The World’s Top 10 Most Innovative Companies in Music — What makes this list particularly relevant is its recognition that innovative music companies include record labels, both major and independent.

Can Private Photos be Used in Political Ads Without Permission? — An anti gay rights group used a wedding photo of a gay couple to create a political flier without the couple’s or photographer’s permission. This week, a federal judge refused to dismiss a copyright infringement claim brought by the photographer and couple based on a fair use defense raised by the advocacy group.

Who’s a jerk? The site that tagged millions of Facebook users ‘jerk’ — “The FTC filed a complaint on Monday alleging that Jerk.com dishonestly harvested personal information from millions of Facebook users to create profiles that labeled people either ‘jerk’ or ‘not a jerk.’ The site then reportedly told users they had to pay $30 to access ‘premium’ features that would let them dispute the ‘jerk’ tags.” The complaint raises charges of deceptive representations, and it was initiated by Facebook, rather than the users affected, but there are parallels to copyright. Jerk.com misappropriated Facebook users’ expressive content. And though the personal information is not inherently commercial, the sharing of it with Facebook is a commercial exchange—it is what Facebook’s entire business model is premised on. Finally, for those who place substantial emphasis on the incentive function of copyright, this case demonstrates why copyright’s incentives are still a good fit even outside the paradigmatic professional publication context. Facebook users disseminate their photos and other expressive works on the service with certain expectations; having their content scraped by sites like Jerk.com is very likely outside those expectations. If such occurrences became commonplace or unenforced, it would create a disincentive to disseminate personal content.

YouTube Hurts Music Album Sales, Research Finds — The research, from R. Scott Hiller and Jin-Hyuk Kim, refutes in part the idea that services like YouTube have a promotional effect on music sales. Rather, there appears to be a significant substitutional effect.

Fire the robot — “Toyota, which just yesterday announced a recall of more than six million cars for a variety of defects, is having second thoughts about its robot culture. A longtime pacesetter in factory automation, the company is putting a new stress on nurturing human expertise and craftsmanship.”

Girl Talk Q&A: On Sampling, Disney & His First Ever Music Video — The spiritual successor to Jive Bunny reveals in an interview that on his latest project, “We cleared the samples for this song. I didn’t feel like my ideals were compromised when we did that. I evaluate each piece of work on its own merits. I don’t think of it as anarchy. I think about each work separately and consider whether it qualifies for fair use or not. In this case, we needed the clearance.”

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Why a Loss for Aereo Wouldn’t Threaten Cloud Services — Todd Spangler at Variety has a great post responding to the doomsday scenarios Aereo supporters have been employing as The Supreme Court prepares to hear arguments in the case. “A Supreme Court finding that Aereo violates provisions of the Copyright Act narrowly tailored to this case won’t kill Dropbox, Apple iCloud, Google Drive, Box, Microsoft OneDrive or Amazon Cloud Drive. Those services aren’t jury-rigged to pull in content from third-party sources without permission. And they’re already protected from liability for copyrighted material illegally uploaded to their services under the Digital Millennium Copyright Act. Cablevision, as noted, already has content rights.”

Alexander on Property’s Ends — A thought-provoking scholarly article that argues property’s ultimate end is human flourishing. This is contrary to the views of many copyright skeptics, who suggest that the fact that copyright has a purpose beyond private gain somehow distinguishes intellectual property from property in general.

USTR Froman: ‘We Have Had Over 1,200 Meetings With Congress On TPP’ — At a House Ways and Means Committee hearing this week US Trade Representative Froman discussed the Trans-Pacific Partnership, currently being negotiated between a dozen countries. As with all US Free Trade Agreements, the TPP sets standards for IP protection, of which Froman said, “The United States is an innovative economy, and the Obama Administration is committed to protecting intellectual property (IP), which is vital to promoting and encouraging innovation and creativity… Millions of American jobs rely on IP, and we will continue to use our trade agenda in 2014 to defend the IP rights of our creators and innovators while supporting the freedom of the Internet, encouraging the free flow of information across the digital world, and ensuring access to medicines, particularly by the poor in less developed economies.”

