Why “Stairway to Heaven” Doesn’t Infringe “Taurus” Copyright: analysis & demo of “scenes a faire” motif common to both — Rockers Jimmy Page and Robert Plant are in court this week defending against a claim they copied from an existing song to create the classic Stairway to Heaven. Here, Professor Sean O’Connor provides a thorough analysis arguing there is no infringement, complete with video demonstrations.

IP Scholars to FCC: It’s not about “the Box” — “Put simply, the proposed rules would take away the ability of creators and copyright owners to license their works on their own terms. It would give third parties all of the benefits afforded to pay-TV providers by their agreements with copyright owners without the burdens of paying a license or agreeing to the underlying contract terms. This isn’t about “the box,” and it isn’t about what consumers do with the creative works they receive in their homes. The issue is what goes into “the box,” and more importantly, how it gets there.”

Why Photographers Need a Copyright Small Claims System — The Professional Photographers of America has been hard at work in recent weeks making the case for a copyright small claims process. As they note, “Recent surveys have found that 70% of professional photographers have dealt with copyright infringement, and most within the past 5 years. But the problem is that most infringements are valued at $3,000 or less, and 2/3 of intellectual property lawyers say they wouldn’t take a copyright case with a potential payout of less than $30,000.”

Opinion analysis: Court clarifies availability of fee awards in copyright cases — Yesterday, the Supreme Court released its decision in Kirtsaeng v John Wiley & Sons, which is an iteration of its 1994 Fogerty v Fantasy decision providing guidance on what courts should look at when determining whether to award attorney’s fees to prevailing parties in copyright cases. Here is SCOTUSBlog’s analysis of the opinion.

House Creative Rights Caucus: Protecting Intellectual Property Rights Protects American Jobs — Last week, the House Creative Rights Caucus, along with a number of creative associations, put on a panel discussion with individuals involved in making the Academy Award winning film Spotlight. The panel focused not only on the importance of being able to create important films like Spotlight, but also the importance of being able to engage in the type of investigative journalism that is the subject of the film.

Stealing Books in the Age of Self-PublishingThe Atlantic reports, “In the world of self-publishing, where anyone can put a document on Amazon and call it a book, many writers are seeing their work being appropriated without their permission. Some books are copied word-for-word while others are tinkered with just enough to make it tough for an automated plagiarism-checker to flag them. (Though the practice is legally considered copyright infringement, the term ‘plagiarism’ is more widely used.) The offending books often stay up for weeks or even months at a time before they’re detected, usually by an astute reader. For the authors, this intrusion goes beyond threatening their livelihood.”

Irving Azoff Calls on Music Industry to ‘Work Together’ in National Music Publishers’ Assn. Keynote — The notable music exec delivered a powerful address at NMPA’s 99th annual meeting this week, concluding, as Billboard reports here, by telling those in the audience that “no matter what role he played in the industry, as a manger, a promoter, a label executive, ‘If you do what’s right by the creator’—whether that’s the artist or songwriter—’it will eventually be right for your company as well.'”

JFK on Poetry, Power, and the Artist’s Role in Society: His Eulogy for Robert Frost, One of the Greatest Speeches of All Time — “If art is to nourish the roots of our culture, society must set the artist free to follow his vision wherever it takes him. We must never forget that art is not a form of propaganda; it is a form of truth… In free society art is not a weapon and it does not belong to the spheres of polemic and ideology. Artists are not engineers of the soul. It may be different elsewhere. But democratic society — in it, the highest duty of the writer, the composer, the artist is to remain true to himself and to let the chips fall where they may. In serving his vision of the truth, the artist best serves his nation.”

Spoiler alert: Superheroes are regular people — Tom Ortenberg, executive producer of the film Spotlight, writes, “The real-life journalists portrayed in ‘Spotlight’ are superheroes. The filmmakers and crewmembers that made this film possible are superheroes. That is why I consider our film to be its own kind of superhero movie. But it is also a story about a fading segment of our culture: print journalism. Great films about true events can become a part of the historical record. If I have any grand ambitions for ‘Spotlight’ beyond accolades and awards, it’s that this film will preserve for all time the era of investigative journalism that appears to be slipping away in the face of technology that promises quick and easy fixes for virtually everything.”

Don’t Block Geoblocking — “[R]ules that allow copyright holders to charge different prices to different consumers benefit society by encouraging greater distribution at a lower average price overall. A movie studio might charge a higher price in a developed country while charging a lower price in developing countries. Because rich markets are normally less sensitive to price, this practice normally favors poorer consumers. But it can only exist if price discrimination and geoblocking is protected. If consumers are allowed to arbitrage the market, the producer will create less and charge higher prices.”

