5 Seriously Dumb Myths About Copyright the Media Should Stop Repeating — John Degen kicks us off this Friday with a provocative and entertaining look at some of the common criticisms of copyright and authors’ rights.

Judiciary Committee to Hold Copyright Review Hearing — Two years ago, Register of Copyrights Maria Pallante pondered a Next Great Copyright Act. Now, after 20 hearings and 100 witnesses, the House Judiciary Committee will be hearing from Pallante to get her perspective on copyright review. The hearing is April 29, 10amET, with a webcast available here.

From Mockingjay to Boardwalk Empire, Seamstress Lara A. Greene Has Dressed the Best — “If clothes make the man or woman, than costumes often go a long way towards making a movie, particularly in historical dramas. Costumes are a major part of setting the tone of a film or a television show; they tell us so much, even before an actor utters his or her first word.”

PWC Report Confuses the “Stealing Economy” With the “Sharing Economy” — “PwC equates peer-to-peer sharing of copyrighted works—an illegal action that deprives the owner of that copyright their just compensation—with the legitimate peer-to-peer networks that people use to sell rides via their personal automobiles or to rent out their power tools. This distinction is stark: The latter encompasses sharing things that individuals own and thus have the right to share, and the former encompasses sharing things that individuals do not own, and therefore do not have the right to share. By equating these two things, PwC is buying into the false narrative that digital media companies are fighting tech innovation by not succumbing to the peer-to-peer sharing model. The truth is that the film and TV industry are offering a variety of legal services that allow users to watch their favorite programming.”

Term extension and respect for artists: a reply to Michael Geist — From Barry Sookman: “Michael Geist, a long-time advocate of weaker laws for artists and makers of sound recordings and loopholes for those wanting to use their creations without compensation…  was quick to criticize the proposed amendments in a post the day after the proposal was announced and in another one earlier today. Unfortunately, many of his assertions are inaccurate or do not stand up to scrutiny.”

Green party plan to limit copyright attacked by writers and artists — “The Green party may be forced to backtrack on its proposals to limit UK copyright terms to 14 years after a howl of protest from prominent writers and artists including Linda Grant, Al Murray and Philip Pullman.”

Hatch, Wyden and Ryan Introduce Trade Promotion Authority Legislation — “The bill establishes new trade-negotiating objectives that reflect today’s economic challenges, including measures to combat currency manipulation, and eliminate barriers to innovation and digital trade, among others. Updated provisions address government involvement in cyber theft, protect trade secrets and the negotiating objectives continue to call for trade agreements to provide a high standard of intellectual property protection. The bill also updates provisions to promote human rights, and strengthen labor and environment protection, to reflect America’s most recent trade accords.”

Warren pitches arts to music industry — On Monday, the Fair Play Fair Pay Act was introduced, which would, among other things, finally extend the sound recording public performance right to terrestrial radio. Senator Elizabeth Warren echoed the goals of that bill in an address later in the week at the annual Grammys on the Hill event, saying “The way I see it is that it is very important that Congress support music and the arts and that we do it both with good laws in terms of making sure that people are fairly compensated — that compensation is fairly divided.”

Protecting Copyright: Securing Rights and Improving the Copyright Office — From the Free State Foundation: “With this volume of copyright registrations and recordations, and the social and economic benefits associated with these processes, it is important the vital Copyright Office functions be carried out effectively and efficiently. These basic functions serve to secure copyright protection, provide constructive notice of copyright claims, and establish priority between conflicting transfers of rights.”

Library of Congress’s and Copyright Office’s IT Needs Upgrade, Says GAO — From the Authors Guild: “In its report on the Copyright Office’s information technology, the GAO stated that the Copyright Office’s mission is ‘hindered by technical and organizational challenges,’ corroborating what many have identified as a main challenge to the Office fulfilling its mission.”

