Flickr’s Wall Art Program Exposes Weaknesses in Licensing Automation — “The fact that a hosting website might exploit a Creative Commons-licensed work for its own commercial gain doesn’t sit right with many content creators who have operated under two assumptions that, as Flickr has shown, are naive. One is that these big Internet sites just want to get users to contribute content in order to build their audience and that they will make money some other way, such as through premium memberships or advertising. The other is that Creative Commons licenses are some sort of magic bullet that help artists get exposure for their work while preventing unfair commercial exploitation of it.”

Authors Guild Opposes Google’s Fair Use Claim in Federal Appeals Court — Last week, a Second Circuit panel heard oral arguments in the Google Books litigation, on appeal after the district court held that Google’s massive commercial operation was a fair use. Here’s the Author Guild’s report on the arguments.

Korean cultural export success rooted in freedom and democracy, industry insiders say — Freedom of expression and a sustainable, professional creative sector go hand in hand, as this report demonstrates. “The mania reaffirmed the success of Korean cultural and creative industries that, industry heavyweights say, owe their accomplishments to the freedom guarded by a democratic society that is seeking to cultivate a creative economy.”

Paying A Legitimate Toll To Ease On Down The Road — “I’m not suggesting that everyone get schooled in the intricacies of copyright law, but that as part of the process of creating and performing shows, students should come to understand that there is a value in the words they speak and the songs they sing, a concept that’s increasingly frayed in an era of file sharing, sampling, streaming and downloading. Creative artists try to make this case publicly from time to time, whether it’s Taylor Swift pulling her music from Spotify over the service’s allegedly substandard rate of compensation to artists or Jason Robert Brown trying to explain why copying and sharing his sheet music is tantamount to theft of his work. But without an appreciation for what copyright protects and supports, it’s difficult for the average young person to understand what this might one day mean to them, or to the people who create work that they love.”

10 FAQs on Twitter (Music Piracy Research Blog) — “What I won’t accept are the weak excuses to justify piracy. That’s all they are. Excuses. Piracy is easy, you get free stuff, and the chance of being caught is slim. That’s it. Don’t forget that when you obtain copyrighted media illegally, someone somewhere is profiting from that. Illegally. Rightsholders are denied money they are legally and morally entitled to. If you are happy to go see ‘Fast and the Furious 12′, or listen to Two/Three/Four Direction, then keep at it. Investment in new talent is down (BPI) because the return on investment has no guarantee anymore. And it looks like the cost of live concert tickets keeps rising in response to music piracy, so if you like concerts, start saving up for 2015.”

“blame the author” — John Degen talks about a “stock free-culture tactic – assert loudly and without any shame that anyone defending copyright hates the user community.”


Second Circuit Hears Google Books Case — This week, the 2nd Circuit heard arguments in the dispute between authors and Google over the search giant’s mass digitization program. While this specific dispute has been going on for nearly a decade, the dispute over this issue is at least half a century old. A draft bill for copyright revision in 1964 provided that a copyright owner’s exclusive right to copy included “the right to reproduce the work in visual copies, to make or duplicate sound recordings of it, to make a translation, adaptation, or any other derivative work from it, and to reproduce it in any form in the programming or operation of an information storage and retrieval system.” This language did not appear in the final bill, passed in 1976.

The Strand’s Stand: How It Keeps Going in the Age of Amazon — A fascinating look at the legendary used bookstore in Manhattan.

‘Investing in Music’ report shows record labels invest US$4.3 billion in A&R and marketing — The report shows the significant contributions the global recorded music industry makes to promoting the progress of science and the useful arts.

Electronic Frontier Foundation (EFF) uses copyright law as censorship canard again — “Sutton lists 9 instances in which content was removed for allegedly political reasons via a DMCA notice. Not to minimize any wrongdoing in these particular instances, but has Ms. Sutton bothered to examine the millions of legitimate removals that occur each week worldwide? In any enforcement system there exist errors and potential for abuse, but the the truth is that the volume of legit DMCA notices far outweighs illegitimate ones.”

Virginia Woolf Goes to the Movies — Originally published in 1926, a year before the first talkie, The Jazz Singer, was released, the esteemed author pens a prognostic look at the brand new medium. “Yet if so much of our thinking and feeling is connected with seeing, some residue of visual emotion which is of no use either to painter or to poet may still await the cinema.”

