Will Indie Film Survive? — Scott Timberg: “One of the casualties of our current cultural situation is the erosion of the middle — the middle class, the midlist author, the middlebrow, and the mid-budget film. Independent film, with its interest in boundary pushing and risk-taking, may not seem to belong in that company, but it’s vulnerable to all the same forces.”

The Copyright Office Releases Public Draft of Compendium III — The US Copyright Office this week released its long anticipated new version of the Copyright Compendium, a detailed and comprehensive guide for examiners, as well as the general public, concerning copyright registration. At over 1200 pages, it may not be the best bedtime read, but it should prove invaluable as a reference.

Copyright Review Process Will Continue Into 2015; Education and Circumvention Will Be Next Issues Examined — With just a few weeks remaining before Congress returns from recess, BNA’s Tamlin Bason sat down with Representative Goodlatte to discuss the ongoing copyright review process and what we can expect in the upcoming months.

Why Don’t Today’s Hits Reflect the Times — Interesting article from Billboard. “Why don’t today’s top 40 acts have anything to say? Donovan laments that ‘[The] artists of 1960s and ’70s were much more socially conscious of the feelings and mood of the nation than many of today’s artists.’ Zapoleon adds, ‘Outside of [the] standard themes of love, sex, party and everyday minor social happenings in life, there just aren’t a lot of songs that are relevant to challenges people are facing today, or that talk about contemporary major events in America or the world.’”

Delaware becomes first state to give executors broad digital assets access — The law would allow an estate access to a decedent’s online accounts. Interestingly, the article notes that tech companies like Google, Facebook, and Yahoo oppose the law.

Why Exactly Is There a ‘Jarhead 2’? Hollywood’s Secret-Sequel Economy — Why make a sequel to a movie like Jarhead? It’s still playing big where it matters. The numbers make sense. The EVP’s team looks at DVD rentals, iTunes downloads, streaming numbers, TV distribution, and international markets. When asked of his intel-gathering methods, Ross is transparent: “I got Google.” Online chatter is a vital metric, too. Ross could produce a wartime movie that doesn’t infringe on the legacy of Jarhead, but slapping it with a stagnant IP gives it automatic legs. “It does some marketing for you. You come to it with a built-in consumer. You go on Facebook and people are constantly having dialogue about it,” Ross says.

The Free and the Antifree — A thought-provoking article from n+1 that asserts there is an emerging “antifree” movement that serves as a counter and critique to the “free culture” position.

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Special announcement: If you’re a recent law school grad in or interested in DC and copyright, the Copyright Alliance and the Copyright Office are both hiring. Info on the Copyright Alliance legal fellow position here; info on the Copyright Office Barbara A. Ringer Copyright Honors Program here.

The Internet’s Original Sin — Spoiler alert: it’s advertising. A fascinating read that details why the reliance on ad-based business models may be destroying the internet. Ethan Zuckerman points to four downsides to this model: it encourages surveillance, reduces the production of thoughtful content, results in centralization of control, and causes negatives like filter bubbles and echo chambers.

Harper’s Publisher Standing Firm in His Defense of Print and Paywall — “His thesis is built on three pillars. The web is bad for writers, he said, who are too exhausted by the pace of an endless news cycle to write poised, reflective stories and who are paid peanuts if they do. It’s bad for publishers, who have lost advertising revenue to Google and Facebook and will never make enough from a free model to sustain great writing. And it’s bad for readers, who cannot absorb information well on devices that buzz, flash and generally distract.”

Reading Literature on Screen: A Price for Convenience? — “In most respects, there was no significant difference between the Kindle readers and the paper readers: the emotional measures were roughly the same, and both groups of readers responded almost equally to questions dealing with the setting of the story, the characters and other plot details. But, the Kindle readers scored significantly lower on questions about when events in the story occurred. They also performed almost twice as poorly when asked to arrange 14 plot points in the correct sequence.”

