Jane Ginsburg, Overview of Copyright Law — Ginsburg has posted her chapter from the forthcoming Oxford of Intellectual Property. A great look at copyright’s history, philosophy, and doctrine. This passage from her conclusion is worth quoting here:

Copyright law secures human creativity in works of authorship. Enforceable authorial property rights advance the public interest by promoting an ecosystem of authorship: a robust copyright environment encourages authors to create works that inform and enrich the polity, and from which other authors may draw ideas, information and reasonable amounts of protected expression in their own authorial endeavors. Copyright promotes artistic freedom and free speech by enabling authors to earn a living from their creativity.

What Does Madonna’s Court Victory Mean For Sampling? — Future of Music Coalition takes a closer look at last month’s Ninth Circuit decision in VMG Salsoul v. Ciccone, which concerned the alleged use of a digital sample by Madonna in her 1990 track Vogue.

Owner of Most-Visited Illegal File-Sharing Website Charged with Criminal Copyright Infringement — The DOJ announced this week that it has charged the alleged owner Kickass Torrents with four counts related to his operation of the site, which allegedly enabled illegal reproduction and distribution of copyrighted works on a massive scale. This represents the most significant criminal copyright effort in the US since the 2012 indictment of Kim Dotcom and other operators of Megaupload.

Indie designer accuses Zara of stealing work, Zara says artist’s work isn’t ‘distinctive’ — “Tuesday Bassen is a Los Angeles-based clothing and accessories designer whose work refers heavily to comic book illustrations and a 1950s girl gang aesthetic. Her popular logo ‘mixed emotions club,’ emblazoned across the back of a satin baseball jacket, as well as pins and patches, has become a sort of coveted alt-girl version of the Birkin bag. It’s not as if Bassen is entirely unknown (she told the Daily Dot her website gets about 8,000 visitors per day), which is why she was taken aback by Zara’s response to a cease-and-desist notice her attorney sent the giant corporate fashion house after it appeared to have completely ripped off Bassen’s work.”

CISAC: 90 Years In The Service Of Authors And Composers — “Founded in June 1926 by a small group of authors’ societies, with its headquarters in France and four regional offices, CISAC now represents the interests of more than 4 million creators across the world, from all artistic and literary fields. Now leading CISAC is electronic music pioneer Jean-Michel Jarre in cooperation with a highly multicultural and interdisciplinary group.”

H.R.5757 – To amend title 17, United States Code, to establish an alternative dispute resolution program for copyright small claims, and for other purposes. — On Wednesday, Representatives Jeffries and Marino introduced a bill that would create a copyright small claims process that would allow creators who can’t afford federal court to pursue infringement claims. The Copyright Office detailed the problem and recommended the creation of such a process in a 2013 report. As of posting date, the text of the bill is not yet online, but should be up within the next couple of days.

New Librarian of Congress Faces Copyright Modernization — This week, the Senate confirmed Dr. Carla Hayden as Librarian of Congress. Among the challenges she’ll face when she assumes the role is outdated IT both in the Library and in the Copyright Office, which is housed within the Library. Bloomberg reports, “The office’s services play a direct role in the conduct of business in significant industrial sectors that depend on copyrights, and the technological challenges faced by the agency are critical to those transactions, according to Robert Brauneis, a copyright law professor at George Washington University. For example, when copyright owners record their copyright interests, ‘they actually have to print a copy, put it in an envelope with stamps on it, and send it off in snail mail,’ Brauneis said. ‘Multimillion dollar transactions depend on registration getting processed quickly and documents getting processed quickly.'”

Senators ask feds to look at digital ad fraud — When so much content on the internet depends on ad revenues, the issue of fraudulent ad traffic raises concerns. Senators Schumer and Warner Monday asked the FTC to take a look at the issue. “A 2015 industry study cited by the lawmakers estimated that advertisers would lose more than $7 billion to this kind of activity this year.”

Amazon’s Chinese Counterfeit Problem is Getting Worse — CNBC reports, “Always a problem, the counterfeiting issue has exploded this year, sellers say, following Amazon’s effort to openly court Chinese manufacturers, weaving them intimately into the company’s expansive logistics operation. Merchants are perpetually unsure of who or what may kill their sales on any given day and how much time they’ll have to spend hunting down fakers. Facebook and WhatsApp groups have formed for sellers to voice their complaints and strategize on potential fixes. In May, CNBC.com reported on a Facebook group, now consisting of over 600 people, whose members have seen their designs for t-shirts, coffee mugs and iPhone cases show up on Amazon at a fraction of the price of the originals. The designers described it as a game of whack-a-mole, where fakes pop up more quickly than they’re taken down.”

