Understanding the CLASSICS Act — Yesterday, Representatives Issa and Nadler dropped a bill that would partially federalize pre-1972 sound recordings, allowing the owners of many popular oldies to get royalties under statutory licenses when they are played online. Jonathan Bailey looks at what caused the problem and how this bill will address the issue.
The Access Copyright v York University Decision: Restoring Some Balance to Copyright in Canada — Hugh Stephens takes a look at last week’s decision from the Federal Court of Canada that held a Canadian university’s decision to rely on fair dealing for copying educational materials rather than licensing was not supported by the law. A welcome win for the educational publishing community.
Former Copyright Office Head Pallante Gets IP Champion Award — On Wednesday, the DC Bar awarded former Register Maria Pallante, now head of the Association of American Publishers, noting that her “work in the private sector and public sector has made a lasting mark in the intellectual property field.” Well-deserved.
An Oral History of The Simpsons’ Classic Planet of the Apes Musical — A very fun read for fans of the Simpsons and one of its all-time top episodes. But don’t worry, there’s also a copyright angle, as Chris Ledesma, the music editor for the show, remarks how the show approaches rights issues when creating parodies.
Mass “Address Unknown” NOI Loophole Continue Apace With Growing International Implications — Chris Castle examines a little-known problem that’s causing a lot of consternation for songwriters and music publishers. Castle says, “If a music user like Amazon wants to use the song compulsory license but can’t find the song owner in the public records of the Copyright Office (often the case for ex-US songwriters), a loophole from 1976 allows the user to file the required notification (often called an ‘NOI’) with the Copyright Office instead of with the song copyright owner. Assuming the filing was made correctly, the user can then allege that the user is entitled to all of the benefits of the compulsory license without the obligation to pay royalties until the song owner catches them.”
No, The Canadian Supreme Court Did Not Ruin the Internet — “Global takedown orders with no limiting principle are indeed scary. But Canada’s order has a limiting principle. As long as there is room for Google to say to Canada (or France), ‘Your order will put us in direct and significant violation of U.S. law,’ the order is not a limitless assertion of extraterritorial jurisdiction. In the instance that a service provider identifies a conflict of laws, the state should listen. Under longstanding conflicts of laws principles, a court would need to weigh the conflicting and legitimate governments’ interests at stake. The Canadian court was eager to undertake that comity analysis, but it couldn’t do so because the necessary ingredient was missing: there was no conflict of laws.”
CC files amicus brief explaining NC licenses in Great Minds v FedEx Office litigation — The Creative Commons organization steps into a legal dispute involving their noncommercial (NC) license. CC explains, “This is not to say that commercial copy shops can copy NC content without restrictions, but instead to clarify that when acting solely at the direction and request of an organization that is itself only using the work for non commercial purposes, as Great Minds has conceded the school district is, a third party like FedEx Office is sheltered by the non commercial user’s license.”
Copyright Office Announces Open Application Period for Ringer Fellowships — For recent law school grads interested in copyright law and policy, this is probably one of the best opportunities in the US.
Sometimes, Information Wants to Be Expensive — Jotwell reviews a recent paper by Jonathan Barnett, Three Quasi-Fallacies in the Conventional Understanding of Intellectual Property, which takes on the view that society would be better off with much-diminished IP rights. In it, Barnett “dispels what he considers three key assumptions – so-called quasi-fallacies – underlying the wisdom of IP minimalism. Instead of simply resorting to a conclusory ‘property-rights-are-valuable’ mode of critique, Barnett develops his compelling, economically grounded arguments using a variety of original case studies, data, and theoretical insights. Instead of attacking hypothetical strawmen, Barnett directly confronts the empirical claims of the minimalist camp.”
Supreme Court of Canada Orders Google to Block Pirate Website Worldwide — Stephen Carlisle looks at the decision from Canada’s top court this week in Google v Equustek Solutions, which upheld an order requiring Google to remove defendant’s websites (which were being used to sell counterfeit versions of plaintiff’s products) from its search index. What’s more, the order applies globally, not just within Canada.
Judgment Against Sci-Hub is a Win for Authors and Publishers — Kevin Madigan looks at the recent court decision awarding Elsevier significant damages in its case against Sci-Hub, which operated a site providing infringing journal articles.