Not a good week for Sirius XM:

While the Court is largely unpersuaded and sometimes baffled by Sirius XM’s repetitive or off-point theories about how reasonable jurists might read an unwritten exclusion into §980(a)(2), the Court will not analyze the potential grounds for difference of opinion because certification of this Order suffers from an even more basic deficiency.

Disney’s global success with ‘Frozen’ took lots of translation, investment — “The company put a huge investment into making the animated film as accessible in Beijing as in Buenos Aires. The movie is translated into 41 languages, which included an international cast of more than 900 people. They worked on 1,300 recording sessions.”

Top 113 Congressional Copyright Review Moments — While the 113th Congress still has a few more days in session before the end of its term, there are no more copyright review hearings planned. Here is a look back at some of the top moments of the past year.

Landmark Trade Deal at Risk Without Strong Intellectual Property Laws — “The nature of the TPP’s IP provisions matter greatly to the United States because America’s competitive advantage in the global economy increasingly lies in innovation-based industries—such as life sciences (pharmaceuticals and medical devices), information and communications technologies, digital services, music and film, aerospace, and advanced manufacturing—that at their core depend on the production, and protection, of intellectual property.”

Fair Use and Market Harm: Use It or Lose It? — Thomas Young has an in-depth look at the Eleventh Circuit’s troubling conclusion concerning market harm in the GSU e-reserves case, one of the issues the publisher plaintiffs are asking the full bench to review in their petition for an en banc rehearing.

Social Media Bots Offer Phony Friends and Real Profit — “‘This all points to social media advertising being one giant bubble,’ said Tim Hwang, chief scientist at the Pacific Social Architecting Corporation, a research group that focuses on bots. ‘Everyone is really happy to say, ‘Look at the numbers that we got, it must have been successful,’ even though the retweets and favs are inflated by bots.'”

The Creepy New Wave of the Internet — Sue Halpern says in the New York Review of Books, “In other words, as human behavior is tracked and merchandized on a massive scale, the Internet of Things creates the perfect conditions to bolster and expand the surveillance state.”

Go back forty-four years, to 1970, when NJ Representative Cornelius Gallagher said much the same thing: “By weaving a web of data representing all of an individual’s experience, it seems to me that we are creating a suffocating sense of surveillance in this country.”1


  1. Fair Credit Reporting Hearings on H.R. 16340 Before the H. Subcomm. on Consumer Affairs of the Comm. on Banking and Currency, 29, 91st Cong. (1970) (Statement of Rep. Cornelius E. Gallagher). Gallagher went on to say, “Files which are economically unfeasible to computerize now will undoubtedly yield to further generations of computing machines in a vast nationwide, even worldwide network of information. The question is no longer science fiction.” []

“Because the more people that touch a story, the more that story touches the world.” In conjunction with the launch of, which provides a slick and easy way to find TV shows and movies online, the MPAA also posted this great look at the people working behind the scenes.

In Twist, Publishers Appeal Their ‘Win’ in GSU Copyright Case — The publishers primarily want review of the 11th Circuit’s view that fair use should not be media neutral, agreeing with Judge Vinson’s remarks in his concurrence that “The use of a copyright-protected work that had previously required the payments of a permissions fee does not all of a sudden become fair use just because the work is distributed via a hyperlink instead of a printing press.”

Mission Creep-y — Public Citizen this week issued a scathing report on Google’s practices, concluding the company “is so rapidly expanding both its information-collecting capabilities and its political clout that it could become too powerful to be held accountable.” The public interest group examines both Google’s increasingly pervasive surveillance of the world’s population along with its rapidly expanding hard and soft lobbying and PR.

Taylor Swift — There was a bit of discussion this week about Swift. Here are a few of my favorite takes on it. Robert Levine on why Swift’s decision makes sense for Swift and why it’s not the end of the world if we respect that. The consistently quotable Taylor Swift and the Myth of the Mean Greedy Artist (e.g., “You are not helping the underprivileged by making it impossible for anyone who isn’t already rich and privileged to take up artistic careers.”). Phillip, I disagree, which points out that “cutting out the middle man” should more accurately be described as “taking on the middle man’s responsibilities”; “So yeah, you can do a lot of things without needing a record company, but if you want to do music full time and make a living, maybe even put a couple bucks away for retirement or your kids college fund, then you are going to need help from a lot of people.” Or, finally, Blake Morgan on CNN, figuratively dropping the mic on the Swift discussion.

