“Music confounds the machine” — The transcript of T Bone Burnett’s keynote address at the AmericanaFest is a must read. A sample: “Technology does only one thing- it tends toward efficiency. It has no aesthetics. It has no ethics. It’s code is binary. But everything interesting in life- everything that makes life worth living- happens between the binary. Mercy is not binary. Love is not binary. Music and art are not binary. You and I are not binary. Parenthetically, we have to remember that all this technology we use has been developed by the war machine: Turing was breaking codes for the spies, Oppenheimer was theorising and realising weapons. Many of the tools we use in the studio for recording—microphones and limiters and equalizers and all that—were developed for the military. It is our privilege to beat those swords into plowshares.”

Green v DOJ Memorandum in support of Defendant’s motion to dismiss — Yesterday, the DOJ moved to dismiss the lawsuit filed by the EFF challenging Section 1201 of the Copyright Act under the First Amendment. The Section in part prohibits the circumvention of technological protection measures used to control access to copyrighted works, but as the DOJ points out in its memo here, “laws barring unauthorized circumvention of access controls do not regulate speech any more than laws barring unauthorized access to museums or libraries.”

Google swallows 11,000 novels to improve AI’s conversation — A Google spokesperson claims the use of the novels is fair use, “But [Authors Guild Executive Director Mary] Rasenberger isn’t convinced. ‘The research in question uses these novels for the exact purpose intended by their authors – to be read,’ she argues. ‘It shouldn’t matter whether it’s a machine or a human doing the copying and reading, especially when behind the machine stands a multi-billion dollar corporation which has time and again bent over backwards devising ways to monetise creative content without compensating the creators of that content.'”

Professors Mislead FCC on Basic Copyright Law — In a letter to the FCC regarding its set-top box proposal, a group of IP professors made the claim that a copyright owner’s right to distribute her work does not apply to electronic transmissions of works. But as Devlin Hartline explains here, “every single court that has ever considered this argument on the merits has rejected it.” Yesterday, FCC Commissioners decided at the last minute to postpone the set-top box proposal vote, which was subject to broad criticism by the creative community, among others.

Third Circuit Upholds Jury’s Award of $1.6 Million in Actual Damages for Infringement of Rare Photographs — In a July decision, the Third Circuit affirmed the lower court’s use of “multipliers” in calculating the actual damages to be awarded in an infringement lawsuit. The judge “applied a multiplier of three to five times the benchmark to account for the ‘scarcity’ or ‘rarity'” of the infringed photos “and a multiplier of 3.75 to 8.75 to account for the ‘exclusivity’ of [the] images during the infringement period.”

Feds Jump Into High Court’s Apparel Copyright Case — Give me an ‘S’! Give me a ‘G’! This week, the US Solicitor General filed an amicus brief in Star Athletica v Varsity Brands, where the Supreme Court is being asked to draw the line between the functional and the aesthetic in a copyright case involving cheerleader uniform designs. The SG, joined by attorneys from the Copyright Office, argues, “Nothing in the Copyright Act, which incorporates pre-existing regulatory language that authorized the registration of many designs of useful articles, supports a presumption against the copyrightability of a work that can be characterized as such a design.” The full brief can be found here.

The Paradox of Musical Description — From the Futility Closet: “Unlike the visual or literary arts, music seems to be impossible to describe in words — we’re forced to choose between the senselessly subjective and the incomprehensibly technical.” Perhaps this helps explain why the infringement analysis for musical works can seem so mystifying at times.

T Bone Burnett: Treading on Hallowed Ground – Google, the Ryman, and The Future of Nashville Music — T Bone Burnett writes, “And even when YouTube licenses music, it pays grotesquely below market royalty rates, tossing us scraps and pocket change on a ‘take it or leave it’ basis right out of the Sopranos. Don’t want to license your work at YouTube’s cut-rate rates? That’s fine, but unlicensed copies remain plastered all over the service anyhow. How does Google get away with this?”

Why innovators like Max Martin can benefit from the EU copyright directive — Helienne Lindvall reminds readers that, “songwriters innovate every day of the week. It’s not just us musicians that know this – just last week the Swedish Chamber of Commerce in the UK awarded the Innovation Award to, arguably, the most successful songwriter of the past 20 years: Auddly’s very own Max Martin.”

