Termination of a Public License — Pamela Chestek looks at a recent decision out of the Eastern District of Virginia dealing with a photographer who posted several photos online under a Creative Commons license alleging infringment against a site operator who copied the photos without providing attribution, as required by the Creative Commons license.

Fred Waring and the Pennsylvanian Litigation — Zvi Rosen looks at litigation during the 1930s involving the protection of sound recordings under Pennsylvania common law.

How Google is Killing the Independent Movie Industry — Independent film producer Cassian Elwes writes, “NAFTA should protect the rights of working Americans in the creative industries – and copyright supports millions of them. 84 percent of all businesses in entertainment employ under ten people – truck drivers, editors, production assistants, writers, caterers, makeup artists – and they all rely on copyright protections to keep their doors open.”

New Rules! (for photo © registrations) — Attorney Leslie Burns discusses the US Copyright Office’s new procedures for registering groups of photographs on a single application, which were released yesterday. There are some important details to keep in mind, but the process will save photographers a good deal of expense when registering.

Small step for copyright, giant step for creators — The CASE Act — Under US law, copyright cases must be brought in federal courts, which, unlike many state courts, do not have a cost-effective mechanism for plaintiffs with small claims. The CASE Act addresses that issue by establishing a small claims board within the Copyright Office, giving those individual creators who cannot afford federal litigation a way to seek remedies when their rights have been infringed.

The Music Modernization Act will provide a needed update to copyright laws — Rep. Doug Collins writes, “This December, countless hours of collaboration and cooperation came to fruition in a compromise that would be the most substantial update to copyright law since 1998. Today, our jeans pockets are more likely to be lined with iPhones than lint balls, yet the laws that currently regulate how tech giants like Spotify pay songwriters were cemented before the concept of digital streaming was born. The Music Modernization Act (MMA) would literally usher copyright laws into the 21st century.”

Not So Blurred Lines — Professor (and rocker) Sean O’Connor delves into some of the underappreciated dimensions of the litigation brought by the estate of Marvin Gaye against Robin Thicke and Pharrell Williams over claims that their song “Blurred Lines” infringed on Gaye’s 1977 classic “Got to Give it Up.” A jury returned a verdict in 2015 in favor of Gaye in the closely watched case, now currently on appeal to the Ninth Circuit.

Wonder Women Series – Ruth Vitale — A wonderful interview with Ruth Vitale, a career film producer who now heads up the creator advocacy coalition CreativeFuture.

Photographer tries novel legal strategy to get UH to pay up — “When local photographer Jim Olive threatened to sue the University to Houston to force it to pay his price for a photo posted on a UH website, the school told him to get lost. As a state institution, the university said, it has sovereign immunity, which protects it from copyright and most other lawsuits.”

Happy New Year, readers!

Study on Expanded “User Rights” Fails Econometric Scrutiny — “Earlier this month, scholars at the American University Washington College of Law’s Program on Information Justice and Intellectual Property (PIJIP) published a paper suggesting that governments around the world should consider weakening copyright protection in favor of expanded ‘user rights.’ The Google-funded report presents an index purporting to show a positive correlation between broad fair use and safe harbor laws and certain economic and scholastic benefits. But, as economist George Ford explains in an essay published last week, the report is an exercise in flawed design and misapplied empirical analysis which cannot be relied upon for informed policymaking.”

Globe and Mail editorial attacks on Canadian creators and broadcasters: what’s up with the Globe? — Barry Sookman takes a closer look at a recent Globe and Mail op-ed to explain why its criticisms of site blocking as a measure to address online piracy don’t hit the mark. Says Sookman, “As I pointed out in a prior blog post, website blocking of pirate sites is a tried and true way of addressing internet piracy among many of Canada’s trading partners. Further, the courts which have addressed ISP blocking have found that such orders do not violate freedom of expression values. In short, orders that target Internet pirates cannot be considered as a ‘frontal [or any other kind of] attack on online freedom’.”

