An Awareness Crusade Against the Online Piracy of Books — Author Rhonda Rees was shocked when she discovered pirated copies of her books available online, but soon learned that this was a problem that plagued all authors and the publishing industry. So, Rees says here, “I made it my mission to figure out all that I could about this issue of online book piracy, to become more knowledgeable and aware, and to open up a dialogue between authors, law enforcement, policy makers and the public.”

Dead Kennedys frontman goes after the modern music industry — “As a self-described DIY band, and the only U.S. band that can boast of having a gold record distributed on an independent label, [Dead Kennedys] sits at the crux of technology, distribution, and rights issues that are bringing vehement change to today’s music industry. A change that is, according to [East Bay] Ray, not for the better. Listing the monopolies as Google (with YouTube), Spotify, Apple, Pandora, and Amazon, Ray discusses the way their business models are systemically aborting creativity and diversity from the collective musical commons.”

Google is strip-mining the world’s culture — Author Amanda Foreman cautions that high principles are at stake in the Authors Guild v Google litigation, currently awaiting Supreme Court review of a cert petition. “I know it’s difficult,” she says here, “to imagine the toxic damage caused by Google’s strip-mining of the world’s creative content — especially since right now it offers such a pleasurable “all-you-can-eat” free buffet. But there it is: the world makes, Google takes. And takes.”

An Interview with Mickey Osterreicher, General Counsel of the NPPA — PetaPixel interviews Osterreicher, who handles all legal affairs and policy for the National Press Photographers Association. “Most visual journalists view our profession as a calling. No one really expects to become wealthy in this line of work, but most do expect to earn a fair living, support themselves and their family, and contribute to society. Copyright infringement reduces that economic incentive dramatically. This in turn may abridge press freedoms by discouraging participation in this field. It also devalues photography as both a news medium and art form, thereby eroding the quality of life and freedom of expression that are part of the foundation of this great nation.”

SoundExchange Launches Public Search Website with Access to Industry’s Best ISRC Data — “A free service that provides 24/7 access to data, SoundExchange’s ISRC Search Site will help all parties through improved tracking and reporting of sound recording usage. The database includes nearly 20 million ISRCs reported to SoundExchange. The initiative will also help ensure fast, accurate identification of sound recordings, which will help music creators receive prompt, accurate and fair compensation from the digital services that use their music.”

Software Piracy Hurts Linux Adoption, Research Finds — The theory is that if the commercial product is easily available for free, people will choose that over lower cost or even free open-source alternatives. Thus, weak copyright protections and enforcement hurt open-source developers and independent creators.

YouTube Trial: Juror Says YouTuber’s Incorporation of Unlicensed Clips Is Not Fair Use — The case settled, making the jury verdict, still under seal, moot. But it should give other YouTuber’s pause to know that not everyone considers all user-generated content a fair use free-for-all.

NPPA and other visual arts associations release copyright small claims white paper — “These organizations have identified the creation of a small claims option to be their most urgent legislative priority before Congress. They assert that the cost and burden of maintaining a lawsuit in the only existing venue for hearing copyright infringement claims—federal district courts—is prohibitive and all too often leaves visual artists no way to vindicate their rights. They see a small claims process within the Copyright Office as providing a fair, cost-effective and streamlined venue in which they can seek relief for relatively modest copyright infringement claims.”

Hijacking the Special 301 Process: We will all suffer the consequences — As part of the Special 301 Process US trade negotiators identify foreign countries that are not living up to the IP obligations they’ve agreed to with the US. Unfortunately, recently some groups have been pushing to use it as a vehicle to weaken and dilute IP protections. Hugh Stephens explains more here.

That’swhatshesaid Didn’t Ask Permission Because They Didn’t Have To, Says Attorney — That’swhatshesaid is a show that criticizes the underrepresentation of women in American theater by performing only the female parts from a number of current plays. Attorneys for the performer and playwright responded to a cease and desist from the publishers of some of the plays used in the show by claiming fair use. Based on the facts as discussed here and in other news stories, my guess is that this indeed is a classic example of fair use.

