Focusing on Value — 102 Things Journal Publishers Do (2018 Update) — The internet has not rendered commercial journal publishers obsolete. Here’s a comprehensive list of things they do to add value to scientific, technical, and medical research.

The Faery Tale Adventure: A personal history — For someone who lived and breathed the video game Faery Tale Adventure as a kid, the even-more-wondrous-than-you-can-imagine story of its creation was a joy to read. It should be of interest to copyright fans too, given that the sprawling game was almost exclusively the work of a single individual—including programming, graphics, and music. It’s also fun to read about the creativity that went into coding around the Amiga’s technical limitations.

Can You Copyright a Pose? — Michael Risch takes a closer look at the Ninth Circuit’s recent decision in Folkens v Wyland Worldwide, concerning the protectability of a certain element of an image: the “pose” of two dolphins. Risch writes, “The idea that we ignore near identical poses with near identical subjects simply because the pose might occur in nature troubles me a bit.”

Cloudflare Terminates Service to Sci-Hub Domain Names — Perhaps a sign of progress, as the domain service provider, which had previously balked at disabling sites that have been found liable for infringement by courts, has terminated service to an infringing site after it received a court order.

What Does a Prop Master Do? A Conversation with Elisa Malona — The head of props for The Tonight Show With Jimmy Fallon discusses all the work that goes into creating those objects that actors hold, touch, or interact with.

National Association of Broadcasters Signs on to Support Music Modernization Act — NAB’s support means that there is broad support for the MMA, which was introduced in the House and Senate over the past several weeks. The bill would, among other things, create a licensing collective to administer and distribute mechanical royalties under a newly created blanket license that digital music services can use to reproduce and distribute songs.

How Lamar Alexander brokered deal that led to Music Modernization Act — A compelling behind the scenes look at one of the Senators involved in crafting, and ultimately introducing along with a number of other Senators from both parties, the Music Modernization Act in the Senate.

Project to “Restate” Copyright Law Under Scrutiny — “The hope was that the drafters would take their responsibility and the Advisors’ comments seriously, especially since the Advisory group includes some of the nation’s leading copyright experts, and that at the end of the day a clear, accurate, and balanced Restatement might be produced. As it turns out, very few of the Advisors’ comments have been adopted to date, even though many comments address the accuracy of the draft and/or the need for balance.” For more on the ALI project, check out Concerns over ALI Copyright Restatement Leave Project in Limbo, by Kevin Madigan.

Appeals Court: ISPs Don’t Get Copyright Shield Without Enforcement of Meaningful Repeat Infringer Policy — A fairly significant decision from the Fourth Circuit, which held, among other things, that Section 512’s repeat infringer policy requirement is not limited to only “adjudicated” infringers. The court also rejected Cox’s argument that the Sony Betamax decision acts as an absolute shield from liability rather than, as the Supreme Court held in Grokster, merely one rule among many for establishing fault.

Major Studios, Streamers Win Early Battle in War With TickBox — Although the decision came on a preliminary injunction motion in a district court, it is still significant as it is one of the first decisions to consider the liability of “illicit streaming devices”. The court had little difficulty finding that distributing devices with ready access to infringing content and promoting their use for infringement creates liability.

These Fantastic Oscar Videos Visualize Each Craft Category — These really are fantastic and a wonderful way to showcase some of the behind the scenes craft that goes into making films.

Disney Fights Over the Meaning of “KMPW8WJ7YW6” — Disney sued movie rental service Redbox, after the company began separately selling the codes to access digital copies of movies that accompany many DVD and Blu-ray titles. Disney is now seeking a preliminary injunction, with a hearing on the motion scheduled for February 5.

David Lowery on Spotify Lawsuits and the Battle For Creators’ Rights — “Lowery got his start as an indie rocker in the 1980s with Camper Van Beethoven (best known for the off-kilter “Take the Skinheads Bowling”), then became a presence on MTV in the ’90s with Cracker (“Low”). He still tours and records with both bands. But he started something of a second career at the 2012 SF MusicTech Summit, where he gave a speech — “Meet the New Boss, Worse Than the Old Boss” — that punctured any illusions that YouTube and download sales would leave creators better off. He then started a website called The Trichordist, where he blogs about the music business with the same sarcasm he brings to some of his lyrics, and he has become a prominent voice for creators in the digital age. Now, Lowery has organized the Artists’ Rights Symposium, which will bring policymakers and musicians together on Jan. 22 and 23 at the University of Georgia (UGA) in Athens, Ga., where he teaches about the music business.”