Dish Network Files Two Lawsuits Against Pirate IPTV Providers — “In broad terms, there are two types of unauthorized online streaming of live TV. The first is via open-access websites where users can view for free. The second features premium services to which viewers are required to subscribe. Usually available for a few dollars, euros, or pounds per month, the latter are gaining traction all around the world. Service levels are relatively high and the majority of illicit packages offer a dazzling array of programming, often putting official providers in the shade.”

Spotify Hit With $1.6B Copyright Lawsuit Over Tom Petty, Weezer, Neil Young Songs — “On Friday, Wixen Music Publishing filed a lawsuit in California federal court that alleges that Spotify is using Petty’s ‘Free Fallin’,’ the Doors’ ‘Light My Fire’ and tens of thousands of other songs without a license and compensation. The plaintiff is seeking a damages award worth at least $1.6 billion plus injunctive relief. Wixen’s lawsuit is being revealed here for the first time, but the move will come as hardly a surprise to those who have been paying attention to Spotify’s growing copyright problem.”

Happy holidays to all my readers! This will be my last post in 2017. See you all in 2018!

The Vanishing Benefits of Fair Use: A Review of the Flynn-Palmedo Study on “User Rights” in Copyright Law [PDF] — Dr. George Ford of the Phoenix Institute analyzes a recently released paper which concluded that broader “user rights” are beneficial. Dr. Ford finds “the statistical results of the Flynn-Palmedo Study are merely the consequence of basic errors in both the design and implementation of the empirical analysis, rendering spurious correlations.”

Court of Appeals Sides With Songwriters, Publishers on Fractionalized Licensing: ‘This Is a Massive Victory’ — The Second Circuit held that the consent decree that BMI operates under does not require the PRO to provide full licenses to the songs in its repertoire, as the DOJ had said last year after completing a review of the decree.

Russian-Language Video Service eTVnet Sued for Allegedly Streaming Stolen Content — Although a defendant alleged to be engaged in streaming pirated content is not unusual, the twist in this recently filed lawsuit is that the plaintiff is not a copyright owner but rather a competing streaming service. The service, TUA.tv, claims that eTVnet’s provision of allegedly infringing content gives it an unfair advantage in the streaming market and makes it liable for unfair business practices and making false or misleading statements of fact.

Nadler wins top Dem spot on Judiciary — Among the House Judiciary Committee’s sweeping jurisdiction is copyright law, making the race for Ranking Member following the resignation of Rep. Conyers a closely watched one by many in the copyright community. Rep. Nadler, the senior Democrat on the Committee, took the spot after a vote this week, fending off a challenge from the next most senior member, Rep. Lofgren.

Sesame Workshop & International Rescue Committee Awarded $100 Million for Early Childhood Education of Syrian Refugees — “Sesame Workshop and IRC will use the $100 million grant to implement an evidence-based, early childhood development intervention designed to address the ‘toxic stress’ experienced by children in the Syrian response region—Jordan, Lebanon, Iraq, and Syria. The project will improve children’s learning outcomes today and their intellectual and emotional development over the long term.” The program will include a local version of Sesame Street.

How Piracy Can Hurt Consumers — One of the challenges copyright supporters face is that the effects of the law are long term and, given their subjective nature, difficult to measure. Here, researchers consider this challenge and compare the number of Academy Award winning films produced in different countries to see if there is a correlation with the rate of piracy within those countries. And indeed there is. “In Italy and Mexico, two countries in which piracy has strongly influenced demand, the number of awards decreased significantly from the pre-piracy to the post-piracy period, whereas in the U.K. and France, two countries in which piracy has had a smaller effect on demand, the number of awards won increased meaningfully.”

Website blocking proposal good policy — Barry Sookman analyzes a recent proposal in Canada that would provide that country’s telecommunications regulatory agency with authority to block websites engaged in infringement.

