Senate Introduces Music Modernization Act — Two weeks after the House passed its version of the bill 415-0, the Senate has introduced the Music Modernization Act, a legislative package of critical music licensing reforms. The Senate Judiciary Committee is holding a hearing on the issues next Tuesday, with Smokey Robinson among the witnesses.

Copyright Office Invites Creative Solutions — The Copyright Office’s Frances Carden writes, “The buzz around here has been big–you may remember my April post about the establishment of the Copyright Modernization Office (CMO) that directs all modernization initiatives across the U.S. Copyright Office–and it’s getting bigger and bolder.”

Invisible Labor and Digital Utopias — “As a woman who writes online about technology, I have grown far too tired of ‘permission-less-ness.’ Because ‘open’ doesn’t just mean using my work for free without asking. It actually often means demanding I do more work – justify my decisions, respond to accusations, and constantly rethink how and where I want to be and am able to be and work on the Internet. So I’ve been thinking a lot, as I said, about ‘permissions’ and ‘openness.’ I have increasingly come to wonder if ‘permission-less-ness’ as many in ‘open’ movements have theorized this, is built on some unexamined exploitation and extraction of labor – on invisible work, on unvalued work. Whose digital utopia does ‘openness’ represent?”

Music as a Matter of Law — “What is a musical work? Philosophers debate it, but for judges the answer has long been simple: music means melody. Though few recognize it today, that answer goes all the way back to the birth of music copyright litigation in the nineteenth century. Courts adopted the era’s dominant aesthetic view identifying melody as the site of originality and, consequently, the litmus test for similarity. Surprisingly, music’s single-element test has persisted as an anomaly within the modern copyright system, where multiple features of eligible subject matter typically are eligible for protection.”

On April 25, the U.S. House of Representatives passed the Music Modernization Act, H.R. 5447, by a vote of 415-0. The comprehensive bill “updates music copyright laws by creating a new compulsory blanket licensing system for mechanical works, updating the rate standards applicable to music licensing, modifying the rate setting process in the Southern District of New York, providing copyright royalties to pre-1972 artists, and ensuring that producers, mixers, and sound engineers are able to receive compensation for their creativity.” 1H. Rep. No. 115-651 (2018). The unanimous vote is a reflection of the extraordinary consensus among all parts of the music industry, including digital service providers.

Following passage, Stanford professor and Durie Tangri partner Mark Lemley tweeted:2“House unanimously passes copyright reform act that unfortunately includes term extension for sound recording performance rights for as long as 144 years.”

He was referring to Title II of the bill, an amended version of the CLASSICS Act (H.R. 3301), which would mandate royalty payments for sound recordings fixed before February 15, 1972, for certain digital performances. His point was echoed by Krista Cox, director of public policy initiatives at the Association of Research Libraries, who wrote in Above the Law, “The biggest issue is that CLASSICS extends copyright term for sound recordings beyond what a sound recording today would be granted.”

These statements are strikingly incorrect.

Pre-1972 Sound Recordings

First, a bit of background. There are two relevant copyrights involved in music: one for the musical composition—the “melody, rhythm, harmony, and lyrics, if any”3Compendium of U.S. Copyright Office Practices, Third Edition, 802.3. —and another for the sound recording—a recorded performance or production of a musical composition. It’s also helpful to identify the most relevant rights involved in the exploitation of each copyright: for the musical composition, those rights include reproduction and distribution, mechanical reproduction, and public performance; for the sound recording, they include reproduction and distribution, and digital performance.

The reproduction and distribution of musical compositions was protected under the original Copyright Act of 1790.4Musical compositions in printed form were protected as “books” under the 1790 Act. Congress recognized musical compositions as a discrete category beginning in 1831. The public performance right for musical compositions was added in 1897. A mechanical reproduction is a copy of the musical work onto an object or device that requires mechanical means to be perceived. The term originally referred to piano rolls, but also applies when a musical composition is “copied” onto a sound recording. The 1909 Copyright Act expressly provided for a right of mechanical reproduction for musical compositions.