Appeals Court Agrees to Review Sirius XM’s Challenge Over Pre-1972 Music — The Second Circuit appeal arises out of a Southern District of New York ruling that the public performance of pre-1972 sound recordings is protected under New York state copyright law. “SiriusXM is presenting two questions to the 2nd Circuit. First, ‘Under New York law, do the holders of common law copyrights in pre-1972 sound recordings have, as part of the bundle of rights attendant to their copyright, the right to exclusive public performance?’ … Second, ‘Does the Dormant Commerce Clause prohibit the State of New York from enforcing a property right that it recognizes at common law?'”

Is There a Fundamental Right to Intellectual Property? — Rob Merges says “yes,” beginning with John Rawls’ principles of fundamental rights. Merges argues that these principles justify property in general and intellectual property specifically. He concludes by pointing out that, consistent with his approach, the European Court of Human Rights recognizes intellectual property as a human right.

Letter from Register of Copyrights Pallante to Ranking Member Conyers — In a response to a request for views on the recent House Judiciary Committee hearing that focused on the functions and resources of the US Copyright Office, the Office writes that the nation’s long term copyright interests “would be served best by establishing an independent copyright agency to administer the law, and by designating a leader that is appointed by the President with the advice and consent of the Senate.”

Judge Rules ‘Three’s Company’ Parody Play to Be Fair Use — A thorough court decision finding a play that critiques and subverts the characters and situations of the hit 70’s show Three’s Company not infringing. “The former has turned the latter into a nightmarish version of itself, using the familiar Three’s Company construct as a vehicle to criticize and comment on the original’s light-hearted, sometimes superficial, treatment of certain topics and phenomena.”

The Man Who Makes Hollywood’s Smallest Sounds — A fantastic portrait of 30 year film veteran Gregg Barbanell. “Barbanell is a Hollywood ‘Foley’ artist, a member of a small, highly-skilled group of experts who add custom sounds into television and film scenes in post-production, using a bevy of makeshift props. Named after one of film’s earliest sound pioneers, Foley is an antiquated craft—and in a digitized era of cinema, it is one of the last of the industry’s ‘low-tech’ jobs. These folks are responsible for recording nearly every footstep and prop sound in the movies—the things that you never really notice, yet bring a scene to life. It’s at once one of the most important elements in film, and the most overlooked. Unlike sound effects editors, Foley artists don’t rely on libraries of pre-recorded sounds: they perform them ‘ive,’ using creativity, intuition, and a small dose of physics.”

Nigeria: ‘Copyright piracy is a cyber security matter,’ says President Goodluck Jonathan — “President Jonathan was asked about the government’s plans to curb piracy and address the issue of royalties. In his response, the President first displayed an understanding of the economic rights aspect of copyright and appreciated the importance of Nigeria’s entertainment industry. He then rightly acknowledged that piracy can only be minimised (not eradicated), and said his administration had just launched three security strategy documents, one of which considers piracy a security matter.”

Google admits it has huge influence in Washington as it tries to deny having influence — The Verge reports, “Last week, a Wall Street Journal report suggested Google tampered with an FTC investigation that was looking to see if the search giant was engaging in anti-competitive practices. While the FTC ultimately decided not to bring a lawsuit against Google, reports published by the WSJ indicated the commission was deeply divided on whether it should sue — and another report exposed the close ties that Google has with the Obama administration.” And Brendan Sasso reports that this development has caught the eye of Congress in Senate to Investigate White House Role in Google’s Antitrust Victory.

Cracker’s David Lowery updates his Silicon Valley relationship status: It’s complicated (interview) — Great interview from Lowery. “‘I’m seen as a digital critic, but I don’t think that’s really fair,’ he said. ‘I’m really a critic of how the digital realm pays artists. It’s more of a labor dispute. It’s like if we were the coal miners in the coal mine. It’s not that we’re against the coal mine. We just want to be paid better.'”

An Open Letter to Garbage from photographer Pat Pope over whether the band should pay to use his photos in new book — Says Pope, “No, you don’t have my permission to use my work for free. I’m proud of my work and I think it has a value.”

Robert Kastenmeier, Liberal Voice in House for 32 Years, Dies at 91 — “But his central focus was intellectual property — copyright, patents and trademarks. He was the author of 48 laws in that area, 21 of them dealing with copyright. Many reflected technological advances. The landmark 1976 bill set rules governing radio, television, photocopying, tape recording, microfilming and computer storage, breaking a 15-year logjam on a subject that bored most lawmakers.”