New Librarian of Congress Offers a History Lesson in Her Own Right — This week saw Dr. Carla Hayden sworn in as the 14th Librarian of Congress. The New York Times profiles Hayden and this historic occasion.

Amazon joins set-top box licensing critics — Amazon, which has not only created a successful OTT video service, but has also invested in the production of its own film and TV programs (programs which this year received 16 Emmy nominations), joins the chorus of other creative professionals, producers, and distributors telling the FCC thanks, but no thanks, to its proposed set-top box rules.

Nobody Is Watching Kim Dotcom’s Livestreamed Extradition Hearing — Gizmodo’s William Turton reports, “Considering extradition hearings are only a notch above watching paint dry, it’s pretty understandable nobody is bothering to tune in. It’s also hard to feel any sympathy for a guy who’s been accused of paying people to upload pirated content and makes these embarrassing god awful music videos about how rich he is.”

Kochan on Sharing & Ownership — Interesting paper examining the link between sharing and property ownership through the lens of psychology, economics, and the law. Those links are strong; as the abstract notes, “When we have a well-developed ownership regime—with a high reliability of enforcing ownership norms—we create the confidence in ownership that ‘ownership understanding’ reveals is necessary for individuals to feel secure in sharing.”

Tech firms urge Congress to pass Pacific trade deal this year — Tech groups, including BSA, CCIA, the Internet Association, and SIIA, are urging lawmakers to ratify the Trans-Pacific Partnership before the end of the year. Among other things, the groups say the TPP “promotes U.S. values of a free and open Internet.”

CJEU says that linking to unauthorised content is NOT a communication to the public unless one seeks financial gain and has knowledge of illegality — In an appeal from the Dutch Supreme Court, the Court of Justice of the European Union ruled that a hyperlink is not infringing unless the creator of the hyperlink knows it is linking to unauthorized copyrighted material. If the link is posted for profit, the court held that there is a rebuttable presumption of such knowledge. The decision, says the CJEU, strikes a balance between “the interests of copyright holders and related rights and…freedom of expression and of information.”

Carla Hayden Swearing-In To Be Broadcast on YouTube — Next week, members of the public will be able to watch as the 14th Librarian of Congress, Dr. Carla Hayden, is sworn in. The ceremony begins at noon on September 14.

At the News Media Alliance, more than the name is changing — The Newspaper Association of America, which represents 2,000 news organizations in the US and Canada, is now the News Media Alliance. The name reflects in part the growing importance of digital, and the Alliance will begin accepting digital-only publishers as members.

Sorry About That: Wells Fargo to End Ads Suggesting Science Over Arts — The financial institution this week apologized about an ad campaign that many took as prioritizing science careers over careers in the arts. On Twitter, the company said it “‘is deeply committed to the arts’ and that the ads ‘were intended to celebrate all the aspirations of young people and fell short of that goal.'”

FCC Chairman Tom Wheeler Puts Forward Big Proposal to Reshape Access to TV Programming — Finally, the agency that tells grown-ups what swears they’re allowed to hear thinks the golden age of television we’re currently experiencing can’t continue without more government involvement.

Copyright’s Race, Gender and Age: A First Quantitative Look at Registrations — Robert Brauneis and Dotan Oliar crunch the numbers on copyright registration applications from 1978 through 2012 to see what demographic information can be revealed.

Motion Picture Unions Opposed to FCC “Set-Top-Box” Proposal — David Newhoff writes, “Just like most labor in the United States, today’s motion picture craftspeople are the beneficiaries of hard-fought rights — many negotiated decades ago — to share in the financial rewards of successful products they do not own. Films and TV shows are mostly made by middle-class, freelance workers whose average, annual incomes comprise not only day rates and overtime, but also residuals and health and pension benefits. These terms are negotiated and managed for most crew and performers by the unions DGA, SAG-AFTRA, and IATSE. These unions are opposed to the FCC ‘Set-Top Box’ proposal because, as it stands, the proposal would break the licensing structure on which their compensation packages are based.”

No, the Internet Has Not Killed the Printed Book. Most People Still Prefer Them. — Though over 500 years old, the technology of the printed book remains widely popular. A recent Pew Research Center reveals that the popularity of the printed book “has not slowed in recent years”, despite the continuing rise of ebooks and ebook readers.

