Celebrate World Intellectual Property Day with the Copyright Alliance — April 26th is World IP Day, and this year’s theme is “Powering Change: Women in Innovation and Creativity.” All next week, Volunteer Lawyers for the Arts across the U.S. will be holding educational events to mark the country. Check out the full schedule at the link to see if there is one near you or to catch an event online.
Google attempted end run around Canadian courts fails, rules BC Judge in Equustek case — From Barry Sookman: “Yesterday, a judge of the British Columbia Supreme Court dismissed Google’s motion to vary or set aside the global injunction against it that had been affirmed by the Supreme Court of Canada. The injunction required Google delist websites that were being used to market a product that Equustek claimed was developed through theft of its trade secrets. Justice Smith held that Google was not able to show that the global delisting order made  against it violated its First Amendment rights in the U.S. or the core values of the U.S.”
The Legal Process Sea-Change — Third in a series of posts (Part one and part two) from Bruce Boyden that ostensibly began with the 9th Circuit’s Blurred Lines decision but has now taken us to judicial schools of thought in the 1950s.
Association of American Publishers’ Allan Adler Testifies on the Hill About the Marrakesh Treaty — This week, the Senate Foreign Relations Committee considered the Marrakesh VIP Treaty, which would require member parties to provide exceptions to copyright law for reproducing and distributing works in formats accessible to persons with visual impairments or print disabilities, as well as allowing the cross-border exchange of such works. The Committee also considered legislation that would implement the Treaty in U.S. law.
Copyright’s Substantial Confusion — Marquette University Law School professor Bruce Boyden begins a long journey examining the test for determining copyright infringement. The question (particularly when courts are confronted with nonverbatim copying of a work) has proven notoriously challenging, which is one reason why you can never get a straight answer from a copyright lawyer.
FairPlay copyright blocking proposal: my presentation at the Fordham IP conference — Anyone interested in getting up to speed on the current state of site blocking as a remedy for copyright infringement across the globe should check out Barry Sookman’s presentation from last week’s Fordham IP conference. It provides an overview of what countries have adopted site blocking, the different mechanisms used, and relevant court decisions and scholarly research on blocking. The presentation is a summary of a more comprehensive article by Sookman.
WHOIS Limits Under GDPR Will Make Pirates Harder to Catch, Groups Fear — “’We strongly assert that this model does not properly account for the critical public and legitimate interests served by maintaining a sufficient amount of data publicly available while respecting privacy interests of registrants by instituting a tiered or layered access system for the vast majority of personal data as defined by the GDPR,’” the groups write.”
Is an economy based on free incompatible with freedom? — Neil Turkewitz writes, “The potential of the Internet and other communications technologies to drive economic growth, prosperity and cultural production has been greatly undermined by distortions in the marketplace caused by the lack of adequate governance that allows companies to illegally traffic in what are essentially stolen goods. Many of those who profit from the status quo like to disguise their self-interest in rhetoric about free expression. It is long past time to end this dangerous charade. We are not serving free speech by making it harder for creators to earn a living from their original expression. Free societies can no longer tolerate the continued indifference to the rights of creators.”
How A Quiet Place Sound Designers Made Audiences Afraid of Their Own Noise — It’s easy to forget how important the craft of sound designers is to filmmaking, but their work is front and center in the recently released film A Quiet Place, a story built around the idea of making as little sound as possible.
Illuminating the Profession: Women in Copyright — As part of Women’s History Month, former US Register of Copyrights Ralph Oman interviews a number of illustrious copyright lawyers, including June Besek, Dale Cendali, Mary Rasenberger, Kate Spelman, Francine Ward, and Nancy Wolff.
Fact checking Michael Geist’s criticisms of the FairPlay site blocking proposal — Canadian copyright attorney Barry Sookman has written a tour de force response to Geist, showing that site blocking is effective, consistent with human rights, and employed by many other countries.
Taking a Look Under the Red Carpet — “Hollywood is synonymous with the red carpet, but the public perception of Hollywood being only the red carpet could not be further from the truth. Behind all the glitz and glamour, filmmaking is difficult, hands-on, down and dirty labor.”
DOJ Antitrust Chief: We Are Reviewing ASCAP, BMI Consent Decrees — At a recent appearance at Vanderbilt Law School, the DOJ’s Delrahim spoke about taking a closer look at the 1,300 consent decrees currently on the books. In particular, he signaled that the decrees governing the two largest PROs would come under scrutiny, saying, “The way music is licensed has been governed by these consent decrees since 1941… So, 77 years of a consent decree, rates being set by a judge in rate court as opposed to free market competition [which he favors] and we are taking a look at that.”