Remapping a Broken Internet, Chris Ruen:

Putting authors at the heart of the digital economy — A new white paper from the Society of Audiovisual Authors looks at the rights and remuneration of authors in Europe. “Copyright is the moral link that connects the author to their work. It’s also their remuneration and creative financing tool. In a Europe of diverse cultures, traditions and languages, authors have fought to be able to express themselves in their own language, without being forced into exile in order to complete their projects.”

Beyond Free Trade vs. Protectionism — “In the 21st-century knowledge economy, this means agreements that allow for effective intellectual-property enforcement and prohibit new mercantilist practices (such as forced technology transfer, data-residency requirements, and standards manipulation). It also means our nation should neither be indifferent to its industrial mix nor try to preserve its existing mix indefinitely. Rather, trade policy should be a means to drive U.S. global competitiveness in the knowledge-based industries of the future. In other words, computer chips are more important than potato chips.”

How Digital Filmmaking Destroyed Screenwriting — “Cheap digital production closed the doors of distributors to low-budget projects, in a way that didn’t exist in the days of film. The internet devalued content to the point that it was no longer possible to make a profit on an independent film. The DVD-premiere market collapsed and was replaced by VOD (that provides tiny returns on film in comparison). DIY distribution via social networking has failed to create careers, simply because everyone talks and nobody listens.”

Spain: Did the “Google Tax” really change the market? — Míchel Olmedo Cuevas writes, “it seems that the Spanish experience is closer to that of Brazil, where national newspapers amounting for 90% of the traffic dropped out of Google News almost three years ago, and do not seem to be looking to make a comeback since, according to the newspapers association, only 5% of overall traffic was lost, after 135 out of 154 newspapers decided to leave the news aggregation service provided by Google.”

Google v. Oracle: The Curse of Being Popular? — Thomas Young has a look at the “lock in” argument raised by Google in its petition to have the Supreme Court review a decision finding it liable for copying Oracle’s Java software. “The (perhaps unintended) thrust of Google’s argument is that downstream factors, such as how consumers interacted with the work, could impact whether copyright protection ever attached to the work in the first place. This notion would carry a steep price for copyright holders; namely, that user considerations, such as popularity or familiarity, could eventually invalidate their copyright interests and force their works into commons.”

Room for Debate: Robin Thicke, Pharrell Williams and a Blurry Copyright Law? — The Blurred Lines verdict continues to provoke discussion. This week, the New York Times published a series of short articles from copyright experts looking at the case from a variety of perspectives.

How the jury in the ‘Blurred Lines’ case was misled — And copyright luminary Wendy Gordon has her take on the verdict. She argues that the instructions provided to the jury did not adequately explain the law and wrongly supported the notion that any copying is infringement.

World IP Day 2015 – Get up, stand up. For music. — Mark your calendars, World IP Day is on April 26, and this year, the theme is music. “What is the future of our relationship with music? How will it be created and disseminated? How will we listen to it? And how will we ensure that all those involved in bringing us this universal pleasure can make a living from their craft?”

Guild Joins Organizations in Protesting the “Code of Best Practices in Fair Use” — This week, a number of visual arts organizations, representing thousands of professional creators, published a letter criticizing a recently published code of best practices for failing to collect input from a major segment of the visual arts community and coming to the unfortunate conclusion that “copyright acts primarily as a barrier, encouraging self-censorship; and that artists are in an adversarial relationship with the marketplace.”

Harvey Weinsten, Matthew Weiner, Kurt Sutter Urge Congress to Support Strong Copyright System — They and over 1500 other creators and artists of all types sent a letter to Congress this week saying, in part, “Our copyright system is not perfect but, like democracy, it is better than the alternatives. It works. We urge Congress to resist attempts to erode the right of creatives to determine when and how they share their works in the global marketplace.”

