Court’s docket shuns bankruptcy and IP cases — The US Supreme Court has started its new Term, but, as SCOTUSBlog reports, with 65% of its docket already filled, there is not a single IP case to look forward to.

Copyright Doesn’t Restrain Culture – Part II — Newhoff: “…because building upon what has come before is a well-established part of the creative process—because artists themselves throughout history admit to knowing how to steal—the argument is often made that modern copyright tips the scale too far toward a presumption of ‘originality,’ supposedly resulting in a kind of intellectual land grab whereby a minority of creators and corporations now own and charge rents for too much of the fertile ground necessary for creative endeavor. Nevertheless, by some miracle, literally millions of creators can simultaneously and independently produce new works while only very occasionally create conflicts of copyright.”

Rothman’s Roadmap to the Right of Publicity (via Rebecca Tushnet’s 43(B)log) — An incredibly useful guide to laws protecting the right of publicity in each of the fifty states.

Does Piracy Cost Content Creators a Fistful of Dollars? — “Copious research has countered claims that piracy is de facto publicity that spurs sales for individual recording artists or that increases in merchandising opportunities offsets the lost revenue from pirated films. While the literature is still open to new contributions, current research and analysis is demonstrating more and more that piracy has a measurable, negative impact on content creation and profits, which shouldn’t be a surprise to anyone.”

The problem is the music-streaming companies — Paul Williams: “Bottom line: the problem is neither transparency nor what is being paid out to songwriters and other copyright holders by PROs… the real problem is how little is being paid into the system by streaming companies”

As Batman so sagely told Robin, “In our well-ordered society, protection of private property is essential.”

Ninth Circuit, holding that Batmobile is protected as a copyrighted character. 1DC Comics v. Towle, No. 13-55484 (9th Cir. 2015).

Kim Dotcom case is ’simple fraud’, court told — “Gordon said Megaupload, the now-defunct site at the heart of Dotcom’s online empire, was part of a scheme to steal copyright-protected material. ‘The respondents took part in a conspiracy,’ she said. ‘They deliberately introduced copyright-infringing material to their website, they deliberately preserved that material, they deliberately took steps to profit from that material and made vast sums of money.'” See also Let’s Get Real about Kim Dotcom: The Indictment Clearly Alleges Felony Copyright Infringement.

Behind the Authors Guild’s New Proactive Approach — “Since Mary Rasenberger took over as executive director of the Authors Guild last November, the writers’ group has undertaken two significant projects: its Fair Contract Initiative and the first survey of guild membership in six years. Both efforts, Rasenberger said, are designed to help the organization better represent the interests of its 9,000 members, not just with publishers, but with government officials and other groups that can affect the livelihood of all authors.”

Valuing Music in a Digital World — Cary Sherman: “Compounding the harm is that some major online music distributors are taking advantage of this flawed system. Record companies are presented with a Hobson’s choice: Accept below-market deals or play that game of whack-a-mole. The notice and takedown system—intended as a reasonable enforcement mechanism—has instead been subverted into a discount licensing system where copyright owners and artists are paid far less than their creativity is worth.”

This free online encyclopedia has achieved what Wikipedia can only dream of — Spoiler: It’s the Stanford Encyclopedia of Philosophy, which predates Wikipedia by six years. Unlike Wikipedia, the Stanford Encyclopedia manages to be authoritative, comprehensive, and up-to-date, and does so by relying on a hierarchy of editors and expert authors rather than “the wisdom of the crowd.”

USTR Releases Detailed Summary of TPP Objectives — Included are the objectives of the free trade agreement’s copyright chapter.

GroupM And TAG Partner To Fight Piracy, The “Seed That Grows Into Ad Fraud” — “’The people who create pirate sites are the same ones who perpetrate clickbot fraud – they’re the ones who spread malware and create the armies of bots that generate most of the automated clicks in the business,’ said John Montgomery, chairman of GroupM Connect, North America , and co-chair of the Trustworthy Accountability Group’s (TAG) antipiracy working group.”