Google Could Owe Oracle $8.8 Billion in Android Fight — Susan Decker of Bloomberg Technology reports on this week’s Federal Circuit decision, “Oracle said its APIs are freely available to those who want to build applications for computers and mobile devices, but draws the line at anyone who wants to use them for a competing platform or to embed them in an electronic device…’There is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform,’ the appeals court ruled.”
Rep. Hakeem Jeffries Fights for Creators Rights, Brooklyn Hip-Hop and Recognition for Female Rappers — A great profile from Rob Levine. Among other things, the New York Representative introduced the CASE Act, which create a streamlined “small claims” process for copyright owners to pursue infringement claims.
Online Piracy Is More Popular Than Ever, Research Suggests — “According to MUSO co-founder and CEO Andy Chatterley, these data show that piracy remains a sizable threat, something we also hinted at in the recent past. ‘There is a belief that the rise in popularity of on-demand services – such as Netflix and Spotify – have solved piracy, but that theory simply doesn’t stack up. Our data suggest that piracy is more popular than ever,’ Chatterley says.”
Blurred Lines Verdict Affirmed – How Bad is It? — This week, the Ninth Circuit affirmed a jury verdict against Robin Thicke and Pharrell Williams, finding they infringed Marvin Gaye’s classic “Got to Give it Up” when they created their 2013 hit “Blurred Lines.” Law professor Michael Risch takes a look at the decision.
French Cour de cassation Confirms Broad Interpretation of Making Available/Communicating to the Public as applied to P2P Software — “While peer-to-peer cases of copyright infringement tend to focus on the infringement of the protected works and the rights that are implicated therein (reproduction, making available) as well as assigning legal liability for such acts, there is, at times, another aspect of such cases, namely that which relates to the software that is used for such purposes. French law provides for a distinct offense in this regard under Section L.335-2-1 of the Intellectual Property Code.”
Can One Company Catalog Every Record Ever Made? — “Launched in 2000 by Portland, Oregon-based programmer and DJ Kevin Lewandowski, the site’s original intent was to help folks track and share information about their record collections. But as word spread among music lovers and the site’s user base grew, Discogs evolved into a crowd-sourced hub to find information about the discographies of artists from around the world. It may not get deep into the historical details of the recording sessions, but there’s no better place to track, for example, the 674 different versions of Sgt. Pepper’s Lonely Hearts Club Band, or the 280 pressings of the first Velvet Underground album that are known to exist.”
Sara Hickman — “There were many reasons why I retired from music last year. I’ve never explained them or felt the need to, so I’m not going to start today.”
AAP Pleased with Bipartisan Support of Marrakesh Treaty — Yesterday, a bill to implement the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled was introduced in the U.S. Senate. The treaty requires parties to adopt appropriate exceptions to copyright allowing authorized entities to reproduce and distribute literary works in accessible formats. The Treaty was adopted in 2013 and transmitted to the U.S. Senate in 2016.
U.S. Border Seizures of DMCA Circumvention Devices Surges — Torrentfreak reports, “New data released by Homeland Security shows that U.S. Customs and Border Protection seized significantly more DMCA circumvention devices in 2017. The seizures, which includes mod chips for gaming consoles, increased 324% compared to the year before, although the actual number remains fairly low.”
Fair Is Fair But Politics Is Complicated: Why Congress Must Pass the CLASSICS Act (Column) — Rob Levine pens an op-ed in favor of legislation that would update transitional rules to enable the owners of sound recordings made before 1972 to be paid for digital streaming under statutory licenses. The bill makes sense if you think artists should get paid for their work.
Piracy and Malware: There’s No Free Lunch — Researchers Michael Smith and Ruth Telang conducted a study to see if piracy harms consumers by exposing them to malware and other malicious code. “The results were clear. The more our users visited piracy sites, we found, the more often their machines got infected with malware. Specifically, whenever they doubled the time they spent on piracy sites, they increased the number of malware processes running on their machines by 20 percent.”
The Pirate Bay witnesses 40 percent drop in traffic in the Netherlands — Kavita Iyer of Techworm reports, “According to Dutch anti-piracy group BREIN, The Pirate Bay’s main domain has suffered a 40 percent drop in Dutch traffic due to local ISPs (Internet Service Providers), such as Ziggo and XS4ALL were forced to block the torrent site. This decrease of 40% was reported based on numbers from research company ComScore.”