Baude on Federalism — The best only good April Fool’s joke this week. “The most natural question to ask about zombies and constitutional law is whether zombies are persons within the meaning of the Constitution. But that question turns out to be remarkably difficult. The word “person” appears repeatedly throughout the Constitution, but without any clues about whether it extends to zombies. What’s the best constitutional solution to this problem? Zombie Federalism. The Constitution does not resolve the question of zombie personhood, so we should understand it to leave that question to state law.”

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Why did we evolve to appreciate beauty? — An interesting contemplation of why we enjoy aesthetics. “It is not yet clear why adults should find perceptual play fun. Aren’t we done learning how to perceive? Everyone achieves a certain basic level of skill in characteristically human activities: walking, talking, looking, listening, and singing. We do this by pleasurable play when young, and we maintain these skills with practice well into adulthood. But with each of these activities, the human body affords us the capacity to improve – to become extraordinarily skilled.”

A ‘Crisis’ in Online Ads: One-Third of Traffic Is Bogus — This, and the fact that brands often unwittingly find themselves funding illicit filesharing sites, suggests that there is a need to improve the workings of the online advertising ecosystem.

File sharing study found invalid — Examining a study that claims filesharing actually benefited the music industry. “Dr. Ford opens with a general remark about arguments made in defense of file sharing and that “the empirical analysis in Dr. Lunney’s paper is some of the weakest in this area, and the defects in the analysis are many and varied. Indeed, Dr. Lunney’s analysis suffers from defects so severe as to render it useless for guiding public policy. Dr. Ford expresses his sentiment early on that there are too many things wrong with the study to go through them all.”

Doing nothing is not an option to stop on-line piracy — “Copyright is established in the U.S. Constitution on the theory that one obtains more goods and services when one pays for them.  Those opposed to copyright, on whatever grounds, surely bear a substantial burden in making their case.  That burden requires more than the bandying about of sweet words.  Indeed, the general principle that payment to producers encourages production, so far as I know, is not under attack in any venue except copyright.”

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Not-So-Zen and the Art of Voluntary Agreements — If you haven’t already seen it, be sure to read Kurt Sutter’s essay on Google and copyright. “I’m sure Mr. and Mrs. Google are very nice people. But the big G doesn’t contribute anything to the work of creatives. Not a minute of effort or a dime of financing. Yet Google wants to take our content, devalue it, and make it available for criminals to pirate for profit.”

Copyright Holders Look for an Antipiracy DMCA Upgrade — Speaking of voluntary agreements, yesterday the USPTO held its first in a planned series of public multistakeholder forums designed to create voluntary solutions to improve the functioning of the DMCA notice and takedown process within the current statutory framework. A consensus emerged that stakeholders would begin by tackling the standardization of the process and then going from there.

Sean O’Connor: The Overlooked French Influence on the Intellectual Property Clause — Fantastic article. I’m still digesting Prof. O’Connor’s conclusions, but his stocktake on literature analyzing the interpretation of the Copyright Clause is incredibly comprehensive and should prove invaluable to anyone interested in the subject.

Court gags Dotcom bodyguard — Kim Dotcom, self-proclaimed free speech advocate, has successfully gotten a court to prohibit a former employee from speaking out in public about his time in Dotcom’s employ.

MP3Tunes Founder Michael Robertson Found Liable for Copyright Infringement — Earlier this week, YouTube and Viacom settled their long-running litigation, leaving open the question of when, if ever, a service provider could lose DMCA protection because of willful blindness. Just a day later, a jury answered: here.

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Lupita Nyong’o and Celebrating Unsung Artists — “We celebrate successful artists — artists with the machinery of celebrity behind them — but how do we celebrate all of the other people who are making art each and every day? And, forget celebrating them: How do we support them? How do we make it economically viable for them to make art? We don’t. And, for the sake of our culture, we should.”

Slate’s Anti Copyright rant sounds like a letter from your psycho ex — The article insists that voluntary agreements to reduce the harms of infringement are the new SOPA, because in the two years since the bill was stopped, saying something is the new SOPA is the best strategy some copyright skeptics have been able to come up with.

Victims of IP theft need better protection — Reps. Judy Chu and Tom Marino highlight the challenges facing indie artist Christine Filipak in keeping up against the tide of infringement she faces. Just in time for yesterday’s IP Subcommittee hearing on the DMCA notice and takedown process. Along the same lines, check out Mark Schultz’s article, Time to revise the DMCA: the most antiquated part of the copyright may by one of the newest.