Last week, a group of organizations including the Association of Research Libraries, EFF, and Public Knowledge celebrated “Fair Use Week.”

As part of the celebration, a trio of writers and illustrators released a comic book explaining the Supreme Court’s 1994 Campbell v. Acuff-Rose decision.

Campbell v. Acuff-Rose is the most recent Supreme Court decision on fair use. It is also a pivotal one, adopting Judge Pierre Leval’s “transformative use” framing. 1Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990). Nowadays, this idea of transformativeness predominates fair use analysis. 2See Neil Weinstock Netanel, Making Sense of Fair Use, 15 Lewis & Clark Law Review 715, 734 (2011) (“the transformative use paradigm, as adopted in Campbell v. Acuff-Rose overwhelmingly drives fair use analysis in the courts today”).

One of the authors of the comic is Kyle Courtney, a copyright advisor at Harvard University. Courtney is also the originator of Fair Use Week, launching it in 2014.

Having said all this, it remains startling that the comic incorrectly states the Court’s holding in Campbell.

Campbell began when rap group 2 Live Crew created the song “Pretty Woman”, a bawdy take-off of Roy Orbison’s classic “Oh, Pretty Woman.” They initially sought permission from Orbison’s publisher, Acuff-Rose, but were denied. They released the song anyway, and Acuff-Rose sued.

2 Live Crew claimed the song was a parody, and thus a fair use, and the case went all the way up to the Supreme Court.

The comic walks through the Supreme Court’s analysis, but completely misstates the Court’s conclusion regarding the third fair use factor, which directs courts to look at “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.”

According to the comic, “2 Live Crew’s copying of the original (e.g., the opening bass riff and first line of the Orbison song) was not deemed to be excessive to its purpose.”

Contrast this with what the Supreme Court actually said: “we express no opinion whether repetition of the bass riff is excessive copying, and we remand to permit evaluation of the amount taken, in light of the song’s parodic purpose and character.”

But this misstatement pales in comparison to getting the Court’s holding wrong. The comic concludes, “Overall, 2 Live Crew’s use of Pretty Woman was found to be a transformative fair use.” But that’s not at all what the Supreme Court said. It instead reversed the Sixth Circuit’s decision and remanded the case to the district court “for further proceedings consistent with [its] opinion”—that is, not ultimately deciding whether the use was fair or not.

If anything, the Court was leaning against fair use. Justice Kennedy filed a concurring opinion solely to express his doubts, saying

While I am not so assured that 2 Live Crew’s song is a legitimate parody, the Court’s treatment of the remaining factors leaves room for the District Court to determine on remand that the song is not a fair use. As future courts apply our fair use analysis, they must take care to ensure that not just any commercial takeoff is rationalized post hoc as a parody.

In fact, the two parties settled following the Supreme Court’s decision, with 2 Live Crew agreeing to a license with Acuff-Rose. According to a contemporary news account, Acuff-Rose said of the settlement, “That means we will be getting paid for the song.”

The above demonstrates the importance of care and accuracy when reading cases, as well as the potential pitfalls of relying solely on secondary sources, even from experts.

References   [ + ]

1. Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990).
2. See Neil Weinstock Netanel, Making Sense of Fair Use, 15 Lewis & Clark Law Review 715, 734 (2011) (“the transformative use paradigm, as adopted in Campbell v. Acuff-Rose overwhelmingly drives fair use analysis in the courts today”).

Future of TV Coalition: FCC Set-Top Item Is Google Gift — “Glist said that the set-top proposal was essentially a battle between Google and apps. ‘Google would like to have all information assimilated and searchable through their browser so they can find data and sell ads against their content,’ he said, ‘and they are unhappy with the choice of consumers to consume more and more content, including MVPD and over-the-top video content, through apps, in which they have very little visibility.'”

George Washington key to intellectual property rights — May and Cooper write, “George Washington regarded protection of property rights a matter of justice. He also considered protections for copyrights and patent rights necessary for sustaining the new nation’s economic independence. Washington’s consistent support for IP even precedes the Constitution’s adoption. In the early 1780s, he became an acquaintance of author Noah Webster. Washington’s letters of introduction helped Webster successfully lobby the Virginia legislators for a state copyright law in 1785.”

