie from a philosophical perspective.

Yes, Internet TV is near, but there’s too much money in cable to go there — “‘What is the appropriate way to market your product? Is it good to go directly to the consumer? Is it appropriate to be streaming? What is the future, how do we grow these businesses?’ Moonves asked. ‘I don’t think there is a media guy you’ve got up here that isn’t involved every week’ in those discussions.”

The concept of parody and the legitimate interests of parodists and copyright holders — Kluwer Copyright Blog examines a recent CJEU decision concerning parody.

D.C. door swinging Google’s way — It may soon be the case that the best way to get into government work is to start at Google. And vice versa.

Google Is Target of European Backlash on U.S. Tech Dominance — “Accusations are mounting that Google unfairly exploits its dominant position in search, giving a competitive edge to its growing stable of businesses, like YouTube videos, its Google Play app store and its news alerts.”

LouFest 2014: Cake’s John McCrea Talks Follow-Up To ‘Showroom of Compassion,’ Disdain For Tech Companies, State Of Music Industry, And More (via Trichordist) — McCrea: “And there are people, mostly in the tech industry, who say, ‘Oh, music shouldn’t be a job, you should have a day job and then play music on the side.’ But most day jobs don’t allow you to go on tour. So that’s why friends of ours have quit because you can’t just take off from your day job and go on tour for a month. There is a choice. So I see it as rather disingenuous of an industry that is actually monetizing our work and making really good money off it but not even thinking to share that money with artists to tell us that we can’t have a professional career. It is kind of selfish and sh*tty.”

The Classical Cloud (via CultureCrash) — “If I were a music-obsessed teen-ager today, I would probably be revelling in this endless feast, and dismissing the complaints of curmudgeons. No longer would I need to prop a tape recorder next to a transistor radio in order to capture Bruckner’s Sixth Symphony. The thousand-year history of classical music would be mine for the taking. But there is a downside to the glut of virtual product and the attendant plunge of prices. As the composer-arranger Van Dyke Parks has argued, in a recent essay for The Daily Beast, the streaming model favors superstars and conglomerates over workaday musicians and indie outfits. Its façade of infinite variety notwithstanding, it meshes neatly with the winner-take-all economy. And if it ever comes crashing down—streaming services have struggled to turn a profit—hoarding may return to fashion.”

On Scalia’s Aereo Dissent — Devlin Hartline takes a closer look at the dissent from this summer’s Aereo decision and finds it lacking, primarily because it applies case law concerning the reproduction right to a question involving the public performance right.

Book Excerpt: “Showrunners: The Art of Running a TV Show” — Very interesting look behind the scenes of television production. The book combines an informative look at the art of creating and running a TV show with interviews with showrunners from popular shows.

Google Accord With Harvard Tie Fails Judge’s Smell Test — Another cy pres settlement rejected because money from Google would be funded to institutions it enjoys close relationships with. For an in-depth look at this topic, be sure to read Google and Facebook’s new tactic in the tech wars.

More on How a Fox News Lawsuit Might Impact the Future of News — This week, summary judgment motions from parties became publicly available. The lawsuit pits Fox News against media monitoring service TVEyes, with the former alleging the latter runs a commercial service reproducing and distributing copyrighted content without permission. TVEyes is asserting a fair use defense.

Getty Images sues Microsoft over new online photo tool — “In effect, defendant has turned the entirety of the world’s online images into little more than a vast, unlicensed ‘clip art’ collection for the benefit of those website publishers who implement the Bing Image Widget, all without seeking permission from the owners of copyrights in those images,” said Getty.

Intellectual property and economic prosperity: Friends or foes? — Mark Schultz and Adam Mossoff: “Looking at the bigger picture, the broad sweep of economic history indicates that when it comes to economic prosperity and innovation, the U.S. and a few other nations have been doing something right for the past two centuries. The U.S. and Great Britain led the world into unprecedented prosperity and development through the Industrial Revolution, and the U.S. remains responsible for a vast amount of the innovation and creativity driving global prosperity – from the world’s most successful creative industries to smartphones to life-saving drugs.”

Behind the Best Pictures From Ferguson, With Getty Photographer Scott Olson — Olson, who was briefly arrested while covering the protests in Ferguson, Missouri, talks to New York Magazine about some of the popular and powerful photographs he has so far captured.