Sharing Netflix Passwords Hasn’t Become a Felony — Snopes debunks reports (encouraged in part by the EFF) that a recent court decision would lead to jail time for sharing passwords. Says Snopes, “[T]he operative factor was that the case involved had nothing at all to do with streaming, Netflix, HBO Go, Facebook, or other services by which users commonly share passwords for myriad reasons. The specific issue was lack of authorization and deliberate intent to circumvent access revoked in an employer-employee capacity. Extrapolating that such a ruling might affect Netflix users wasn’t out of the bounds of possibility, but was unnecessarily alarmist given the scope of the ruling.”

The IP Platform: Supporting Invention & Inspiration — Last fall, the Center for Protection of Intellectual Property hosted a conference exploring how IP, including copyright, operates as a platform supporting invention and inspiration. The George Mason Law Review this week published its summer issue containing articles originating from that conference. Lots of great stuff, including a piece on copyright and remix by me.

‘Courts Have Twisted Themselves Into Knots’: U.S. Copyright Protection for Applied Art — Copyright scholar Jane Ginsburg looks at the issue of conceptual separability, which distinguishes between what is protected by copyright and what is not for useful articles. This question is currently in front of the Supreme Court, which will hear Varsity Brands v. Star Athletica next term.

Canada’s Accession to Marrakesh Treaty Brings Treaty into Force — Says WIPO, “Canada today became the key 20th nation to accede to the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, which will bring the Treaty into force in three month’s time on September 30, 2016.” The treaty requires parties to adopt copyright provisions that permit the copying and distribution of published works in accessible formats such as Braille.

The Trusted Notifier Program: Outcomes of First Referrals by MPAA — In February, film studios reached an agreement with the Donuts domain name registry that created a framework for notifying the service of sites engaged in clear and pervasive infringement. Recently, Donuts revealed some early outcomes of the program so far. In a blog post, the registry announced that two sites were confirmed to be engaged in infringement, and Donuts suspended their domain names. A third referral is being investigated further.

America must be as independent in literature as in Politics, as famous for arts as for arms.

Noah Webster (1758-1843)

Copyright Small Claims Court: Not Just a Dream — “For decades, copyright infringements worth a few thousand dollars in damages have frustrated photographers, because suing ‘small’ infringers in federal court costs $30,000 or more. Finally, there’s hope for a solution: a Copyright Small Claims Tribunal that would give photographers and other copyright owners access to the legal system at a much lower cost.”

Creators frustrated with Copyright Office’s outdated technology, procedures — “According to industry representatives and creators, the system discourages groups from registering their copyrights. Some songwriters and makers of standardized tests delay or avoid registering because they do not trust the office’s computer security. Newspapers must be submitted in the form of costly and increasingly redundant microfiche, driving some to avoid registering altogether. Others simply get fed up with the office’s clunky registration process. When creators don’t register, people like Kempner struggle to find an owner if they want to buy a work. Skipping registration also severely limits the legal recourse a creator can pursue if their work is used illegally.”

1,000 Artists Including Coldplay, Lady Gaga, Ed Sheeran Write Letter to European Leaders Over YouTube — The letter, calling “for Europe’s leaders to address the value gap that exists between digital music consumption and revenues returned by user-generated services like YouTube” follows a similar one appearing in US publications.

Citing Kirtsaeng, Publishers Ask Judge to Deny Legal Fees in GSU Case — The publishers cite to the Supreme Court’s decision that directs courts to put substantial weight on the objective reasonableness of a losing party’s litigation positions and argue that the case represented “a quintessential example of the type of ‘useful copyright litigation’ that is to be encouraged.”

Seven things we’ve learned from the first year of Apple Music — “1) You don’t need a free tier to get people to pay.”

The STAR TREK Fanfilm Guidelines Saved Fanfilms — “The basic creativity of fans can be allowed to flourish while the people who own the property feel like they’re not getting screwed. Because the reality is that without rules like these the only other options are for the property owner to just throw up their hands and let anyone make and sell stuff based on their IP (coming this fall: Disney’s fanfilm of Batman!) or be truly draconian and allow nothing at all, to cruise YouTube all day sending takedown notices for any small, goofy fanwork.”