The Google/Oracle decision was bad for copyright and bad for software — Op-ed from Ars Technica Technology Editor Peter Bright argues that last week’s jury verdict that found that Google’s copying of elements of the Java platform was fair use “makes things worse, not better” for developers and the software industry. Bright is one of the few commentators on the case to delineate between the different patterns of API use: “use without reimplementation”,  “third-party reimplementation”, and “interoperable reimplementation”. Others, particularly supporters of Google’s view, tend to conflate these different patterns.

Madonna Gets Victory Over ‘Vogue’ Sample at Appeals Court — Although a number of lower courts have declined to follow or even criticized the Sixth Circuit’s Bridgeport Music v. Dimension Films decision—which held that the ordinary substantial similarity analysis does not apply to infringement of sound recordings—this week was the first time a sister Circuit Court of Appeals did so. In a case involving Madonna’s song Vogue, the Ninth Circuit held that the unauthorized use of a single horn hit from a VMG Salsoul recording was de minimis, and thus not infringing.

Google Promotes Pirate Movie Ratings in Search Snippet — Torrentfreak reports that Google is returning movie ratings from a pirate movie site in a detail box. The link leads users to the pirate site, “where a high quality stream of the film is readily available.” A preview of what a Google set-top box might look like?

FCC chairman pushes back on lawmaker request for box study — Speaking of set-top boxes, this week FCC Chairman Wheeler responded to a request from fifty-five lawmakers for “independent, peer-reviewed studies to be completed of current developments towards market-based solutions and of the potential costs and benefits of the proposed rules, including the impact of the proposed rules on diversity of programming, independent and minority television programming, content protection and consumer privacy” before ruling on set-top boxes. Chairman Wheeler responded that the rulemaking “must move forward” without such studies.

Music World Bands Together Against YouTube, Seeking Change to Law — “In recent months, the music world has been united to a rare degree in a public fight against YouTube, accusing the service of paying too little in royalties and asking for changes to the law that allows the company to operate the way it does. The battle highlights the need to capture every dollar as listeners’ habits turn to streaming, as well as the industry’s complicated relationship with YouTube.”

Everybody says we should strive for balance in copyright law. Indeed, who is against balance in principle? The real question is what exactly you mean—what is being balanced?

Copyright skeptics have a consistent answer to this. When Carla Hayden was nominated to be Librarian of Congress earlier this year, American Library Association Managing Director of Government Affairs Adam Eisgrau urged Hayden to talk about the “importance of a real balance in copyright law, one that really puts limitations and exceptions on equal footing with rights.”

Similarly, in an amicus brief to the Supreme Court, Public Knowledge framed the concept of balance in copyright law as one between an author’s right on the one hand and “numerous limitations on the scope of that monopoly right that guarantee to the public certain rights to use, access, and enjoy those created works.”

EFF’s Corynne McSherry has previously written that it is the role of fair use to make sure that “copyrights serve rather than impede the public interest.”

Thanks to copyright rules governing the right to copy, distribute and perform, the folks who held copyrights in the works at issue in the above cases has (and have) a chance to seek compensation. And thanks to copyright rules protecting fair uses, other creative people, their users and the public had (and have) an opportunity to engage with those works in new and unexpected ways. That’s the copyright balance at work.

I contend that this conception of balance, setting authors’ rights on one scale and limitations and exceptions on the other, is both one-dimensional and detrimental to the overall goals of copyright. The underlying assumption is that authors’ interests are distinct from the public’s interests, and that one can only be furthered at the expense of the other. But this isn’t the case.

It seems more accurate to describe authors’ interests and the public’s interests as interrelated and mutually reinforcing. After all, at a very basic sense, the performer and the audience need each other; likewise with the author and the reader. The idea behind copyright is that a marketable right in the tangible expression an author produces is the best way to advance the interests of both. The eighteenth century economist Adam Smith is noted for articulating this logic—that “rational self-interest in a free-market economy leads to economic well-being.” As he says in Wealth of Nations, “It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest.” Copyright gives authors a means to pursue their self-interest, and the public benefits as a result of this pursuit.

Although there is a lot of speculation about what motivated the Constitution’s drafters to include copyright authority at the Federal level, the most direct evidence of that motivation points toward an embrace of Smith’s ideas. In The Federalist Papers 43, James Madison, the chief proponent of the Constitution’s Copyright Clause, wrote that “The utility of this power will scarcely be questioned.” Echoing Smith directly, he said, “The public good fully coincides…with the claims of individuals.”