Grumpy Cat owner awarded over $700,000 in lawsuit. Cat still won’t smile. — I suppose I would consider having a cat if it made that much money.

Termination of a Public License — Pamela Chestek looks at a recent decision out of the Eastern District of Virginia dealing with a photographer who posted several photos online under a Creative Commons license alleging infringment against a site operator who copied the photos without providing attribution, as required by the Creative Commons license.

Fred Waring and the Pennsylvanian Litigation — Zvi Rosen looks at litigation during the 1930s involving the protection of sound recordings under Pennsylvania common law.

How Google is Killing the Independent Movie Industry — Independent film producer Cassian Elwes writes, “NAFTA should protect the rights of working Americans in the creative industries – and copyright supports millions of them. 84 percent of all businesses in entertainment employ under ten people – truck drivers, editors, production assistants, writers, caterers, makeup artists – and they all rely on copyright protections to keep their doors open.”

New Rules! (for photo © registrations) — Attorney Leslie Burns discusses the US Copyright Office’s new procedures for registering groups of photographs on a single application, which were released yesterday. There are some important details to keep in mind, but the process will save photographers a good deal of expense when registering.

Small step for copyright, giant step for creators — The CASE Act — Under US law, copyright cases must be brought in federal courts, which, unlike many state courts, do not have a cost-effective mechanism for plaintiffs with small claims. The CASE Act addresses that issue by establishing a small claims board within the Copyright Office, giving those individual creators who cannot afford federal litigation a way to seek remedies when their rights have been infringed.

The Music Modernization Act will provide a needed update to copyright laws — Rep. Doug Collins writes, “This December, countless hours of collaboration and cooperation came to fruition in a compromise that would be the most substantial update to copyright law since 1998. Today, our jeans pockets are more likely to be lined with iPhones than lint balls, yet the laws that currently regulate how tech giants like Spotify pay songwriters were cemented before the concept of digital streaming was born. The Music Modernization Act (MMA) would literally usher copyright laws into the 21st century.”

Not So Blurred Lines — Professor (and rocker) Sean O’Connor delves into some of the underappreciated dimensions of the litigation brought by the estate of Marvin Gaye against Robin Thicke and Pharrell Williams over claims that their song “Blurred Lines” infringed on Gaye’s 1977 classic “Got to Give it Up.” A jury returned a verdict in 2015 in favor of Gaye in the closely watched case, now currently on appeal to the Ninth Circuit.

Wonder Women Series – Ruth Vitale — A wonderful interview with Ruth Vitale, a career film producer who now heads up the creator advocacy coalition CreativeFuture.

Photographer tries novel legal strategy to get UH to pay up — “When local photographer Jim Olive threatened to sue the University to Houston to force it to pay his price for a photo posted on a UH website, the school told him to get lost. As a state institution, the university said, it has sovereign immunity, which protects it from copyright and most other lawsuits.”

Happy New Year, readers!

Study on Expanded “User Rights” Fails Econometric Scrutiny — “Earlier this month, scholars at the American University Washington College of Law’s Program on Information Justice and Intellectual Property (PIJIP) published a paper suggesting that governments around the world should consider weakening copyright protection in favor of expanded ‘user rights.’ The Google-funded report presents an index purporting to show a positive correlation between broad fair use and safe harbor laws and certain economic and scholastic benefits. But, as economist George Ford explains in an essay published last week, the report is an exercise in flawed design and misapplied empirical analysis which cannot be relied upon for informed policymaking.”

Globe and Mail editorial attacks on Canadian creators and broadcasters: what’s up with the Globe? — Barry Sookman takes a closer look at a recent Globe and Mail op-ed to explain why its criticisms of site blocking as a measure to address online piracy don’t hit the mark. Says Sookman, “As I pointed out in a prior blog post, website blocking of pirate sites is a tried and true way of addressing internet piracy among many of Canada’s trading partners. Further, the courts which have addressed ISP blocking have found that such orders do not violate freedom of expression values. In short, orders that target Internet pirates cannot be considered as a ‘frontal [or any other kind of] attack on online freedom’.”