Transformative or just taking? Lawyers struggle to define fair use in wake of Google Books case — Report from a NYC Bar Association panel Monday featuring Judge Chin, who recently held Google Books to be a fair use, and other noted copyright lawyers and scholars.

Oakland emails give another glimpse into the Google-Military-Surveillance Complex — “The evidence was abundant and overwhelming: in email after email, Oakland officials had discussed the DAC usefulness for keeping tabs on activists, monitoring non-violent political protests and minimize port disruption due to union/labor strikes. In particular, officials wanted to use the surveillance center to monitor Occupy Wall Street-style activists, and prevent union organizing and labor strikes that might shut down the Port of Oakland. *** But buried deep in the thousands of pages of planning documents, invoices and correspondence was something that the activists either seemed to have missed or weren’t concerned by. A handful of emails revealing that representatives from Oakland had met with executives from Google to discuss a partnership between the tech giant and the DAC.”

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A Plea about Arts Piracy in the Theater — This week’s must read. “To put it another way, playwrights will only generate new plays insofar as they can afford to keep doing it, and only insofar as they know that the community is protecting their work even when they’re not around to police it.”

Copyright experts side with broadcasters in Aereo fight — This week, amici supporting broadcasters in ABC v. Aereo filed their briefs at the Supreme Court. Included among them was this one by copyright scholars David Nimmer and Peter Menell. Be sure to also check out the solidly written and well-reasoned brief from the US Copyright Office and DOJ as well as one taking the international perspective from a whopping 15 separate creative associations and eight IP scholars.

Guest post: Copyright’s Public Performance Right, Cable Television, and Aereo — Speaking of Peter Menell, I was delighted to see him contribute a version of his amicus brief argument to the Copyright Alliance’s blog.

Google Judge to Rule on Media Access to Documents after March 7 — Google is currently facing claims that it illegally accessed private emails. While the First Amendment normally requires court records be publicly accessible, Google has moved to seal certain documents filed in the lawsuit, arguing, in part, that “public disclosure of the Sealable Information would cause Google significant economic harm by revealing sensitive aspects of Google’s proprietary systems and internal decision-making processes to Google’s competitors, depriving Google of competitive advantages it has earned through years of innovation.” A group of media companies and organizations have intervened to oppose Google’s motion, a ruling of which can come as early as today.

Welcome to Googletown — This week’s feel good read.

The Oscar Selfie: Why Copyright Analysis Should Be Left To Copyright Lawyers — Some great perspective from Paul Fakler following the rash of silly and unnecessary copyright analysis of Ellen DeGeneres’ record-setting #selfie from Sunday’s Academy Awards. Speaking of which, The Ellen Selfie Was TV’s Victory, Not Twitter’s. “The Hollywood selfie seems like a giant business coup for ad-reliant Twitter, but it says more about the power of a century-old technology than anything else.”

Washington Attorney General Hits Cyberlocker for “Deceptive Practices” — An interesting new front opens in the fight against commercial exploitation of creators. According to Torrentfreak, “the AGO says that by failing to inform users that some of the content available from UMB may be copyrighted, UMB had engaged in ‘deceptive business practices’ contrary to the Consumer Protection Act. Furthermore, the AGO said that by charging a subscription fee to use the service, UMB had been ‘implicitly leading members to believe’ they were accessing content legally, something that was likely to confuse customers and lead them to unwittingly break the law.”

We’re being screwed by Spotify! David Byrne, R.E.M.’s Mike Mills and Cake’s John McCrea on the fight for artists’ rights — Cake frontman John McCrea speaks to Spotify about the reemerging artist rights movement.

The Echo Nest is Joining Spotify: What it Means to Me, and to Developers — “Today, we’ve announced that The Echo Nest has been acquired by Spotify, the award-winning digital music service. As part of Spotify, The Echo Nest will use our deep understanding of music to give Spotify listeners the best possible personalized music listening experience. Spotify has long been committed to fostering a music app developer ecosystem. They have a number of APIs for creating apps on the web, on mobile devices, and within the Spotify application. They’ve been a sponsor and active participant in Music Hack Days for years now. Developers love Spotify, because it makes it easy to add music to an app without any licensing fuss. It has an incredibly huge music catalog that is available in countries around the world. “

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The political conflicts and ambitions of [Shakespeare's] England are known to the scholar and the specialist. But his plays will forever move men in every corner of the world. The leaders that he wrote about live far more vividly in his worlds than in the forgotten facts of their own rule.