Exclusive: Taylor Swift on Being Pop’s Instantly Platinum Wonder… And Why She’s Paddling Against the Streams —

But all I can say is that music is changing so quickly, and the landscape of the music industry itself is changing so quickly, that everything new, like Spotify, all feels to me a bit like a grand experiment. And I’m not willing to contribute my life’s work to an experiment that I don’t feel fairly compensates the writers, producers, artists, and creators of this music. And I just don’t agree with perpetuating the perception that music has no value and should be free.

Giorcelli on Italian Opera & Copyright — A fascinating article that looks at empirical data on Italian operas created between 1790-1900, a time period where Italian states were adopting copyright laws at different times. The authors found that adoption of copyright led to a “significant increase” in both quantity and quality of operas created.

Fall of the Banner Ad: The Monster That Swallowed the Web — “Because they are so ineffective, banner ads are sold at low prices for high volume, which means to make any money from them, sites need to pull in major traffic. This business model instilled the idea that page views were a paramount goal of the web, thus spawning millions of low-rent, me-too sites bent on getting your click.”

NPPA Member Justin Cook Reaches Agreement with UNC — The University had originally claimed that since it had found Cook’s photo on the internet, it assumed it was free to use.

Police In Germany Are Trying To Stop Armed Warfare Between Rival File-Sharing Gangs — Yeah, but if you can’t compete when your business is set on fire, than perhaps your business model is outdated.

The Psychological Comforts of Storytelling — The Atlantic looks at why humans have been telling stories for thousands of years and why that’s important.

George R. R. Martin’s Sister: The Economics of Being a Writer — “The implications of this growing inequity for the writing industry are this: in the future, you will need to either a have a wealthy patron, or already be wealthy if you wish to become a writer. Indeed, this is not merely a question for the future; it is the grim reality facing working class and poor writers now.”

I got a rock.

Charlie Brown (1966).

Old Masters — A fantastic series of vignettes from the New York Times Magazines of individuals over the age of 80, many of them artists and craftspeople, who are still hard at work.

Will Google finally admit search a factor in online piracy? — This is the question Ellen Seidler asks of the search giant, which had long maintained that search was not a factor in online piracy. However, after a recent tweak in its algorithm to downgrade sites receiving large numbers of DMCA takedown requests, traffic to those sites has plummeted.

Taking Pictures: A Way for Photographers to Protect Their Work — The New Yorker profiles photojournalist Yunghi Kim, who over the years has documented events and conflict in places like Somalia, Rwanda, Kosovo, and Iraq, and who has seen first hand the damage online infringement causes to photographers trying to bring these photos to the public.

No Lemonade for Aereo’s Lemons — Devlin Hartline looks at the recent decision involving streaming service Aereo, enjoined by a court that rejected its latest argument that it was a “cable service” under the Copyright Act and thus eligible for a compulsory license (immunizing it from copyright liability).

Copyright at Common Law in 1774 (via the 1709 Blog) — An important contribution to the history of copyright. Tomas Gomez-Arostegui presents a compelling case that the “revisionists” who’ve argued in recent decades that a seminal decision in 18th century England held copyright was solely a creature of statute are wrong.

Back to the Future Wouldn’t Have Been the Same Without Spielberg — The film might have been called “Spaceman from Pluto”, for one thing.

A Slippery Slope: the Facilitation of Fair Use as Fair Use — “Even with the limited nature of the decision, it continues a worrisome trend – permitting a for-profit entity to commit direct copyright infringement because of potential downstream fair uses by third parties. While the fair use doctrine has long been nebulous, it should concern copyright owners that that downstream fair use could justify upstream infringement. Under the court’s reasoning, one could assert that it is not copyright infringement for a street vendor to pirate a copyrighted film and sell it to a film critic so that she may review it because criticism and comment are permissible fair uses.”

Himma on the Unlimited Supply of Information — A fascinating (an d brief) take on the scarcity and nonrivalrous arguments in IP.

An intellectual object of any kind can be reached only through the mediation of some intellectual activity.

This is all the more so of complicated intellectual objects like mathematical proofs, scientific theories, and novels. Intellectual objects are not like fruits on a tree that can simply be picked and consumed; someone has to do something to make them available for consumption. Indeed, it might take hundreds of years of concerted intellectual activity on our part to gain reasonable access to an intellectual object in logical space – as was the case with the proof of Fermat’s Last Theorem.