Copyright protection for sound recordings took a bit longer, and that history creates the issue that the CLASSICS Act addresses. Unlike musical compositions, sound recordings were not initially protected by federal copyright law as part of any existing categories of works. The commercial market for sound recordings began to grow in the early 20th century, but efforts to expressly provide for federal protection of sound recordings in the 1920s and 1930s were unsuccessful.5Kevin Parks, Music & Copyright in America: Toward the Celestial Jukebox, pp 103-107 (ABA 2012). Recording artists and record companies turned then to state courts and legislatures for relief. Beginning in the late 1960s, several states passed criminal antipiracy statutes for sound recordings.6US Copyright Office, Federal Copyright Protection for Pre-1972 Sound Recordings, pg 20 (2011) (“Pre-72 Report”. During that time, Congress was engaged in a wholesale revision of the Copyright Act, which would include federal protection for sound recordings, but revision efforts stalled in the mid-1960s over unrelated issues. Rather than waiting (and for other reasons), Congress separately passed a bill to provide federal copyright protection to sound recordings, the Sound Recording Amendment Act of 1971. Most importantly, the bill only applied prospectively—that is, it only afforded federal copyright protection to sound recordings fixed after the bill’s effective date of February 15, 1972. It also did not provide for the protection of public performance of sound recordings.

Wholesale revision of copyright eventually did pass and became the Copyright Act of 1976. It retained the carve-out for pre-72 sound recordings and provided that state laws that applied to those works were not preempted.717 USC §301(b). That meant that all copyrightable works were protected under the unitary scheme of the federal copyright law save for pre-72 sound recordings, which continued to receive whatever protections state and common law afforded them. That includes not only the criminal antipiracy statutes mentioned above, but also state civil statutes, state tort law claims such as unfair competition, misappropriation, conversion, and right of publicity, and common law copyright protections. At the same time, recognizing that many of these state and common law protections lasted in perpuity, Register of Copyrights Barbara Ringer recommended the Copyright Act include a cutoff date for any laws protecting pre-72 sound recordings, at which point the recordings would be protected under federal copyright law.8Pre-72 Report at 16. That cut-off date was extended along with the general term of copyright in 1998 and is currently set at February 15, 2067.917 USC §301(c).

Congress created a narrow right to perform sound recordings publicly by means of digital audio transmission in 1995. It added the statutory license for that right found in Section 114 of the Copyright Act as part of the Digital Millennium Copyright Act in 1998. That license covers noninteractive internet services and satellite digital audio services. But like the rest of the federal copyright law, it is only applicable to sound recordings fixed after 1972.

In 2011, the U.S. Copyright Office, as directed by Congress through the Omnibus Appropriations Act of 2009, issued a study on “the desirability of and means for bringing sound recordings fixed before February 15, 1972, under federal jurisdiction.” In the report, the Copyright Office concluded that pre-72 sound recordings should be brought within federal protection, finding, among other things, that “Congress did not articulate grounds for leaving pre-1972 sound recordings outside the federal scheme and there is very little information as to why it did so.” It noted, however, that doing so would require resolving challenging, but not insurmountable, issues related to ownership, term of protection, and registration, among others.

The CLASSICS Act takes a narrower approach, tailored to the problem of pre-72 recording artists and owners being left out of the revenue their work generates as music consumption shifts from sales and downloads to digital streaming.10Ben Sisario and Karl Russell, In Shift to Streaming, Music Business has Lost Billions, New York Times, March 24, 2016. It is an open question whether pre-72 sound recordings have any performance rights under state and common law,11See Zvi Rosen, Common Law Copyright (2016) for a thorough look at the extent to which common law copyright includes a right of public performance. and in recent years, there have been a number of lawsuits launched arguing they do. To date, the high courts in New York and Florida have resolved that question with a no; California has yet to decide in a separate lawsuit.12In March 2017, the Ninth Circuit certified the question for the California Supreme Court to decide. But that still leaves over forty states. The CLASSICS Act would subject pre-72 sound recordings to the existing Section 114 statutory license, so they would be treated the same as post-72 sound recordings in that context. That means legacy artists can share in the value of the works that they have created while streaming services benefit from a more certain legal environment.