Free trade benefits businesses here in Tennessee — David Macias, president of indie musician management, marketing, and distribution company Thirty Tigers, pens this op-ed in The Tennessean on the need to pass trade promotion authority and finalize negotiations on free trade agreements. Says Macias, “We have recently expanded our services to all of Europe and Australia, and the ease of which we can gain access to those markets, thanks to free trade agreements, helps not only my business but the artists who we represent. When my business grows, I employ more American workers. When my artists are able to grow their careers and tour in those markets, they employ guitar techs and road managers who live and pay taxes in Nashville.”

Turning a Profit From Music Mashups — More evidence that the current legal framework for remixes works. “Dubset Media Inc. has developed technology to track how much of each song is used in any given DJ-made track or mix. It can then calculate royalties owed to artists like Lady Gaga or Jay Z whose music was sampled. The New York-based startup is in discussions with the major record labels—Vivendi SA’s Universal Music Group, Sony Corp.’s Sony Music Entertainment and Access Industries’ Warner Music Group—to license music that DJs have mixed. Such deals could pave the way for Dubset to distribute such mixes to streaming services such as Spotify.”

ICLE White Paper: Broad fair use exceptions could discourage innovation worldwide — This week, the International Center for Law & Economics released a white paper arguing that “if broad fair use exceptions are infused into trade agreements they could increase piracy and discourage artistic creation and innovation — especially in nations without a strong legal tradition implementing such provisions.”

The Lines of Copyright Infringement Have Always Been Blurred — We’ve heard a lot about the Blurred Lines verdict this week. Here, Rick Sanders makes a number of important points about the trial and its outcome, many of which have been overlooked by the deluge of superficial analyses found elsewhere.

Viacom Sues Operators of Online Channel Playing “Classic” Nickelodeon — The site “offers free 24/7 streaming plus a premium on-demand service with a tab of $35.99 for a year” of numerous Nickelodeon shows, but its website claims it can do so legally under fair use. Which means if you support Viacom, you must hate fair use.

These Charts Show Why The US Government Should Stop Setting Prices For Songs and Recordings — Music is unique among copyright subject matter in that the rates for many of its most popular uses are regulated by the government in some fashion. The Trichordist illustrates what happens as a result.

Twenty Years Down the Road: A Q&A With Paul Goldstein, Author of Copyright’s Highway — A great interview with copyright giant Paul Goldstein. “… it would be a serious mistake for policy makers (and I include the courts) to reflexively reach for a new exemption or an expanded fair use any time copyright appears to stand in the way of the roll out of some new technology. It would be a mistake because the characteristic impediment in all of these cases is not copyright, but the transaction costs associated with securing licenses under copyright.”

Who’s that girl? The curious case of Leah Palmer — “Ruth recently discovered that for the past three years somebody has been routinely lifting photographs of her, her family and friends from social networks, and setting up a network of fake media profiles of them – which all communicate with each other.” One of her only means of recourse is asserting her copyright interest in the photos to have them taken down, a reminder that copyright is not solely for commercial exploitation.

Annual USTR Notorious Markets Report Points Fingers, Includes Domain Registrars For First Time — “The fifth annual Office of the United States Trade Representative review of ‘notorious’ intellectual property infringing markets has been released, pointing out the world’s biggest problem commercial-scale markets. And for the first time, the report takes aim at internet domain name registrars.”

Contrary to the impression that some—many, in fact—information technocrats would like to convey, the new world of information technology is simply not one of bits, bytes, and pixels that have somehow been born in some new, big-bang theory of intellectual creation and are floating around in the atmosphere until captured by the magical machine and delivered in some magical fashion to some public. Intellectual creativity, in the broad sense—encompassing both original authors as well as producers; and publishers’ coordination, packaging and rational distribution—remains the domain of human actors. Respect for their efforts, labors, investment, and assurance that they will continue, is the historical role of our intellectual property laws. The new technologies may well call for new ways to ensure that copyright continues to serve this function, but the humanity of the creative process must not be lost in awe of the devices.

Jon Baumgarten, 1986.1Joint Hearing on the Impact of Technological Change on the Legal System for the Protection of Intellectual Property, S. Jud. Subcomm. on Patents, Copyrights, and Trademarks & H. Jud. Subcomm. on Courts, Civil Liberties, and the Admin. of Justice, pp. 52-53 (April 16, 1986).