The Reality of Touring Revenue From Someone Who Has Done It For 32 Years — David Lowery sheds light on the financial aspects of touring for musicians and why it is very rarely a substitute for declining recorded music revenues.

Video: Understanding the Problem Behind #WTFU — Earlier this week, a popular YouTube creator posted a video criticizing YouTube’s approach to protecting copyright, saying, among other things, that it didn’t adequately preserve fair uses of copyrighted material. Here, Jonathan Bailey responds, noting that, while sympathetic to the concerns expressed in the video, the problem is that the amount of material uploaded to YouTube requires the use of automated systems to deal with infringement, and those automated systems are not 100% perfect.

SAG-AFTRA Applauds WIPO Beijing Treaty On Performers’ Rights — This week, the White House transmitted the WIPO Beijing Treaty on Performers’ Rights to the Senate for advice and consent. The treaty, concluded four years ago, sets minimum standards for the protection of audiovisual performers. The White House also transmitted a second WIPO treaty, The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.

How they shot GREASE LIVE — A fantastic interview of Carrie Havel, associate director of Fox’s recent production of Grease Live, that takes a behind the scenes look at the work that went into pulling off the show.

Universal and Disney’s Arrangement on Marvel IP in Theme Parks — Although Universal and Disney are competitors, Universal’s Island of Adventure theme park includes a Marvel Comics attraction, Marvel Super Hero Island. The attraction was licensed prior to Marvel’s acquisition by Disney, and Universal has committed to maintaining that arrangement. This article looks at this interesting arrangement in more detail.

Kacey Musgraves Puts Hammer Down on Stolen Work: ‘Think Before You Buy’ — “Theft is not a compliment,” says the young country music star about unlicensed uses of her song lyrics.

What Exactly Does the EFF Want? — David Newhoff asks, “What in blazes does the EFF want? They don’t like law-enforcement remedies for online piracy, and they apparently don’t want to see voluntary cooperation between OSPs and rights holders either. At a certain point, it seems we have to conclude that what they want most of all is to maintain their relevance by constantly finding a problem for every solution.”

Copyright Works: Professional Authors Tell It as It Is — Read the personal experiences of authors from South Africa, Sudan, Panama, Canada, Australia, Malawi, and India in this booklet from the International Authors Forum.

Sorry slacktivists: The Man is shredding your robo responses — Orlowski: “The EU this week binned thousands of responses to a copyright consultation generated by a Canadian lobbying group OpenMedia, a groupuscule funded by Canada’s technology industry. In December, OpenMedia declared that the European Commission was going to “copyright the hyperlink” and urged people to submit a roboform to “Save The Link”. Scared out of their wits, 75,000 people did just that. The problem was that the scare was entirely bogus. Even academics hostile to copyright declared that the EU wasn’t proposing anything of the sort. The protections safeguarding publishers large and small would remain intact.”

FilmOn X Not Entitled To Cable License, Broadcasters Tell Appellate Court — Last week, broadcasters filed a brief in the Ninth Circuit arguing that the Copyright Act’s compulsory cable license does not apply to internet retransmissions. On Wednesday, they were joined in support by a number of amici, including the Copyright Alliance, the International Center for Law & Economics and the Competitive Enterprise Institute, the National Association of Broadcasters, and the Washington Legal Foundation.

Bestselling Authors and Rights Organizations Support Authors Guild in Asking Supreme Court to Review Authors Guild v. Google Ruling — Amicus briefs supporting the Authors Guild cert petition also rolled in this week. The Authors Guild collects seven of them from a broad group of individuals and organizations.

Authors Guild v Google: The Fair Use Transformed — Speaking of the Authors Guild petition, be sure to check out my article at the Copyright Alliance site explaining why the Copyright Alliance filed an amicus brief supporting Supreme Court review.