Why a camera might be the least important thing a photographer brings to the job — In case you missed it: I posted an article I wrote on Medium about the importance of separating the tools of creators from the actual creative work, a point sometimes lost. Though the article focuses on photographers, the point is applicable to all types of creators.

Public “Selective” Knowledge — Steve Tepp writes, “Disagreement on law and policy in the field of copyright have become routine. But in the past few weeks, Public Knowledge has crossed the line of civil and intellectual debate, levelling ad hominem attacks against the widely respected U.S. Copyright Office, claiming it ‘has a long history of being bad at its job, and misrepresenting the law.’ But a critical review of Public Knowledge’s own statements reveals that these attacks are baseless, self-serving, and hypocritical.”

The Internet’s Safe Harbor Did Not Just Become A Little Less Safe — Franklin Graves looks at the August 8 decision in BMG v Cox, where the Eastern District of Virginia upheld a jury verdict finding an ISP liable for contributory copyright infringement. Says Graves, “From a corporate prospective, a business has two choices when faced with an arguably gray area of the law. First, they can comply to the best of their ability with statutory requirements as they stand and proceed with disputing the requirement. Alternatively, they can ignore then-current legal requirements, take the chance of being wrong, and suffer the consequences if found to be in violation at a later date. Simply because an ISP has decided to fight the system and lost doesn’t mean the entire system is broken.”

Cloudflare’s desperate new strategy to protect pirate sites — Devlin Hartline on the latest litigation involving Cloudflare. “In April of 2015, several record label plaintiffs sued MP3Skull for copyright infringement, easily obtaining a default judgment when the defendants failed to respond to the suit. Earlier this year, the plaintiffs were granted a permanent injunction, which the defendants quickly flouted by setting up shop under several different top-level domains. Naturally, the common denominator of these multiple MP3Skull sites was that they used CloudFlare. The plaintiffs’ lawyers sent a copy of the injunction against the pirate sites to CloudFlare, asking it to honor the injunction and stop supplying services to the enjoined domains. But, as with Grooveshark, CloudFlare again refused to comply.”

Appeals Court Upholds U.S. Government’s Seizure of Megaupload’s Mega-Millions — The Fourth Circuit is having none of Dotcom’s nonsense, rejecting all his arguments in the civil asset forfeiture proceeding that is running concurrent with the criminal case. In part, the appellate court relied on evidence from the district court that Dotcom intended to avoid prosecution, writing, “For example, Kim Dotcom posted a message to Twitter stating ‘HEY DOJ, we will go to the U.S. No need for extradition. We want bail, funds unfrozen for lawyers & living expenses.’ The court rightly found this and other public statements to strongly suggest Dotcom was resisting extradition to posture for criminal proceedings, using the ability to avoid prosecution as leverage.”

It’s Guest Blog Wednesday featuring Tom Kennedy! — An interview with Tom Kennedy, executive director of the American Society of Media Photographers, who, along with American Photographic Artists, Digital Media Licensing Association, Graphic Artists Guild, Nature Photographers of North America, National Press Photographers Association, and Professional Photographers of America (PPA), have been working hard to create a copyright small claims process in the US Copyright Office.

What happens now after the German Federal Constitutional Court’s Metall-auf-Metall Decision? — Last May’s decision in Metall-auf-Metall reversed a lower court decision finding the use of a non-licensed sample was infringing. As Martin Schaefer at Kluwer Copyright Blog explains, “the use of an excerpt of copyright-protected subject matter can be recognised as a means of artistic expression and artistic design.” And “If there is a conflict between artistic freedom on the one hand and an infringement of copyright or neighbouring rights on the other – an infringement which only slightly impairs the exploitation of those rights – the rightholder’s interest in exploiting those rights may have to give way to artistic freedom.”

Judge Upholds $25 Million Judgment Against ISP Over User Piracy — This week, Judge O’Grady denied Cox’s motion for judgment as a matter of law following a jury verdict that held the ISP liable for copyright infringement. Particularly instructive is O’Grady’s discussion of contributory infringement.