Federal Courts Not Empowered to Cancel Copyright Registrations — “[Plaintiff’s] Complaint raises two distinct issues: (1) the validity of [Defendant’s] registration; and (2) rightful ownership of the copyright. Although ‘copyright’ and ‘registration’ are sometimes treated as synonyms in common parlance, it is important to distinguish these two legal concepts. A copyright ‘exists automatically upon the creation and fixation of an original work of authorship in a tangible medium of expression.’ A registration, in contrast, is granted by the Copyright Office, and the Copyright Act conditions certain statutory benefits—most notably, the right to sue for infringement—on registration. In other words, copyrights exist by virtue of the author’s creation, while copyright registrations exist by grant of the Copyright Office… Nothing in the Copyright Act, nor any other federal statute, grants federal courts the power to cancel or nullify a copyright registration.”

“Big Pimpin'” Appellate Arguments Focus on Labels — In a long running court battle, an Egyptian composer is suing Jay Z over the use of a 1957 song that was sampled by Jay Z for his 1999 song “Big Pimpin'”. The case is now in front of the 9th Circuit, which recently heard oral arguments on the question of whether the Egyptian composer has standing to sue. And that question involves a meaty discussion regarding Egyptian moral rights and whether they are analagous to US derivative work rights.

Some Good Copyright News From Down Under — David Newhoff writes, “Because copyrighted works are uploaded by users, a platform like YouTube remains shielded from liability but still free to reap the rewards of traffic driven by the high volume of infringement. The fundamental flaw in the policy should be obvious: where a corporation has both financial incentive and zero liability, it’s probably going to make some effort to profit from whatever conduct was supposed to be mitigated by the policy. Both the harm done to creators and the untouchable market dominance of YouTube are unintended results of the safe harbor provisions in the DMCA.”

Miranda Mulholland brings crucial message to Ottawa in ‘Redefining Success in a Digital Marketplace’ speech — “On Nov. 22, Miranda Mulholland brought an important and timely message to Ottawa as she delivered a keynote speech at the Economic Club of Canada. In addition to her credentials as a talented artist and entrepreneur, Mulholland has emerged as a trailblazer in the global artists’ rights movement: in May, she became the first creator to deliver a keynote address at the Economic Club of Canada, and recently spearheaded a letter co-signed by 100 fellow artists on recommendations for a reformed Copyright Board of Canada.”

Seven Years of Hadopi: Nine Million Piracy Warnings, 189 Convictions — The latest report from the French agency administering an anti-piracy graduated response regime delivers the latest numbers, but also notes the need to address emerging piracy issues, such as “fully-loaded” streaming media boxes.

A Quick Update on the Display Right — A decade ago, the Ninth Circuit held that infringement of the public display right required possession of the copy being displayed. This “server test” thus meant website operators could display images via embedding or framing without running afoul of the public display right so long as the image remained on a third-party server. Last week, a Texas district court declined adoption of the server test, saying, “The text of the Copyright Act does not make actual possession of a copy of a work a prerequisite for infringement. To display a work, someone need only show a copy of the work; a person need not actually possess a copy to display a work.”

A New NAFTA Must Protect the Rights of Copyright Owners and Creators — “The reality is that the companies arguing for exceptions are no longer exceptional, and they should be subject to the same rules as any other entity that wishes to access, reproduce, or distribute copyrighted content. To allow otherwise would mean turning our back on the American cultural exports that have truly changed the world.”

A Bill in Congress That Will Empower a New Generation of Creators — “The next generation of creators deserves copyright protection that is as pioneering and forward-thinking as they are. They deserve practical solutions to the real-life problems they face as creators. This bill is the first step.”

SCOTUSBlog Petition of the Day: Fourth Estate Public Benefit Corp. v Wall-Street.com — The US Copyright Act requires a copyright owner to register her copyright with the US Copyright Office before she can file an infringement lawsuit. But courts are split on whether that requirement is satisfied when the registration application is received by the Copyright Office, or whether the copyright owner must wait until the Copyright Office has processed the application and issued a registration certificate (which currently can take 6-8 months). This appeal presents the issue to the Supreme Court; will it grant cert and resolve the split?