Our civilization, too, will survive largely in the works of our creation. There is a quality in art which speaks across the gulf dividing man from man, nation from nation and century from century. …

[I]t is important to know that the opportunity we give to the arts is a measure of the quality of our civilization. It is important to be aware that artistic activity can enrich the life of our people; which is the central object of government. It is important that our material prosperity liberate and not confine the creative spirit.

—President Johnson, at the groundbreaking ceremony for the John F. Kennedy Center for the Arts on December 2, 1964.1

National Endowment for the Arts, Sunil Iyengar, on “Why The Arts Really Do Mean Business” — Check out this podcast with Copyright Alliance’s Sandra Aistars and National Endowment for the Arts Sunil Iyengar on the NEA’s recent report showing the arts and culture sectors contribute over half a trillion dollars to U.S. GDP and create nearly 2 million jobs.

‘Grindhouse’ to ‘John Carter’ – 18 ‘dream projects’ that turned into nightmares — An interesting article in its own right, though I was struck in particular by the author’s remarks that, “The best art comes from dealing with the limitations under which something is produced, and when all of those limitations are taken away, you can end up with something that is wall-to-wall indulgence.” and “The lesson to take away is that when you want to pay tribute to the guys who came before you, do it in a way like Lucas and Spielberg did with Indiana Jones. Take that energy and channel it into something of your own”

New report says how much advertising is going to piracy sites — $227 million in 2013. And, according to the report, a significant chunk of that is coming from dozens of “blue-chip advertisers”, major brands like “AT&T, Lego, and Toyota.”

‘House of Cards’ Searches on Google Turn Up Pirate Links as Top Results — Variety reports, “In a Google search for “Watch House of Cards” on Wednesday, the top two results were links to apparent pirate sites, couchtuner.eu and stream-tv.me.” That reminds me of the story about Charlie Chaplin entering a Charlie Chaplin look-alike contest and coming in third.

Utah Judge Gives TV Broadcasters an Injunction Against Aereo — Although the Supreme Court has already agreed to determine the liability of the internet streaming TV service, the Utah court heard and granted a motion to enjoin Aereo in a parallel proceeding. Said the judge, “Aereo’s retransmission of Plaintiffs’ copyrighted programs is indistinguishable from a cable company.”

Kim Dotcom raid warrants legal, Court of Appeals rules — Despite continual proclamations of innocence, Dotcom has done nothing but delay having his day in court. Here, a New Zealand court strikes down one such attempt.

Wikipedia: as accurate as Britannica? — A 2005 study has given rise to the gospel that Wikipedia is as accurate as Encyclopedia Britannica. Here, Andreas Kolbe points out the sharp limitations of that study. “Nicholas Carr put it this way: in limiting itself to topics like the ‘kinetic isotope effect’ or ‘Meliaceae’, which no one without some specialized understanding of the subject matter would even be aware of, the Nature survey played to Wikipedia’s strengths. Carr also established that the Nature ‘study’ was not actually an expert-written research article of the type that built the reputation of Nature, but a non-peer-reviewed piece of news journalism (a fact he confirmed with the piece’s author, Jim Giles).”

Footnotes

  1. As quoted in Copyright Law Revision Pt. 6, Supplementary Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law: 1965 Revision Bill, xiv (1965). []

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How to photograph the Sochi Winter Olympics, as told by a pro — Sports photojournalist Adam Pretty describes what its like shooting the 2014 games. As a Getty Images photographer, Pretty also receives some help to capture the best moments. “Getty will have laid 20km of cable to create a state-of-the-art fiber optic network that will connect all the key photo positions inside the venues directly back to the Getty Images office in the Main Press Center. With the VLAN connections on the mountains, the photographers will be able to dump the contents of their memory cards onto their laptops, and they’ll automatically be back with the editor a minute or so later.”

Proposal for Compulsory Remix License Has Foes in Steven Tyler and Attorney Dina LaPolt — A post-deadline comment for the IPTF Green Paper proceedings on copyright policy from a number of music luminaries, including Aereosmith frontman Tyler, Don Henley, Sting, Ozzy Osbourne, Britney Spears, Deadmau5, and Joe Walsh takes on the idea of a compulsory license for remixes. Could this mean that attention to current copyright review discussions is starting to pick up?

