Broadcasters Settle Copyright Dispute With FilmOn — Thus bringing to an end the dispute over whether services retransmitting broadcast television over the internet can avoid negotiating with broadcasters and instead take advantage of the Copyright Act’s §111 cable compulsory license. The settlement means the pending appeals in the DC and 7th Circuits are dismissed. In both circuits, the lower courts had held in favor of the broadcasters. The Ninth Circuit earlier this year reversed a lower court decision that held in favor of FilmOn. Add to that the Second Circuit’s 2012 WPIX v ivi decision holding the same, and you have as close to a clean sweep as you might get.

ReDigi, Key Digital ‘First Sale’ Case, Heating up on Appeal — ReDigi is back on the menu, with amicus briefs in support of Capitol Records being filed last Friday. Here, PublishersWeekly takes a look at the arguments advanced by Association of American Publishers. Law360 covers a joint brief from RIAA and MPAA. My organization also filed a brief.

The (First) Register of Copyrights and the Drafting of the 1909 Copyright Act — More historical goodness from Zvi Rosen, tracing the immediate active role that the first Register of Copyrights, Thorvald Solberg, took in making a mark on copyright law.

How the internet financially kills musicians and other artists — Over at Washington Post, New America Fellow Emily Parker reviews Jonathan Taplin’s new book, Move Fast and Break Things. She writes, “Many hoped that the Internet would have a democratizing and decentralizing effect. Instead, Taplin argues, power became concentrated in a small number of digital giants, such as Amazon, Facebook and Google. This ‘winner take all’ scenario also applies to artists. People may be consuming more content than ever, but most creators aren’t reaping the gains.”

The two kinds of title pages — Did you ever notice that many books have two title pages? Here’s why.

NO, Kodi Users Are Not Risking Ten Years in Prison — Torrentfreak dives into some fact-checking over a provision in the UK’s new Digital Economy Bill. “To fall foul of the new law a user would need to communicate a copyrighted work to the public. In piracy terms that means ‘uploading’ and people streaming content via Kodi do nothing of the sort. The Digital Economy Act offers no remedy to deal with users streaming content – period – but let’s not allow the facts to get in the way of a click-inducing headline.”

In Defense of an Inclusive IP Conversation — CPIP’s Kevin Madigan discusses the recent Robert Merges article responding to Mark Lemley’s “Faith-based IP” article. Madigan writes, “Merges points out that by relegating all non-empirical theories into a single, derogatory category, and raising his preferred empirical/utilitarian theory to a ‘true path to enlightenment’ status, Lemley commits the fatal error of promoting an exclusive approach to scholarly discourse. Lemley’s argument has roots in the works of Oliver Wendell Holmes and Richard Posner, who dismissed non-empirical foundations as incapable of being influenced by reason. But Merges repeats that he is ‘not rejecting empirical evidence of all kinds, but expressing honest doubts about the adequacy of the available evidence,’ and that Lemley’s mischaracterization of this skepticism is ‘more in the way of propaganda than scholarship.'”

The Latest “Twist” for the “Dancing Baby”: It’s Broke…But Don’t Fix It! — Stephen Carlisle writes, “The latest twist in the never ending saga of the “Dancing Baby” case hit the dance floor on May 5, 2017. On that date, the U.S. Solicitor General responded to the Supreme Court of the United States’ request last October for guidance on whether it should take up the case of Lenz v. Universal Music Group…. The brief itself is a bit of a shock. It contends that not only did the 9th Circuit get it wrong, but everybody got it wrong. On top of that, not only did everyone get it spectacularly wrong, but the SCOTUS should not fix it by taking up the case.” Also check out David Newhoff’s take on the brief at Illusion of More.

The MP3 Is Officially Dead, According To Its Creators — NPR has an interesting look at the compressed audio format, which played a starring role in the early days of online piracy, but has since been overtaken by more advanced formats. “And it’s not just that more efficient and complete ways of storing music have been developed. There was a deeper problem. The engineers who developed the MP3 were working with incomplete information about how our brains process sonic information, and so the MP3 itself was working on false assumptions about how holistically we hear.”