The US Supreme Court has recognized this principle on several occasions. In Mazer v. Stein, it said, “The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in ‘Science and useful Arts.'”1347 U.S. 201 (1954).

Register of Copyrights Maria Pallante captured the above discussion perfectly in her 2013 article on The Next Great Copyright Act. There, she says, “The issues of authors are intertwined with the interests of the public. As the first beneficiaries of the copyright law, authors are not a counterweight to the public interest but are instead at the very center of the equation.”

Maintaining Balance in Copyright Law

Once we recognize the intertwined nature of author rights and the public interest, we can examine several ways in which balance between the two is maintained.

First, establishing marketable property rights balances between two of the primary goals of copyright: rewarding the intellectual labor of authors and encouraging the dissemination of expressive works to the public. Generally speaking, authors and distributors want to reach as wide an audience as possible, so they will offer their works on terms and prices that achieve this. The ability to recoup investment in the production and distribution of such works facilitates stable and sustainable markets. And as many have pointed out, though any given individual work is unique, copyright does not have monopolistic properties since there exist many close substitutes, eliminating the ability of copyright owners to extract supracompetitive prices.2See, for example, Tom Sydnor, Can Economic and Historical Analyses End Copyright Law’s Property/Monopoly Disputes?, American Enterprise Institute (2015); Stan Liebowitz, Is the Copyright Monopoly a Best-Selling Fiction? (2008).

Second, a number of internal copyright doctrines balance between ensuring that authors can recoup the value of their work while also preserving the ability for follow-on and downstream creators (and the public) to build on existing works through inspiration, homage, criticism and commentary. The Supreme Court said in Harper & Row v. Nation Enterprises,

The challenge of copyright is to strike the “difficult balance between the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society’s competing interest in the free flow of ideas, information, and commerce on the other hand.”

The “originality” requirement now embodied in § 102 of the Copyright Act is crucial to maintenance of the appropriate balance between these competing interests. Properly interpreted in the light of the legislative history, this section extends copyright protection to an author’s literary form but permits free use by others of the ideas and information the author communicates.

Originality goes toward copyrightability of a work, and it is an admittedly low threshold, requiring only “independent creation plus a modicum of creativity.”3Feist Publications v. Rural Telephone Service, 499 US 340,346 (1991). As the House Report for the 1976 Copyright Act explains, the standard for originality, “does not include requirements of novelty, ingenuity, or esthetic merit.” The distinction between ideas and expression that is discussed later does more work in an infringement analysis, particularly when there has been nonliteral copying or copying of less than an entire work. The distinction between ideas and expression should over time naturally result in an equilibrium between protecting legitimate interests in expressive works while permitting the necessary borrowing from existing works that new works rely upon. Although some individuals may idiosyncratically demand more protection than they deserve, in the aggregate, claims between owners of existing works and creators of new works will balance out. This is especially true when you consider the existence of firms with larger copyright portfolios—they will invariably find themselves on both sides of the “v.” in infringement suits, and so it is in their best interests not to be overly aggressive when arguing what can be protected or what can’t be protected under copyright law.

Third, much of the work balancing between copyright and free speech interests is achieved through the exclusive rights. The Supreme Court has identified two “built-in First Amendment accommodations” to copyright law.4Eldred v Ashcroft, 537 US 186 (2003). One of these is fair use, an exception to exclusive rights, but the other is the idea-expression dichotomy, which acts to define the scope of the exclusive rights themselves. But along with these safeguards, the Court has also recognized that copyright itself promotes free expression. In Harper & Row, the Court called copyright “the engine of free expression” and explained, “By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” Without these marketable rights, the creation and dissemination of certain types of works would be chilled.

A prime example involves journalism. In looking at whether news clipping service Meltwater’s unauthorized copying of news material from the Associated Press was a fair use, the Southern District Court of New York said the public interest weighed against Meltwater:

Paraphrasing James Madison, the world is indebted to the press for triumphs which have been gained by reason and humanity over error and oppression. Investigating and writing about newsworthy events occurring around the globe is an expensive undertaking and enforcement of the copyright laws permits AP to earn the revenue that underwrites that work. Permitting Meltwater to take the fruit of AP’s labor for its own profit, without compensating AP, injures AP’s ability to perform this essential function of democracy.5Associated Press v. Meltwater, 931 F.Supp.2d 537, 552 (SDNY 2013).