Inventing an extension

With that background in mind, let’s look at the claim that the CLASSICS Act “includes term extension for sound recording performance rights” or “extends copyright term for sound recordings.” It does not. As discussed above, pre-72 sound recordings are protected under state and common law (protection which, again, is indefinite and potentially perpetual). Under 17 USC § 301(c), this protection lasts until February 15, 2067, at which point, the sound recordings are brought under federal protection and any state and common law rights are preempted. At that point, the term of copyright protection subsists for the duration provided by 17 USC § 303, which applies to all copyrighted works not published or copyrighted before the effective date of the current Copyright Act. That scheme was established in the 1976 Copyright Act (and the cutoff year was extended to 2067 as part of the 1998 Copyright Term Extension Act). Cox incorrectly asserts that the cutoff date is the creation of the CLASSICS Act:

Again, current copyright term in the United States is already too long, but CLASSICS would make this problem even worse. Think 95 years is excessive? How about 144 years? Yes, that’s right. In Congress’s infinite wisdom, in what some members of Congress claimed to be an effort to create greater equity, sound recordings fixed between 1923 and 1972 will claim copyright protection in 2067.

The CLASSICS Act does not change any of these provisions. Copyright protection in pre-72 sound recordings will subsist after the bill passes for however long it would subsist under current law.

But perhaps when Lemley and Cox say “term extension”, they don’t actually mean that the duration of protection would be prolonged. Rather, they mean that the right to receive royalties under the Section 114 statutory license provided by the CLASSICS Act could be considered an extension either compared to the current level of protection for pre-72 sound recordings, or compared to the term of protection for post-72 sound recordings. But neither of these arguments bear out.

As noted above, it is an open question whether pre-72 sound recordings have protection for digital performances under state and common law. If, on the one hand, we assume they do, then CLASSICS doesn’t “extend” protection, it merely shifts it from the state to the federal level (and in doing so, affords digital services of a statutory license and provides all users with fair use and other limitations and exceptions that are not available under state and common law). But if, on the other hand, we assume pre-72 sound recordings don’t currently have protection for digital performances and that CLASSICS creates a new right, then it is inaccurate to assert that they receive protection for a term beginning at their creation, or as far back as 1923 under the bill, and lasting until 2067—which is where Lemley and Cox arrive at the 144 year figure they mention (2067-1923=144). The new right is prospective, so sound recording artists and owners only get the benefit of it starting on the effective date of the legislation. Say, for example, CLASSICS passes this year and goes into effect at the beginning of 2019, that gives pre-72 sound recording artists and owners an effective digital performance right “term” of 48 years (2067-2019=48).

The second argument, that CLASSICS provides for a term of protection for pre-72 sound recordings that is longer compared to post-72 sound recordings is nonsensical for the reasons stated above: the respective terms of protection for pre and post-72 sound recordings was established in the 1976 Copyright Act and are not impacted by the CLASSICS Act.

In its report, the US Copyright Office said it “thinks it is unreasonable for the age of a sound recording to dictate whether royalties are paid on public performances by means of digital audio transmissions, so long as copyright subsists in that sound recording.” It arguably also cuts against the principles of copyright law to reward authors.13See Eldred v Ashcroft, 537 US 186, 212 n.18 (2003); see also Kirtsaeng v John Wiley & Sons, 136 S. Ct. 1979 (2016) (describing “the well-settled objectives of the Copyright Act” as enriching “the general public through access to creative works’ by striking a balance between encouraging and rewarding authors’ creations and enabling others to build on that work.”). The treatment of pre-72 sound recordings under the Copyright Act is a historical idiosyncrasy, and the fact that those recording artists can’t get paid for digital streams like their post-72 counterparts was probably not intended by Congress nearly half a century ago. At that time, the reproduction and distribution of records was the primary way artists commercially exploited their work. Now that that is being overtaken by digital streaming, it makes sense to update the law to reflect that change. The CLASSICS Act would do that and plays a key part in broader music licensing reform that is currently under consideration by the Senate.