The Intellectual Property Treaty Landscape in Africa, 1885 to 2015 — “This paper maps the 130-year history of the global international IP treaty landscape governing the protection of, and access to, knowledge in Africa. Our approach looks to the past and present in order to build a rich context for policymakers looking to the future. This approach offers a preliminary overview of the opportunities for IP policy innovation in each country, and the continent as a whole.”

Grassley, Feinstein, Leahy, Hatch Call for Quick Action in the Senate on Legislation to Provide Selection Process for Register of Copyrights — A bipartisan group of Senators this week introduced companian legislation to HR 1695, which passed the House last week 378-48. The bill would make the Register a Presidential appointee subject to Senate confirmation and is seen as the first step toward broader Copyright Office modernization efforts.

New CPIP Policy Brief: Open-Access Mandates and the Seductively False Promise of “Free” — A number of federal agencies require authors and publishers of scholarly articles using federally-funded data to make those articles available for free. In this brief published this week, it is argued that such open-access mandates raise serious legal, policy, and economic concerns and contradict basic principles of copyright law.

Merges on Utilitarian Justifications for IP — IP scholar Robert Merges responds to Mark Lemley’s 2015 paper Faith-based Intellectual Property, which argued that adherents of deontological justifications for intellectual property cannot take part in a true scholarly exchange.

Are rules incompatible with the web? Let’s hope not: A response to Tim Wu — Geoffrey Manne and Neil Turkewitz weigh in on a proposal to include Encrypted Media Extensions as part of the World Wide Web Consortium’s standards. The proposal would enable browsers to display DRM-protected media without the need for third-party plugins.

House Overwhelmingly Passes Bipartisan Legislation on Selection Process for Copyright Register — The big news this week was the passage of HR 1695 in the House by a broad and bipartisan vote of 378-48. The bill, which would make the Register of Copyrights a Presidential Appointee subject to Senate confirmation and limit the office’s term to ten years, is part of broader Copyright Office modernization efforts that began over four years ago. This bill was introduced separately given the current lack of a permanent Register.

The Copyright Office’s Amicus Brief from Mazer v. Stein — Zvi Rosen this week uploaded the full brief, along with appendices, from the classic 1954 case on copyright protection and useful articles. Also goes to show how long the Copyright Office has been considered the expert agency on interpreting the Copyright Act.

Is It Time to Break Up Google? — Jon Taplin has a new book out, Move Fast and Break Things, and he pens this NY Times op-ed laying out his basic premise: in just a few short months, a small set of internet platforms like Google, Facebook, and Amazon have become the largest companies in the world, and their success has come at the expense of the creative industries, privacy, and even democratic values.

Selling Piracy-Configured Media Players is Illegal, EU Court Rules — Stand-alone media devices that provide access to film and television content are becoming increasingly popular, but the downside is that many are being sold pre-configured with third-party addons that allow one-click access to infringing content. Andy at Torrentfreak reports, “In a long and complex ruling, the ECJ said that a media player with pre-installed addons, accessed through structured menus, grants users ‘direct access to the protected works published without the permission of the copyright owners’ and ‘must be regarded as an act of communication to the public.'”

“Consumer Advocates” Oppose Web Standard That Would Improve Privacy and Convenience — Daniel Castro writes about the fight over the standard, called encrypted media extensions (EME), which would allow encrypted media to be played in web browsers without plugins.

How Google Eats a Business Whole — “‘I didn’t understand the benefit to us,’ he said. ‘It’s a big ask. Like, ‘hey, let us tap into the most valuable thing that you have, that has taken years to create and we’ve spent literally millions of dollars, and just give it to us for free so we can display it.’ At the end of it, we just said ‘look, we’re not comfortable with this.’…But then they went ahead and took the data anyway.'”

