VidAngel: It’s Not About Filtering — Jonathan Bailey takes a look at a case that has so far flown a bit under the radar. Currently on appeal to the 9th Circuit after a District Court granted the plaintiff’s motion for a preliminary injunction, Disney v VidAngel raises a number of issues, including Section 1201, first sale, and fair use, but defendants argue their video on demand service is authorized by an obscure provision in the Copyright Act that allows viewers to filter out mature elements from authorized copies of movies.

Digital copyright laws must protect content creators — Neil Turkewitz writes, “In a recent Hill op-ed, Public Knowledge’s Charles Duan and R Street’s Sasha Moss call for the Supreme Court to weigh in on a ten-year-old copyright case involving notice and takedown, copyright and a dancing baby. But their piece dances around inconvenient truths, and is predicated upon a rather ‘transformative’ use of reality.”

Lee staying on as patent chief under Trump administration — Yesterday, news broke that the Obama-nominated Michelle Lee will remain on board as Director of the US Patent and Trademark Office in the incoming administration. Despite its name, the USPTO also advises other Federal agencies on copyright policy.

Newman on Vested-Use Privileges in Property & Copyright — A common criticism of copyright is that it impinges on a person’s personal property rights. That is, if a copyrighted work is embodied in some material object like a book or a toaster, the owner of that object is limited by copyright law by what they might otherwise be able to do with that object. In this law review article, Christopher Newman offers a compelling argument in response to that criticism.

On January 12, 1977, Barbara Ringer, the register of copyrights, was presented the President’s Award for Distinguished Federal Civilian Service in 8 ceremony at the White House. This award, the highest honor for extraordinary achievement in the federal career service, cited the leading part taken by her in the movement to revise the copyright law and pointed out that her “energy, ability, and concern for the property rights of those who create literature, the arts, and science have ensured continuation of that creativity, thus enhancing life for all people.” Ms. Ringer had already received from the Librarian of Congress, shortly after the revision bill was cleared for passage, the Distinguished Service Award, the highest award offered by the Library, in recognition of her contribution to the quest for modern copyright legislation.

Library of Congress, 80th Annual Report of the Register of Copyrights, For the Fiscal Year Ending September 30, 1977

Peter Bart: How Content Creators Are Exploited By Monoliths Apple, Google, Facebook — Bart writes, “Why is it that, while vastly more creative content is being consumed worldwide, less revenue is flowing to the people who create it? This is the issue probed by Jonathan Taplin in an important new book that demonstrates how intellectual property has been hijacked by what he calls the new ‘marketing monoculture’ led by Facebook, Amazon and Google.”

Photographer Gets Cyberbullied After Defending Photo Copyright — As this story demonstrates, as important as it is for artists and creators to stand up for their rights, it’s rarely easy.

Transcribed Proceedings of CONTU — Zvi Rosen has provided another goldmine of copyright geekery reading pleasure: hundreds of pages of transcripts from the Commission on New Technological Uses of Copyrighted Works, established by Congress in 1974 as part of its broader copyright revision effort to focus on novel issues of technology such as photocopying and copyrightability of computer software.

A Bunch of Weak Anti-Piracy Measures Are Still a Pest to Pirates — Torrentfreak reports, “Clearly, none of these measures are good enough to hit piracy hard enough to kill it, but the barriers to entry are being raised. In addition to a fast broadband service, a decent VPN provider is now almost essential for many file-sharers, whether that’s for circumventing blockades or avoiding those pesky sharing warnings. Equally, keeping on top of the latest news, changes, developments, and domain switches can be a time-consumer in itself. That certainly wasn’t the case ten years ago. And if that isn’t enough, running the junk ad gauntlet requires a skill set all of its own, one that can potentially affect all sites running in a browser, whether they’re guilty of bad behavior or not.”

Fix the value gap – a reply to Michael Geist — Canadian attorney Barry Sookman discusses the value gap, the reallocation of value from creators to internet platforms due to free-riding on unauthorized content. Writes Sookman, “Online providers of services such as YouTube and Facebook would unquestionably be liable for substantial copyright infringements but for the safe harbours established around the world including in the U.S. under the DMCA. These legislative exceptions – which were pushed for by technology companies precisely to limit their liabilities – have enabled technology companies to avoid paying licensing fees (or fair market value fees) for which they would otherwise have been liable.”