Moreover, and this is crucial, the available supply of intellectual objects can be increased in only the same way that the available supply of material objects can be increased – namely, by deploying a resource that is limited and valuable because it is limited: human labor. Every moment I spend in writing this paper has value to me because I will live for only a limited number of moments. To increase the number of novels available for human consumption, then, someone has to devote her time and her energy, resources of value to any being with a finite lifespan, to produce one. To increase the number of apples available for human consumption (beyond the small number that naturally occur), someone has to devote her time and her energy to it. This is no less true of intellectual objects than it is for material objects.

Copyright, the Internet and Efficient Risk Bearing — Stuart Brotman argues the DMCA could be improved by using an efficient risk-bearing standard. “One of the most basic principles underlying liability rules is that legal responsibility should fall on those who most cost-effectively can limit or eliminate harm. The shape of common law’s tort rules largely is organized around this principle, and so are rules for enforcement of contracts and property rights, including intellectual property rights.”

Streaming Is the Future, Spotify Is Not. Let’s talk Solutions. — “Isn’t it odd that companies like Pandora and Spotify that are not profitable and don’t support artists are thought to behold some kind of gnostic wisdom of economics that defies all logic and reason? Last year Twitter lost $645 million dollars. Record labels have been profitable for over half a century with a sustainable ecosystem that invests in artists and new talent, while also creating hits and stars. It’s time to leave the rainbow unicorn school of economics and faith healing behind and develop real business models based on real economics.”

Smile! Marketing Firms are Mining Your Selfies — So if you’re, say, eating chips in a photo, you’ll be targeted for ads for more chips. Because that’s just how the Internet works.

Common Ground Between Creativity and Innovation — Last week, I was at a conference that explored the similarities between copyright and patent. Here is a summary of that conference.

Is Amazon a Monopoly? — “But on the larger question of whether Amazon is literally and technically a monopoly: Probably not, but the distinction is not all that important. It’s a bully, it’s destroying important institutions, and it’s getting more and more powerful, and its founder now owns the dominant newspaper in the nation’s capital. Amazon controls roughly half the trade in books in the U.S. We may need a new word to describe what it is, but to sit around and debate terminology as we watch the creative destruction seems to me the worst kind of chattering-class hair-splitting.”

Profit, Not Ideology, Motivates Cyberlockers that Facilitate Copyright Infringement — “A vigorous debate has developed in recent years over numerous aspects of copyright protection. There can be little doubt, however, that cyberlockers are profitably inducing copyright infringement on a massive scale. The discussion should thus not be over whether infringement is occurring, but what measures legitimate businesses can take to deter and stop it.”

Creation is Not Its Own Reward: Making Copyright Work for Authors and Performers — Just a few days left to register for this symposium at Columbia Law School in NYC on October 10. The all day event features an impressive lineup of panelists, ending with a discussion featuring US Register of Copyrights Maria Pallante and the USPTO’s Shira Perlmutter.

Music consumption helps drive UK technology sales by £11bn — “A report published by the music industry body BPI suggests music has been a key influence in the demand for smartphones and tablets. The independent study calculates that every 1% increase in demand for music in the UK translates to a 1.4% lift in sales of smartphones, while for tablets the rise is 2.2%.”

Happy Together: Infringement as Conversion — Devlin Hartline takes a closer look at the conversion claim in the recent court opinion finding that owners of sound recordings made before 1972 (the year federal copyright law began securing copyright in sound recordings) have the exclusive right to publicly perform works. Be sure to catch the follow up, Further Thoughts on Infringement as Conversion, for a discussion about the impact (or lack thereof) of the Supreme Court’s decision in Dowling v United States on the analysis.

Veteran Location Manager S. Todd Christensen — Fascinating article on a key but not very well-known role in the making of a film. “First, Christensen reads and breaks down the script, looking at every single location and what it might require. His political skills are necessary as the location manager acts as a go-between, translator and mediator to get things done. They must secure permits and permissions, staff based upon the location’s particulars (this can be hiring anyone from a snake wrangler to a structural engineer), and then manage that location throughout production, making sure it’s left the way it was found.”

Meet Washington Times’ Andrew Harnik, the man behind the camera and photos on your front page — The political and sports photographer talks about his career in this video interview. “It takes years of dedication to perfect this craft.”

When Russians thought the Internet would make them free — “Two decades later and it’s hard to find the traces of our belief in the Russian Internet. The only thing we inherited from the nineties and the Samizdat are the torrents and e-libraries. Copyright is dead: almost any film and any book can be downloaded for free after a five minute search. The film distributors have to make arrangements with pirates about ‘two week vacancies’ after theatre premieres, but the small publishers are just bankrupt. I’m not sure it’s the great result we dreamt in early years of the Internet.”

