The Future of What | Episode #165 : Unpacking The C.A.S.E. Act — The latest episode of the podcast from Music Business Association president Portia Sabin features Register of Copyrights Karyn Temple and Copyright Alliance CEO Keith Kupferschmid to talk about the copyright small claims bill and other recent developments of interest to independent creators.
At ‘Captions’ Hearing, Judge Hammers Audible’s Fair Use Argument — “When it was Audible’s turn, attorney Emily Reisbaum never really had a chance. ‘First, let me say the product is good,’ Reisbaum began, attempting to explain that the publishers’ portrayal of the product and its error rate was not accurate. Captions is designed to work alongside an audiobook, not ‘divorced’ from it, she argued, and it does not provide a reading experience. ‘What do you mean it’s not a reading experience?’ [Judge] Caproni interjected. ‘It’s words.'”
A Few Observations From the Ninth Circuit En Banc Argument in Skidmore v. Led Zeppelin — On Monday, the full Ninth Circuit heard arguments in the closely watched case concerning allegations Led Zeppelin copied another artist’s work when creating Stairway to Heaven. Attorney Lee Gesmer shares some thoughts on the issues.
Denmark Blocks Sci-Hub Plus Streaming, Torrent & YouTube-Ripping Sites — “Rights Alliance Director Maria Fredenslund informs TorrentFreak that this latest action represents ‘blocking wave 14’ in Denmark and more sites will be targeted in the future. ‘We file about 5-6 cases per year targeting the most popular infringing sites,’ Fredenslund concludes.” And the internet has not broken.
Steal this book? There’s a price — This op-ed from the New York Times details the costs of book piracy, not just in economic terms, but in cultural terms. “We have surrendered our lives to technocrat billionaires who once upon a time set out to do no harm & have instead ended up destroying the world as we knew it. Convenience & the lowest possible price, or no price at all, have become our defining values.”
Mechanical Licensing Collective Requests Over $37 Million for 2021 Launch — The Music Modernization Act called for the creation of a new entity to administer and distribute royalties for the mechanical reproduction of songs by digital services. In July, the US Copyright Office designated the entity to carry out those functions, and now the process of figuring out what everything costs (and who will pay for it) has begun.
Led Zeppelin’s ‘Stairway’ Copyright Battle, Explained — A thorough look (with links to the actual court filings!) at the copyright infringement case involving Stairway to Heaven. Oral arguments for an en banc rehearing in the Ninth Circuit are scheduled for Monday.
Deezer plans to experiment user-centric payment model — Emmanuel Legrand reports that the music streaming service may become the first to adopt a fairer royalty payout model.
The Constitution, Annotated: The Constitution Explained in Plain English — Finally, this week was National Constitution Day, so be sure to check out this wonderful online resource to see how the founding document’s various provisions have been interpreted by courts over the past two centuries. Maybe check out, oh I don’t know, Article I, Section 8, Clause 8.
CASE Act Ready for Full Vote in Congress; Law Would Ease Financial Burden of Fighting Copyright Theft — The big news this week is that HR 2426, which would create a copyright small claims tribunal to help creators settle disputes easily and cheaply, sailed through the House Judiciary Committee. Earlier this summer it had done the same in the Senate Judiciary.
Publishers v Audible: VCRs and DVRs to the Rescue? — Devlin Hartline examines the complaint by publishers against Audible over a feature that automatically converts the licensed audio of an audiobook into unlicensed text, particularly how the direct infringement claim pans out. Also check out Kevin Madigan’s companion piece on how a potential fair use defense would hold up.
CJEU rules that only requirement for copyright protection of designs is their originality — Eleonora Rosati reports on this week’s CJEU decision in Cofemel, regarding the standard of copyright protection for designs. Shades of the 2017 US decision in Star Athletica v Varsity Brands.
Nintendo Wins Blocking Injunction Against Four Piracy-Enabling Sites — “Justice Arnold said that in his opinion it is ‘beyond dispute’ that the sites use Nintendo’s marks in order to promote circumvention devices. He also agreed that the devices were made available to the public on the basis they would be used to provide access to infringing content, since they all mention piracy in promotional material.”