Dish Network Files Two Lawsuits Against Pirate IPTV Providers — “In broad terms, there are two types of unauthorized online streaming of live TV. The first is via open-access websites where users can view for free. The second features premium services to which viewers are required to subscribe. Usually available for a few dollars, euros, or pounds per month, the latter are gaining traction all around the world. Service levels are relatively high and the majority of illicit packages offer a dazzling array of programming, often putting official providers in the shade.”

Spotify Hit With $1.6B Copyright Lawsuit Over Tom Petty, Weezer, Neil Young Songs — “On Friday, Wixen Music Publishing filed a lawsuit in California federal court that alleges that Spotify is using Petty’s ‘Free Fallin’,’ the Doors’ ‘Light My Fire’ and tens of thousands of other songs without a license and compensation. The plaintiff is seeking a damages award worth at least $1.6 billion plus injunctive relief. Wixen’s lawsuit is being revealed here for the first time, but the move will come as hardly a surprise to those who have been paying attention to Spotify’s growing copyright problem.”

What wonders does 2018 have in store for the world of U.S. copyright law and policy? As I’ve done in previous years (2017, 2016, 2015), I’d like to take a look at what we might expect over the coming year. Last year, I noted how difficult U.S. policy predictions would be given the political landscape—an easy prediction to make and one that was true several times over. That unpredictability should continue through 2018, and perhaps become greater with the 2018 mid-term elections in November.

Congress

As noted above, 2018 is an election year, which means (1) any bills that aren’t passed by the end of the session expire and (2) those members of Congress who are running (the entire House of Representatives and one-third of the Senate) will spend more time toward election efforts the closer we get to November and less time on legislative matters. To add to the political overtones of the next year, House Judiciary Committee Chairman Bob Goodlatte’s term as Chairman ends with the end of the current Congressional session.1This would be so even if Goodlatte hadn’t decided to resign at the end of the session; Republican Conference rules limit members from serving more than three consecutive terms as a Committee Chair. The Committee has jurisdiction over copyright law, and during his term, Chairman Goodlatte has overseen a comprehensive review of copyright law, with twenty hearings, extensive stakeholder consultations, and an initial policy proposal addressing issues relating to the operation of the U.S. Copyright Office.

Those proposals included “granting the Copyright Office autonomy with respect to the Library of Congress, requiring the Copyright Office to maintain an up-to-date digital, searchable database of all copyrighted works and associated copyright ownership information.” As anyone who has registered a copyright with the Office or searched the Office’s records knows, the technological systems of the Office are outdated. And as the Judiciary Committee has recognized (as has this blog), the technological shortcomings of the Office’s systems have been exacerbated by its placement as a service unit within the Library of Congress, an agency with a distinct mission and sometimes dissimilar technological needs.

Given the lack of a permanent Register of Copyrights, the House Judiciary Committee moved part of the policy proposal, elevating the Register of Copyrights to a Presidential Appointee, forward as a standalone bill, the Register of Copyrights Selection and Accountabiity Act (H.R. 1695). The bill was passed by the House with a vote of 378-48. Senate Judiciary Committee leadership from both parties introduced a Senate companion bill following the House vote, but the bill was referred to the Senate Rules Committee, where it continues to sit today. 2018 brings only questions about this bill—will it move forward, will an alternative emerge, or will the Librarian of Congress restart her search for a permanent Register of Copyrights?