The Fake Traffic Schemes that are Rotting the Internet — “’I can think of nothing that has done more harm to the Internet than ad tech,’” says Bob Hoffman, a veteran ad executive, industry critic, and author of the blog the Ad Contrarian. ‘It interferes with everything we try to do on the Web. It has cheapened and debased advertising and spawned criminal empires.’ Most ridiculous of all, he adds, is that advertisers are further away than ever from solving the old which-part-of-my-budget-is-working problem. ‘Nobody knows the exact number,’ Hoffman says, ‘but probably about 50 percent of what you’re spending online is being stolen from you.'”

References   [ + ]

1. DC Comics v. Towle, No. 13-55484 (9th Cir. 2015).

The Flux Capacitor and the Copyright Office — “American businesses and consumers deserve a Copyright Office that is suited to the modern era and the future.  Last weeks’ outage is yet more evidence that the Copyright Office needs authority over its own systems to make that happen.  And we hope Congress gives this the attention it deserves.”

Ninth Circuit Gets Fair Use Wrong to the Detriment of Creators — To reach its conclusion that fair use is a right, the Ninth Circuit selectively quotes an Eleventh Circuit decision to make it sound like there is support for that position, when in fact, the Eleventh Circuit is saying the opposite. Stunning.

Priest on Market-Pressure Based Enforcement of Global Copyright — A new article from Univ. of Oregon Law School professor Eric Priest “proposes a framework for evaluating and improving market-pressure strategies aimed at redressing copyright infringement in markets where enforcement is lacking.”

Full of Schmidt — “…it turns out the demagogues of Silicon Valley are themselves inveterate elitists who slyly and consistently employ populist rhetoric for their own profit-hungry purposes. They elevate the quantitative formulations of Big Data into unalloyed truth, conveniently overlooking the helplessness of quantity alone to identify quality (nowhere in the history of humanity have we ever seen sheer numbers equate with human value), and also conveniently overlooking the subjectivity that will always embed itself into algorithmic selection, because (hey, how about that!) algorithms are at some point in the process created and overseen by human beings and will ever more reflect subjectivity even when posing as immutably objective.”

MPA Reveals 500+ Instances of Pirate Site Blocking in Europe — That’s a lot of broken internets.

“We Own You” – Confessions of an Anonymous Free to Play Producer — “Every time you play a free to play game, you just build this giant online database of who you are, who your friends are and what you like and don’t like. This data is sold, bought and traded between large companies I have worked for. You want to put a stop to this? Stop playing free games. Buy a game for 4.99 or 9.99. We don’t want to be making games like this, and we don’t want another meeting about retention, cohorts or churn.”

Three Quasi-Fallacies in the Conventional Understanding of Intellectual Property — In this forthcoming article, Jonathan Barnett argues that, contrary to the prevailing IP skepticism in academia, “reducing IP rights can increase costs for users while raising entry barriers for firms that adopt weakly integrated and other unbundled business models for implementing the innovation and commercialization process. The result is perverse: weaker IP rights raise entry costs, increase concentration and ultimately raise prices, limit output or otherwise distort innovation investments.”

If You Don’t Click on This Story, I Don’t Get Paid — A thought-provoking look at freelance writing in 2015. “’The people who make money off the internet are Facebook, Google, and Twitter and their billionaire executives,’ David Samuels, a contributing editor at Harper’s and frequent contributor to the New Yorker, said. ‘They are fantastically rich because they ate this whole world. Everybody in this world of internet publications is essentially providing content for them one way or another for free. If that’s your job, you’re very very nervous every day about the one little misstep that’s completely meaningless to Facebook, Google, or Twitter but might be the difference between life and death for you and for your publication.'”

How Unethical Hosts Fake DMCA Compliance — Jonathan Bailey has a practical guide for dealing with sites using tactics to make it seem like they are complying with DMCA notices without actually removing infringing material.