Attacking the Notice-and-Takedown Strawman — Devlin Hartline makes a sharp observation regarding criticisms of certain proposals to improve the DMCA notice and takedown process, “supporters of notice-and-staydown today are actually advocating for what the EFF recognized to be reasonable over eight years ago.”

White Paper on Remixes, First Sale, and Statutory Damages — The Department of Commerce’s Internet Policy Task Force, led by the USPTO and NTIA, released its anticipated White Paper on copyright policy yesterday, highlighting a number of recommendations regarding the legal framework for remixes, first sale in the digital environment, and statutory damages.

The High Price of Free — The focus of this article is on web developers, but many of the points are relevant to other creative disciplines. “We know that not paying speakers and not covering speaker expenses causes events to become less diverse. The ability to give time, energy and professional skills free of charge is a privilege. It is a privilege that not everyone has to begin with, but that we can also lose as our responsibilities increase or as we start to lose the youthful ability to pull all-nighters. Perhaps we begin to realize how much that free work is taking us away from our families, friends, and hobbies; away from work that might improve our situation and enable us to save for the future.”

Some Pirate Sites Have Little Respect for their Users — Torrentfreak: “It’s a bitter pill but it needs to be said. While there are thousands that don’t, there are large numbers of pirate sites that fall way below the standards those who pay their bills deserve. Why some site operators sink to these levels isn’t always clear, but aggressive redirects, misleading advertising, fake virus warnings and malware are always unacceptable.”

Cosplay, Copyright and Fair Use — “Despite Public Knowledge’s attempt to have cosplayers believe otherwise (and support them and Star Athletica), cosplayers are not going to feel the brunt of any decision the Supreme Court makes on the designs of cheerleading uniforms. The highest court of the land is not ‘quite literally deciding the test by which the legal status of cosplay will be judged.'”

Torrenting the Oscars 2016 — John August, on a piracy group’s “apology-slash-justification” following a leak of 15 Oscar screeners: “So by leaking the movie before it was released, then backtracking, they’re pretty sure Miramax will make its money back because imaginary math is magic.”

A Primer on Oscar’s Sound Editing and Mixing Categories — Speaking of the upcoming Oscars (February 28), Variety explains two of the categories: sound editing and sound mixing. Contrary to common misconceptions, the former involves editing sounds while the latter involves mixing sounds.

Penguin Random House Ebooks Now Licensed for Perpetual Access — Robert C. Maier, a member of the American Library Association’s Digital Content Working Group, has this to say about the benefits of licensing, “Though we were in shock when HarperCollins instituted its 26-loan limit in 2011, that rental model is now recognized as an attractive alternative to high-priced perpetual access. At this point, the ideal arrangement would be the ability to license any title for perpetual access and to license the same title for a set number of circulations or a set time period, combining the library’s need to build its collection and to meet current popular demand.”

Endless Whack-A-Mole: Why Notice-and-Staydown Just Makes Sense — “A quick search of YouTube today shows that The Hateful Eight, which is still in theaters, is legitimately available for pre-order and is illicitly available to be streamed right now. One wonders why YouTube chooses to compete with itself, especially when it has the tool to prevent such unfair competition.”

It’s Wikipedia mythbuster time: 8 of the best on your 15th birthday — Here’s number 6: “But isn’t Wikipedia all about the democratisation of knowledge, and diversity? No, actually. Wikipedia, being a free resource, holds an inherent price advantage. It has no real competitors. As academic Heather Ford points out, ‘rather than this leading to an increase in the diversity of knowledge and the democratisation of expertise, the result has actually been greater consolidation in the number of knowledge sources considered authoritative.'”

Photographer Sues Twitter for Not Removing Photos Despite DMCA Requests — “The DMCA’s ‘Safe Harbor’ provision protects Internet companies from being responsible for the copyright infringements of their users, but only if they promptly and adequately respond to DMCA take down requests. If a company fails to honor DMCA requests, they could be held liable. Reilly says that’s what happened in this case. ‘Twitter had actual knowledge of the Infringing Uses,’ the lawsuit states. ‘Reilly provided notice to Twitter in compliance with the DMCA, and Twitter failed to expeditiously disable access to or remove the Infringing Uses.'”