Responding to Piracy: What the evidence shows — In previous installments, the authors of this post looked at “available academic evidence on whether piracy harms media sales, and whether this harm leads to reductions in the supply of creative works,” finding that “most all the studies on the first question conclude that piracy does have an adverse effect on sales, and there is also evidence of an adverse effect on the supply of new works.” Here, they look at research that considers what can be done to shift consumers from illegal content to legal content, focusing on two strategies: making legal content easier to access, and making pirated content harder and more costly to access.

Facebook Signs Deals With Media Companies, Celebrities for Facebook Live — One does not live on user-generated content alone. The Wall Street Journal reports that Facebook has entered into over 100 contracts with media companies and individuals totaling over $50m to provide video content for their Facebook Live platform. See also YouTube Red buys its first big TV series.

To Fee or Not to Fee: Kirtsaeng v John Wiley & Sons — I have a post at CaseText discussing last week’s Supreme Court decision in Kirtsaeng II, which held that courts should focus on the objective reasonableness of parties’ litigation positions but consider all other relevant factors when determining whether to award attorney’s fees.

Taylor Swift, Paul McCartney Among 180 Artists Signing Petition For Digital Copyright Reform — Rob Levine reports on a letter published this week, signed by 180 recording artists and others, including Taylor Swift, Paul McCartney, and Little Big Town. The letter calls for reform of the DMCA safe harbors.

Who owns the news consumer: Social media platforms or publishers? — The Columbia Journalism Review presents research it has undertaken to see how newsrooms are using social media and online publishing platforms to disseminate news stories. A thorough look at a very dynamic area.

Turow: “The Protection of Copyright Is Deeply Related to the Protection of Creativity” —  Scott Turow: “I suspect that creativity tends to be inspired by the artist’s fantasy that her or his work is destined to find an audience that places value on it. That doesn’t presuppose earning vast riches. The effort a reader makes by going to the library is enough to make most authors feel valued. But the notion that work will be stolen and tossed into the wind defeats the artistic enterprise.”

Why “Stairway to Heaven” Doesn’t Infringe “Taurus” Copyright: analysis & demo of “scenes a faire” motif common to both — Rockers Jimmy Page and Robert Plant are in court this week defending against a claim they copied from an existing song to create the classic Stairway to Heaven. Here, Professor Sean O’Connor provides a thorough analysis arguing there is no infringement, complete with video demonstrations.

IP Scholars to FCC: It’s not about “the Box” — “Put simply, the proposed rules would take away the ability of creators and copyright owners to license their works on their own terms. It would give third parties all of the benefits afforded to pay-TV providers by their agreements with copyright owners without the burdens of paying a license or agreeing to the underlying contract terms. This isn’t about “the box,” and it isn’t about what consumers do with the creative works they receive in their homes. The issue is what goes into “the box,” and more importantly, how it gets there.”

Why Photographers Need a Copyright Small Claims System — The Professional Photographers of America has been hard at work in recent weeks making the case for a copyright small claims process. As they note, “Recent surveys have found that 70% of professional photographers have dealt with copyright infringement, and most within the past 5 years. But the problem is that most infringements are valued at $3,000 or less, and 2/3 of intellectual property lawyers say they wouldn’t take a copyright case with a potential payout of less than $30,000.”

Opinion analysis: Court clarifies availability of fee awards in copyright cases — Yesterday, the Supreme Court released its decision in Kirtsaeng v John Wiley & Sons, which is an iteration of its 1994 Fogerty v Fantasy decision providing guidance on what courts should look at when determining whether to award attorney’s fees to prevailing parties in copyright cases. Here is SCOTUSBlog’s analysis of the opinion.

House Creative Rights Caucus: Protecting Intellectual Property Rights Protects American Jobs — Last week, the House Creative Rights Caucus, along with a number of creative associations, put on a panel discussion with individuals involved in making the Academy Award winning film Spotlight. The panel focused not only on the importance of being able to create important films like Spotlight, but also the importance of being able to engage in the type of investigative journalism that is the subject of the film.