Nicolle Galyon’s Journey From ‘Voice’ Contestant to Hit Songwriter, Producer, Creative Rights Advocate —  “She has made several trips to Washington, D.C., in conjunction with the Nashville Songwriters Association International to meet with lawmakers, something Galyon says is ‘so important.’ ‘When [lawmakers] hear that a songwriter wrote a song, that means one thing to them. When they [meet] that girl from Kansas who wrote songs for 10 years before she had a song on the radio and who has a family to support, that connects [with] them.'”

Copyright Office Modernization Through an Artist’s Lens — “Some critics of the legislation have suggested that elevating the Register is an attempt to ‘give more power to Hollywood’—something we in the visual arts community find puzzling. Without a doubt, the Copyright Office’s technological shortcomings affect visual artists far more than movie studios and record labels. For instance, Variety reported that 563 movies were released in 2014 by the entire movie industry, which is a relatively small number of copyrights to register for an entire year. By contrast, a single photographer can take over 500 photos in one shoot, and may create as many as 50,000 individual photographs per year.”

Why Google Book Search Got Lost — “The Google Books program was widely misunderstood. (So was our lawsuit. I think it’s fair to say that the Guild never managed to communicate well the issues at stake.) Google didn’t intend—initially at least—to serve as a vast Internet library. It aimed to improve its search engine—and beyond that, it aimed to gain complete possession of the invaluable corpus represented by the world’s literary legacy. It did that, remember, without buying a single book. We authors, for our part, didn’t object to Google’s creating of a search index. In itself, search had obvious benefits for everyone, readers and writers alike. We objected to Google’s seizing without permission the full texts of copyrighted books for profit-making purposes not limited to indexing and never, in fact, fully disclosed. These books are enormously valuable to anyone working on algorithmic translation and machine learning. If the company has let the public-facing side of Google Books slide, perhaps it’s because that was never the top priority.”

Disabling Access to Large-Scale Pirate Sites (Site Blocking)—It Works! — “….these blocks caused a 90% drop in visits to the blocked sites (leading to)… a 22% decrease in total piracy for all users affected by the blocks…. We also found that these blocks caused a 6% increase in visits to paid legal streaming sites like Netflix and a 10% increase in videos viewed on legal ad-supported streaming sites….”

The Reason Why YouTube Pays Artists So Little — “The key here is that YouTube is primarily a user generated service. If a label was to refuse a license to to the company, its songs would still appear thanks to user uploads. The label can ask for a take down, but as soon as that happens, another one, or 10, pop up. This puts YouTube in a strong position to low-ball on any licensing agreement.”

How Google Book Search Got Lost — Scott Rosenberg writes about how the service has become almost dormant: “The Google Books ‘History’ page trails off in 2007, and its blog stopped updating in 2012, after which it got folded into the main Google Search blog, where information about Books is nearly impossible to find. As a functioning and useful service, Google Books remained a going concern. But as a living project, with plans and announcements and institutional visibility, it seemed to have pulled a vanishing act. All of which felt weird, given the legal victory it had finally won.”

Trump Taps Vishal J. Amin as New ‘IP Czar’ — The current senior counsel of the House Judiciary Committee has been tapped to succeed Danni Marti as Intellectual Property Enforcement Coordinator.

AFL-CIO supports H.R. 1695 — In a letter to House Judiciary Committee Ranking Member John Conyers, the union writes in support of the Register of Copyrights Selection and Accountability Act, saying “On behalf of our more than 10 million members, the AFL-CIO strongly believes that working people in the arts and entertainment industry stand to benefit from a well-functioning, impartial Copyright Office. By finally making the Register of Copyrights a principal officer under the Constitution, nominated by the President and confirmed by the Senate, USCO will be able to fully exercise the various authorities granted in the U.S. Copyright Act. Furthermore, it will give the American people the opportunity to weigh in on the Register selection process every ten years through their elected officials.”

Indie Labels Report Struggle With ‘Whack-A-Mole’ Digital Takedowns, 30% Have Given Up Trying [SURVEY] — The American Association of Independent Music and the Future of Music Coalition teamed up to survey independent record labels about their experiences searching for and responding to online infringement. The results suggest they face significant challenges in doing so.