Finally, we do indeed have explicit limitations and exceptions on authors’ rights, such as fair use or fair dealing. These exceptions are absolutely necessary and important, but they do most of the work outside the core of copyright protection.

A view of balance that pits authors rights against the public interest thus ignores the law’s internal balancing mechanisms and is ultimately detrimental to the goals of copyright. By keeping in mind the intertwined nature of the private right and the public gain, we can better reach a balanced approach. Such balance would ensure that rights are clear, marketable, and enforceable. It would, for example, disfavor government intervention in the form of compulsory licensing, rate setting, etc, except when there is demonstrable market failure; it would encourage cooperation between rightsholders and OSPs and others in the online ecosystem to minimize online infringement; it would provide access to meaningful remedies for individuals and small businesses. A balanced copyright system would, in short, create a vibrant, diverse culture that enriches the public sphere by protecting creators’ right to seek their fair share.

References   [ + ]

1. 347 U.S. 201 (1954).
2. See, for example, Tom Sydnor, Can Economic and Historical Analyses End Copyright Law’s Property/Monopoly Disputes?, American Enterprise Institute (2015); Stan Liebowitz, Is the Copyright Monopoly a Best-Selling Fiction? (2008).
3. Feist Publications v. Rural Telephone Service, 499 US 340,346 (1991). As the House Report for the 1976 Copyright Act explains, the standard for originality, “does not include requirements of novelty, ingenuity, or esthetic merit.”
4. Eldred v Ashcroft, 537 US 186 (2003).
5. Associated Press v. Meltwater, 931 F.Supp.2d 537, 552 (SDNY 2013).

T Bone Burnett’s Remarks on Music and the American Story (with intro by Rosanne Cash) — “We are not looking backward. We are looking forward to a better place. As artists and creators we constantly use the technology that has brought us this anywhere / anytime / anything digital world. But we insist on being recognized and respected for what we bring to the table as well.”

Music Piracy Triggers Significant Losses, EU Study Shows — Torrentfreak reports, “New research published by the European Union Intellectual Property Office shows that piracy hurts both digital and physical music sales. In EU countries the total losses are roughly 5% of yearly revenues, which equals €170 million. In addition, piracy also triggers secondary losses for governments and the public sector.”

Will CBS Continue Axanar Lawsuit On Its Own? — Previously in the Axanar lawsuit, the court denied a motion to dismiss by the production company that had been sued by the copyright owners of Star Trek for planning to make an unauthorized Star Trek film. Then, last week, it was reported that the two sides were in settlement talks, and the suit would be dropped. However, to date, the litigation continues, with Axanar filing an answer to the initial complaint and a counterclaim against the Star Trek owners, arguing that its planned film is fair use.

How Technology Hijacks People’s Minds — from a Magician and Google’s Design Ethicist — An interesting read about the different techniques developers use to “play your psychological vulnerabilities (consciously and unconsciously) against you in the race to grab your attention.”

Most Music Tech Startups Don’t Know Shit About How Labels Work – A Response To David Pakman — A point-by-point takedown of Pakman’s article about how “The Music Business Buried More Than 150 Startups.” Very informative.

Going Viral ≠ Increased Business — Finally, this week, Leslie Burns writes about the illusory benefits of a photo “going viral.” “People don’t impulse-buy photography. No one is likely to see the viral photo and say ‘I need to hire that photographer!’ unless, maybe, s/he was already looking for a wedding photographer. Assignment/commissioned photography is still not a commodity, not a product on the shelf, so exposure like that may never pay off.”

New Research Debunks Myth That Piracy Site Blocking Does Not Work — “The trio studied the effects on consumer behavior of the court-ordered blocking of 53 piracy websites in the U.K. in November 2014. Their research paper released last month showed those take-downs caused a 22% fall in total piracy (including blocked and unblocked sites) for all U.K. users of blocked sites and a 16% drop in piracy consumption across all U.K. internet users. Even more positively, there was a 10% increase in videos viewed on legal ad-supported streaming sites such as the BBC and Channel 5 and a 6% increase in subscription streaming sites such as Netflix.”

Italian court says that rightholders do NOT have to indicate URLs when submitting takedown requests — Eleonora Rosati reports on the decision, saying, “If not a general obligation to monitor, this closely resembles what rightholders have been advocating for a while, ie a notice-and-stay-down system.”

Judge Refuses to Dismiss Lawsuit Over Crowdfunded ‘Star Trek’ Film — The latest on litigation involving an unauthorized Star Trek film, Prelude to Axanar. The court declined to throw the complaint out, saying Paramount has sufficiently alleged copyright infringement.