References   [ + ]

1. H. Rep. No. 115-651 (2018).
2. “House unanimously passes copyright reform act that unfortunately includes term extension for sound recording performance rights for as long as 144 years.”
3. Compendium of U.S. Copyright Office Practices, Third Edition, 802.3.
4. Musical compositions in printed form were protected as “books” under the 1790 Act. Congress recognized musical compositions as a discrete category beginning in 1831.
5. Kevin Parks, Music & Copyright in America: Toward the Celestial Jukebox, pp 103-107 (ABA 2012).
6. US Copyright Office, Federal Copyright Protection for Pre-1972 Sound Recordings, pg 20 (2011) (“Pre-72 Report”.
7. 17 USC §301(b).
8. Pre-72 Report at 16.
9. 17 USC §301(c).
10. Ben Sisario and Karl Russell, In Shift to Streaming, Music Business has Lost Billions, New York Times, March 24, 2016.
11. See Zvi Rosen, Common Law Copyright (2016) for a thorough look at the extent to which common law copyright includes a right of public performance.
12. In March 2017, the Ninth Circuit certified the question for the California Supreme Court to decide.
13. See Eldred v Ashcroft, 537 US 186, 212 n.18 (2003); see also Kirtsaeng v John Wiley & Sons, 136 S. Ct. 1979 (2016) (describing “the well-settled objectives of the Copyright Act” as enriching “the general public through access to creative works’ by striking a balance between encouraging and rewarding authors’ creations and enabling others to build on that work.”).

YouTube Beta Testing Content ID for Everyone — Jonathan Bailey takes a look at a new tool being tested by YouTube that would aid users with addressing infringement on the service. Unlike Content ID, the service appears that it will be made available to all users.

Gibson’s Bankruptcy is a Cautionary Tale about Corporate “Innovation” — “My point here is not to blame Gibson or its CEO for poor leadership, but rather to call into question our collective belief in ‘innovation’ as the sole path to success in a fast-changing world. As a culture, we are obsessed with innovation, with ‘disruption,’ with entrepreneurs and hustlers and go-getters.”

Music Modernization Act: A Breakdown — Attorney Dina LaPolt has assembled a quick guide to H.R. 5447, the Music Modernization Act, which passed the House last week after a 415-0 vote. The chart compares the current state of the law to how the law would operate under the MMA.

Federal Circuit’s Fair Use Decision in Oracle v. Google – Astonishing, But Not Surprising — Attorney Lee Gesmer offers some practical takeaways from the Federal Circuit’s March decision in Oracle v Google, which held that Google’s copying of Java code was not protected by fair use.

Pre-Release Game of Thrones Leaks Bred Pirates, Research Shows — “The pre-release leak of four Game of Thrones episodes, early 2015, is one of the most prominent piracy cases in TV history… A new working paper published by economy researcher Wojciech Hardy of the Institute for Structural Research and the University of Warsaw carefully dissected the aftermath. The findings show that the pre-release leaks triggered more people to pirate, and not just the four leaked episodes. This led to a decrease in expected viewers for Game of Thrones, but also for comparable TV-shows.”

David Israelite: My Lessons from the MMA — On Wednesday, the House of Representatives passed the Music Modernization Act (H.R. 5447) by an unprecedented unanimous vote of 415-0. Here is the National Music Publishers’ Association’s David Israelite describing what he believes led to that success, which puts much needed music licensing reforms one step closer to realization.

Celebrating Women in Innovation and Creativity — Terrica Carrington writes, “on this year’s World IP Day, as people and organizations across the country gather to celebrate the achievements of women in the creative and innovative space, I challenge everyone to think about the stories that would go untold, characters unwritten, people and events of the past forgotten, and lives untouched if not for the work of women around the world. But the challenge doesn’t end there. I also challenge everyone not to forget the role that copyright plays in affording these women the financial freedom and security to tell these stories, write these characters, commemorate those people and events, and touch countless lives through their work as creators.”

Player Pianos and the Origins of Compulsory Licensing – Some Details of its Origins — Zvi Rosen takes a look at some of the early cases considering the question of mechanical reproductions that preceded the 1909 Copyright Act, which clearly established such a right, along with an accompanying compulsory license to make mechanical reproductions. The aforementioned Music Modernization Act would be the first significant change to the compulsory licensing of mechanical reproductions in the U.S. since then.