Music licensing is often mentioned as the next highest item on the copyright legislative agenda,2In their statement accompanying the introduction of the first copyright policy proposal, Chairman Goodlatte and Ranking Member Conyers said, “Nothing should be read into the fact that we are only releasing a policy proposal on one topic today. This is just the beginning of this stage of the copyright review, and we intend to release policy proposals on music licensing issues and other individual issue areas in time.” and so we may see movement over the next twelve months on that issue. Just before the end of the year, Rep. Doug Collins, along with Rep. Hakeem Jeffries and six additional co-sponsors from both parties, introduced the Music Modernization Act. Although the bill’s title refers to music in general, the provisions are directed solely at the musical composition side of the industry, leaving aside sound recording issues. The bill would create a Mechanical Licensing Collective that would administer blanket mechanical licenses for interactive streaming or digital downloads of musical works; establish a “willing buyer/willing seller” standard for setting rates under Section 115; assign a random judge to hear ratesetting disputes under the ASCAP and BMI consent decrees; and repeal Section 114(i), which bars rate court judges from considering sound recording royalty rates as a relevant benchmark when setting performance royalty rates for songwriters and composers. The bill joins other music bills introduced this session, including the CLASSICS Act, the AMP Act, and the Fair Play Fair Pay Act, among others. The complexity of the issues within the music licensing sphere makes any legislation a challenge, so we will see what progress 2018 brings there.

Finally, this past October saw the introduction of H.R. 3945, the Copyright Alternative in Small-Claim Enforcement Act, which would establish a voluntary tribunal within the Copyright Office to hear copyright claims under $30,000 in total damages. The goal is to create a stream-lined, easy to use venue that would provide relief to copyright owners who are unable to file suit in federal court due to cost or difficulty in finding representation. The bill is the result of years-long efforts by visual artists and other independent and individual creators, and they continue to mobilize grassroots support for the bill.

In sum, there are a number of substantive bills teed up for the 115th Congress as it finishes out its session in 2018. We shall see what gets done over the next twelve months and, in particular, what role the end of Chairman Goodlatte’s tenure as Chair of the House Judiciary Committee plays.

U.S. Copyright Office

We should see the release of the Copyright Office’s anticipated report on the impact and effectiveness of the safe harbor provisions in Title 17. The Office announced the study in the final hours of 2015 and then held a series of public roundtables as well as two rounds of public comment. This is the first comprehensive look at the safe harbor provisions by the Office since they were created through the DMCA two decades ago. It is not uncommon for the Office to propose legislative changes in its report—whether it does so here, and, if so, what it would recommend, remains a question that 2018 should answer.

In June, the Office announced the beginning of the seventh triennial rulemaking for temporary exemptions to section 1201’s prohibition against circumvention of technological measures that control access to copyrighted works. It has since begun three rounds of public comment as part of the rulemaking, a process that will conclude March 14, 2018, followed by public hearings the week of April 9. If the timeline of this rulemaking adheres to that of previous rulemakings, we can anticipate a final rule some time third quarter 2018.

The Office has also been on a rulemaking spree over the past year, laying the regulatory groundwork for modernization of its IT systems. The overall plans for modernization, proceeding as part of a centralized Library of Congress IT modernization effort, can be found in a Modified USCO Provisional IT Modernization Plan released in September 2017. The Plan notes that development of a new electronic Recordation system will begin in 2018, while business requirement analysis and planning of a new electronic Registration system will also take place over the next year.

U.S. Patent and Trademark Office

We will likely see the confirmation of Andrei Iancu as Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office in the early weeks of 2018. Iancu was nominated in September to replace Michelle Lee, who resigned in June after serving in the role for three years. A confirmation hearing was held at the end of November, and his nomination was reported favorably out of the Senate Judiciary Committee December 14, leaving only a floor vote before Iancu can begin.

The copyright policy work of the USPTO otherwise marches along. The PTO’s Office of Policy and International Affairs is part of the Department of Commerce’s Internet Policy Task Force, along with the National Telecommunications and Information Administration, which continues work stemming from its 2016 White Paper on Remixes, First Sale, and Statutory Damages. Right before the end of last year, the Task Force announced the second public meeting on “Developing the Digital Marketplace for Copyrighted Works.” The Task Force has indicated that the topics covered would include “(1) initiatives to advance the digital content marketplace, with a focus on standards, interoperability, and digital registries and database initiatives to track ownership and usage rights and facilitate licensing; (2) innovative technologies (e.g. blockchain, artificial intelligence) designed to improve the ways consumers access and use photos, film, music, text, and other types of digital content; (3) international initiatives, including the role of government in facilitating such initiatives and technological development.” It has also stated that there will be no legislative or policy outcomes from this meeting; its goal is instead to “facilitate constructive, cross-industry dialogue among stakeholders about ways to promote a more robust and collaborative online marketplace for copyrighted works.”