One Simple Trick to Make Journalism Profitable? Copy and Paste It. — The story of a local news startup caught scraping another site’s content rather than, as it claimed, creating its own. “Dopkin observed that in technology-focused Silicon Valley, content is usually a minor concern. Nor do the Valley’s digital gurus respect the blood, sweat, and tears frequently required to produce it, he said.”

The biggest problem for the Oracle v. Google retrial: Judge Alsup’s reality distortion field — Florian Mueller takes on the Oracle v. Google retrial. Following a Federal Circuit decision in 2014 holding that the Java API headers and structure, sequence, and organization, which Google copied, is protectable under copyright law, the litigation came back to the District Court this week for a jury to determine whether Google has a fair use defense.

Dear YouTube: An open letter from Irving Azoff — The notable artists’ manager writes, “You state with apparent pride that you have licenses with labels, publishers and PROs. But don’t confuse deals made out of desperation with marketplace deals made by willing participants. YouTube has benefitted from the unfair advantage which safe harbors gives you: Labels can take the deals you offer or engage in an impossible, expensive game of ‘whack a mole,’ while the music they control is still being exploited without any compensation. Spotify and Apple don’t have that advantage, and this is why they are better partners to music creators.”

Google Image Search and the Misappropriation of Copyrighted Images — In 2013, Google changed its image search function from displaying low resolution thumbnails in its results to offering full size, high resolution versions of the images. Last week, Getty Images filed a complaint in support of the EU’s ongoing investigation into Google’s anti-competitive behavior, saying “[b]ecause image consumption is immediate, once an image is displayed in high-resolution, large format, there is little impetus to view the image on the original source site.” Kevin Madigan has more on the issue.

What Do Superheroes Wear In Off-Hours? Captain America: Civil War’s Costume Designer Explains — Even the casual clothes in a film are carefully considered to add depth to the characters and story. Or, Robert Downey, Jr. is the Avengers’ dad.

Toronto author sends Anne Frank’s diary to German politician after copyright complaints — After German MEP Julia Reda publicly complained that copyright prevented her from reading Anne Frank’s Diary, Toronto author John Degen walked down the street from his office, bought a copy of the book, and mailed it to her. Carol Off of CBC Radio’s As It Happens interviewed Degen about what motivated him.

60 Lawmakers Voice Concerns to Wheeler About FCC Set-Top Box Proposal — The US House members write that the FCC’s proposal would “produce very few benefits for consumers, while potentially harming the viability of these providers.”

Can a Copyright Protect a Cheerleader Uniform? — Continuing its trend of picking very niche copyright cases, on Monday the Supreme Court granted cert in Varsity Brands v Star Athletica, concerning the copyrightability of cheerleader uniforms. Specifically, the Court will look at the idea of conceptual separability, the doctrine used by courts to distinguish between noncopyrightable functional aspects of useful articles and copyrightable creative features of those articles. The Court will hear the case next term, which begins in October.

Re: World IP Day — A must-watch video from HITRECORD and Joseph Gordon-Levitt.

US Congress to look for areas of consensus on copyright law — At a World IP Day event organized by the US Copyright Office and the Copyright Alliance, House Judiciary Chairman Goodlatte announced the next phase in the copyright review process that began three years ago. After identifying the numerous issues the Committee has examined in that time, he said in the weeks ahead, the Committee would be identifying areas of potential reform and convening stakeholders for further work on those areas.

Google Accused of Enabling Photography Piracy — Getty Images has filed a complaint against Google to the EU’s antitrust commission regarding Google Images, which, since 2013, “displays full-screen slideshows of high-resolution copyrighted images.” Getty alleges that the service siphons traffic from photographers and publishers and erodes the ability to license visual works.

The Android Administration — The Intercept illustrates “Google’s remarkably close relationship with the Obama White House.” One example shows “55 cases of individuals moving from positions at Google into the federal government, and 197 individuals moving from positions inside the government to jobs at Google.”

Separating Fact from Fiction in the Notice and Takedown Debate — A closer look at the recent Notice and Takedown in Everyday Practice study.

US News Editors Find it Increasingly Difficult to Defend the First Amendment — While the internet has opened opportunities to reach new audiences, it has also hurt the ability of news organizations to sustain themselves. And that spells trouble for freedom of the press. “‘Newspaper-based (and especially TV-based) companies have tougher budgets and are less willing to spend on lawyers to challenge sunshine and public records violations,’ one editor acknowledged. Another editor declared, ‘The loss of journalist jobs and publishers’ declining profits means there’s less opportunity to pursue difficult stories and sue for access to information.’ The costs of litigation constrain organizations.”