No, The FCC Should Not Have the Power to Cancel Contracts — Kristian Stout at Truth on the Market weighs in on the Copyright Office’s letter explaining the copyright implications of the FCC’s set-top box proposal. Says Stout, “The truth is that Section 106 sets out a general set of rights that inhere in rightsholders with respect to their protected works, and that commercial exploitation is merely a subset of this total bundle of rights. The ability to contract with other parties over these rights is also a necessary corollary of the property rights recognized in Section 106. After all, the right to exclude implies by necessity the right to include. Which is exactly what a licensing arrangement is.”

Art of the Title: Stranger Things — Michelle Dougherty, Creative Director at Imaginary Forces, discusses how the title sequence to Stranger Things, Netflix’s hit summer series, was created.

Can Twitter Fit Inside the Library of Congress? — “In 2010, the Library of Congress and Twitter announced a historic and incongruous partnership: Together, they would archive and preserve every tweet ever posted, creating a massive store of short-form thoughts… Six years after the announcement, the Library of Congress still hasn’t launched the heralded tweet archive, and it doesn’t know when it will. No engineers are permanently assigned to the project. So, for now, staff regularly dump unprocessed tweets into a server—the digital equivalent of throwing a bunch of paperclipped manuscripts into a chest and giving it a good shake.”

Veteran Photographers Say Working for Free has Rarely Paid Off — A number of working photographers share their thoughts on that ever-present expectation for creative professionals to provide their services for free. “There are, of course, certain jobs that a visual journalist must look at and see if taking it on for free is worth it. But overall, doing free work is generally a terrible business practice, according to NPPA board member Brad Smith.”

To Promote American Innovation, We’ve Got to Modernize This Office — Jessica Higa and Alden Abbott of the Daily Signal write, “It is surprising that the Copyright Office is part of the Library of Congress. Copyrights are handled apart from patent grants, which are housed (along with trademarks) in a separate executive agency, the Patent and Trademark Office. The Library of Congress also exists to share information, while the Copyright Office exists to protect intellectual property. The Copyright Office must keep up with digital technology, an important medium for intellectual property. In spite of this, it has been forced to share with the Library of Congress a location, personnel, and what is—for the Copyright Office’s purposes—an extremely antiquated information technology system.”

Music Remixing vs. Remastering: What was licensed in the ABS v. CBS lawsuit? — Washington School of Law Professor Sean O’Connor provides an analysis of the recent decision that found that remastering a sound recording was sufficient to create a new copyrighted work. The case presents many complex issues, including pre-1972 sound recordings. In addition, O’Connor looks at the court’s confusion between the industry practices of mixing and mastering.

Kickass torrent storm: In fight against global piracy, India sets the right examples — “India is definitely on the right track in its fight against piracy, not just in terms of user-engagement, but also on the legal front. Earlier this week, the Delhi High Court too ordered the banning of over 70 websites hosting such content. For once, the West could take a cue from this rising nation on how to prioritise its fight against piracy.”

Improving YouTube’s Content ID could help creators of all stripes — Ellen Seidler writes, “Clearly, Google needs to do a much better job in providing access and accountability with its Content ID and monetization programs. Expand outreach to indie artists. Include them in discussions about how to improve Content ID. Update the interface to make it more intuitive and user-friendly. Open the books so that creators can see exactly how much revenue is earned and where it goes. Be innovative and use Content ID to open new avenues to legitimate use of copyrighted content.”

FCC Set-Top Box Proposal Is About Copyright — Following a request from a number of Representatives, the US Copyright Office this week weighed in on the potential copyright implications of the FCC’s set-top box proposal, concluding that it indeed impacted copyright interests in a way that exceeds the FCC’s authority. David Newhoff breaks it down here.

Open Letter to 2016 Political Candidates — With the conventions of both parties now officially wrapped up, the US starts the 101 day march to the general election. Click the link to add your name to an open letter to all candidates discussing the importance of copyright.

What it takes to be a ‘Ghostbusters’ stuntwoman — “‘Ghostbusters’ shot for four months in Boston, and the stuntwomen trained even while on location. Most days on set, the women challenged one another to handstand contests. They worked out between rehearsals, went to a Parkour gym on days off, and hit mitts in the park. The life of a stuntwoman is to always be training. ‘I always do gymnastics to keep up my body awareness,’ Richardson said of her weekly training habits. ‘I also do judo and Kung Fu and then sometimes driving stuff with one of my friends who is great on motorcycles.'”