‘Suing the Government Is Very Punk Rock:’ SONA Hosts Third Songwriters Summit as It Strategizes DOJ Lawsuit — Billboard reports, “Punk AF or not, SONA sued the DOJ last year following what it sees as the government’s unjust, inequitable and unconstitutional ruling in prohibiting fractional licensing which the group says will result in dramatically lower compensation for songwriters. The DOJ is currently attempting to have the suit dismissed while SONA is awaiting a judge’s decision on whether or not the dismissal hearing will proceed with oral arguments.”
Austin Composers Use Old Synthesizers for New Stranger Things Music — Is it October 31 yet?
Not So Fast: Piracy and the Summer Blockbuster Myth — Ruth Vitale from CreativeFuture pens an open letter to summer movie fans.
Copyright Office Releases Report on Section 1201 — Almost twenty years ago, Congress created Section 1201 of Title 17, prohibiting the circumvention of technological protection measures. This week, the Copyright Office released a 195 page report, following a year and a half of study and public consultation, to measure its effectiveness and see if any changes are warranted. I won’t spoil it for anyone who hasn’t read it yet.
Now the Censors Are Going for Will Shakespeare — The Authors Guild responds to the controversy surrounding the Shakespeare in the Park production of Julius Caesar. It notes, “Our founders understood just how important it is for a society to have speech that is independent from patrons (who can control its content), so they provided for copyright law, which allows authors to independently support their work by earning money in the free market. Corporate support for the arts is important and commendable—as long as it’s not used to control speech. A strong and effective copyright regime is indispensable to the independence of the arts.”
The Association of American Publishers Welcomes Major Judgment Against “Sci-Hub” Pirate Site — “For years, Sci-Hub illegally accessed the secure computer networks of a large number of major universities by, among other methods, hijacking “proxy” credentials, and compromising some 51 million protected works. Yesterday’s decision confirms Elsevier’s right to seek just restitution for the infringements it has suffered, and gives hope to the many smaller publishers, scientific societies, and authors who navigate bad actors on a daily basis.”
Electronic Music Pioneer & CISAC President Jean-Michel Jarre: ‘We’re Living In A Medieval Dark Digital Age’ — Says Jarre, “We must solve the problem of the sustainable economy for culture. The fact that you get $1,000 dollars after 10 million clicks on YouTube. When YouTube is making billions of dollars on the back of cultural content. That’s not more money going to everybody. It’s more money for these companies and just a tiny, tiny percentage for everybody else.”
Patent Office Director Michelle Lee resigns — Unexpected news this week, as Undersecretary of Commerce for Intellectual Property and Director of the US Patent and Trademark Office Michelle Lee tendered her resignation effective immediately. No reason has been given for the decision. In her place, U.S. Secretary of Commerce Wilbur Ross has named PTO Associate Solicitor Joseph Matal as Acting Director.
Don’t let the perfect be the enemy of the good on Copyright Office reform — Kristian Stout explains, “In any event, it seems perfectly sensible to address the Register selection process before tackling the other issues, which may require more detailed discussions of policy and cost. And with the Copyright Office currently lacking a permanent Register and discussions underway about finding a new one, addressing any changes Congress deems necessary in the selection process seems like the most pressing issue, if they are to be resolved prior to the next pick being made.”
Disney, VidAngel Weigh Family-Friendly Filtering Against Copyright Protection in the 9th Circuit — On Thursday, a Ninth Circuit panel heard oral arguments in Disney v VidAngel, a case involving an unlicensed on-demand streaming service’s defenses. This past December, a District Court rejected those defenses and granted the plaintiff film studios’ motion for a preliminary injunction.
Copyright Office Launches Online Database of Review Board Decisions — After the Copyright Office rejects an application to register a copyright, the claimant has an opportunity to appeal the decision. Now, the Office has made the written decisions of those reviews publicly available on its web site for the first time.
Afghanistan considers copyright treaty after Mason legal clinic advocates for filmmaker — “When Stephanie Semler volunteered to work for the Arts and Entertainment Advocacy Clinic at George Mason University’s Antonin Scalia Law School, she had no way of knowing that she would be attempting to encourage a country to join a major international treaty. Semler prepared the groundwork for an effort to encourage the government of Afghanistan to join the Berne Convention, a global copyright agreement created in 1887. Thanks to her legal research and the determined diligence of the client, Virginia-based filmmaker Shabnam Humphrey, it could happen.”