Amazon Unintentionally Paying Scammers To Hand You 1000 Pages Of Crap You Don’t Read — Maybe the internet hasn’t made publishers obsolete. “Right now, the scammers are mostly an inconvenience to readers and authors alike. But the bigger they get, the fewer people are going to trust their work to Kindle Unlimited, and the less decent stuff there will be for subscribers to read.”

EU digital chief calls on YouTube to pay music artists more — “The EU’s digital chief waded into a growing fight between record labels and YouTube, calling on the Google-owned video site to hand over more revenue to rights holders. Andrus Ansip, who is overseeing an overhaul of the bloc’s copyright rules, said the YouTube’s comparatively small payments to artists gave it an unfair advantage over rivals such as Spotify, the Swedish streaming service.”

How the FCC’s ‘Set-Top Box’ Rule Hurts Consumers — The CEO of Roku weighs in against the FCC’s set-top box proposal. “The proposed regulation would—as we say in the industry—’decouple the user interface’ from the video and data itself. This would allow a company like Google to do to the TV what it did on the Web—build an interface without the ‘inconvenience’ of licensing content or entering into business agreements with content companies such as ABC, FOX, HBO, or video distributors like pay TV operators. The unintended consequences of circumventing these kinds of arrangements are likely to include increased costs for consumers, reduced choices and less innovation.”

Piracy is the biggest threat facing the film industry as we know it — but not in the way you think — Film producer Jason Blum notes that as piracy hits studio bottom lines, it isn’t the big blockbuster franchise or low budget genre film that disappears, it is the high-end art film like Moneyball, The Social Network, 12 Years a Slave, or The Revenant.

Intellectual Property Professors Call on Congress to Modernize the Copyright Office — WIth the confirmation hearing of Dr. Carla Hayden for Librarian of Congress scheduled for next week, it is a good opportunity to assess what can be done to allow the Copyright Office, which resides within the Library, to operate effectively in the 21st century. Here, a group of IP Professors share their recommendations.

The Constitutional Foundations of Intellectual Property: A Natural Rights Perspective — Distinguished legal scholar Richard Epstein takes a look at Randy May and Seth Cooper’s recent book, The Constitutional Foundations of Intellectual Property: A Natural Rights Perspective. “It is perfectly permissible, even if ill-advised, for modern scholars to deride natural law principles,” writes Epstein. “But it is far riskier to deny that these theories had any traction at the time that the United States Constitution—which offers explicit protection to intellectual property—was drafted.”

Here’s why the music labels are furious at YouTube. Again. — A frank discussion with RIAA head Cary Sherman about the challenges the recording industry still face. Says Sherman, “When you compare what we get when we get to freely negotiate, with a company like Spotify, vs. what we get when we are under the burden of an expansively interpreted ‘safe harbor,’ when you’re negotiating with somebody like YouTube, you can see that you’re not getting the value across the platforms that you should.”

Google’s “safe browsing” initiative is more bark than bite — Vox Indie’s Ellen Seidler writes, “Despite headlines, it’s still business as usual for Google — Piracy sites full of malware and deceptive ads remain at top in Google search results.”

The FCC Should Drop Its Proposed Rules For Set-Top Boxes — “It is difficult to see who would benefit from the proposed rules. Certainly programmers would not benefit. Those who prefer no set-top box can already distribut[e] programming directly to consumers over the Internet. Few manufacturers of set-top boxes would benefit. With proprietary devices outlawed, only generic set-top boxes would be lawful. Manufacturers that can produce the devices more cheaply might do better. But manufacturers that specialize in customizable proprietary software and ever better security systems would have a diminished market. Cable and satellite distributors would not benefit because they no longer differentiate as strongly their product in terms of security and privacy from purely on-line services. Consumers would not be better off. The range of video options would be diminished, and the security and privacy currently afforded by set-top boxes would be lost.”

Facebook takes on its freebooting problem with Rights Manager — When Facebook unveiled its new video platform, it quickly became a magnet for “freebooting”, where users uploaded YouTube videos without authorization to the service. Freebooting is a particularly acute problem for the emerging group of YouTube-native creators, who have taken advantage of the platform to build audiences for their work, only to see those efforts siphoned off by piracy. So it is welcome news that Facebook has announced the implementation of a tool that will allow creators to help prevent copyright infringement.