Recorded Music is the MOST Valuable — David Newhoff has a fascinating piece on the importance of recorded music and how the public loses out if artists are told to stick to live performances because the market for recorded music has eroded. “When recorded works themselves cease to be a commodity (i.e. they’re made for the purpose of selling something else), they cease to be the basis for investment, and this can limit the range of creators’ options to collaborate and produce a richer universe of sounds.”

Copyright Office’s online registration hasn’t worked for almost a week — The Copyright Office was created as a department of the Library of Congress in 1897. This latest technical malfunction demonstrates why that arrangement doesn’t best serve the needs of the public.

You can’t make “Game of Thrones” on a YouTube budget: Why “it’s the best of times and the worst of times” for prestige TV — Scott Timberg interviews Rob Levine on the current television renaissance. “All of this sounds abstract, but the ability of networks to fund ambitious shows – most of them with very high production costs – has to do not just with a creative revolution, but an economic one. People pay for television in a way they rarely do for other forms of culture, and when they stop, so will the flow of great programming.”

Rain is sizzling bacon, cars are lions roaring: the art of sound in movies — A fantastic profile of Skip Lievsay, a master at the craft of sound design for films. “Lievsay is not a household name, but he is famous among people who are. His expertise, fittingly, is what can’t be seen – sound, yes, but also everything else that sound is to the human mind: the way we orient ourselves in relation to spaces, to time, to each other; the way we communicate when language fails; the way our ears know, precognitively, when the dark room has someone lurking in it or when a stranger will be kind. He orchestrates the levels of human perception that most people either fail to examine or lack the ability to notice at all. His job is to make you feel things without ever knowing he was there.”

‘Sample amnesty’ will let artists keep royalties if they declare material lifted from other musicians — “Rather than chase down and sue musicians who have taken its music without permission, EMI is offering an amnesty. From Tuesday, anyone who has sampled the catalogue without getting the sample cleared will be able to come forward, declare it, and agree a legitimate release for the recording. The ‘sample amnesty’, believed to be the first of its kind, will run for 6 months, has been approved by Sony/ATV Music Publishing, which owns EMI Music Publishing and is itself co-owned by the Michael Jackson Estate.”

The MovieTube Litigation Part I: Who Needs SOPA? — Devlin Hartline takes a look at Federal Rules of Civil Procedure 65(d)(2) and its application to third party service providers who aid and abet online piracy.

Many new top-level domains have become Internet’s “bad neighborhoods” — “There were many who warned that the Internet Corporation for Assigned Names and Numbers’ (ICANN) decision to allow a host of new commercial generic top-level Internet domains was going to create a huge opportunity for Internet scammers and hackers. The approval of top-level domains (TLDs) beyond those assigned to countries and generic ones such as .com, .org, and .net created an opportunity, some in the security industry warned, for criminals to set up “look-alike” domains in the new namespace that aped legitimate sites already registered in .com or elsewhere. Well, the warnings were spot-on.”

The digital environment has created something approaching a monopoly for digital entrepreneurs and technology corporations, at the expense of those who create works. The distribution of intellectual and creative content puts billions into hands of digital entrepreneurs while most artists and creators can no longer benefit economically from their work. This is not fair, and it is not what copyright, which is recognized as a human right under Article 27 of the United Nations Universal Declaration of Human Rights, was intended to achieve.

Krisellen Maloney & Janice T. Pilch, Comments of Rutgers University Libraries in Response to Notice of Inquiry Concerning Copyright Protection for Certain Visual Works, July 23, 2015. 1All comments available here.

Is Amazon Creating a Cultural Monopoly? — A group of authors has asked the Department of Justice to investigate the online retailer, arguing that its practices “squeeze publishers, which makes them more risk-averse in deciding which books to publish. As a result, they claim, publishers have been ‘dropping some midlist authors and not publishing certain riskier books, effectively silencing many voices.’ And this is bad not only for the non-famous writers who go unpublished, but for their would-be readers, who are denied the ability to hear those voices.”