2016: The Year We Stopped Listening To Big Tech’s Favorite Excuse — Charlie Warzel at BuzzFeed writes, “But in 2016, Big Tech’s well-practiced excuse became less effective. The idea that their enormous and deeply influential platforms are merely a morally and politically neutral piece of the internet’s infrastructure — much like an ISP or a set of phone lines — that should remain open, free, and unmediated simply no longer makes ethical or logical sense.”

‘Star Trek’ Fan Film Dispute Goes to Jury Trial in Big Ruling — In a ruling on motions for summary judgment, District Court Judge Klausner rejected Axanar’s talismanic “fan fiction” fair use argument. He also ruled that the planned Star Trek spinoff film was objectively substantially similar to Paramount and CBS’s works but the question of subjective substantial similarity was necessarily a question for the jury.

Breaking Windows — At CreativeFuture, film distributor Meyer Shwarzstein discusses the critical importance of “windowing” to indie films. “Do we need independent distributors? In 1948, the US Government became concerned that there was too much power in too few people’s hands. Once the chain of distribution was broken, more voices found their way into the marketplace and more talent was developed. And while this benefited viewers by bringing them more, diverse content, it also benefited the studios that are continually looking for emerging talent.”

Disney’s multiplane camera, an innovation in illusion — A great example of how those in the creative fields are also responsible for technological innovation as well.

Standing up for Songwriters: A Journey Through Recovery — Finally, in the must-watch video below, entertainment attorney Dina LaPolt talks about her recovery and how it informs her advocacy for songwriters.

I hope all my Copyhype readers are enjoying the holidays. As we get ready to ring in the New Year, I’ve posted below a number of articles either looking back at copyright news in 2016 or looking forward to 2017. Enjoy!

Year End Review: Insiders Reflect on the Biggest Copyright and Trade Secret Moments of 2016 — IP Watchdog asks a number of experts to take a look back at the major US developments over the past year in copyright and trade secrets.

2016 the Copyright Year — The 1709 Blog recaps notable developments in copyright law from courts in the US, UK, Europe, and beyond.

2016 Was the Year Torrent Giants Fell — TorrentFreak notes that a number of major sources for distributing infringing movies, music, and other creative works ceased operations over the past year, either voluntarily or because of enforcement actions.

President Obama’s IP Advisor Talks Reform Efforts and a New Administration — USPTO Director Michelle Lee talks with The Hollywood Reporter about ongoing copyright policy work and what the US may expect under a new Administration.

Trump on Copyright: How the Trump Administration will approach copyright law and potential copyright reforms — Marla Grossman makes some “educated guesses” about what a Trump Administration might mean for the US copyright agenda.

Industry executives reflect on 2016 — MusicWeek’s Emmanuel Legrand sits down with a number of music industry execs to look at major developments in that space over the past year, as well as what to look out for over the upcoming year.

RIAA Exec: 2017 Will be a “Critical Year” for Music Law (Q&A) — Finally, The Hollywood Reporter speaks with RIAA General Counsel Steve Marks to get his take on what litigation and legislative efforts the recording industry is keeping an eye on in 2016.

Everyone is handing in their reports before the holidays. This week, the Intellectual Property Enforcement Coordinator published its 2017-2019 Joint Strategic Plan on Intellectual Property Enforcement, while the US Copyright Office released a report on Software-Enabled Consumer Products.

Congressional panel calls for independent Copyright Office — Last week, the House Judiciary Committee released a policy proposal that would give the Copyright Office the autonomy over IT, staff, and budget that it needs in order to bring the Office into the 21st century. The Washington Post’s Peggy McGlone looks at the proposal in more detail, including reactions from constituents.

Public Knowledge’s Lonely Echo Chamber of Copyright Advocacy — Geoffrey Manne and Neil Turkewitz write, “Public Knowledge’s implication that it is a better defender of the ‘public’ interest than those who actually serve in the public sector is a subterfuge, masking its real objective of transforming the nature of copyright law in its own, benighted image. A questionable means to a noble end, PK might argue. Not in our book. This story always turns out badly.”