Trade

Negotiations between the U.S., Canada, and Mexico to modernize the North American Free Trade Agreement (NAFTA) began August 16, 2017, and an update of the Agreement’s Intellectual Property chapter is on the agenda. Coming into force in 1994, NAFTA’s intellectual property chapter was implemented during the infancy of the modern internet and before the growth of digital commerce. Negotiators concluded five rounds of talks in 2017; the sixth round is set for January 23-28, 2018, in Montreal, Canada. The (perhaps overly optimistic) hope to conclude talks by the end of 2017 was dashed early on. Though the hope for conclusion in early 2018 still exists, a number of factors complicate it: for example, the 2018 Mexican general election in July, the expiration of U.S. Trade Promotion Authority in July, and the 2018 U.S. mid-term elections in November, to name a few.

The contours of the copyright provisions will likely be similar to those seen in previous free trade agreements, such as the KORUS FTA. That’s not to say they will be identical or that there are not live issues among U.S. copyright stakeholders—particularly on the questions of how the Agreement should address liability for online platforms and limitations and exceptions. But the ultimate fate of NAFTA will be driven more by big-ticket, non-copyright provisions, such as those dealing with automobiles, dairy, and dispute resolution procedures. If those can be resolved, then we should know roughly what to expect in the agreement’s intellectual property chapter.

Happy 2018, copyright fans!

References   [ + ]

1. This would be so even if Goodlatte hadn’t decided to resign at the end of the session; Republican Conference rules limit members from serving more than three consecutive terms as a Committee Chair.
2. In their statement accompanying the introduction of the first copyright policy proposal, Chairman Goodlatte and Ranking Member Conyers said, “Nothing should be read into the fact that we are only releasing a policy proposal on one topic today. This is just the beginning of this stage of the copyright review, and we intend to release policy proposals on music licensing issues and other individual issue areas in time.”

Happy holidays to all my readers! This will be my last post in 2017. See you all in 2018!

The Vanishing Benefits of Fair Use: A Review of the Flynn-Palmedo Study on “User Rights” in Copyright Law [PDF] — Dr. George Ford of the Phoenix Institute analyzes a recently released paper which concluded that broader “user rights” are beneficial. Dr. Ford finds “the statistical results of the Flynn-Palmedo Study are merely the consequence of basic errors in both the design and implementation of the empirical analysis, rendering spurious correlations.”

Court of Appeals Sides With Songwriters, Publishers on Fractionalized Licensing: ‘This Is a Massive Victory’ — The Second Circuit held that the consent decree that BMI operates under does not require the PRO to provide full licenses to the songs in its repertoire, as the DOJ had said last year after completing a review of the decree.

Russian-Language Video Service eTVnet Sued for Allegedly Streaming Stolen Content — Although a defendant alleged to be engaged in streaming pirated content is not unusual, the twist in this recently filed lawsuit is that the plaintiff is not a copyright owner but rather a competing streaming service. The service, TUA.tv, claims that eTVnet’s provision of allegedly infringing content gives it an unfair advantage in the streaming market and makes it liable for unfair business practices and making false or misleading statements of fact.

Nadler wins top Dem spot on Judiciary — Among the House Judiciary Committee’s sweeping jurisdiction is copyright law, making the race for Ranking Member following the resignation of Rep. Conyers a closely watched one by many in the copyright community. Rep. Nadler, the senior Democrat on the Committee, took the spot after a vote this week, fending off a challenge from the next most senior member, Rep. Lofgren.

Sesame Workshop & International Rescue Committee Awarded $100 Million for Early Childhood Education of Syrian Refugees — “Sesame Workshop and IRC will use the $100 million grant to implement an evidence-based, early childhood development intervention designed to address the ‘toxic stress’ experienced by children in the Syrian response region—Jordan, Lebanon, Iraq, and Syria. The project will improve children’s learning outcomes today and their intellectual and emotional development over the long term.” The program will include a local version of Sesame Street.