Bugging Out: How rampant online piracy squashed one insect photographer — Ars Technica presents this story from Alex Wild, telling the far too common tale of the difficulties of earning a living as a photographer. An absolute must-read.

Vast Majority of Top Films, TV Shows are Available Legally Online — You often hear that piracy is caused by a lack of legal options, but a study released this week shows that nearly all recent popular and critically acclaimed television shows and films are available online, legally. The study, by KPMG, found that 94% of 808 top films and 85% of 724 top TV shows were available through at least one of 34 competing legal online video-on-demand services like Netflix or iTunes.

Seventh Circuit Criticizes Second Circuit’s ‘Transformative Use’ Approach to Fair Use — “Kienitz is not the first critique of Cariou‘s interpretation of the fair use doctrine or, in particular, the significance of a work’s ‘transformative use’ on the fair use analysis. … However, as Kienitz is the first Circuit-level critique of Cariou, the opinion represents the genesis of a noteworthy Circuit split on the correct application and significance of a work’s ‘transformative use’ on the fair use inquiry.”

Stanford Promises Not to Use Google Money for Privacy Research — The search giant is essentially paying academic institutions to not study privacy. “Stanford’s Center for Internet and Society has long been generously funded by Google, but the center’s privacy research has proved damaging to the search giant in the past two years. Two years ago a researcher at the center helped uncover Google privacy violations that led to the company paying a record $22.5 million fine. Stanford and Google both said that the change in funding was unrelated to the previous research.”

The Various Views of Volitional Conduct — Devlin Hartline takes a look at responses to a recent Copyright Office inquiry on “volitional conduct” in direct copyright liability.

Dotcom’s Internet Party Fails to Enter New Zealand Parliament — After nearly a year of bluster, the Dotcom founded Internet Party only managed to secure 1.26% of the vote in the New Zealand Parliamentary elections, which, coincidentally, is roughly the same percentage of content on his former MegaUpload service that was non-infringing (joke).

The Little-Known Story of How The Shawshank Redemption Became One of the Most Beloved Films of All Time — A fascinating recap of how the box office dud, released twenty years ago, steadily moved to the top of many people’s list of favorite movies.

Building the Sensational Sets of the Maze Runner — From The Credits, this a-maze-ing behind the scenes look at all the hard work that went into creating the maze landscape of the current box office film. “Fisichella and his team built the Maze walls sixteen feet tall to allow room for lighting above. Visual effects then extended those walls to a hundred feet in post. One of the art department’s biggest engineering tasks was creating a set of practical gates for the Maze. ‘The doors themselves were each 20 feet deep and 20 feet tall, with a 20 foot opening,’ Fisichella said. ‘They were mechanical, so they actually opened and closed on cue and we could have the actors running through them, which makes the film more dynamic than shooting it on blue screen.’ The gates weighed seven thousands pounds each, and the doors were moved by the set’s visual effects crew. ‘It was a challenging installation, to say the least, since we did it out in a field far from our home base,’ he adds.”

The Cult of Jeff Koons by Jed Perl (via CultureCrash) — Jeff Koons is known in the copyright world as a defendant in at least two major decisions involving appropriation art (Rogers v Koons and Blanch v Koons). Here, the New York Review of Books runs a gutting critique of his latest exhibition, a retrospective of his work at the Whitney Museum of American Art in New York City. “Koons, simply put, is Duchamp with lots of ostentatious trimmings. This is not a pretty sight. Duchamp’s readymades have an almost monastic austerity. Koons has bulked them up, transforming the ultimate insider’s art into the art that will not shut up.”

U2 and the Irony of “Permission Rage” — “All those folks busy downloading all that music for all those years that just seemed to be out there for the taking: do you think they were getting anyone’s permission? All the music sitting there on all the torrent sites, waiting to be taken, 24 hours a day—how much of that is up there with anyone’s permission? But oh my goodness, dare to insert 11 U2 songs into my iCloud storage area and suddenly I am Lord High Minister of Permission? Ironic, ain’t it?”

Using Search Results to Fight Piracy — Smith, Sivan, and Telang released a new study this week that examined how the prominence of pirate and legal sites in search results impacts consumers’ choices for infringing versus legal content. Their “results suggest that reducing the prominence of pirate links in search results can reduce copyright infringement.”

Common Ground: How Intellectual Property Unites Creators and Innovators — And if you’re in the DC area in October, consider attending this CPIP conference, with a keynote by Richard Epstein and two days of fascinating panel discussions.

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