Stranger Things VFX Supervisor on Making Monster Mayhem — “What made Stranger Things possible was also the skill and commitment of the effects team. The Duffer Brothers relied on as many practical effects as they could to make the main monster, the demogorgon, and the parallel universe it inhabits, the Upside Down. Yet what the brothers found was their visual effects team, led by supervisor Marc Kolbe, could let them dream bigger than they initially imagined.”
Spotify Settles Class Action Lawsuits Filed By David Lowery and Melissa Ferrick With $43.4 Million Fund — Rob Levine reports on the settlement between the songwriters and the popular music streaming service over allegations that it had not licensed mechanical rights for compositions. Says Levine, “Beyond past and future compensation, the settlement agreement outlines a process by which Spotify and the class counsel ‘will work collaboratively to improve the gathering and collecting of information about composition owners to help ensure those owners are paid their royalties in the future,’ according to the plaintiffs’ motion.”
Miranda Mulholland lays bare the reality for creators in the digital age at the Economic Club of Canada — “On May 24, Miranda Mulholland became the first musician to deliver a keynote address to the Economic Club of Canada. Her speech, titled ‘Redefining Success in a Digital Marketplace,’ drew on her years of experience as a musician, label owner and entrepreneur to shed light on the reality artists face in the digital age. In her speech, she also identified actions that government, the music industry and music fans can take to help bring balance to the world in which creators live.”
Copyright Office Releases an Updated Draft of the Compendium of U.S. Copyright Office Practices, Third Edition — The Compendium is the Copyright Office’s administrative manual and provides attorneys, copyright owners, and creators a comprehensive guide to registering their works. This week, the Copyright Office released a draft of an updated version that clarifies a number of policies and takes into account recently changed Office regulations.
Speech by Vice-President Ansip at the “Meet the Authors” conference — “Investments made by creators, artists, performers and creative industries should be properly recognised and rewarded. It is not right for the revenues that flow from their work to end up disproportionately with a few large players who may not themselves be involved in content creation – but who do make money off the back of it. Otherwise, we risk a situation where there is less creation, less diversity and less quality. Why? Because there would be less incentive for creators to invest in producing creative content in the first place.”
Instagram DMCA case over removal of copyright notice moves forward — Evan Brown reports on a recent decision in Gattoni v Tibi, an interesting case currently in the Southern District Court of New York. There, the court dismissed a claim for copyright infringement, holding that a registration certificate is required before filing suit, rather than just an application to register (an issue that the Second Circuit has not weighed in on yet but that has split other Circuit Courts). However, the court did not dismiss a claim for unauthorized removal of Copyright Management Information, allowing that claim to proceed.
BASCA Chair Crispin Hunt: ‘Rules Won’t Break the Internet, They’ll Mend It’ — “YouTube and Facebook were squarely in the sights of Crispin Hunt, chairman of the British Academy of Songwriters, Composers and Authors (BASCA), as he delivered the opening address at yesterday’s Ivor Novello Awards in London.”
The Copyright Office is on a Rulemaking Roll — Copyright Office General Counsel Sy Damle gives a rundown on the rulemaking efforts of the Office—seven final rules and six proposed rules so far this fiscal year. As Damle explains, the rulemaking is part of “a years-long effort by the Copyright Office to establish more efficient business processes, and helps set the stage for our continued goal of Office modernization.”
Moving the U.S. Copyright Office Into the Digital Age — …but updated rules only lay the groundwork for Copyright Office modernization. The Global Intellectual Property Center looks at recent legislative efforts to ensure that the Office has the necessary autonomy over its IT, budget, and staffing to bring its services into the 21st century.
Time for the truth to interfere with the copyright battle in Australia — Kate Haddock, of the Australian Copyright Council, responds to recent claims by Wikipedia that the online encyclopedia cannot legally operate in Australia under its current copyright law.
Heeding Criticism from Many Corners, ALI Pulls Liability Insurance Restatement Before Membership Vote — Glenn Lammi of the Washington Legal Foundation writes, ” If ALI believes that an area of law should evolve in a direction different from what courts in the US have been applying, it commissions a “Principles Project,” which is explicitly aspirational, rather than a summation—along the lines of a glorified law review article. Restatements, on the other hand, are meant to simply restate. With projects like the Restatement of the Law, Copyright (which we criticized in a 2015 WLF Legal Pulse post) and now the liability insurance Restatement, the organization has been blurring the line between restating and revising.”
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.