HTML5 DRM finally makes it as an official W3C Recommendation — “The World Wide Web Consortium (W3C), the industry body that oversees development of HTML and related Web standards, has today published the Encrypted Media Extensions (EME) specification as a Recommendation, marking its final blessing as an official Web standard. Final approval came after the W3C’s members voted 58.4 percent to approve the spec, 30.8 percent to oppose, with 10.8 percent abstaining.”

Court Rules Copyright is Not a “Use It or Lose It” Right — Stephen Carlisle discusses the recent Southern District Court of New York decision in Penguin Random House v Colting, where Judge Rakoff rejected defendant’s fair use defense regarding unauthorized children versions of classic novels like Breakfast at Tiffany’s and 2001: A Space Odyssey.

CreativeFuture Pushes Back on Internet Industry’s Claim That They Are ‘New Faces’ of Content — “In a letter to Lighthizer, Ruth Vitale, the CEO of CreativeFuture, wrote that ‘while I would take issue with anyone claiming to represent all ‘the new faces of the American content industry,’ I can comfortably tell you that CreativeFuture represents many of the true faces.’ She added that they ‘respectfully disagree with the views expressed by those tech trade associations.'”

Open Markets Opens Shop After Google Dust-Up — The Authors Guild writes, “We’re hopeful that the attention that incidents like these bring to Internet monopolies’ control of our information infrastructure and the related harm they bring to the creative industries is part of a growing recognition that the regulation of Internet giants like Google and Amazon may be required to keep intact the free flow of information in this country.”

Using Things, Defining Property — GMU Law professor Chris Newman this week posted a forthcoming paper on the definition of property, including intellectual property. Smart stuff, as expected.

Artist Rights Watch writes of the above trailer, “If you’re not aware of this indie film about producer Mark Hallman and his Congress House Studios, you really should check it out.  Rain Perry tells the story that we all know from the point of view of a great craftsman. You can rent or buy the picture directly from the film maker here.”

How Silicon Valley is erasing your individuality — “Rhetorically, the tech companies gesture toward individuality — to the empowerment of the ‘user’ — but their worldview rolls over it. Even the ubiquitous invocation of users is telling: a passive, bureaucratic description of us. The big tech companies (the Europeans have lumped them together as GAFA: Google, Apple, Facebook, Amazon) are shredding the principles that protect individuality. Their devices and sites have collapsed privacy; they disrespect the value of authorship, with their hostility toward intellectual property.”

Labor and Creativity — CreativeFuture’s Adam Leipzig reflects on the critical role labor unions play in our creative culture. “In our rush toward an uncertain future – a future in which creativity and vibrant culture should play a salutary and transformative role – it’s worth remembering the value of creative people in large numbers. Labor unions have protected and enhanced the world we live in and have granted creative people the opportunity to make a living.”

Judge Explains KinderGuides Copyright Case Decision — “Judge Jed Rakoff last week finally issued a written legal opinion in a closely-watched copyright case involving unauthorized ‘children’s guides’ to four classic works, needing just 12 pages to dispatch with defendant Moppet Books’ claims that their works were protected by fair use.”

The Israel Supreme Court adopts the conceptual separability test of the US Copyright Office, rejecting the Star Athletica standard — An interesting case note from IPKat. “After conducting a comparative law analysis, the Supreme Court adopted a three-fold test for copyrightability. The first prong is whether the article is eligible to be registered as a design. If the answer is ‘yes’, then the court should turn to the second prong, whether the work may be separated from the article. If the answer is ‘no’, then the third prong kicks in, namely, whether the work is copyrightable under the Copyright Law.”

Copyright Office Publishes Archive of Briefs and Legal Opinions — Finally, the Copyright Office has published a treasure trove of copyright law documents for your weekend reading pleasure.

‘Game of Thrones’ was pirated more than a billion times — far more than it was watched legallyThe Washington Post has a full rundown of the numbers from anti-piracy analyst firm MUSO. And the reason for such high numbers may surprise you: “A 2015 study commissioned by ScreenFutures, a group of screen producers, found that the main attraction for those who watched or downloaded illegally obtained television shows was that it was free and they weren’t afraid of being caught.”