Backlash prompts Eventbrite to drop demand to crash events, record them — I would imagine it would be surprising to find employees of the ticketing platform you used show up to your event and inform you that you agreed to let them record it. And it would be more surprising to learn that you released that ticketing platform from all claims arising from their exploitation of that footage. Fortunately, Eventbrite removed the terms from their agreement that would allow both once they were discovered.

‘One Has This Feeling of Having Contributed to Something That’s Gone Very Wrong’ — A riveting interview with Jaron Lanier about the current state of the internet. “Before Wikipedia, I think it would have been viewed as being this horrible thing to say that there could only be one encyclopedia, and that there would be one dominant entry for a given topic. Instead, there were different encyclopedias. There would be variations not so much in what facts were presented, but in the way they were presented. That voice was a real thing.”

Canadian government response to copyright and digital policy issues — “The term ‘balance’ is not only polarizing, it’s use doesn’t inform policy or policy makers to any specific or desirable course of action. For example, while one may refer to a ‘balanced budget’ as a desirable fiscal goal, one would eschew any attempt to do any comprehensive law review in other areas by focusing on balance as a guiding principle. For example, one would not premise updating our laws related to tax, securities regulation, criminal law, immigration, energy, or housing, based on a principle of ‘balance’ in the abstract. There would be more relevant guiding principles just as there are in copyright law.”

Celebrate World Intellectual Property Day with the Copyright Alliance — April 26th is World IP Day, and this year’s theme is “Powering Change: Women in Innovation and Creativity.” All next week, Volunteer Lawyers for the Arts across the U.S. will be holding educational events to mark the country. Check out the full schedule at the link to see if there is one near you or to catch an event online.

Google attempted end run around Canadian courts fails, rules BC Judge in Equustek case — From Barry Sookman: “Yesterday, a judge of the British Columbia Supreme Court dismissed Google’s motion to vary or set aside the global injunction against it that had been affirmed by the Supreme Court of Canada. The injunction required Google delist websites that were being used to market a product that Equustek claimed was developed through theft of its trade secrets. Justice Smith held that Google was not able to show that the global delisting order made [] against it violated its First Amendment rights in the U.S. or the core values of the U.S.”

The Legal Process Sea-Change — Third in a series of posts (Part one and part two) from Bruce Boyden that ostensibly began with the 9th Circuit’s Blurred Lines decision but has now taken us to judicial schools of thought in the 1950s.

Association of American Publishers’ Allan Adler Testifies on the Hill About the Marrakesh Treaty — This week, the Senate Foreign Relations Committee considered the Marrakesh VIP Treaty, which would require member parties to provide exceptions to copyright law for reproducing and distributing works in formats accessible to persons with visual impairments or print disabilities, as well as allowing the cross-border exchange of such works. The Committee also considered legislation that would implement the Treaty in U.S. law.

Copyright’s Substantial Confusion — Marquette University Law School professor Bruce Boyden begins a long journey examining the test for determining copyright infringement. The question (particularly when courts are confronted with nonverbatim copying of a work) has proven notoriously challenging, which is one reason why you can never get a straight answer from a copyright lawyer.

FairPlay copyright blocking proposal: my presentation at the Fordham IP conference — Anyone interested in getting up to speed on the current state of site blocking as a remedy for copyright infringement across the globe should check out Barry Sookman’s presentation from last week’s Fordham IP conference. It provides an overview of what countries have adopted site blocking, the different mechanisms used, and relevant court decisions and scholarly research on blocking. The presentation is a summary of a more comprehensive article by Sookman.

WHOIS Limits Under GDPR Will Make Pirates Harder to Catch, Groups Fear — “’We strongly assert that this model does not properly account for the critical public and legitimate interests served by maintaining a sufficient amount of data publicly available while respecting privacy interests of registrants by instituting a tiered or layered access system for the vast majority of personal data as defined by the GDPR,’” the groups write.”