The Stories Behind Stranger Things’ Retro 80s Props — A lot of people, including me, have thoroughly enjoyed Netflix’s new series Stranger Things, which premiered July 15. A big part of the show’s appeal is its accurate portrayal of 1980’s Indiana. Wired Magazine talks with the show’s propmaster, Lynda Reiss, who played a critical role populating the world of Stranger Things with the objects that reflect that accuracy.

Why we Love Fair Use — CreativeFuture’s Ruth Vitale explains, “We love fair use because all creativity is a ‘dialogue,’ or an interchange of ideas and inspiration from one artist to another. Fair use is a uniquely American concept; it protects both the original creator and creators who fairly use parts of others’ works. Fair use is a fundamental principle of freedom of expression. And that is the core of creativity.”

Videos From U.S. Copyright Office Moral Rights Symposium “Authors, Attribution & Integrity” Now Available Online — Last April, the Copyright Office, along with the Center for Protection of Intellectual Property, hosted a full day symposium to discuss moral rights in the US. Videos and transcripts of the proceedings are now available. Worth a look if you missed it the first time around.

Copyright Concerns Are Torpedoing The FCC Set Top Box Plan. Why That’s Good For Consumers — Over at Forbes, Larry Downes explains why the FCC’s recent set-top box proposal is not a necessary incursion in the market—the television landscape is innovative and delivering some of the best shows and programs we’ve ever seen. Worse, it threatens to undermine the framework that makes that innovation possible. Also see Kevin Madigan’s article on why a recent response attempting to dismiss the copyright concerns is misguided, Letter on FCC Set-Top Box Regulation Once Again Confuses the Issue.

Dark Patterns are designed to trick you (and they’re all over the Web) — Ars Technica discusses “deliberately confusing or deceptive user interfaces”, which intentionally or inadvertantly drive web users to do things they might not otherwise have, like “setting up recurring payments, purchasing items surreptitiously added to a shopping cart, or spamming all contacts through prechecked forms on Facebook games.”

Jane Ginsburg, Overview of Copyright Law — Ginsburg has posted her chapter from the forthcoming Oxford of Intellectual Property. A great look at copyright’s history, philosophy, and doctrine. This passage from her conclusion is worth quoting here:

Copyright law secures human creativity in works of authorship. Enforceable authorial property rights advance the public interest by promoting an ecosystem of authorship: a robust copyright environment encourages authors to create works that inform and enrich the polity, and from which other authors may draw ideas, information and reasonable amounts of protected expression in their own authorial endeavors. Copyright promotes artistic freedom and free speech by enabling authors to earn a living from their creativity.

What Does Madonna’s Court Victory Mean For Sampling? — Future of Music Coalition takes a closer look at last month’s Ninth Circuit decision in VMG Salsoul v. Ciccone, which concerned the alleged use of a digital sample by Madonna in her 1990 track Vogue.

Owner of Most-Visited Illegal File-Sharing Website Charged with Criminal Copyright Infringement — The DOJ announced this week that it has charged the alleged owner Kickass Torrents with four counts related to his operation of the site, which allegedly enabled illegal reproduction and distribution of copyrighted works on a massive scale. This represents the most significant criminal copyright effort in the US since the 2012 indictment of Kim Dotcom and other operators of Megaupload.

Indie designer accuses Zara of stealing work, Zara says artist’s work isn’t ‘distinctive’ — “Tuesday Bassen is a Los Angeles-based clothing and accessories designer whose work refers heavily to comic book illustrations and a 1950s girl gang aesthetic. Her popular logo ‘mixed emotions club,’ emblazoned across the back of a satin baseball jacket, as well as pins and patches, has become a sort of coveted alt-girl version of the Birkin bag. It’s not as if Bassen is entirely unknown (she told the Daily Dot her website gets about 8,000 visitors per day), which is why she was taken aback by Zara’s response to a cease-and-desist notice her attorney sent the giant corporate fashion house after it appeared to have completely ripped off Bassen’s work.”

CISAC: 90 Years In The Service Of Authors And Composers — “Founded in June 1926 by a small group of authors’ societies, with its headquarters in France and four regional offices, CISAC now represents the interests of more than 4 million creators across the world, from all artistic and literary fields. Now leading CISAC is electronic music pioneer Jean-Michel Jarre in cooperation with a highly multicultural and interdisciplinary group.”