Update – Ninth Circuit Amends Opinion in Mavrix v. LiveJournal, Clarifying that Websites’ Use of Automatic Content Blocking Software Does Not Weigh Against Eligibility for Copyright Safe Harbor — Brianna Dahlberg of Cowan, DeBaets, Abrahams & Sheppard looks at last week’s amended opinion in the closely watched case involving the DMCA safe harbors.

AG Szpunar advises CJEU on cloud-based recording and private copying exception — Eleonora Rosati has the details on the recent advisory opinion regarding whether Italy’s “private copying exception is applicable in a context in which the act of reproduction is not done directly by the beneficiary of the exception [ie a “natural person”], since copying requires the intervention of a service provider.” The answer is “yes, with a but.”

World’s Largest YouTube Ripping Site Ordered to Shut DownVariety reports, “The music industry has scored a major legal victory, sinking the pirate outfit YouTube-mp3.org, a global ‘stream ripping’ site operating out of Germany that was facilitating the theft of millions of dollars worth of music intellectual property per year.”

Google Critic Ousted From Think Tank Funded by the Tech Giant — On Wednesday, the New York Times dropped a bombshell with this story, detailing how a group whose work on platform monopolies, including Google, was removed from a think tank with strong ties to the internet giant. The story raises legitimate questions about Google’s influence on the many other non-profit and academic organizations it funds. Zephyr Teachout, who chairs the ousted group, penned an op-ed in response, Google is coming after critics in academia and journalism. It’s time to stop them. Also in the wake of the story, others have chimed in to share incidents where the company flexed its muscle, such as Kashmir Hill with Yes, Google Uses Its Power to Quash Ideas It Doesn’t Like—I Know Because It Happened to Me. For a copyright connection, check out Jonathan Taplin’s recent book, Move Fast and Break Things.

Here’s How Google’s Money Really Influences Research — Rob Levine’s take on the above story deserves special mention since he has been writing about Google’s soft diplomacy of non-profits and academics for years, long before the issue made it into the mainstream.

Trump nominates Andrei Iancu to be director of patent office — The managing partner of Los Angeles law firm Irell & Manella is slated to take over the role previously held by Michelle Lee, who was appointed by the previous administration and stepped down in July. And here’s a periodic reminder that, while it’s not apparent in its name, the U.S. Patent and Trademark Office is the Executive Branch’s advisor on copyright policy.

Scholar Takes on Empiricist View of IP — “Empiricism can tell us which notes, instruments, chords, time signature, and lyrics describe Chuck Berry’s recording of ‘Johnny B. Goode’ are on board Voyagers 1 and 2; but these data can hardly explain what it is about Berry’s playing that moves us more than others—or for that matter, why anyone would invent a guitar or learn to play it in a certain way, or why humans would bother building a pair of spacecraft to explore the solar system and then choose Chuck Berry as one of a very few representatives to say, This is who we were.”

2017 Fall Conference — Finally, if you are in the DC area October 12-13, I recommend checking out the Center for the Protection of Intellectual Property’s fifth annual fall conference, this one focused on “Real Intellectual Property Reform.” The organization this week released its slate of panels and speakers, promising an interesting and informative event.

The tech of ‘Terminator 2’ – an oral history — A thorough story of the groundbreaking work done on the 1991 film. The FX team didn’t just create the memorable shots, they had to develop the tools to create those shots. “On my first day at work, I came in the door, they sat me down, and they showed me the storyboards, and they went through this binder. And I’d point to a page and say, ‘Oh, well that looks interesting. How are you going to do that?’ And they’re like, ‘Oh, we don’t know yet.’”

Appeals Court Rejects VidAngel’s Bid to Overturn Injunction — The Ninth Circuit delivered a solid win to copyright owners in another case involving a “Rube Goldberg-like contrivance” hoping a laundry list of cute legal theories could allow it to provide on-demand streaming of film and television episodes without authorization.