Warner Bros. Wins Appeal Over Fictional Technology in ‘Dark Knight Rises’ — Though not copyright, an interesting IP case involving the developer of a product suing the Batman studio for including in the film a product that used the same name. Spoiler alert: things did not end well for the developer. Said the Seventh Circuit, “Trademark law protects the source-denoting function of words used in conjunction with goods and services in the marketplace, not the words themselves.”

The Cult of Sharing — “None of the users of the new profit-driven services are under any delusion that they are transacting with others—the term sharing economy even highlights this fact. What’s crucial to realize is that proponents of ‘sharing’ are reinventing our understanding of economic relations between individuals so that they no longer imply individualism, greed or self-interest. Instead, we’re led to believe that commerce conducted on their platforms is ultimately about generosity, helpfulness, community-building, and love.

Is Spotify Killing Music? — “British singer-songwriter Billy Bragg has compared YouTube to Big Brother. ‘Rather than a huge boot stamping on a human face forever,” he said at a London press conference in June, “it’s a corporation that changes its logo every week.’”

No one cares about manufacturing costs — “Amazon wants to sell ebooks profitably at $9.99. In order to do that, they need publishers to sell them the books at some number less than that. It’s the same negotiation Home Depot has with Black & Decker. Except that you don’t see Home Depot setting up websites that selectively quote George Orwell to make their point.”

Orwell estate hits back at Amazon’s corporate ‘doublespeak’ — “Jean Seaton, director of the Orwell prize, an award for political writing set up in honour of the author, was equally outraged. ‘That Amazon should manipulate Orwell against the interests of writers and their publishers is dystopian and shameless,’ she said today. ‘Orwell, before he had any money, gave a lot of it away to poor and young and struggling writers. Amazon has no interest in writers and wants to throttle publishers. It is marching towards becoming a monopoly book and consequently a monopoly ideas provider – in order to maximise its commercial interest. A world in which all thought has to be bought from one place is Orwellian.’”

Stop Writing Dystopian Sci-Fi—It’s Making Us All Fear Technology — The future is fun, the future is fair.

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Plot thickens as 900 writers battle Amazon — “Some writers wholeheartedly supported the letter but were afraid to sign, Mr. Preston said. A few signed it and then backed out, citing the same reason… Mr. Preston’s longtime writing partner, Lincoln Child, is among those with qualms.’I am very apprehensive,’ Mr. Child said. ‘Not all David and Goliath stories end happily for the little guy. But I think Doug did the right thing.’”

Kurt Sutter Attacks Google: Stop Profiting from Piracy (Guest Column) — The Sons of Anarchy producer pens a passionate call to action for his fellow creative professionals, highlighting the dangers of Google, which, as he puts it, “is in the process of systematically destroying our artistic future, and more importantly, the future of our children and grandchildren.”

Mossoff on Intellectual Property Rights as Property — Legal scholar Adam Mossoff writes an introduction to the recently published Intellectual Property and Property Rights, which “presents the three basic analytical frameworks in which intellectual property rights are defined or justified as property rights – historical, conceptual, and normative.” A good introduction for those interested in the academic discussion of IP and property.

‘Academic Urban Legends’ — Not copyright related, but should be of interest to those who engage in copyright scholarship. The article points out that the belief that spinach is high in iron is a myth. Scholars have long pointed out that the myth was caused by German scientists in the 1930s after they accidentally put a decimal point in the wrong place. But that story is also a myth, perpetuated by academic sloppiness in citation practices.

Of Macaques and Men: [obligatory monkey pun subtitle here] — Matthew David Brozik weighs in on #monkeyselfie. “Is it possible that Wikimedia and some lawyers have not heard of joint authorship?” he asks. “This legal fiction is surely preferable to the alternative, which denies Slater the full benefits of his efforts. The monkey did the smallest part of the work. The man deserves the reward.”

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Aereo files emergancy motion on remand arguing it’s a cable provider entitled to Section 111 compulsory license — via Shades of Gray‘s Naomi Gray comes the just-filed memorandum of law from Aereo in support of its argument that, despite two years strenuously claiming otherwise, it is, actually, a cable provider. But only under the Copyright Act, where it can get the benefit of a below market rate compulsory license for transmitting copyrighted works, not under FCC regulations, which would subject it to retransmission consent and a host of other obligations.