The one copyright issue everyone should agree on — “The Copyright Office was first established in 1897 as primarily a ministerial entity.  Over time it has steadily acquired responsibilities and today is a crucial independent policy advisor to all three branches of the government and provides important guidance on copyright matters to the public. It is inconceivable that had all these responsibilities been envisioned at the time of its creation the Office would have been structured as it is now – without the political accountability and transparency leadership by a Presidential Appointee confirmed by the Senate would provide, and without independent control over its resources and planning.”

Surveillance-based manipulation: How Facebook or Google could tilt elections — “Psychological manipulation—based both on personal information and control of the underlying systems—will get better and better. Even worse, it will become so good that we won’t know we’re being manipulated.”

Nearly Half of YouTube’s Top Channels Are Music-Related… — As Paul Resnikoff notes, much of YouTube’s value derives from professionally created content rather than user-generated content.

References   [ + ]

1. Joint Hearing on the Impact of Technological Change on the Legal System for the Protection of Intellectual Property, S. Jud. Subcomm. on Patents, Copyrights, and Trademarks & H. Jud. Subcomm. on Courts, Civil Liberties, and the Admin. of Justice, pp. 52-53 (April 16, 1986).

Loew’s Inc v CBS, 131 F.Supp. 165 (SD Cali 1955) held that a Jack Benny parody of the film Gaslight was not fair use. Here the court responds to defendants’ contention that “such a decision would be a frontal attack on freedom in our democracy”:

… we confess we have difficulty in visualizing the loss of that freedom if Benny’s activities are curtailed by this decision. Instead, the decision reaffirms a principle inherent in the democratic way of life — the right to own and enjoy one’s own private property without fear of appropriation by another. The concept of private ownership of literary property is equally entitled to protection and is more in danger in this proceeding than are our other freedoms.

The US Copyright Office: Its Functions and Resources — On Thursday, the House Judiciary Committee is holding its first copyright review hearing of 2015, looking this time at the primary agency for administering copyright law and registration and developing copyright policy. However, the Office currently faces funding and staffing shortages, as well as structural challenges to the important role it plays. And yesterday, the Copyright Office Special Projects Team released a report on Technological Upgrades to Registration and Recordation, which analyzes many of these issues in more detail.

YouTube makes a move against brand-sponsored videos — The media platform has amended its policies so that, according to Digiday, “Video overlays of sponsor logos and product branding are no longer allowed — unless the sponsor pays Google to advertise on that channel.”

Some Presidents’ Day words about copyrights from George Washington — “At best, Article IV [of England’s Statute of Anne] reflected profound distrust of private markets. At worst, it was a veiled means of censorship that strongly discouraged the creation and publication of any works that might offend the sensibilities of Royal officials, academics, or leading clerics of the Established Anglican Church. Washington, Madison and the other Members of the First Congress were well aware of Article IV of the Statute of Anne. Yet they rejected it entirely: the federal Copyright Act of 1790 contained no analog of Article IV. Indeed, it did not authorize any compulsory licensing. Consequently, while the US Copyright Act of 1790 was not the first general, national copyright law, it was the first truly market-based general, national copyright law.”

Cravath Partners Spearhead New Copyright Program at Columbia Law — A great profile of a new pro bono clinic for copyright plaintiffs in New York City, led by Cravath, Swain & Moore partners David Marriott and David Kappos. For more info, see here.

C.D. Howe: Copyright Board undercompensating artists and depriving rights holders of royalties — From Canada: “Yesterday, the C.D. Howe Institute released a report, The Value of Copyrights in Recorded Music: Terrestrial Radio and Beyond. The report, written by Prof. Marcel Boyer, Professor Emeritus of Economics, Université de Montréal, concluded that the value of recorded music is about 2.5 times greater than the level of copyright royalties certified by the Copyright Board. He estimates that in 2012, this would have meant that royalty payments should have been about $440 million compared to the estimated $178 million.”