Is an economy based on free incompatible with freedom? — Neil Turkewitz writes, “The potential of the Internet and other communications technologies to drive economic growth, prosperity and cultural production has been greatly undermined by distortions in the marketplace caused by the lack of adequate governance that allows companies to illegally traffic in what are essentially stolen goods. Many of those who profit from the status quo like to disguise their self-interest in rhetoric about free expression. It is long past time to end this dangerous charade. We are not serving free speech by making it harder for creators to earn a living from their original expression. Free societies can no longer tolerate the continued indifference to the rights of creators.”

How A Quiet Place Sound Designers Made Audiences Afraid of Their Own Noise — It’s easy to forget how important the craft of sound designers is to filmmaking, but their work is front and center in the recently released film A Quiet Place, a story built around the idea of making as little sound as possible.

Illuminating the Profession: Women in Copyright — As part of Women’s History Month, former US Register of Copyrights Ralph Oman interviews a number of illustrious copyright lawyers, including June Besek, Dale Cendali, Mary Rasenberger, Kate Spelman, Francine Ward, and Nancy Wolff.

Fact checking Michael Geist’s criticisms of the FairPlay site blocking proposal — Canadian copyright attorney Barry Sookman has written a tour de force response to Geist, showing that site blocking is effective, consistent with human rights, and employed by many other countries.

Taking a Look Under the Red Carpet — “Hollywood is synonymous with the red carpet, but the public perception of Hollywood being only the red carpet could not be further from the truth. Behind all the glitz and glamour, filmmaking is difficult, hands-on, down and dirty labor.”

DOJ Antitrust Chief: We Are Reviewing ASCAP, BMI Consent Decrees — At a recent appearance at Vanderbilt Law School, the DOJ’s Delrahim spoke about taking a closer look at the 1,300 consent decrees currently on the books. In particular, he signaled that the decrees governing the two largest PROs would come under scrutiny, saying, “The way music is licensed has been governed by these consent decrees since 1941… So, 77 years of a consent decree, rates being set by a judge in rate court as opposed to free market competition [which he favors] and we are taking a look at that.”

Google Could Owe Oracle $8.8 Billion in Android Fight — Susan Decker of Bloomberg Technology reports on this week’s Federal Circuit decision, “Oracle said its APIs are freely available to those who want to build applications for computers and mobile devices, but draws the line at anyone who wants to use them for a competing platform or to embed them in an electronic device…’There is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform,’ the appeals court ruled.”

Rep. Hakeem Jeffries Fights for Creators Rights, Brooklyn Hip-Hop and Recognition for Female Rappers — A great profile from Rob Levine. Among other things, the New York Representative introduced the CASE Act, which create a streamlined “small claims” process for copyright owners to pursue infringement claims.

Online Piracy Is More Popular Than Ever, Research Suggests — “According to MUSO co-founder and CEO Andy Chatterley, these data show that piracy remains a sizable threat, something we also hinted at in the recent past. ‘There is a belief that the rise in popularity of on-demand services – such as Netflix and Spotify – have solved piracy, but that theory simply doesn’t stack up. Our data suggest that piracy is more popular than ever,’ Chatterley says.”

Blurred Lines Verdict Affirmed – How Bad is It? — This week, the Ninth Circuit affirmed a jury verdict against Robin Thicke and Pharrell Williams, finding they infringed Marvin Gaye’s classic “Got to Give it Up” when they created their 2013 hit “Blurred Lines.” Law professor Michael Risch takes a look at the decision.

French Cour de cassation Confirms Broad Interpretation of Making Available/Communicating to the Public as applied to P2P Software — “While peer-to-peer cases of copyright infringement tend to focus on the infringement of the protected works and the rights that are implicated therein (reproduction, making available) as well as assigning legal liability for such acts, there is, at times, another aspect of such cases, namely that which relates to the software that is used for such purposes. French law provides for a distinct offense in this regard under Section L.335-2-1 of the Intellectual Property Code.”