Space Creators: Building the Guardians of the Galaxy — The Credits takes a closer look at some of the craftspeople involved in producing the big-screen version of Guardians of the Galaxy, opening in theaters today.

Copyright.gov — Did you see the redesigned web site for the US Copyright Office yet? Looks pretty sharp!

Ultra Records Responds to Michelle Phan & Kaskade Copyright Controversy — “When a music artist or songwriter signs to Ultra, it is our responsibility to protect what they have created. Enforcing copyrights is fundamental to the survival of artists, writers and producers, and to Ultra’s ability to continue to invest in and support them, so that they can continue to bring great music to music fans around the world. Whatever Ultra collects enforcing these important rights is shared with its artists according to their agreements.”

Should there be a system for resolving small copyright claims? — A look at last week’s House Judiciary IP Subcommittee’s hearings on copyright remedies and the question of whether Congress should create an expedited process for resolving copyright disputes involving low dollar amounts. Last year, the US Copyright Office released a report recommending just that.

We’re All Waiting, BitTorrent — “Funny how some technology companies like BitTorrent are always extolling the unlimited power of technology – except when it can be used to help creators by preventing the unauthorized distribution of their creative content.”

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Garrett Brown: An Interview with a Visionary-Part 1 — Nick Friedman speaks with Garrett Brown, a cinematographer and inventor of the Steadicam, an innovation which, in the words of Stanley Kubrick (who famously used it in The Shining) “would revolutionize the way films are shot.”

Great Photos, Little Cash: The Problem of “Small Claims” in Copyright — Coinciding with the House Judiciary IP Subcommittee’s hearing on copyright remedies, attorney Tara Aaron highlights a recent default judgment against a website that had allegedly infringed a photographer’s copyrights. Though the court awarded the photographer statutory damages and attorney fees, because the award of attorney fees was limited by local rules, the photographer still ended up short. It’s a good case study for the need for a “small claims” procedure.

“Notice & Notice” does Not Contribute to a Balanced Copyright System — A comparison between the US notice-and-takedown system and Canada’s new notice-and-notice system and why the first is better for creators.

Disney’s corporate synergy, 1957 and today — Screenwriter John August shares an interesting chart from 1957 showing how “the various elements of the Walt Disney company fit together.” This holds true still today. “The company makes money in many ways, but feature films are still the key drivers. You don’t get Cars merchandise without the movie. The success of Frozen is an example of how Disney can capitalize on a hit film by using it in other divisions: Disneyland attractions, TV tie-ins (Once Upon a Time), music, books, merchandise, and possibly a Broadway musical.”

Report on the responses to the Public Consultation on the Review of the EU Copyright Rules — Like the US, the European Union is currently in the process of reviewing its copyright laws. Here is the result of a public consultation process that concluded earlier this year, generating nearly 10,000 responses. “The consultation covered a broad range of issues, identified in the Commission communication on content in the digital single market , i.e.: ‘territoriality in the Internal Market, harmonisation, limitations and exceptions to copyright in the digital age; fragmentation of the EU copyright market; and how to improve the effectiveness and efficiency of enforcement while underpinning its legitimacy in the wider context of copyright reform’.”

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“Fifteen years of utter bollocks”: how a generation’s freeloading has starved creativity — A great essay from author Chris Ruen, whose excellent book Freeloading: How our insatiable appetite for free content is starving creativity has recently been released in the UK. “Any desperate excuse was good enough, so long as it justified the original campaign. Otherwise, the people who fought against copyright in this battle would have to confront the fact that they were never carrying the flag for freedom or ‘openness’, but for aggression, entitlement and selfishness masked by superficial delusions of grandeur.”

5 Major Publications that Cover Copyright Well — From Jonathan Bailey at PlagiarismToday, a nice list of mainstream news sources with above average copyright coverage.