ASCAP & BMI Consent Decrees Review Expected to Conclude This Year While Both Sides Argue Worst-Case Scenarios — Finally, just yesterday public comments in the DOJ’s review of the ASCAP and BMI consent decrees were made public. Read all 877 yourself, or check out this overview from Billboard.
Video Post: Irwin Karp on Drafting the 1976 Copyright Act — The storied copyright attorney and author advocate speaks in this video about the process that led to the current US copyright law, as well as his role in it. A fantastic narrative that puts context and color on the legislative history of the Act.
Pirate Site Blocking Boosts Netflix Subscriptions, Research Suggests — Torrentfreak reports on recently published research that demonstrates that anti-piracy enforcement not only reduces copyright infringement but shifts individuals to legitimate sources of copyrighted works, which is the ultimate goal of any copyright regime.
Congress Members Ask to Grill Google in Roundtable on ContentID Tool — Eileen McDermott reports, “Eight members of Congress have sent a letter to Google Chief Executive Officer Sundar Pichai requesting that the company participate in ‘a roundtable with Congressional offices and members of the creative community’ to discuss its responses to a series of questions relating to Google-owned YouTube’s Content ID tool. The tool is meant to prevent copyright infringing material from appearing on YouTube but has come under scrutiny for its failings in recent years.”
The changing economics of electronic music — An interesting look from Resident Advisor about how the dance music industry fares in a streaming world. “Undeniably, it is easier to publish your music online and hypothetically receive compensation for the downloading or purchase of that music. That is undeniably easier. The fallacy of that kind of logic, which we have been hammered over the head with, of this being this great democratising time, is that people don’t really find that stuff.”
The harsh reality of life as a musician: an interview with Miranda Mulholland — From WIPO Magazine, “Award-winning Canadian musician, record-label owner and festival founder Miranda Mulholland offers a personal account of the realities that artists are facing in the digital era.”
A small claims program for copyright violations? It’s an idea the ABA supports — “The ABA supports legislation that would create a new copyright small claims program within the U.S. Copyright Office to adjudicate copyright small claims more efficiently and economically than federal courts, according to a resolution passed overwhelmingly by the House of Delegates on Monday at the annual meeting in San Francisco.”
Fleet of copyright groups support pirate ship photographer before SCOTUS — “This week, more than a dozen groups including The Copyright Alliance and non-profit the Washington Legal Foundation filed briefs in support of the photographer, who has urged the US’s highest court to revive the Copyright Remedy Clarification Act of 1990 (CRCA) and its abrogation of state immunity.”
SoundExchange Teams With SourceAudio to Help Podcasters License Music — “In a new alliance with the music licensing platform SourceAudio, SoundExchange will give digital music marketplace Podcastmusic.com access to its membership of music creators, and help podcasters secure global licenses for label and publisher-owned music with the click of a button.”
Ads on Pirate Sites Can Hurt Sales, Survey Finds — “The survey in question polled 1,017 adults in the United States. These respondents were asked whether they believe that advertisers should prevent their ads from showing up on dubious sites. In addition, the survey asked whether they would buy less if they saw a brand’s ads on these sites. The results of the survey, perhaps unsurprisingly, show that many people would like advertisers to prevent their ads from appearing on ‘dangerous’ sites. Hate speech, porn, and hacked sites were seen as most troublesome, and pirate sites follow at a distance, with 53% of the respondents urging advertisers to take action for this category.”
Fake News: Senate Moves Bill With NO $15,000 Fines For Sharing Memes Online — Lead Stories, a site dedicated to debunking online hoaxes, takes aim at criticism of the CASE Act, which would establish a copyright small claims process in the US Copyright Office. “Did the U.S. Senate move on a bill that provides fines of up to $15,000 against those who share memes online? No, that’s not true: A trending article making that claim distorts what the proposed copyright legislation would provide. If passed into law, it would provide a voluntary alternative to federal lawsuits for settling small copyright claims. It would not specifically relate to memes shared on social platforms and it would require the voluntary participation of both sides, including the person who allegedly violated a copyright. Also, there are no fines, just damages, which the legislation limits to $15,000 for each infringed work.”