Appeals Court Grapples With Digital Files, and the Business of Selling “Used” Songs — On the other side of the coast from the Ninth Circuit, the Second Circuit heard oral arguments in Capitol Records v Redigi, on appeal to consider whether copyright law permits a service to operate an online marketplace where digital files of copyrighted works can be “resold” via digital transmission.

Dubset makes Sony the first major label legalized for remixing — A very interesting development: Dubset has secured a licensing deal with one of the three major labels to allow it to provide user-uploaded unofficial remixes and DJ mixes incorporating Sony recordings on its site. Dubset’s technology allows it to automatically recognize those recordings, much like YouTube’s Content ID.

Court Confirms the Obvious: Aiding and Abetting Criminal Copyright Infringement Is a Crime — Devlin Hartline has a great analysis of the recent decision to not dismiss criminal charges against the owner and operator of alleged pirate site Kickass Torrents, Artem Vaulin. Among other things, Vaulin argued that the Copyright Act contains no criminal provisions for secondary liability. Hartline explains why the court rejected that argument.

Don’t be bound by Binded.com — Carolyn Wright has some important words of caution about a new service from Binded that promises a fast and easy way to register copyrights in images.

The Invisible Artists Behind Your Favorite Comics — Asher Elbein of the Atlantic takes a look at some of the “behind the scenes” artists involved in creating comic books: colorists and letterers. Elbein writes, “Colorists are the cinematographers of graphic narrative, laying hues over art to control mood and style; letterers are the sound designers, crafting fonts, effects, and speech balloons to bring noise to a silent medium.”

Discogs Curbing Sale Of Unofficial Releases — Besides operating an impressively thorough database of music albums and releases, Discogs also runs an online marketplace to buy and sell records. So it’s great to see it continue to focus efforts and resources on ensuring that marketplace is operated responsibly and doesn’t facilitate the trade of infringing and bootleg recordings.

Some content about content — “Soon, everybody began calling things content. Copywriters became known as ‘content specialists,’ news websites became known as ‘content providers,’ and libraries became known as ‘shrines to content.’ It was the greatest societal shift since Johannes Gutenberg invented the content machine in 1440.”

Cheerleader Uniform IP Case Ends With Unusual Settlement — Following its defeat in the Supreme Court over the question of whether the visual designs on cheerleader uniforms it was accused of copying were protected by copyright, Star Athletica wanted to push forward with the litigation on alternate grounds. Its insurance company, however, had different ideas, and this week agreed to a settlement with Varsity Brands. Law360′s Bill Donahue has the full story.

Judge Rules KickassTorrents Founder Properly Charged With Criminal Copyright Conspiracy — The federal judge denied Artem Vaulin’s motion to dismiss his criminal indictment as Vaulin faces extradition in Poland. The criminal case has many similarities to the one involving Megaupload founder Kim Dotcom, which began in 2012 (Dotcom has also not yet been extradited). Be sure to also check out David Newhoff’s take on the decision.

Unsplash is (Still) Bad for Photography — Professional photographer Allen Murabayashi casts a critical eye on the site, which solicits photographers to upload and share their images for free. Says Murabayashi, “Free isn’t the answer. It’s not sustainable. If you value any craft, then you need to pay for it. There are costs associated with any craft, and even a hobbyist needs to figure out how to justify a series of on-going expenses.”

Rep. Darrell Issa: It’s Time to Bring Pre-1972 Copyrights Out of the Dark Ages (Guest Column) — The Congressman this week penned an op-ed in support of his recently introduced (along with Rep. Nadler) CLASSICS Act. The bill would bring sound recordings made before February 15, 1972—currently unprotected by federal copyright law—within the scope of the statutory license for digital transmissions, meaning the owners of those recordings would collect royalties when they are streamed online.