Aereo Hits Roadblock in Effort to Become Cable System — Back in the District Court following the Supreme Court’s remand, Aereo pursued a new line of argument: that it is a cable system, and thus entitled to carry broadcast programming under the Copyright Act’s Section 111 compulsory license. This week, the Copyright Office rejected that argument (though it provisionally accepted the application until the court rules on the issue). Aereo still has the option of bringing the question to the FCC, but that would subject it to a host of regulations, including the need to negotiate retransmission consent with the broadcasters.

DMCA’s protection of copyright management information applied to non-electronic works — Evan Brown provides a heads-up on a recent decision involving § 1202, a lesser known section of the DMCA that prohibits the removal or alteration of “copyright management information.” The question here was whether that provision applies “only to electronic works intended for distribution over the internet, or whether it applies to more traditional works such as hard copy technical drawings.” The court here chose the latter.

Fishman on Creating Around Copyright — “It is generally understood that the copyright system constrains downstream creators by limiting their ability to use protected works in follow-on expression. Those who view the promotion of creativity as copyright’s mission usually consider this constraint to be a necessary evil at best and an unnecessary one at worst. This conventional wisdom rests on the seemingly intuitive premise that more creative choice will deliver more creativity. Yet that premise is belied by both the history of the arts and contemporary psychological research on the creative process. In fact, creativity flourishes best not under complete freedom, but rather under a moderate amount of restriction.”

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Is Silicon Valley Funding the Wrong Stuff? — Eye-opening: “Consider this. The entire market for advertising is around $100 billion a year in the U.S. (Globally it’s close to $500 billion.) Yet the nation’s gross domestic product is more than $16 trillion. That means every venture-backed startup chasing advertising revenue is going after just 0.6% of the economy. Put in employment terms, the ad-related economy employs just a few million people, versus 140 million Americans whose job it is to do everything else. Still, the pursuit of advertising dollars includes about every startup that is going for scale first and says it will figure out how to ‘monetize’ its users ‘once it has the eyeballs.’”

Number of Statehouse Reporters Is in Decline, Study Shows — “The nation’s statehouses lost more than one-third of the journalists devoted to covering legislative matters full time, according to a study released on Thursday morning by the Journalism Project at the Pew Research Center.” Potato salad Kickstarter coverage remains unchanged.

Under Tariff 8, Barenaked Ladies would need 9,216 plays of “If I Had $1,000,000″ to earn enough royalties to buy one box of Kraft Dinner — A recent decision by the Copyright Board of Canada has set one of the worst royalty rates in the world for music streaming.

Taking on Amazon — If you haven’t checked out Scott Timberg’s blog CultureCrash, I highly recommend it. A great blog that covers issues relating to the sustainability of creative individuals and industries. Here he reports on several items related to Amazon and its dealings with authors and publishers.

A Notice of Author Obviation — “Dear Content Creator, We are happy to announce that our recent efforts in fiction generation have been successful, and we are now able to feed the entirety of any individual writer’s output into our computer and procedurally generate new works using a combination of Markov chains and random syntax sampling. A regular expression-based pattern matching system then determines which sentences are most similar in style to ones you would have personally constructed, and arranges them in terms of plot development (or what passes for plot in your novels). In essence, we have rendered you obsolete.”

Copyrights are more than just federal “privileges” — As Tom Sydnor explains, copyright “alone creates a system for producing expressive works that lets private creators and investors make the risky, long-term investments of financial and human capital needed to produce expressive works designed to inspire or entertain large numbers of private, ordinary citizens – rather than works designed to indulge the preferences of Tenure Committees, rich philanthropists, or government bureaucrats.”