Comments on the ‘value gap’ provisions in the European Commission’s Proposal for a Directive on Copyright in the Digital Single Market (Article 13 and Recital 38) — Dr Silke von Lewinski of the Franklin Pierce Center for IP writes that the proposed “value gap” provisions do not modify EU law, as some critics have argued, but rather merely clarifies it.

Father of 808 and founder of Roland Ikutaro Kakehashi has died — Peter Kim at CDM writes, “Few people loom over electronic music instruments quite like Ikutaro Kakehashi. As founder of Japanese giant Roland, at Roland’s helm through decades of its most historic creations, and as an engineer, Kakehashi has had a hand in the evolution of electronic music instruments – and particularly the notion of the electronic drum machine – as we now know it.”

Announcing the Release of Over 2,000 Pages of Lost Pre-1870 Copyright Records — Very cool and monumental effort from former US Copyright Office Kaminstein Fellow Zvi Rosen. Prior to 1870, copyright records were maintained by individual Federal District Courts throughout the US, so it was no easy task to locate and digitize them all.

Critics Build House of Canards to Trash USCO Bill — David Newhoff at Illusion of More responds to critics who “feel the next Register [of Copyrights] could ‘go to eleven’ and be even more extra totally double-secret ‘captured’ by Hollywood. And the way this will happen is by reorganizing the USCO relative to the LOC. It’s an argument based on innuendo, laced with emotional triggers for readers (see references to SOPA & Disney); but there is no substantive case being made as to why this reorganization will increase the potential for inappropriate deference to major rights holders.”

Newspaper publishers lose over half their employment from January 2001 to September 2016 — The latest figures from the Bureau of Labor Statistics show the troubling decline. But there’s plenty of fake news to fill the gap.

Uber said to use “sophisticated” software to defraud drivers, passengers — It’s amazing the types of disruptive things you can do with technology.

On Piracy Culture — A must-read article from Siddhant Adlakha at Birth.Movies.Death that takes a look at what piracy means for art from the consumer’s perspective. Adlakha writes, “In the case of cinema and all visual art forms, the things people download involve labour. While it’s easy to see blockbusters as calculated products of evil, self-perpetuating conglomerates, we often forget they still depend on hundreds and thousands of below-the-line-artists, with even folks in key positions making far less than your average A-list actor. This is of course to say nothing of independent films, which also fall victim to rampant piracy if they don’t get widespread distribution (Hell, even if they do), and even the workers and artists who don’t benefit directly from ticket sales often find their future employment depending on the success of each project.”

Statement of House Judiciary Committee Chairman Bob Goodlatte Markup of H.R. 1695, the “Register of Copyrights Selection and Accountability Act” — Chairman Goodlatte notes in his statement, “The current vacancy within the Register’s Office is a timely one as we consider the Copyright Office of the future. But we should not hold up replacement of the Register to resolve the other issues that will take more time to address. So I and 29 of my colleagues introduced this legislation as a way to speed up consideration of this key component before other changes to the Copyright Office are made.” H.R. 1695 was reported out of the Committee on Wednesday by an overwhelming and bipartisan vote of 27-1.

first person: royalties from soundexchange kept our band togetherThe Rocketboys keyboardist Justin Wiseman shares the band’s story about how much hustle they had been putting into performing and recording, and just how critical royalty checks from SoundExchange for digital performances were to enabling them to continue doing those things.

New Phoenix Center Study Demonstrates that DMCA “Safe Harbor” Provisions Cost U.S. Music Industry Nearly $1 Billion Annually in Lost Revenue [PDF] — “The source of the distortion in licensing negotiation appears to be that at any one time, there may be multiple unauthorized copies of a particular song available notwithstanding compliance with the safe harbors, suggesting that services may essentially be able to offer access to music without paying royalties and still claim safe harbor protection for infringement. The evidence appears to confirm the claim: market-based royalties for subscription-based services are about eight-times larger than that paid by YouTube.”