Can One Company Catalog Every Record Ever Made? — “Launched in 2000 by Portland, Oregon-based programmer and DJ Kevin Lewandowski, the site’s original intent was to help folks track and share information about their record collections. But as word spread among music lovers and the site’s user base grew, Discogs evolved into a crowd-sourced hub to find information about the discographies of artists from around the world. It may not get deep into the historical details of the recording sessions, but there’s no better place to track, for example, the 674 different versions of Sgt. Pepper’s Lonely Hearts Club Band, or the 280 pressings of the first Velvet Underground album that are known to exist.”

Sara Hickman — “There were many reasons why I retired from music last year. I’ve never explained them or felt the need to, so I’m not going to start today.”

AAP Pleased with Bipartisan Support of Marrakesh Treaty — Yesterday, a bill to implement the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled was introduced in the U.S. Senate. The treaty requires parties to adopt appropriate exceptions to copyright allowing authorized entities to reproduce and distribute literary works in accessible formats. The Treaty was adopted in 2013 and transmitted to the U.S. Senate in 2016.

U.S. Border Seizures of DMCA Circumvention Devices SurgesTorrentfreak reports, “New data released by Homeland Security shows that U.S. Customs and Border Protection seized significantly more DMCA circumvention devices in 2017. The seizures, which includes mod chips for gaming consoles, increased 324% compared to the year before, although the actual number remains fairly low.”

Fair Is Fair But Politics Is Complicated: Why Congress Must Pass the CLASSICS Act (Column) — Rob Levine pens an op-ed in favor of legislation that would update transitional rules to enable the owners of sound recordings made before 1972 to be paid for digital streaming under statutory licenses. The bill makes sense if you think artists should get paid for their work.

Piracy and Malware: There’s No Free Lunch — Researchers Michael Smith and Ruth Telang conducted a study to see if piracy harms consumers by exposing them to malware and other malicious code. “The results were clear. The more our users visited piracy sites, we found, the more often their machines got infected with malware. Specifically, whenever they doubled the time they spent on piracy sites, they increased the number of malware processes running on their machines by 20 percent.”

The Pirate Bay witnesses 40 percent drop in traffic in the Netherlands — Kavita Iyer of Techworm reports, “According to Dutch anti-piracy group BREIN, The Pirate Bay’s main domain has suffered a 40 percent drop in Dutch traffic due to local ISPs (Internet Service Providers), such as Ziggo and XS4ALL were forced to block the torrent site. This decrease of 40% was reported based on numbers from research company ComScore.”

Why almost no one is making a living on YouTube — “What’s happening on YouTube is occurring across the internet, where creators are finding that long odds of success in the online world are not so different from IRL (internet-speak for ‘in real life’). In fact, they might be worse. In music, song streaming services like Spotify and Apple Music have mostly benefited superstar acts. No one needs to fight a music label to get their song distributed, but getting listeners is a different problem. Less than one per cent of songs represented 86 per cent of the music streamed last year, according to the market research firm Nielsen. And since no one buys music these days, making even a little money from streaming requires songs to be played millions of times. That’s hurt the music industry’s middle-of-the-road acts the most, the kind of musician who once could eke out a decent living selling several thousand albums a year and touring without ever breaking into the mainstream. Increasingly, such acts face the pressure of going viral or going home.”

New study explores impact of user-centric music-streaming payouts — “‘User-centric’ streaming payouts refers to a proposed system where the royalties generated by someone’s subscription would be divided only between the artists that they listen to, rather than going into a central pool divided by market-share on the platform as a whole.”

For Two Months, I Got My News From Print Newspapers. Here’s What I Learned. — “We have spent much of the past few years discovering that the digitization of news is ruining how we collectively process information. Technology allows us to burrow into echo chambers, exacerbating misinformation and polarization and softening up society for propaganda. With artificial intelligence making audio and video as easy to fake as text, we’re entering a hall-of-mirrors dystopia, what some are calling an ‘information apocalypse.’ And we’re all looking to the government and to Facebook for a fix.”

Two photographers, unbeknownst to one another, shoot the same picture at the same moment — Finally, for copyright fans, a case study in the doctrine of “independent creation,” a tenet of copyright based on the rule that infringement is premised on factual copying, not identity alone.