Why almost no one is making a living on YouTube — “What’s happening on YouTube is occurring across the internet, where creators are finding that long odds of success in the online world are not so different from IRL (internet-speak for ‘in real life’). In fact, they might be worse. In music, song streaming services like Spotify and Apple Music have mostly benefited superstar acts. No one needs to fight a music label to get their song distributed, but getting listeners is a different problem. Less than one per cent of songs represented 86 per cent of the music streamed last year, according to the market research firm Nielsen. And since no one buys music these days, making even a little money from streaming requires songs to be played millions of times. That’s hurt the music industry’s middle-of-the-road acts the most, the kind of musician who once could eke out a decent living selling several thousand albums a year and touring without ever breaking into the mainstream. Increasingly, such acts face the pressure of going viral or going home.”
New study explores impact of user-centric music-streaming payouts — “‘User-centric’ streaming payouts refers to a proposed system where the royalties generated by someone’s subscription would be divided only between the artists that they listen to, rather than going into a central pool divided by market-share on the platform as a whole.”
For Two Months, I Got My News From Print Newspapers. Here’s What I Learned. — “We have spent much of the past few years discovering that the digitization of news is ruining how we collectively process information. Technology allows us to burrow into echo chambers, exacerbating misinformation and polarization and softening up society for propaganda. With artificial intelligence making audio and video as easy to fake as text, we’re entering a hall-of-mirrors dystopia, what some are calling an ‘information apocalypse.’ And we’re all looking to the government and to Facebook for a fix.”
Two photographers, unbeknownst to one another, shoot the same picture at the same moment — Finally, for copyright fans, a case study in the doctrine of “independent creation,” a tenet of copyright based on the rule that infringement is premised on factual copying, not identity alone.
Ensuring Only Good Claims Come in Small Packages: A Response to Scholarly Concerns About a Proposed Small Copyright Claims Tribunal — Sandra Aistars provides the definitive response to criticisms lodged against a proposed small copyright claims process. A bill to implement such a tribunal was introduced last October and would provide copyright owners who can’t afford federal litigation the ability to pursue remedies for their rights.
Fox News Wins Appellate Showdown Against Service That Facilitates Sharing of TV Clips — The Second Circuit issued its long awaited opinion in Fox News v TVEyes this week, and it is a solid win for balanced, common sense fair use. Eriq Gardner for the Hollywood Reporter has more on the decision.
Judge Saris Opines on Copyright Infringement in 3-D Greeting Card Case — Just for fun, a recent decision looking at alleged infringement of 3-d popup greeting cards. The opinion provides an excellent step-by-step analysis of substantial similarity, as the court distinguishes between uncopyrightable ideas and elements and protected expression. The opinion also relies frequently on puns.
Law of Copyright Reinterpretation Project Steers ALI Further Off Course — “ALI has built its reputation in the judicial and legal communities by releasing treatises that add value to an area of law. Re-wording a federal statute and offering commentary on which among many judicial interpretations of that statute’s provisions is ‘right’ doesn’t add such value. A Restatement that introduces greater confusion into its area of focus will not only be ignored by judges and lawyers, it will undermine the credibility of current and future ALI work. The organization should take the advice given to it and either suspend the Restatement project or recast as a Principles project.”
Text & Data Mining Exception For the EU Digital Single Market Proposal — “Text and data mining might well lead to important ativities and research results—and for this reason most STM journal publishers are on record and are strongly supporting academic research projects (some go further, as Dr. Rosati mentions). In fact by working with organizations such as CCC and CrosRef, they are actively enabling the normalization activities that Rosati mentions as still being critical to the technical processes (see also the STM Declaration covering twenty-one leading publishing houses. Other copyright sectors would be rightfully concerned about their works being caught up in an exception intended for scholarly research. Commercial beneficiaries are currently obtaining licenses and permissions, and doing so on a commercial and pragmatic basis, as demonstrated by Dr. Rosati’s own list of IBM Watson projects. It is not at all clear to me why an exception should be applied to an active and growing copyright market for the benefit of large technology companies.”
Goodlatte to unveil sweeping music copyright reform package next month — Looking to cap off his term as House Judiciary Committee Chairman and his five year copyright review process, Rep. Goodlatte is expected to move a package of bills aimed at updating music licensing provisions and addressing inequities in the current law.
Fixing Our Broken Small Claims System with the CASE Act — There’s is also hope that we will see legislation creating a copyright small claims process move through Congress this year. At IPWatchdog, Isaac Rubin lays out the case for the CASE Act.
The Father Of The Internet Sees His Invention Reflected Back Through A ‘Black Mirror’ — NPR interviews Vint Cerf about how the internet has turned out. “There is a kind of optimism that it takes to be an inventor. But the father of the Internet thinks inventors need the artists. ‘It’s the mind-stretching practice of trying to think what the implications of technology will be that makes me enjoy science fiction,’ Cerf says. ‘It teaches me that when you’re inventing something you should try to think about what the consequences might be.'”