How Social Media Silences Debate — The New York Times points to a study that finds that people are less likely to express dissent on issues online than they are in person, contrary to what some had predicted.

Meet The Publisher Who Ditched Amazon And Is Selling More Books Than Ever — “In a turn of events that might offer some solace to other publishers, White recently announced that EDC has not only survived the leap into the unknown but just had its best year ever in net revenues. July sales were up 28% over the same month last year, and first-quarter revenues came in 20% higher than 2013’s numbers.”

How do writers find their voices? — Interesting preliminary results from a survey of writers. “One particularly startling finding has been that many writers are unable to ‘see’ the faces of their protagonists. The main character often registers as a blank – or, in one case, pixelated like a censored photograph.”

Will Indie Film Survive? — Scott Timberg: “One of the casualties of our current cultural situation is the erosion of the middle — the middle class, the midlist author, the middlebrow, and the mid-budget film. Independent film, with its interest in boundary pushing and risk-taking, may not seem to belong in that company, but it’s vulnerable to all the same forces.”

The Copyright Office Releases Public Draft of Compendium III — The US Copyright Office this week released its long anticipated new version of the Copyright Compendium, a detailed and comprehensive guide for examiners, as well as the general public, concerning copyright registration. At over 1200 pages, it may not be the best bedtime read, but it should prove invaluable as a reference.

Copyright Review Process Will Continue Into 2015; Education and Circumvention Will Be Next Issues Examined — With just a few weeks remaining before Congress returns from recess, BNA’s Tamlin Bason sat down with Representative Goodlatte to discuss the ongoing copyright review process and what we can expect in the upcoming months.

Why Don’t Today’s Hits Reflect the Times — Interesting article from Billboard. “Why don’t today’s top 40 acts have anything to say? Donovan laments that ‘[The] artists of 1960s and ’70s were much more socially conscious of the feelings and mood of the nation than many of today’s artists.’ Zapoleon adds, ‘Outside of [the] standard themes of love, sex, party and everyday minor social happenings in life, there just aren’t a lot of songs that are relevant to challenges people are facing today, or that talk about contemporary major events in America or the world.'”

Delaware becomes first state to give executors broad digital assets access — The law would allow an estate access to a decedent’s online accounts. Interestingly, the article notes that tech companies like Google, Facebook, and Yahoo oppose the law.

Why Exactly Is There a ‘Jarhead 2’? Hollywood’s Secret-Sequel Economy — Why make a sequel to a movie like Jarhead? It’s still playing big where it matters. The numbers make sense. The EVP’s team looks at DVD rentals, iTunes downloads, streaming numbers, TV distribution, and international markets. When asked of his intel-gathering methods, Ross is transparent: “I got Google.” Online chatter is a vital metric, too. Ross could produce a wartime movie that doesn’t infringe on the legacy of Jarhead, but slapping it with a stagnant IP gives it automatic legs. “It does some marketing for you. You come to it with a built-in consumer. You go on Facebook and people are constantly having dialogue about it,” Ross says.

The Free and the Antifree — A thought-provoking article from n+1 that asserts there is an emerging “antifree” movement that serves as a counter and critique to the “free culture” position.

Special announcement: If you’re a recent law school grad in or interested in DC and copyright, the Copyright Alliance and the Copyright Office are both hiring. Info on the Copyright Alliance legal fellow position here; info on the Copyright Office Barbara A. Ringer Copyright Honors Program here.

The Internet’s Original Sin — Spoiler alert: it’s advertising. A fascinating read that details why the reliance on ad-based business models may be destroying the internet. Ethan Zuckerman points to four downsides to this model: it encourages surveillance, reduces the production of thoughtful content, results in centralization of control, and causes negatives like filter bubbles and echo chambers.

Harper’s Publisher Standing Firm in His Defense of Print and Paywall — “His thesis is built on three pillars. The web is bad for writers, he said, who are too exhausted by the pace of an endless news cycle to write poised, reflective stories and who are paid peanuts if they do. It’s bad for publishers, who have lost advertising revenue to Google and Facebook and will never make enough from a free model to sustain great writing. And it’s bad for readers, who cannot absorb information well on devices that buzz, flash and generally distract.”