Kodi Addon Developers Quit Following Threats From MPA, Netflix, Amazon — A coalition of film and television producers have begun cracking down on developers and distributors of Kodi Addons that facilitate and encourage infringement. Torrentfreak reports that the efforts are beginning to pay off. Just this morning, the site reported another developer shutting down.

Copyright Small Claims: A Solution for Many Creators — David Newhoff writes of H.R. 3945, which would establish a streamlined, easy to use process for resolving small copyright claims, “It won’t solve every problem, but it should make a tangible difference for a significant population of creators who currently do not avail themselves of any enforcement procedure, but would if the barriers were lower. And frankly, copyright critics and internet-advocates (the ones who claim to care about creators) should actually support this bill because it establishes a forum for narrow, voluntary, and limited resolution between a rights holder and an alleged infringer without creating even a hint of a new liability implication for investing in web platforms.”

The End of Internet Exceptionalism – Or Why the Pirates Bet on the Wrong Horse — “In 2017, everything changed. It turns out that the Internet was not that different after all. It did not bring democracy, but election manipulation. Not free speech, but fake news. Not pluralism, but monoculture. Not quality, but algorithmic idiocy. Not grassroots, but skyscrapers. The surveillance state did indeed come, but not from copyright but from the internet companies. The pirates bet on the wrong horse: it was not Hollywood that broke the Internet, it was Silicon Valley.”

In a Surprise Verdict, Jury Says Developer Broke the Law by Whitewashing 5Pointz Graffiti Mecca — A very rare jury verdict finding a VARA violation. Eileen Kinsella of ArtNet reports, “The six-person jury found that real estate developer Gerald Wolkoff and his related companies broke the law when, in 2014, he whitewashed the 5Pointz graffiti mecca in Long Island City in the middle of the night. However, the jury decision will serve only as a recommendation to the case’s presiding judge, Frederick Block, who has yet to hand down a final verdict and assess whether any damages must be paid.”

Digital age changes all the rules on intellectual property — “Copyright law has served us well from the age of quills to the age of computers; and Congress has from time to time updated the law to stay abreast of new technologies, embracing photography, radio, sound recordings, movies, television, software, video games and more. Along the way, we became a literate and creative nation with the world’s most innovative, influential and lucrative creative industries. It’s now time for copyright laws to reflect the digital age.”

Something is wrong on the internet — A look at some of the creepy, partially algorithmically-generated videos found on YouTube’s platform geared toward children (given their consistent use of recognizable characters like Frozen’s Elsa and the Incredible Hulk, one might characterize them as part of “remix culture”). The author, James Bridle, concludes, “What concerns me is that this is just one aspect of a kind of infrastructural violence being done to all of us, all of the time, and we’re still struggling to find a way to even talk about it, to describe its mechanisms and its actions and its effects.”

Why Mark Zuckerberg’s Argument is Wearing Thin — A ‘free and open’ Internet has been an article of faith in and around Mountain View, Menlo Park, and its environs for two decades. The religious dogma, since the passage of two acts in 1996, generally holds that the Internet industry is somehow different and worthy of special protections. One act shields Internet companies from the liability they’d shoulder if they were considered to be publishers. (This is the legislation the sex-trafficking bill is amending.) The second exempts Internet companies from being sued for copyright infringement and other nasty behavior others might engage in on their platforms. Under this way of thinking, all the companies of Silicon Valley had to do was charge that something might hurt ‘innovation’ or threaten the ‘free’ nature of the Internet, and that something would be deemed bad. Remember SOPA, the Stop Online Piracy Act, a 2012 bipartisan measure the Internet industry summarily killed?”