From Google to Amazon: EU goes to war against power of US digital giants — “Google’s earnings from search have drained advertising spending from European newspapers, magazines and radio stations. Piracy, facilitated by search engines and broadband, has hit revenues for record labels hard. Bookshops and electronics stores have disappeared from high streets as sales migrate to Amazon and even Apple’s bricks and mortar retail outlets. Europe’s mobile phone networks, once considered global technology pioneers, have handed fortunes to Apple and South Korea’s Samsung in subsidies for mobile phone handsets. The sense of injustice has been reinforced by revelations about tax. Amazon, Google and Apple have found ways to reduce their corporation tax payments on international revenues to single-digit percentages of profits. Now fear has been added to the mix, with Edward Snowden’s revelations about digital surveillance.”

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The emperor of “disruption theory” is wearing no clothes — A lot of reaction this week to a New Yorker piece by Jill Lepore criticizing some of the core principles guiding Silicon Valley, this is one of the latest. “It’s possible to be critical of the way Silicon Valley is agitating for regulatory reform that is designed to nurture Silicon Valley business models without being ‘anti-technology.’ It’s possible to explore the question of how the current pace of technological innovation is affecting jobs and inequality without being anti-technology. It is possible to be critical of how, in the current moment, technology appears to be serving the interest of the owners of capital at the expense of workers without being anti-technology. It’s even possible to love one’s smartphone and the Internet while at the same time critiquing run-amok ‘change the world’ hype.”

The Walking Dead producer criticises Game of Thrones executive over piracy — “‘When consumers do go [onto pirate websites] they look legitimate,’ she said. ‘They have advertising from well-known brands, and they take credit cards. How would the consumer know the difference between legitimate sites and illegitimate sites? There is a lot the advertising industry, credit card industry and search industry can do to help protect legit content.’”

Congress moves against ad-supported piracy — Writer and director Alec Berg (Seinfeld”, “Curb Your Enthusiasm”, “Silicon Valley.”) applauds recent efforts in Congress to draw more attention to the fact that major brands advertising on sites offering unauthorized creative works. “These major brands can avoid funding illegal activity. They can. The question is: Will they?”

Copyright exhaustion does not apply to digital goods other than software, Hamm Court of Appeal says — Good news for creators, as a court in Germany declined to extend the 2012 UsedSoft decision, which held that the distribution right for software can be exhausted by digital transmission under certain circumstances, to subject matter beyond software — here, audiobooks.

Google ordered by BC court to block websites selling pirated goods: Equustek Solutions Inc. v. Jack — Another positive decision, this one from Canada. As attorney Barry Sookman explains, plaintiffs won a default judgment against a website that was selling counterfeit goods and asked Google to help. “When Google refused to de-index the offending websites from its search results, the plaintiffs brought a motion against Google for interim relief requiring Google to de-index the websites. Over Google’s objections, in Equustek Solutions Inc. v. Jack 2014 BCSC 1063, Madam Justice Fenlon of the British Columbia Supreme Court granted the injunction.”

AJ Rafael Announces Hiatus from Performing [Exclusive Letter] — That didn’t take long. This week, a YouTube artists announced he is retiring, citing the difficulties for creators to sustain a career distributing and promoting their work through the free online video site.

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If one supposes that information storage and retrieval systems are not now and are not likely to become commonplace during our lifetime, then we may leave the resolution of the rights of a copyright proprietor in respect of computer usage as a legacy to future generations.

But in doing so, would we not be creating another jukebox exemption, this time one of even greater consequences to the world of private authorship and private commercial publishing?

The hard, inexorable facts are, that information storage and retrieval systems do exist and are increasing numerically as well as in the scope of their uses.

Testimony of Bella L. Linden (American Textbook Publishers Institute), Copyright Law Revision, Hearings Before Subcommittee No. 3 of the Committee on the Judiciary, House of Representatives, Eighty-Ninth Congress, First Session on H.R. 4347, H.R. 5680, H.R. 6831, H.R. 6835, at 1429 (June 30, 1965), available at HathiTrust.

Seriously, What if Music Streaming Doesn’t Work Out? (via CultureCrash) — “Not one of the music streaming companies has made a profit yet, not one. Most are involved in corporate growth quarterly suicide, driven by large sums of VC money, or public pressure to return shareholder value. That’s fine, but that’s no way to nurture a creative company. I wish them all well, but honestly, that doesn’t seem like a good situation for the industry or consumer, maybe the VCs and shareholders, and money managers, but not us.”