Grammys, Love, Angst, Striving, Synergy, Creativity & Copyright — “By ensuring that artists, musicians, songwriters and other creators enjoy the fruits of their glorious labors — most of which are spent in arduous hours of striving  before their works see the light of day and the love of their fans — we invest wisely in the cultural wealth that makes living worthwhile.”

LOTR’s One Ring explainer — “What’s interesting about hearing of The Ring in this focused way is how it becomes a part of Tolkien’s criticism of technology. The Ring does what every mighty bit of tech can do to its owner/user: makes them feel powerful and righteous. Look what we can do with this thing! So much! So much good! We are good therefore whatever we do with this will be good! The contemporary idea of the tech startup is arguably the most seductive and powerful technology of the present moment, the One Ring of our times.”

Searching for answers from Google about Google — This Tuesday, a federal judge is set to rule on Google’s unusual and aggressive move begging a federal court to block a state attorney general from investigating whether the $368 billion company has violated state consumer protection laws. The Dead Kennedys’ East Bay Ray writes, “The only way we’re going to learn about what Google is doing is through legal challenges like that of AG Hood… I worry that if Google can block a state’s top law enforcement officer from even asking questions, then who is there to stand up and search for the answers we clearly should be seeking?”

Music Licensing Study — Yesterday, the Copyright Office released a comprehensive, 245 page report examining the music licensing landscape in the US and offering a set of nearly 30 recommendations that should more fairly compensate creators, make the licensing process more efficient, provide market participants with “access to authoritative data to identify and license sound recordings and musical works”, and provide rightsholders with greater transparency of payment and usage information. (And it cites to Copyhype, pg. 52, n.246.)

Intellectual property and trade: Moving in the right direction — “Last Friday, Senator Orrin Hatch, the new chairman of the Senate Finance Committee, spoke at AEI about his approach to trade legislation in 2015. The chairman’s remarks foster hope that Congress will make positive steps on trade policy and international intellectual property rights in the coming year.”

CPIP Supports Guidelines for the Protection of Fundamental IP Rights — This week, the Center for Protection of Intellectual Property, along with over 60 other organizations and individuals, published a letter affirming the protection of IP rights. The letter noted that the “Founding Fathers understood that by protecting the proprietary rights of artists, authors, entrepreneurs, innovators, and inventors, they were promoting the greater public welfare. The continued protection of these fundamental rights is essential to American innovation and competitiveness.”

Media Institute Files Brief in U.S. Supreme Court Supporting Stronger Copyright Protections for Photographers — A cert petition filed by the photographer in Kienitz v. Sconnie Nation has attracted its first amicus brief, from the Media Institute. The Institute argues the Supreme Court should take the case to, in part, reaffirm “the fundamental distinction between parody and satire.”

My Amazon bestseller made me nothing — “This past summer, my novel, ‘Broken Piano for President,’ shot to the top of the best-seller lists for a week. After Jack Daniel’s sent me a ridiculously polite cease and desist letter, the story went viral and was featured in places like Forbes, Time magazine and NPR’s Weekend Edition. The New Yorker wrote one whole, entire, punctuated-and-everything sentence about me! My book was the No. 6 bestselling title in America for a while, right behind all the different ’50 Shades of Grey’ and ‘Gone Girl.’ It was selling more copies than ‘Hunger Games’ and ‘Bossypants.’ So, I can sort of see why people thought I was going to start wearing monogrammed silk pajamas and smoking a pipe.”

Nigam: Can Google end investigation before it starts? — “Google’s motion to shut down Attorney General Hood’s effort to ask questions in the public interest goes before the judge in the next month. His ruling could set a precedent for consumers and corporations around America. We could see a whole new class of company that is, quite simply, too big to scrutinize.” Google’s motion has, however, garnered support from a number of organizations. Of this support, the Trichordist points out in Bring Out Your Shills: Google’s Shill Mill Attacking Mississippi Attorney General Jim Hood for Having the Audacity to Investigate Google, “the two amicus briefs filed in support of Google’s attempt to stop a criminal investigation were filed solely by organizations that receives funding from Google both directly and indirectly and in some cases has received that funding for many years.”