Money Laundering Via Author Impersonation on Amazon? — Large internet platforms have enabled a new era of creativity in scams, fraud, and other criminal activity. Here, Brian Krebs notes one particular scheme that appears to use Amazon’s self-publishing platform to launder money. Unfortunately, the scheme involves impersonating innocent third parties, who then have to deal with 1099 forms showing income they’ve never received.
Studios Must Face Trimmed Lawsuit Over CG Characters in Blockbuster Movies — This case has so far flown under the radar, somewhat surprisingly, given that the plaintiffs had alleged a novel claim of copyright infringement: that, as owners of the motion capture technology that allows filmmakers to translate a human actors body movements into fantastical computer-generated characters, they owned the copyright in the final output. This week, a federal judge in California rejected those copyright claims, though patent and trademark claims survived the motion to dismiss.
Judge Rules News Publishers Violated Copyright by Embedding Tweets of Tom Brady Photo — The second decision in three months from a court outside the Ninth Circuit that has expressly reject that Circuit’s 2007 decision in Perfect 10 v Amazon, which created the “server test” for the public display right. The court here said, “The plain language of the Copyright Act, the legislative history undergirding its enactment, and subsequent Supreme Court jurisprudence provide no basis for a rule that allows the physical location or possession of an image to determine who may or may not have ‘displayed’ a work within the meaning of the Copyright Act.”
TickBox Injunction Targets Blatant Inducement of Infringement — “TickBox TV is a device sold by a Georgia-based company that, in many ways, is similar to the popular name-brand set-top devices such as the Roku, Amazon Fire Stick, or Apple TV. It’s an internet connected box that is easily hooked up to a television or computer monitor via USB cable, and, like other streaming devices, acts as a media platform that allows users to download software and apps which then deliver content to the device. But unlike its counterparts which support apps featuring licensed content, TickBox was sold with pre-loaded applications dedicated to delivering infringing content. Furthermore, in case there were any questions about the device’s capabilities, TickBox’s website and promotional materials encouraged piracy and offered step-by-step instructions on downloading the latest illicit ‘add-ons.'”
Pallante Stresses Copyright Protection at IPA — Association of American Publishers CEO Maria Pallante delivered the keynote address at the 32nd annual International Publishers Congress in New Dehli. According to Publishers Weekly, “She then went on to warn publishers to be skeptical of those who seek to weaken copyright law by claiming that doing so would be good for the public. ‘They frame the public interest as though it is separate from the rights of copyright owners or worse yet, that publishers and other copyright owners are an obstacle to progress… This is false.”
The Cloverfield Paradox — You may not know the name Bear McCreary, but chances are you’ve heard his work, as he is responsible for scoring numerous films and television series. He also writes a blog where he discusses some of that work. Here, McCreary delves into his work scoring the recent Netflix release The Cloverfield Paradox.
Historic Coalition of 213 Musical Artists Calls on Congress to Pass CLASSICS Act, Fix the Pre-1972 Loophole for Legacy Artists — “Digital radio makes billions of dollars a year from airplay of music made before Feb. 15, 1972. Yet, because of an ambiguity in state and federal copyright laws, artists and copyright owners who created that music receive nothing for the use of their work. The CLASSICS Act (H.R. 3301 / S. 2393) would correct this inequity and finally ensure that musicians and vocalists who made those timeless songs finally get their due. We urge Congress to pass the CLASSICS Act and other pro-artist reforms quickly.”
Focusing on Value — 102 Things Journal Publishers Do (2018 Update) — The internet has not rendered commercial journal publishers obsolete. Here’s a comprehensive list of things they do to add value to scientific, technical, and medical research.
The Faery Tale Adventure: A personal history — For someone who lived and breathed the video game Faery Tale Adventure as a kid, the even-more-wondrous-than-you-can-imagine story of its creation was a joy to read. It should be of interest to copyright fans too, given that the sprawling game was almost exclusively the work of a single individual—including programming, graphics, and music. It’s also fun to read about the creativity that went into coding around the Amiga’s technical limitations.
Can You Copyright a Pose? — Michael Risch takes a closer look at the Ninth Circuit’s recent decision in Folkens v Wyland Worldwide, concerning the protectability of a certain element of an image: the “pose” of two dolphins. Risch writes, “The idea that we ignore near identical poses with near identical subjects simply because the pose might occur in nature troubles me a bit.”
Cloudflare Terminates Service to Sci-Hub Domain Names — Perhaps a sign of progress, as the domain service provider, which had previously balked at disabling sites that have been found liable for infringement by courts, has terminated service to an infringing site after it received a court order.
What Does a Prop Master Do? A Conversation with Elisa Malona — The head of props for The Tonight Show With Jimmy Fallon discusses all the work that goes into creating those objects that actors hold, touch, or interact with.