Are Creators Really Thriving in the Digital Age? Doesn’t Look Like It — There were a number of pieces responding to a New York Times Magazine article claiming that a “creative apocalypse” had been predicted following Napster, but that, in fact, things were never better for creators. Here’s Rob Levine’s take.

A visual journey through the most loved and hated TV series finales — Or, more precisely, how much did the IMDB rating of a series finale differ from the average IMDB rating of all its episodes? Still, an interesting chart.

Creative Destruction and Disruptive Creation — “Content creators have always leveraged technology to tell better stories. Indeed, the history of Hollywood is perhaps best described as ‘disruptive creation.'”

The Most Popular YouTube Videos of All Time — Look at all that user-generated content.

References   [ + ]

How Google Could Rig the 2016 Election — Say the authors, “Our new research leaves little doubt about whether Google has the ability to control voters. In laboratory and online experiments conducted in the United States, we were able to boost the proportion of people who favored any candidate by between 37 and 63 percent after just one search session. The impact of viewing biased rankings repeatedly over a period of weeks or months would undoubtedly be larger.”

The Bizarre History of ‘All Rights Reserved’ — Ever wonder where it comes from? And if you’re a creator, do you need it? Jonathan Bailey looks at the origins of the phrase.

Google found its own Java libraries “half-ass at best”, needed “another half of an ass”, took Oracle’s APIs — Florian Mueller highlights a humorous bit of evidence in the long running litigation between Oracle and Google.

20th Century Props reopens amid production rebound in L.A. — “20th Century Props stunned the industry in 2009 when it closed its North Hollywood business amid mounting losses that it blamed on the flight of production from L.A. Several L.A. prop houses have closed or laid off employees in recent years as more business left the state. But owner Harvey Schwartz has decided to reopen at a new location in Van Nuys, citing an upswing in production in Southern California that has renewed demand for props used on film and TV shows. Newly expanded film tax credits have enticed four out-of-state TV shows to L.A. The California Film Commission on Tuesday announced that eight studio films also had been selected for tax breaks. ‘Business seems to be coming to town, so it’s looking good in Los Angeles these days,’ Schwartz said.”

The Next Great Copyright Office — Josh Simmons (Kirkland & Ellis) looks at the current copyright review process, how it compares to the 1976 revision process, and pays particular attention to the issue of Copyright Office modernization.

Creators, Innovators, and Appropriation Mechanisms — “O’Connor explains that tech innovators can ‘freely advocate for copyright reform that would weaken copyright enforcement for content owners without much risk that any changes would hurt their own appropriation mechanisms.’ Even if their efforts successfully weaken some of their own IP rights, such as copyright protections for their source codes, they have a panoply of other appropriation mechanisms that they can rely on instead, such as patents, trade secrets, contracts, and the like. Importantly, the same does not hold true for the many content creators that have only their copyrights to protect them.”

Police anti-piracy operation cuts advertising on illegal sites by 70% — A measure of success in the UK: “The Police Intellectual Property Crime Unit said there has been a 73% decrease in advertising from the UK’s top spending companies appearing on illegal websites since it launched a crackdown in 2013. For the last two years, the PIPCU has been running Operation Creative, with the backing of the ad industry and trade bodies representing the film, music, TV and publishing industry, to try to stop the flow of ad funds which are one of the main generators of profits for illegal sites.”

ICANN Should Curb Anonymous Domain Name Abuses — Daniel Castro: “One requirement for registering any website domain name is that the domain owner must provide its contact information. This information is placed into WHOIS, a public, online database. Some website owners choose to use a privacy and proxy service, which submits contact information for the service provider and is then responsible for relaying any inquiries to the actual registrant. Unfortunately, not all privacy and proxy services fulfill their duties, creating a serious problem for law enforcement agencies. For example, FTC Commissioner Julie Brill has noted ‘…even ICANN recognizes that the system is flawed, often allowing bad actors to hide behind incomplete, inaccurate, or proxy information.'”