Reading Literature on Screen: A Price for Convenience? — “In most respects, there was no significant difference between the Kindle readers and the paper readers: the emotional measures were roughly the same, and both groups of readers responded almost equally to questions dealing with the setting of the story, the characters and other plot details. But, the Kindle readers scored significantly lower on questions about when events in the story occurred. They also performed almost twice as poorly when asked to arrange 14 plot points in the correct sequence.”

Warner Bros. Wins Appeal Over Fictional Technology in ‘Dark Knight Rises’ — Though not copyright, an interesting IP case involving the developer of a product suing the Batman studio for including in the film a product that used the same name. Spoiler alert: things did not end well for the developer. Said the Seventh Circuit, “Trademark law protects the source-denoting function of words used in conjunction with goods and services in the marketplace, not the words themselves.”

The Cult of Sharing — “None of the users of the new profit-driven services are under any delusion that they are transacting with others—the term sharing economy even highlights this fact. What’s crucial to realize is that proponents of ‘sharing’ are reinventing our understanding of economic relations between individuals so that they no longer imply individualism, greed or self-interest. Instead, we’re led to believe that commerce conducted on their platforms is ultimately about generosity, helpfulness, community-building, and love.

Is Spotify Killing Music? — “British singer-songwriter Billy Bragg has compared YouTube to Big Brother. ‘Rather than a huge boot stamping on a human face forever,” he said at a London press conference in June, “it’s a corporation that changes its logo every week.'”

No one cares about manufacturing costs — “Amazon wants to sell ebooks profitably at $9.99. In order to do that, they need publishers to sell them the books at some number less than that. It’s the same negotiation Home Depot has with Black & Decker. Except that you don’t see Home Depot setting up websites that selectively quote George Orwell to make their point.”

Orwell estate hits back at Amazon’s corporate ‘doublespeak’ — “Jean Seaton, director of the Orwell prize, an award for political writing set up in honour of the author, was equally outraged. ‘That Amazon should manipulate Orwell against the interests of writers and their publishers is dystopian and shameless,’ she said today. ‘Orwell, before he had any money, gave a lot of it away to poor and young and struggling writers. Amazon has no interest in writers and wants to throttle publishers. It is marching towards becoming a monopoly book and consequently a monopoly ideas provider – in order to maximise its commercial interest. A world in which all thought has to be bought from one place is Orwellian.'”

Stop Writing Dystopian Sci-Fi—It’s Making Us All Fear Technology — The future is fun, the future is fair.

Plot thickens as 900 writers battle Amazon — “Some writers wholeheartedly supported the letter but were afraid to sign, Mr. Preston said. A few signed it and then backed out, citing the same reason… Mr. Preston’s longtime writing partner, Lincoln Child, is among those with qualms.’I am very apprehensive,’ Mr. Child said. ‘Not all David and Goliath stories end happily for the little guy. But I think Doug did the right thing.'”

Kurt Sutter Attacks Google: Stop Profiting from Piracy (Guest Column) — The Sons of Anarchy producer pens a passionate call to action for his fellow creative professionals, highlighting the dangers of Google, which, as he puts it, “is in the process of systematically destroying our artistic future, and more importantly, the future of our children and grandchildren.”

Mossoff on Intellectual Property Rights as Property — Legal scholar Adam Mossoff writes an introduction to the recently published Intellectual Property and Property Rights, which “presents the three basic analytical frameworks in which intellectual property rights are defined or justified as property rights – historical, conceptual, and normative.” A good introduction for those interested in the academic discussion of IP and property.

‘Academic Urban Legends’ — Not copyright related, but should be of interest to those who engage in copyright scholarship. The article points out that the belief that spinach is high in iron is a myth. Scholars have long pointed out that the myth was caused by German scientists in the 1930s after they accidentally put a decimal point in the wrong place. But that story is also a myth, perpetuated by academic sloppiness in citation practices.

Of Macaques and Men: [obligatory monkey pun subtitle here] — Matthew David Brozik weighs in on #monkeyselfie. “Is it possible that Wikimedia and some lawyers have not heard of joint authorship?” he asks. “This legal fiction is surely preferable to the alternative, which denies Slater the full benefits of his efforts. The monkey did the smallest part of the work. The man deserves the reward.”

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