I’ve decided to tell you guys a story about piracy — Maggie Stiefvater, author of The Raven King, shares her compelling personal experience about how piracy harms authors. As she observes, “pirating book one means that publishing cancels book two.”

An Objective Analysis of Piracy Site Blocking — Researcher Brett Danaher takes stock of his research on the effects of piracy and enforcement. “Mike Smith and I found that when Megaupload.com and Megavideo.com (the two largest piracy cyberlockers in the world) were both shutdown, many sites that linked to their content stopped working and many cyberlockers shifted their policies to be less tolerant toward copyright infringement. The result was a causal increase in revenues from digital movie sales and rentals of about 7.5%. Later, along with Rahul Telang, we found that even though the UK blocking the thepiratebay.org caused little decrease in total piracy and no increase in legal consumption, the UK blocking of 19 major video piracy sites in November 2013 caused a 12% increase in legal consumption and a large decrease in total piracy. Later, when 53 more piracy websites were blocked in November 2014, we found a similar effect.”

YouTube suspends critic’s ad account, then reverses course — YouTube is a lot better at finding and removing criticism about YouTube than it is about finding and removing infringing content.

Creativity and Innovation Unchained: Why Copyright Law Must be Updated for the Digital Age by Simplifying It — This research paper casts a critical look at both the online service provider safe harbors of the DMCA and the cable and satellite compulsory licenses.

Not every pattern is protected by copyright, even if creating it involved many choices — The US Copyright Office recently began publishing decisions by its Review Board, which considers requests from authors who have had their registrations denied by examiners. Here, two decisions involving graphic patterns are compared, one whose registration was denied after review and one whose registration was granted.

Small Claims Bill Aims to Empower Copyright Owners and Creators — Kevin Madigan writes about H.R. 3945, the Copyright Alternative in Small-Claims Enforcement Act of 2017. The bill would establish a voluntary tribunal within the Copyright Office to provide streamlined resolution of copyright claims under $30,000. As Madigan notes, “The reality is that the majority of copyright owners are small businesses and individual creators who often lack the means to bring an infringement suit in federal court. According to a report by the Professional Photography Association, 70% of photographers have experienced unauthorized use of their work, but most instances of infringement are valued at less than $3,000. With relatively small sums of money and damages on the line, attorneys are reluctant to dedicate their time to representing individual artists and small businesses.”

Internet Archive Gives New Life to Old Books — “The people at the Internet Archive, a San Francisco nonprofit founded by Brewster Kahle, are relying on an important feature of the Copyright Act that allows libraries and archives to copy books for researchers and scholars in the last 20 years of the books’ copyright life, as long as they aren’t commercially available. The exception was added to Section 108, the part of the copyright law that provides special exceptions for libraries and archives, in 1998 when the copyright terms were extended by 20 years.”

NMPA Chief David Israelite on Music Licensing Issues: ‘The Value of the Song Is More Important Than the Process’ — Ed Christman at Billboard reports, “The National Music Publishers Assn., the Digital Media Assn. and various songwriter and record label groups are negotiating legislation that they hope will solve the mechanical licensing problems that have plagued digital music services, while hopefully achieving higher rates for music publishers and songwriters. It’s a proposed law that will create a mechanism and a new entity that will issue and oversee a blanket mechanical license for digital music services and record labels.”

Major Studios, Streamers Declare Legal War on TickBox — Netflix and Amazon’s content division join the six major film studios in a lawsuit filed against TickBox, one of the many fully-loaded Kodi boxes on the market that provide consumers with access to pirated works at the push of a button. The complaint alleges inducement of infringement—”With a wink and a nod, TickBox tells prospective customers they can ‘of course’ still use ‘Amazon Video, Netflix or Hulu on Tickbox TV’— but TickBox confidently predicts that, ‘within a few days of using Tickbox TV™ you will find you no longer need those subscriptions’ (because TickBox TV is intended to substitute for such services)”—and contributory infringement.