Why online tracking is getting creepier — “Tracking people using their real names—often called ‘onboarding’—is a hot trend in Silicon Valley. In 2012, ProPublica documented how political campaigns used onboarding to bombard voters with ads based on their party affiliation and donor history. Since then, Twitter and Facebook have both started offering onboarding services allowing advertisers to find their customers online.”

Lack of Registry is No Excuse for Bad Royalty Accounting to Artists: The Return of the Magic Thingy — From The Trichordist: “This ‘if we just had a good database’ dodge has been a frequent feature of Internet lore for quite a while.”

“My Data Belongs To Me”: Returning Online Control To Consumers — “Data protection has not been successful in guaranteeing against misuse, claims Bruck. He proposes instead a human rights approach to data, where the ‘issue is not protection, but rights, not safeguarding, but property ownership.’ … ‘If you wish to use my data, get my permission. And then make transparent what uses you are taking,’ he said.”

The Illusion of Free Stuff — David Newhoff: “We’re seeing a trend of popular artists take gigs to perform for sponsorships, corporate events, or private parties for wealthy individuals; and this move toward patronage by the elite is a direct response to the fact that we the people are no longer a source of revenue.”

Shannon Hurley: “We Must Respect and Value Songwriters” — Indie songwriter Hurley on the inequities her and other songwriters currently face under the current licensing regime.

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Lessons from the ‘right to be forgotten’ — “I’m surprised at how many technology lawyers in the U.S. are alarmed at this decision. Many seem to believe that it represents a fundamental break in the EU from American models of free speech. But in fact, we in the U.S. have long had to try to balance privacy and free-speech concerns. The Fair Credit Reporting Act, for example, balances credit-reporting agencies’ right to speak about our pasts with our right to ensure that the report is accurate, and also to keep certain things off the report once a certain amount of time has elapsed. The Spanish case [that led to the European Court of Justice's decision] involved a credit problem that persisted for over 10 years, which is the cut-off for a bankruptcy report to appear on a U.S. credit report.”

Let’s not turn the clock back on internet video — “Unlike with the physical ownership model, you don’t need to plan in advance, take all the content you might want to watch with you when you travel, or worry about forgetting to bring it. Moreover, if you lose or break physical copies of content you own, you will need to pay to replace them. You can’t lose or break Internet content, and if you lose or break your device, many services will reload the content for free.”

Online pirates thrive on legitimate ad dollars — “Content thieves attract visitors with the promise of free downloads and streams of the latest hit movies, TV shows and songs. Then they profit by pulling in advertising from around the Internet, often concealing their illicit activities so advertising brands remain unaware. Pirate websites run ads that are sometimes covered up by other graphics. They automatically launch legitimate-looking websites as pop-up windows that advertisers don’t realize are associated with piracy. At the end of the day, the pirate website operators still receive a check for serving up a number of views and clicks.”

T Bone Burnett’s plea: The piper must be paid — “Music is uniquely durable and, as a result, has for centuries been the medium through which knowledge and insights are passed from generation to generation. Fans can still hear the work of America’s musical pioneers, thanks to online and mobile services. Through downloads and streams and services such as Pandora and Sirius XM Radio, these giants’ recordings continue to captivate and influence young musicians, singers, songwriters and producers. Yet some of these same companies have made the decision to devalue the music of these artists for their own profit by not paying for it.”

Ginsburg on Fair Use & “Permitted but Paid” Use — The esteemed Jane Ginsburg has a new article proposing a middle ground between the currently binary outcomes of fair use. She suggests distinguishing between new distributions and new works, with the latter subject to the traditional fair use analysis and the former subject to “permitted-but-paid” statutory exceptions.

Negotiating Film and Video Content Distribution Agreements in the Digital Age — CDAS attorney Simon Pulman has a helpful guide for filmmakers seeking distribution deals for their works.

Doonesbury — “Don’t be Google.”

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