Star Trek writer ‘aped’ author’s work, says Dr Seuss estate — The opening brief in Dr. Seuss Enterprises v. ComicMix was filed this week with the Ninth Circuit. The Seuss estate is appealing a lower court decision that held an unauthorized mashup of “Oh the Places You’ll Go” and elements from the Star Trek franchise was permitted under fair use.
Allen v. Cooper brief for petitioners [PDF] — Also this week, petitioners in Allen v. Cooper filed their opening brief in one of two copyright cases currently in front of the Supreme Court. The question presented is “Whether Congress validly abrogated state sovereign immunity via the Copyright Remedy Clarification Act, in providing remedies for authors of original expression whose federal copyrights are infringed by States.” Petitioners answer: yes. Did I mention the case involves a shipwreck of one of Blackbeard the Pirate’s ships?
Artists vs. Influencers: Why That Street Art Selfie Could Get You Sued — Ashley Cullins of The Hollywood Reporter discusses what may be the next frontier of copyright lawsuits: “social media stars posing in front of murals without getting permission to use the art.”
No-deal Brexit: ‘Big unanswered questions’ for UK music — “The Intellectual Property Office – the government body responsible for intellectual property rights – last year published guidance on copyright in no-deal situation. A spokeswoman says UK copyright laws do not depend on membership of the EU. However, Moss maintains copyright is a ‘central issue’ and has been a real ‘concern’ for BPI members in discussions with officials.”
An argument for the CASE Act — Indie musician, composer, and cellist Zoë Keating cuts through the unfounded claims against the CASE Act, which would create a copyright small claims court for individuals and small businesses, and shares her experiences with infringement. She writes, “My work is supposedly protected by copyright law but when such an infringement occurs I have little recourse beyond sending a stern letter or attempting to shame them on social media. I would like to explain why, from my perspective, the CASE act sounds like a good idea.”
European Court Rules In Favor Of Kraftwerk In 20 Year-Long Copyright Dispute — Billboard reports, “On Monday July 29 the European Court of Justice returned its verdict, ruling that the sampling of a sound recording, even a very short sequence, must be regarded as a reproduction of the original work and therefore require clearance from the rights holders. There are some important and, on the surface, seemingly contradictory exceptions to that ruling though, which could impact on future copyright infringement and sampling cases in Europe. Significantly, the court states that in instances where a producer or artist samples a musical recording ‘in a modified form unrecognizable to the ear’ it does not amount to a reproduction of the original work.” The judgment of the court can be found here.
Artists group urges crackdown on Big Tech — “A trade group representing musicians and other content creators wants Congress to take in their perspectives as it investigates the effects of large tech companies’ market power. The Artist Rights Alliance (ARA) sent a letter on Wednesday to lawmakers leading an antitrust probe into Silicon Valley’s giants, raising concerns about how large internet platforms impact the music business.”
U.S. Publishers Are Still Losing $300 Million Annually To Ebook Piracy — From Forbes: “$300 million in publisher income is lost annually as a result of online piracy, according to data from the Authors Guild presented during Book Expo 2019.”
Third Circuit Reinforces Banana-Costume Injunction — Coming soon to every copyright conference presentation near you, this dispute involving banana costumes. The Third Circuit on Thursday affirmed a preliminary injunction against the alleged infringer, finding the plaintiff’s costume met the threshold for copyright protection and “established a reasonable likelihood that it could prove entitlement to protection for the veritable fruits of its intellectual labor.” The full decision is here [PDF].
It’s Time for Congress to Modernize the United States Copyright Office — Senate Intellectual Property Subcommittee Chairman Tillis writes that his Subcommittee “will convene a hearing later this month to provide oversight and support of the Copyright Office [and] will also announce a bipartisan, bicameral legislative effort to update the Copyright Office.” He further says, “This effort will involve stakeholders from across the copyright community and general public, and it is my hope that our work throughout the fall will produce a bill by the end of this year that provides the Copyright Office with the appropriate structural autonomy and necessary resources it needs to support the America’s creators in the 21st century.”