Breaking Down the Fairness for American Small Creators Act — Last week, we also saw the introduction of HR 6496, the Fairness for American Small Creators Act. Jonathan Bailey takes a deep dive into the bill, which would set up a voluntary copyright claims process as an easier and less costly alternative to federal litigation.

Hollywood Studios Win Injunction Against Streamer VidAngel — A federal judge rejected all of the opportunistic arguments against VidAngel, finding the service not a clever workaround of copyright law, but rather an unlicensed video-on-demand service. VidAngel has vowed to take the case all the way up to the Supreme Court.

Fair Use… The Final Frontier? — Finally, next week, the Central District Court of California will hear arguments on motions for summary judgment in Paramount v Axanar, a case involving an allegedly unauthorized spin-off of Star Trek. Paramount argues that the film at issue is little more than an infringing derivative work of the many Star Trek television episodes and films, while Axanar argues either that their film does not share substantial similarities with any of Paramount’s works or that any infringement is excused by fair use. By Grabthar’s Hammer, expect many clumsy Star Trek references when the hearing is reported.

Goodlatte & Conyers Release First Policy Proposal of Copyright Review — A lot of copyright developments this week! Leading the pack, members of the House Judiciary Committee released a document outlining the first proposal to arise out of its copyright review process, which began in 2013 and included 20 hearings. The proposal addresses the Copyright Office itself in an effort to modernize it for the 21st century. It also calls for the creation of a small copyright claims process.

Reps. Judy Chu and Lamar Smith Introduce Small Claims Reform for Creators — Speaking of small copyright claims, the same day the above proposal was released, Reps. Chu and Smith announced their own bill for a small claims process. The process is modelled on the recommendations of the Copyright Office in its 2013 report on the issue, and the bill joins a similar one introduced this summer by Reps. Jeffries and Marino.

Core Copyright Industries add $1.2 Trillion to US Economy and Employ 5.5 Million American Workers — The International Intellectual Property Alliance this week released its 2016 report on the economic contributions of the core copyright industries. Along with the headline figures, the report finds that sales of US copyright products in overseas markets topped $177 billion in 2015, outpacing other major industries such as chemicals, aerospace, and agriculture.

Masnick Makes a Hash of Fair Use & Censorship — David Newhoff writes, “As a general statement, it is true that fair use is a free-speech-based exception to copyright, but most speech-related, or press-related, uses almost always relate to other forms of expression, including journalism, and they rarely implicate the ‘transformative’ standard being referred to by the News Media Alliance.”

A Lawyer Digs Into Instagram’s Terms of Use — A quick primer on what you are agreeing to when you upload images to the popular social network.

Our civilization, too, will largely survive in the works of our creation. There is a quality in art which speaks across the gulf dividing man from man and nation from nation, and century from century. That quality confirms the faith that our common hopes may be more enduring than our conflicting hostilities.

Pres. Lyndon B. Johnson, Remarks at the Ground-Breaking Ceremony for the John F. Kennedy Center for the Performing Arts, December 2, 1964.

Protect America’s Creative Future — Sugar Ray’s Mark McGrath and musician Billy Morrison pen this op-ed to coincide with the US Chamber’s IP Champions event this week. “Our greatest achievements will depend on our ability to give tomorrow’s artists, innovators and inventors the tools to protect their intellectual property. Not only will it benefit creators, it may also help ensure that the next great artist gets to share their next big hit with you.”

New DMCA Registration Regime Starts Today. Don’t Delay! — Rick Sanders has the “breakdown” on the Copyright Office’s new system for registering agents to receive DMCA takedown notifications. If you run a website or other online service that fields such notices, you need to re-register to maintain safe harbor protections. If you’ve never registered an agent, it’s worth considering whether you should.

Focus on Creators — Thousands of Canadian authors, artists, and creators have signed a letter to Canadian Heritage Minister Mélanie Joly asking her to put creators at the heart of ongoing and upcoming reviews of copyright policy. It’s not too late for others to sign on to the letter.

The Demise of the TPP and its Impact on Copyright — Hugh Stephens discusses the international copyright implications that result from the (probable) failure of the Trans-Pacific Partnership to cross the finish line.