No, Piracy Is Not the Sincerest Form of Flattery — Robert Atkinson observes, “while most people would recognize an uptick in criminal activity as a problem, perennial piracy apologists defiantly insist, against logic and evidence, that this is a sign of good fortune for Hollywood.”

In recent years, there have been some attempts to characterize copyright as a government subsidy. Tom Bell, for example, argues that copyrights should not be considered “property” but should instead be considered to belong “to a bestiary of modern, artificial, statutory privileges, such as welfare benefits, farm subsidies… and taxi medallions.” 1Tom W. Bell, Copyright Porn Trolls, Wasting Taxi Medallions, and the Propriety of “Property”, 18 Chap. L. Rev. 799, 813 (2015). Similar charges can be found by other advocates, calling copyright a “subsidy“, a “government subsidy“, or a “government-created subsidy.”

The reason for doing so is primarily rhetorical: at the very least, “subsidy” suggests a higher level of scrutiny than “property” or “right.” At most, anything labelled a government subsidy is treated with the highest level of skepticism. Adopting the label of “subsidy” thus replaces a lot of persuasive work that would otherwise need to be done.

But a Federal Circuit decision last month undermines the characterization of copyright as a government subsidy. The decision, In re Tam, involves trademarks, but its reasoning is both implicitly and explicitly applicable to copyright.

In re Tam

In re Tam looks at the First Amendment implications of federal trademark registration. The Federal Circuit begins by noting that trademarks both “protect the public so it may be confident that, in purchasing a product bearing a particular trade-mark which it favorably knows, it will get the product which it asks for and wants to get” and ensure that trademark holders can protect their “investment from . . . misappropriation by pirates and cheats.” Trademarks may be protected through state and common law. The Lanham Act was passed by Congress to provide a federal system of registering and protecting trademarks.

Federal registration of a trademark by a markholder is optional but confers important substantive and procedural rights. These rights include:

  • Exclusive nationwide use of the mark (common law trademark is limited to the geographic area where the mark is actually used)
  • A presumption of validity, and incontestability after five years of consecutive post-registration use
  • Ability to sue in federal court for trademark infringement
  • Ability to recover treble damages for willful infringement
  • Ability to obtain assistance of US Customs and Border Protection to restrict importation of counterfeit goods
  • Qualification for a simplified process for obtaining protection of works in foreign countries that are members of the Paris Convention
  • A complete defense to state or common law claims of trademark dilution.

Section 2(a) of the Lanham Act, the section at issue here, bars registration of marks that, among other things, “disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute.”

In 2011, Simon Shiao Tam filed an application to register a trademark in the name of his band, “The Slants”, an “Asian-American dance rock band.” A USPTO examiner denied the registration, finding it disparaging. The decision was affirmed by the Trademark Trial and Appeal Board and the Federal Circuit, but the Federal Circuit sua sponte ordered a rehearing en banc to consider whether refusal of disparaging trademarks implicated the First Amendment.

The en banc panel first held that Section 2(a) denies important legal rights to private speech based on its content. It is thus presumptively invalid and can only be justified if the government can prove that it is “narrowly tailored to serve compelling state interests.” The court states that “no argument has been made that the measure survives such scrutiny.”

The government also argued that Section 2(a) does not implicate the First Amendment at all, asserting that denial of trademark registration does not prohibit speech, that trademark registration is government speech, or that trademark registration is a government subsidy. The Federal Circuit rejected all of these arguments.

The third of these arguments is most relevant to the discussion above. As the Federal Circuit explains, the key distinction here is between Congress’s ability to direct government spending and a constitutional prohibition against denying a “benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech.” The Constitution’s Spending Clause, after all, provides Congress discretion over the ability to tax and spend for the general welfare, which includes “‘the authority to impose limits on the use of such funds to ensure they are used in the manner Congress intends,’ even when  these limits exclude protected speech or other constitutionally protected conduct.” However, this authority does not permit Congress “to attach ‘conditions that seek to leverage funding to regulate speech outside the contours of the program itself.'” This is admittedly not a clear distinction, but in essence, “Congress cannot recast a condition on funding as a mere definition of its program in every case, lest the First Amendment be reduced to a simple semantic exercise.”