Stealing Books in the Age of Self-PublishingThe Atlantic reports, “In the world of self-publishing, where anyone can put a document on Amazon and call it a book, many writers are seeing their work being appropriated without their permission. Some books are copied word-for-word while others are tinkered with just enough to make it tough for an automated plagiarism-checker to flag them. (Though the practice is legally considered copyright infringement, the term ‘plagiarism’ is more widely used.) The offending books often stay up for weeks or even months at a time before they’re detected, usually by an astute reader. For the authors, this intrusion goes beyond threatening their livelihood.”

Irving Azoff Calls on Music Industry to ‘Work Together’ in National Music Publishers’ Assn. Keynote — The notable music exec delivered a powerful address at NMPA’s 99th annual meeting this week, concluding, as Billboard reports here, by telling those in the audience that “no matter what role he played in the industry, as a manger, a promoter, a label executive, ‘If you do what’s right by the creator’—whether that’s the artist or songwriter—’it will eventually be right for your company as well.'”

JFK on Poetry, Power, and the Artist’s Role in Society: His Eulogy for Robert Frost, One of the Greatest Speeches of All Time — “If art is to nourish the roots of our culture, society must set the artist free to follow his vision wherever it takes him. We must never forget that art is not a form of propaganda; it is a form of truth… In free society art is not a weapon and it does not belong to the spheres of polemic and ideology. Artists are not engineers of the soul. It may be different elsewhere. But democratic society — in it, the highest duty of the writer, the composer, the artist is to remain true to himself and to let the chips fall where they may. In serving his vision of the truth, the artist best serves his nation.”

Spoiler alert: Superheroes are regular people — Tom Ortenberg, executive producer of the film Spotlight, writes, “The real-life journalists portrayed in ‘Spotlight’ are superheroes. The filmmakers and crewmembers that made this film possible are superheroes. That is why I consider our film to be its own kind of superhero movie. But it is also a story about a fading segment of our culture: print journalism. Great films about true events can become a part of the historical record. If I have any grand ambitions for ‘Spotlight’ beyond accolades and awards, it’s that this film will preserve for all time the era of investigative journalism that appears to be slipping away in the face of technology that promises quick and easy fixes for virtually everything.”

Don’t Block Geoblocking — “[R]ules that allow copyright holders to charge different prices to different consumers benefit society by encouraging greater distribution at a lower average price overall. A movie studio might charge a higher price in a developed country while charging a lower price in developing countries. Because rich markets are normally less sensitive to price, this practice normally favors poorer consumers. But it can only exist if price discrimination and geoblocking is protected. If consumers are allowed to arbitrage the market, the producer will create less and charge higher prices.”

The Google/Oracle decision was bad for copyright and bad for software — Op-ed from Ars Technica Technology Editor Peter Bright argues that last week’s jury verdict that found that Google’s copying of elements of the Java platform was fair use “makes things worse, not better” for developers and the software industry. Bright is one of the few commentators on the case to delineate between the different patterns of API use: “use without reimplementation”,  “third-party reimplementation”, and “interoperable reimplementation”. Others, particularly supporters of Google’s view, tend to conflate these different patterns.

Madonna Gets Victory Over ‘Vogue’ Sample at Appeals Court — Although a number of lower courts have declined to follow or even criticized the Sixth Circuit’s Bridgeport Music v. Dimension Films decision—which held that the ordinary substantial similarity analysis does not apply to infringement of sound recordings—this week was the first time a sister Circuit Court of Appeals did so. In a case involving Madonna’s song Vogue, the Ninth Circuit held that the unauthorized use of a single horn hit from a VMG Salsoul recording was de minimis, and thus not infringing.

Google Promotes Pirate Movie Ratings in Search Snippet — Torrentfreak reports that Google is returning movie ratings from a pirate movie site in a detail box. The link leads users to the pirate site, “where a high quality stream of the film is readily available.” A preview of what a Google set-top box might look like?

FCC chairman pushes back on lawmaker request for box study — Speaking of set-top boxes, this week FCC Chairman Wheeler responded to a request from fifty-five lawmakers for “independent, peer-reviewed studies to be completed of current developments towards market-based solutions and of the potential costs and benefits of the proposed rules, including the impact of the proposed rules on diversity of programming, independent and minority television programming, content protection and consumer privacy” before ruling on set-top boxes. Chairman Wheeler responded that the rulemaking “must move forward” without such studies.

Music World Bands Together Against YouTube, Seeking Change to Law — “In recent months, the music world has been united to a rare degree in a public fight against YouTube, accusing the service of paying too little in royalties and asking for changes to the law that allows the company to operate the way it does. The battle highlights the need to capture every dollar as listeners’ habits turn to streaming, as well as the industry’s complicated relationship with YouTube.”