Spanish box-office loses almost half of its audience over nine years — The Spanish film industry has almost completely crumbled in the past decade. Recently, the IIPA has also recommended to the USTR that Spain be placed on the Special 301 Watch List, noting “In stark contrast to so many of its neighbors in Western Europe, Spain suffers from unrelentingly high rates of digital piracy in every sector – music, film, videogames, software, and books.”

Pandora Suit May Upend Century-Old Royalty Plan — Few realize that ASCAP and BMI, organizations that collect public performance royalties for songwriters and music publishers, are limited in what they can do by an over 70 year old consent decree with the DOJ. Is it time for a change?

The Australian Law Reform Commission officially recommends adoption of fair use — The Australian Law Reform Commission (ALRC), an independent statutory body in Australia tasked with reviewing existing law and offering recommendations for reform, has dropped a 478 page report recommending the country repeals specific exemptions for, to name a few, personal copying and educational uses, and adopts a US-style fair use provision. Around 60% of ALRC recommendations are substantially implemented, while another 30% are partially implemented.1

The Day the Internet Didn’t Fight Back — Apparently repeating “SOPA” over and over is starting to lose its effectiveness.

Silicon Valley Needs to Lose the Arrogance or Risk Destruction — From Wired, no less. “It’s all adding up to a nasty picture of Silicon Valley—of an industry that hoovers up personal data and reaps massive profits from its use, preaching a gospel of sharing but refusing to share back.”

Footnotes

  1. Australian Law Reform Commission Annual Report 2011-12, pg. 30. []

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Ninja Tune Puts This Warning Sticker On All New Releases… — (Actually, just promo pre-releases): “You are not ‘striking a blow against outdated copyright laws’ or ‘liberating content from the corporations’, nor are you ‘promoting our records for us.’ You are making it much harder for the musicians on our label to make anything like a living wage for creating the music which you think is good enough to share.”

Pro photographers remind lucky amateurs: Viral pictures have value — “The age of the citizen photographer is upon us. And while anybody with a phone or camera can take a picture that goes viral, that doesn’t necessarily mean they will be fairly compensated for it. To help level the playing field, some media-savvy professional photographers are taking matters into their own hands, reaching out to amateurs who were in the right place at the right time and letting them know that their viral pictures have value.”

Keeping Fair Use “Fair” — A timely reminder given the House Judiciary Committee hearing on the scope of fair use this week. “The concept of ‘fair use’ is sometimes misunderstood to imply ‘free use’ in any situation in which the result is thought to be socially beneficial in some general sense; which may sound appealing to some but is ultimately damaging to consumers and our economy.”

And a straw child shall lead them: Fan Fiction as an Example of Web 2.0 Double Rip Off — One of the witnesses at Tuesday’s fair use hearing, Naomi Novik, spoke of her experiences participating in online fan fiction communities. A reaction: “It has never been the case that anyone even thought about trying to stop children from telling stories, making up plot lines, and generally getting some costumes and putting on a play in the barn. But Google wasn’t selling advertising for an afternoon of children’s play, either. And why should Google’s advertising team get to hide behind Captain Picard or the Lone Ranger?”

It’s history, not a viral feed — @HistoryinPics is the type of enterprise copyright skeptics love: a highly popular Twitter account that solely posts historical photos, without the original photographer’s permission or even attribution. But as Sarah Werner, those drawbacks are only symptoms of deeper issues. “[H]istory is not a toy. It’s not a private amusement. And those of us who engage with the past know how important it is and how enjoyable it can be to learn about it and from it. These accounts piss me off because they undermine an enterprise I value.  Historical research—indeed, humanistic inquiry as a whole—is being undermined by the constant plugging of economic value as a measure of worth, the public defunding of higher education, and the rampant devaluing of faculty teaching.”

CAA Publishes One-Sided Fair Use Report — Says Sergio Muñoz Sarmiento, “There are a lot of problems with the College Art Association… but what’s more pernicious is how this nonprofit arts organization continues to champion the poverty and ignorance of artists, all while putting the blame on this thing called copyright law. “

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