Do Search Engines Influence Media Piracy? Evidence from a Randomized Field Study [PDF] — “Our data show that reducing the prominence of infringing links in search results causes users who otherwise would have consumed infringing content to switch their consumption to paid legal content, and that these results hold even among users whose initial search queries express an explicit preference for infringing content. This result suggests that even small changes in the cost of discovering pirated content can have a relatively large impact on user behavior.”
Rome Court finds videosharing platform directly liable for content uploaded by users — “A few days ago, the Rome Court of First Instance (Tribunale di Roma) issued what might be one of the first, if not the first decision in Europe, which has found a hosting provider – other than piracy-focused ones like The Pirate Bay – directly liable for content uploaded by users of the platform.”
Major CASE Act Copyright Legislation Passed by Senate Judiciary Committee — “The CASE Act, a major piece of legislation that would introduce a small claims court for copyright infringement cases, has officially been passed by Senate Judiciary Committee, clearing the way for a full vote on the Senate floor.”
Senate Judiciary Committee Passes CASE Act Legislation Streamlining Copyright Disputes — A big step forward for the bill, though it still has a long way to go. Based on recommendations made by the US Copyright Office in 2013, the bill would create a voluntary, inexpensive alternative venue to federal court for small copyright claims, giving individual creators and artists much needed relief.
Teaching Songwriting to World Dignitaries at the United States Patent and Trademark Office — Songwriter and Arts Envoy Amanda Colleen Williams shares her experience: “This week I had the privilege of leading a workshop for the assembled world copyright dignitaries at the U.S. Patent and Trademark Office (USPTO) / GIPA Copyright Seminar 2019.”
Disney Beats Antitrust Claim, But Must Face False Advertising Over Movie Download Codes — Redbox’s kitchen sink defense largely fails. Disney’s lawsuit against the movie rental company, which is aimed at Redbox’s practice of reselling separately the digital download codes that come with DVDs and Blu-Rays, will move forward.
Plagiarism in Pop Culture — Jonathan Bailey explores some of the interesting moral questions involving the events in the recently released film Yesterday. In that film, a struggling songwriter wakes up after an accident to find himself in a world where the Beatles never existed, and thus he is the only one to remember their music. He takes the opportunity to start performing the songs as his own, which launches him into fame and fortune (but at what cost?).
Sound policy, as well as history, supports our consistent deference to Congress when major technological innovations alter the market for copyrighted materials. Congress has the constitutional authority and the institutional ability to accommodate fully the varied permutations of competing interests that are inevitably implicated by such new technology.
——Justice John Paul Stevens, who passed away Tuesday, writing in the seminal copyright decision Sony Corp. v. Universal City Studios, Inc., 464 US 417, 431 (1984).
Why do copyright laws matter? — House IP Subcommittee Ranking Member Martha Roby writes, “Many, many more people and entities besides just big-name celebrities are involved in creating music, television shows and movies. In fact, these creative industries support thousands of indirect jobs that most of us probably wouldn’t even think of. Consider a movie set, for example. From a personnel standpoint, all types of professionals are necessary to make a movie happen, from camera crews and lighting specialists to script writers, makeup and hair artists, florists, caterers, seamstresses and the men and women who perform manual labor to build and take down sets.”
Why the U.S. Copyright Office Chose the Mechanical Licensing Collective — On Monday, the Copyright Office published its decision selecting an entity to administer the blanket licensing of mechanical licenses by digital music services, a process created by the Music Modernization Act. Billboard explores that decision.
More information and better tools to resolve manual Content ID claims — YouTube announced this week that it has rolled out two major changes to improve its copyright claims made by its manual claiming tool, which allows select copyright owners to manually make claims on viceos that were not automatically made by its Content ID matching system. First, copyright owners must now provide timestamps for exactly what part of the video is being manually claimed, and second, claim recipients can use YouTube’s editing tubes to remove the content claimed manually in their videos and automatically release the claims.
Magazine Says Its Stolen Cover Photo Was a Stock Photo… of the Photo — “Renowned photographer Nadav Kander was recently surprised to find one of his portraits used without permission on the cover of a magazine. When confronted with this, the magazine’s explanation was that the image was purchased as a stock photo — a stock photo of the copyrighted photo in an exhibition.”