Fighting for Creators in Washington DC — Melvin Gibbs writes, “In the latest fight over TV set top box rules, [FCC] Commissioner Rosenworcel has been a strong and consistent voice demanding that the FCC honor copyright principles and ensure its new rules don’t undermine or sabotage the creative economy. She has voiced support for bringing consumers more choices and increasing competition, while remaining skeptical of the tech industry’s anti-artist push to inject the FCC into the business of micromanaging licensing.”

How We Got a Register of Copyrights — More excellent historical writing from Zvi Rosen. Here he looks at why the position is called “Register” (instead of the more conventional “Registrar”) and why the Copyright Office remains within the Library of Congress.

‘Star Trek’ Fan Film Lawsuit Boldly Goes Where No ‘Star Trek’ Lawsuit Has Gone Before — The parties in the lawsuit—involving an unauthorized new Star Trek film—have both moved for summary judgment. Defendants argue either that their film shares no substantial similarity with any of the existing Star Trek films owned by plaintiffs, or in the alternative, that any copying is excused by fair use. A hearing on the motion is scheduled for December 19, with a trial tentatively scheduled for January 31.

Amazon Sues Sellers for Offering Fake Goods on Its Site — The online retailer has stepped up efforts to combat the increasing problem of counterfeit goods being sold through its service. Earlier this month, it was reported that counterfeit CDs are even a problem on the site.

The average Netflix subscriber watches almost twice as much Netflix as they did 5 years ago — A separate study found that 37% of teens watch Netflix at least once a day, a number higher than YouTube, cable TV, and other streaming services.

A tribute to an outstanding Register of Copyrights — Former IP Subcommittee Chairman Howard Berman pens this tribute to former Register Maria Pallante, who was removed from her position several weeks ago. Berman writes, “In Washington, we have become accustomed to bureaucratic-style leadership that avoids tackling the tough problems and passes the buck. Instead, Register Pallante did exactly what we hope from our best public servants: She saw a problem, recognized her duty to fix it and forced us to consider the hard choices.”

What does a location manager do? A conversation with Tony Holley — CreativeFuture speaks with Holley, who most recently has worked on this summer’s fantastic Netflix show Stranger Things. Holley talks about some of the striking sets on the show and his role as “liaison between the producers and the home or business owner”—and how using one particular location helped save and preserve an historic building.

How copyright came to the Library of Congress — Copyright history buffs should absolutely start reading Zvi Rosen’s new blog, which presents not only in-depth looks at interesting moments in US copyright law history, but also primary documents digitized by Rosen himself which have previously been unavailable online. Here, Rosen begins a look at the events that led up to the establishment of the US Copyright Office within the Library of Congress.

The Librarian of Congress and the Register of Copyrights — Last week’s news that the Librarian had removed the current Register from office—the Register subsequently resigned—shocked the copyright community. Here, Zvi Rosen presents an interesting (and possibly relevant) historical anecdote: shortly after the first Register of Copyrights was appointed in 1897, the Librarian of Congress stepped down. Worried that the next Librarian would be a political appointee, the Register rallied the library community to push for a nonpartisan appointee with the necessary expertise to head the important institution.

Argument preview: Court to consider copyright protection for cheerleading uniforms — On Monday, the Supreme Court will hear oral arguments in Star Athletica v Varsity Brands, currently the only copyright case on its docket. SCOTUSBlog has that rundown on the issues that you asked for.

Content Industry Gets Favored Interpretation of “Repeat Infringers” in MP3Tunes Appeal — The Second Circuit’s decision in Capitol Records v MP3Tunes comes ten years into the decision, and it delivers welcome news on the issues of Section 512’s repeat infringer policy requirement and “red flag” knowledge.

AFL-CIO Pushes for Set-Top Text — The federation of labor unions is calling on the FCC to be “fully transparent” and release the text of its proposal regarding cable set-top boxes. Said the AFL-CIO, “The middle class Americans who depend on copyright protections to earn family-supporting pay and the consumers entrusting their personal information with corporations that deliver their entertainment content deserve a voice in the process.”

Bombshell: Copyright Office Talks about Copyright with Agencies and Interested Parties — MPAA’s Neil Fried writes, “The bottom line is that the Copyright Office did not approach stakeholders, selectively or otherwise. It spoke with any and all comers who asked for the opportunity. It then examined the issues and met its statutory obligation to advise federal agencies and Congress on the law. Any EFF suggestion to the contrary is entirely false.”