If Your Instagram #Selfies Aren’t Private, This Site Might Sell Them To Total Strangers — With no pretense of any “transformative purpose.” The article quotes an Instagram rep firmly taking no position, saying, “you can draw your own conclusions about whether this violates our policies.”

Attention recent law school grads interested in copyright: be sure to check out the following opportunities: the Copyright Alliance is looking for a legal fellow, the Center for Protection of IP at George Mason Law is looking for an IP research fellow, and the Copyright Office is seeking candidates for its Barbara Ringer Honors Fellowship.

Music Artists Take on the Business, Calling for Change — “Public relations missteps in the early 2000s kept many musicians from speaking out about economic issues, artists and executives said. Those include the music industry’s lawsuits against thousands of fans for online file-sharing, and the pillorying that the band Metallica received after it sued Napster for copyright infringement. But the shift toward streaming in recent years has prompted many musicians to investigate the changes in the business and comment online. Among them are independents like David Lowery of the band Cracker; Zoë Keating, a cellist who has documented her online royalties; and Blake Morgan, a singer-songwriter who owns a small record company and started an online campaign, #IRespectMusic, to draw attention to the issue.”

WATCH: A Passionate, Well-Reasoned Defense Of CGI — A great video that looks at the craft of computer-generated effects in filmmaking, and why they are not necessarily inferior to practical effects.

If You’re Reading This, the Internet Ain’t Broke — Creative Future’s Ruth Vitale addresses EFF’s bizarre defense of pirate site MovieTube. “Many of us in the creative community wonder why the Electronic Frontier Foundation goes to such great lengths over and over again to defend the actions of criminals who make it even harder to make a living doing what we love – telling stories and creating new worlds that audiences love. I have a number of friends and colleagues who work in entertainment and they are supportive of other EFF initiatives that are aimed at real harms, but they scratch their heads at its defend-piracy-at-all-costs posture.”

The Knights Who Say SOPA — Also check out David Newhoff’s take on the same. “For all the attorneys on staff at the EFF, they rarely seem to produce an even-toned, nuanced analysis for public consumption regarding cases of this nature. I guess it’s just easier to be The Knights Who Say SOPA. Maybe if somebody brings them a nice shrubbery, they’ll knock it off.”

Making Copyright Work for Creative Upstarts — “Creative Upstarts is a fascinating look into the world of creative upstarts. With their interests and the interests of the larger copyright ecosystem in mind, Pager skillfully traverses our complicated copyright regime and identifies ample opportunities to improve copyright protections for creative upstarts. The twenty-first century is a digital age, and creators and innovators have the technological ability to produce creative works right on their laptops. Pager’s hope is the Copyright Act will be updated to address the realities of this modern world for creative upstarts.”

Open Source Copyright Hub unveiled with ’90+ projects’ in the pipeline — The UK’s long-anticipated Copyright Hub officially launched this week. Andrew Orlowski explains, “The Hub aims to build rights-aware layers on top of the internet, so that people can track how what they make public is used, much as DNS added ease of use to naming protocols and VPNs added privacy standards to the basic bare-bones internet.” Last March, the US’s Internet Policy Task Force held a public meeting that considered whether the US should have something similar.

TVEyes Cannot Stand in the Shoes of its Users — “[I]t is one thing for a media critic to reproduce a segment of a news broadcast for the specific purpose of analyzing or commenting on that broadcast. But it is another thing entirely for a company to continuously and endlessly copy the content of thousands of television networks and offer that content to subscribers who may then make a fair use of the content.”

Annotated state laws of Georgia on my Mind — In a bit of sleight of hand, Carl Malamud proclaims that a recent lawsuit by the State of Georgia against his organization for reproducing in whole the Official Code of Georgia Annotated amounts to an attempt to copyright the law. However, the actual lawsuit alleges copyright infringement of the Code’s annotations, which includes notes and summaries of judicial decisions that have interpreted provisions of the Code. In 1709 Blog’s view, “the State of Georgia’s case has some merit.”