How Piracy Can Hurt Consumers — One of the challenges copyright supporters face is that the effects of the law are long term and, given their subjective nature, difficult to measure. Here, researchers consider this challenge and compare the number of Academy Award winning films produced in different countries to see if there is a correlation with the rate of piracy within those countries. And indeed there is. “In Italy and Mexico, two countries in which piracy has strongly influenced demand, the number of awards decreased significantly from the pre-piracy to the post-piracy period, whereas in the U.K. and France, two countries in which piracy has had a smaller effect on demand, the number of awards won increased meaningfully.”

Website blocking proposal good policy — Barry Sookman analyzes a recent proposal in Canada that would provide that country’s telecommunications regulatory agency with authority to block websites engaged in infringement.

Federal Courts Not Empowered to Cancel Copyright Registrations — “[Plaintiff’s] Complaint raises two distinct issues: (1) the validity of [Defendant’s] registration; and (2) rightful ownership of the copyright. Although ‘copyright’ and ‘registration’ are sometimes treated as synonyms in common parlance, it is important to distinguish these two legal concepts. A copyright ‘exists automatically upon the creation and fixation of an original work of authorship in a tangible medium of expression.’ A registration, in contrast, is granted by the Copyright Office, and the Copyright Act conditions certain statutory benefits—most notably, the right to sue for infringement—on registration. In other words, copyrights exist by virtue of the author’s creation, while copyright registrations exist by grant of the Copyright Office… Nothing in the Copyright Act, nor any other federal statute, grants federal courts the power to cancel or nullify a copyright registration.”

“Big Pimpin'” Appellate Arguments Focus on Labels — In a long running court battle, an Egyptian composer is suing Jay Z over the use of a 1957 song that was sampled by Jay Z for his 1999 song “Big Pimpin'”. The case is now in front of the 9th Circuit, which recently heard oral arguments on the question of whether the Egyptian composer has standing to sue. And that question involves a meaty discussion regarding Egyptian moral rights and whether they are analagous to US derivative work rights.

Some Good Copyright News From Down Under — David Newhoff writes, “Because copyrighted works are uploaded by users, a platform like YouTube remains shielded from liability but still free to reap the rewards of traffic driven by the high volume of infringement. The fundamental flaw in the policy should be obvious: where a corporation has both financial incentive and zero liability, it’s probably going to make some effort to profit from whatever conduct was supposed to be mitigated by the policy. Both the harm done to creators and the untouchable market dominance of YouTube are unintended results of the safe harbor provisions in the DMCA.”

Miranda Mulholland brings crucial message to Ottawa in ‘Redefining Success in a Digital Marketplace’ speech — “On Nov. 22, Miranda Mulholland brought an important and timely message to Ottawa as she delivered a keynote speech at the Economic Club of Canada. In addition to her credentials as a talented artist and entrepreneur, Mulholland has emerged as a trailblazer in the global artists’ rights movement: in May, she became the first creator to deliver a keynote address at the Economic Club of Canada, and recently spearheaded a letter co-signed by 100 fellow artists on recommendations for a reformed Copyright Board of Canada.”

Seven Years of Hadopi: Nine Million Piracy Warnings, 189 Convictions — The latest report from the French agency administering an anti-piracy graduated response regime delivers the latest numbers, but also notes the need to address emerging piracy issues, such as “fully-loaded” streaming media boxes.

A Quick Update on the Display Right — A decade ago, the Ninth Circuit held that infringement of the public display right required possession of the copy being displayed. This “server test” thus meant website operators could display images via embedding or framing without running afoul of the public display right so long as the image remained on a third-party server. Last week, a Texas district court declined adoption of the server test, saying, “The text of the Copyright Act does not make actual possession of a copy of a work a prerequisite for infringement. To display a work, someone need only show a copy of the work; a person need not actually possess a copy to display a work.”

A New NAFTA Must Protect the Rights of Copyright Owners and Creators — “The reality is that the companies arguing for exceptions are no longer exceptional, and they should be subject to the same rules as any other entity that wishes to access, reproduce, or distribute copyrighted content. To allow otherwise would mean turning our back on the American cultural exports that have truly changed the world.”

A Bill in Congress That Will Empower a New Generation of Creators — “The next generation of creators deserves copyright protection that is as pioneering and forward-thinking as they are. They deserve practical solutions to the real-life problems they face as creators. This bill is the first step.”