T Bone Burnett’s Remarks on Music and the American Story (with intro by Rosanne Cash) — “We are not looking backward. We are looking forward to a better place. As artists and creators we constantly use the technology that has brought us this anywhere / anytime / anything digital world. But we insist on being recognized and respected for what we bring to the table as well.”

Music Piracy Triggers Significant Losses, EU Study Shows — Torrentfreak reports, “New research published by the European Union Intellectual Property Office shows that piracy hurts both digital and physical music sales. In EU countries the total losses are roughly 5% of yearly revenues, which equals €170 million. In addition, piracy also triggers secondary losses for governments and the public sector.”

Will CBS Continue Axanar Lawsuit On Its Own? — Previously in the Axanar lawsuit, the court denied a motion to dismiss by the production company that had been sued by the copyright owners of Star Trek for planning to make an unauthorized Star Trek film. Then, last week, it was reported that the two sides were in settlement talks, and the suit would be dropped. However, to date, the litigation continues, with Axanar filing an answer to the initial complaint and a counterclaim against the Star Trek owners, arguing that its planned film is fair use.

How Technology Hijacks People’s Minds — from a Magician and Google’s Design Ethicist — An interesting read about the different techniques developers use to “play your psychological vulnerabilities (consciously and unconsciously) against you in the race to grab your attention.”

Most Music Tech Startups Don’t Know Shit About How Labels Work – A Response To David Pakman — A point-by-point takedown of Pakman’s article about how “The Music Business Buried More Than 150 Startups.” Very informative.

Going Viral ≠ Increased Business — Finally, this week, Leslie Burns writes about the illusory benefits of a photo “going viral.” “People don’t impulse-buy photography. No one is likely to see the viral photo and say ‘I need to hire that photographer!’ unless, maybe, s/he was already looking for a wedding photographer. Assignment/commissioned photography is still not a commodity, not a product on the shelf, so exposure like that may never pay off.”

New Research Debunks Myth That Piracy Site Blocking Does Not Work — “The trio studied the effects on consumer behavior of the court-ordered blocking of 53 piracy websites in the U.K. in November 2014. Their research paper released last month showed those take-downs caused a 22% fall in total piracy (including blocked and unblocked sites) for all U.K. users of blocked sites and a 16% drop in piracy consumption across all U.K. internet users. Even more positively, there was a 10% increase in videos viewed on legal ad-supported streaming sites such as the BBC and Channel 5 and a 6% increase in subscription streaming sites such as Netflix.”

Italian court says that rightholders do NOT have to indicate URLs when submitting takedown requests — Eleonora Rosati reports on the decision, saying, “If not a general obligation to monitor, this closely resembles what rightholders have been advocating for a while, ie a notice-and-stay-down system.”

Judge Refuses to Dismiss Lawsuit Over Crowdfunded ‘Star Trek’ Film — The latest on litigation involving an unauthorized Star Trek film, Prelude to Axanar. The court declined to throw the complaint out, saying Paramount has sufficiently alleged copyright infringement.

One Simple Trick to Make Journalism Profitable? Copy and Paste It. — The story of a local news startup caught scraping another site’s content rather than, as it claimed, creating its own. “Dopkin observed that in technology-focused Silicon Valley, content is usually a minor concern. Nor do the Valley’s digital gurus respect the blood, sweat, and tears frequently required to produce it, he said.”

The biggest problem for the Oracle v. Google retrial: Judge Alsup’s reality distortion field — Florian Mueller takes on the Oracle v. Google retrial. Following a Federal Circuit decision in 2014 holding that the Java API headers and structure, sequence, and organization, which Google copied, is protectable under copyright law, the litigation came back to the District Court this week for a jury to determine whether Google has a fair use defense.

Dear YouTube: An open letter from Irving Azoff — The notable artists’ manager writes, “You state with apparent pride that you have licenses with labels, publishers and PROs. But don’t confuse deals made out of desperation with marketplace deals made by willing participants. YouTube has benefitted from the unfair advantage which safe harbors gives you: Labels can take the deals you offer or engage in an impossible, expensive game of ‘whack a mole,’ while the music they control is still being exploited without any compensation. Spotify and Apple don’t have that advantage, and this is why they are better partners to music creators.”