But the Federal Circuit doesn’t reach this distinction because it rejects the government’s threshold argument, saying, “Trademark registration does not implicate Congress’s power to spend or to control use of government property. Trademark registration is not a subsidy.” It rejects all of the government’s counterarguments, observing that “The restriction on the registration of disparaging marks bears no relation to the objectives, goals, or purpose of the federal trademark registration program.”

The court next underscores the importance of its holding.

Were we to accept the government’s argument that trademark registration is a government subsidy and that therefore the government is free to restrict speech within the confines of the trademark program, it would expand the “subsidy” exception to swallow nearly all government regulation.

Characterizing something as a subsidy invites all sorts of government interference, including that which might regulate speech.

Application to copyright law

The holding in In re Tam applies just as much to copyright as it does to trademark.

In the discussion that follows its rejection of the government’s subsidy argument, the court observes the resemblance between trademark registration and copyright registration. It says that under the logic of the government’s approach, Congress could similarly prohibit the registration of copyrighted works which contain racial slurs or religious insults. “This idea—that the government can control speech by denying the benefits of copyright registration to disfavored speech—is anathema to the First Amendment.” The court notes that the government agrees that copyright registration is protected by the First Amendment, “But the government has advanced no principled reason to treat trademark registration differently than copyright registration for present purposes.”

The Federal Circuit is explicit that there is no daylight between its trademark holding and one that would involve copyright. But the relationship between the two does not stop there. In fact, comparisons to copyright and copyright registration are pervasive throughout the court’s opinion. For example, the court responds to the government’s argument that “accoutrements of registration—such as the registrant’s right to attach the ® symbol to the registered mark, the mark’s placement on the Principal Register, and the issuance of a certificate of registration—amount to government speech.” It says if that was the case, then the same would be true for copyright registration, since that has identical accoutrements. The court observes that “the government would be free, under this logic, to prohibit the copyright registration of any work deemed immoral, scandalous, or disparaging to others.” It concludes that “This sort of censorship is not consistent with the First Amendment or government speech jurisprudence.”

It again draws parallels to copyright when it rejects the government’s argument that federal funding of the Patent and Trademark Office brings trademark registration within the ambit of the Spending Clause, noting that the Copyright Office likewise receives appropriations, but copyright registration is not a subsidy.

So while the Federal Circuit’s holding is about trademark, its reasoning clearly and directly extends to copyright. And its conclusion is clear: not only is copyright not a government subsidy, but to mischaracterize it as such would undermine free speech protections.

References   [ + ]

1. Tom W. Bell, Copyright Porn Trolls, Wasting Taxi Medallions, and the Propriety of “Property”, 18 Chap. L. Rev. 799, 813 (2015).

On Piracy and Promotion — David Newhoff unpacks the numerous fallacies and inconsistencies contained in the argument that piracy is good promotion for creative works.

Piracy apologists’ convenient lie (of omission) that Hollywood profits means piracy doesn’t matter — On that same topic, Vox Indie’s Ellen Seidler looks at the canard that a rise in box office revenues proves that piracy doesn’t matter. For example, says Seidler, one of the effects of piracy is that fewer films are being made. “The Hollywood films that are being made are those that are sure bets to overcome digital theft and still make money. In 2015, the top 5 films made 20% of the revenue.”

Judge Allows Graffiti Artist’s Lawsuit Over Katy Perry’s Met Gala Dress — Over in the courts, a California judge denied a motion to dismiss a claim against the designer of a dress worn by Katy Perry that allegedly copied a design from street artist Rime. Among the claims that survived is one for copyright infringement and one for removal of copyright management information.

Twitter sued for copyright infringement & for ignoring DMCA takedown requests — A photographer has sued Twitter after the service failed to remove 50 of the 56 allegedly infringing works identified in DMCA takedown notices that were sent.