Study – Creators Frustrated with DMCA (with Pandas!) — Rebecca Cusey reports on the results of a survey of individual creators about their experience finding and addressing infringement of their own works and the extent to which they make use of the DMCA’s notice and takedown provisions. And, yes, there are pandas.

Goodlatte, Conyers, Grassley, Feinstein, Leahy Call for Quick Action on Legislation to Provide Selection Process for Register of Copyrights — An issue with bipartisan, bicameral support? Yes, please. Late Thursday, House Judiciary Committee Chairman Goodlatte and Ranking Member Conyers, along with 29 cosponsors, introduced a bill that would change the appointment process for the Register of Copyrights, a position that has not had anyone permanently in the role since last October. The bill is the first step in broader efforts beginning four years ago to modernize the US Copyright Office.

What the Supreme Court’s First Ruling on Fashion Copyrights Means for the Runway — It’s not often I get to link to a story on Vogue. The fashion magazine speculates on the impact of Wednesday’s Supreme Court decision in Star Athletica v Varsity Brands, which laid out a new test for conceptual separability.

Understanding ownership and property in the Digital Age — ICLE’s Geoffrey Manne and Neil Turkewitz explain why a “buy” button for digital files doesn’t deceive consumers, despite the fact that most often digital files are licensed rather than sold. “Quite simply, we are accustomed to buying licenses as well as products. Whenever we buy a ticket — e.g., an airline ticket or a ticket to the movies — we are buying the right to use something or gain some temporary privilege. These transactions are governed by the terms of the license. But we certainly buy tickets, no?”

Fox Television Stations v Aereokiller: Ninth Circuit Holds FilmOn X Not a “Cable System” Entitled to Compulsory License; Implicates Federal Agency Deference Doctrines — The 9th Circuit this week issued its opinion in the FilmOn case, holding that services which retransmit video over the internet are not eligible for copyright’s §111 cable compulsory license. Scott Sholder of law firm CDAS takes a look at the decision.

Google ‘promotes copyright piracy’: Getty ImagesThe Australian reports, “Getty Images has launched a ­blistering attack on Google’s attempts to water down Australian copyright laws, accusing the company of ‘adversely affecting’ its business and ‘promoting piracy’. The government is seeking to extend the copyright safe harbour provision to online intermediaries such as Google and Facebook, giving them immunity for infringing user-uploaded content on their platforms. A majority of local major rights holders in the entertainment and sports worlds have joined forces to oppose the proposal.”

Non-Profit Groups Urge Congress to Support Copyright Laws (Guest Column) — “In support of the millions of Americans who currently make a living in the creative industries and the next generation who will join them, our two organizations – the Copyright Alliance and CreativeFuture – recently sent a letter to all elected officials outlining the importance of copyright. Over 70,000 individuals signed their name to this letter because they understand that without a strong copyright system, content creation and the jobs it generates across film, television, music, photography, publishing, software, and other industries would be impossible.”

Review of Professor Thomas Höppner’s Lecture In Support of Neighbouring Right for Press Publishers — “Copying content is always cheaper than generating content. Professor Höppner argues that there are probably a greater number of start-ups which utilise an aggregation business model than start-ups engaged in the production of news – why bother investing millions in a global network of journalists, editorially review their work and build a trustworthy news brand if you can easily aggregate the news content generated by others?”

‘The Last Songwriter’ Documentary Spotlights Writers in the Age of Streaming — “Songwriters earn mere pennies when their songs are played on the radio, according to the documentary’s trailer. But in the age of streaming, songwriters are struggling now more than ever to turn music into money. Songwriters earn less than a thousandth of a penny for each stream. Although they’re the backbone of the music industry, many songwriters are being forced to leave the profession since they can’t afford to make a living.”

Who Does OpenMedia Really Speak For? — Hugh Stephens writes, “What I find questionable is OpenMedia’s attempt to masquerade as a US advocacy group, when it is not even based in the US. Partnership with like-minded organizations whether at home or in other countries is one thing, but passing yourself off as a US-based organization, speaking to and on behalf of Americans and in effect engaging in (one might say interfering in) the US policy process, is quite another.”