For the sake of jobs and culture, copyright law must be protected — John Singleton, who started his career in 1991 as the writer and director of Boyz n the Hood and is now behind the new FX series Snowfall, was on Capitol Hill last week talking about the importance of copyright. He writes, “I’m deeply concerned the creative voices of the next generation won’t have the same opportunities I had. So, what has changed? There’s certainly no shortage of young talent. On the opportunity end of the equation, however, you can draw a straight line from the widespread digital theft of creative works to the barriers filmmakers face when breaking into the industry.”

From battlefield to big screen: Meet the retired Marine who helps make military films more realistic — Another great example of all the different type of work that goes into making films.

Publishers, Authors Win KinderGuides Copyright Case — A judge denied the defendant’s fair use defense, siding with the plaintiffs that the books—children’s versions of classic novels—were unauthorized derivative works. Of special note to copyright fans, one of the defendants here is Fredrik Colting, of Salinger v Colting fame. A memorandum opinion of the ruling is forthcoming.

Richard Prince and the Increasingly Permissive Treatment of Infringement — Kevin Madigan takes a look at the recent decision denying Richard Prince’s fair use defense as a matter of law. Madigan writes, “when someone sets out to build upon the work of another, the fair use doctrine requires a showing of meaningful transformation, especially when the whole of the original work is appropriated for a commercial purpose. Another win for Prince would betray the spirit of legitimate appropriation, giving further momentum to an amorphous transformative fair use theory and the unfortunate trend of copyright infringement tolerance.”

Senate Confirms Vishal Amin as IP Enforcement Czar — Finally, on the eve of August recess, the Senate unanimously confirmed former House Judiciary Committee counsel Amin as the new IPEC.

BMI & ASCAP Announce Creation of New Musical Works Database — “A cross-functional team of copyright, technical and data experts from BMI and ASCAP began working on the project over one year ago, in anticipation of the demand from licensees and the industry for more clarity around ownership shares. The database, which will be publicly available initially via ASCAP’s and BMI’s websites, will feature aggregated information from BMI’s and ASCAP’s repertories and will indicate where other performing rights organizations may have an interest in a musical work.”

Canada’s lax copyright reputation puts artists’ livelihoods at risk — The Globe and Mail‘s Kate Taylor weighs in on the recent Canadian court decision in litigation between Access Canada, the agency that collects educational copying royalties for writers and publishers, and York University, which implemented a policy five years ago allowing far more copying under Canada’s fair dealing provisions. Writes Taylor, “The educational loophole has left Canada with the reputation of being lax on copyright; publishers as venerable as Oxford University Press have simply stopped publishing Canadian schoolbooks because they view this market as too risky.”

State Attorneys General Appear in Anti-Piracy PSA Campaign — On the heels of a new study finding that one-third of all piracy sites expose users to malware, a group of fifteen State Attorneys General have launced a PSA campaign to inform consumers of those risks.

Photographer’s Copyright Suit Against Richard Prince’s ‘Instagram Art’ To Go AheadPetaPixel reports on the recent decision by a district court judge in the Southern District of New York to deny a motion to dismiss a copyright infringement claim against the infamous appropriation artist Prince, alleged here to have copied a photographer’s image off of Instagram for his most recent exhibition. Prince raised a fair use defense, relying heavily on his successful 2nd Circuit Cariou v Prince opinion, but the judge here held that the issue of fair use was not one that could be decided as a matter of law.

Google Takes the Global Delisting Debate to a U.S. Court — Equustek has, for several years, been involved in efforts to halt a rival from selling products that infringed on its own products and were made using confidential information. The rival has proven difficult to shut down, dodging court orders and moving from jurisdiction to jurisdiction to avoid liability and continue operating. In 2012, Equustek sought a court order requiring search engine Google, as a third party, to de-list the rival’s sites from its search engine not just in Canada, but worldwide. Several weeks ago, a Canadian appellate court upheld the worldwide injunction. Google is now challenging the order in a U.S. court, arguing that it violates the First Amendment, the CDA, and the principle of comity. Andrew Keane Woods of Lawfare analyzes Google’s legal arguments.

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.