Happy New Year, readers! I hope everyone has had a wonderful holiday season. Now it’s time to get back to work.

It Turns Out Shia LaBeouf Is Your Anti-IP Laws Messiah, Internet — 2014 starts out with a bang, with this brilliant take on a recent anti-copyright screed by actor Shia LaBeouf. Be sure to check out the author’s previous piece, How Copyright Law Gave us Star Wars, as well.

Blame Silicon Valley for the NSA’s data slurp… and what to do about it — One of the top stories of 2013 were revelations about widespread NSA surveillance. But as Andrew Orlowski points out here, the NSA is only following the lead of Google, et al.

TV Broadcasters Fire Back at Aereo’s Supreme Court Claims — Just before Christmas, TV broadcasters filed their reply brief in Aereo, where they are seeking Supreme Court review of the Second Circuit’s holding that the definition of public performance is technology-dependent. Aereo is in the stack of petitions the Supreme Court will look at during its first conference of the new year on January 10, and it was featured in a SCOTUSBlog Petition of the Day.

Living by the Pen — Turkish novelist Kaya Genç discusses some of the deep challenges he and other writers have faced, but ends on an optimistic note. “For more than ninety years of republican history Turkish freelancers had been silenced either by state institutions which employed them or by the lack of a proper literary market. But as I look around and try to see how other authors from my generation are doing nowadays, I see how they no longer share the old state ideas which make freelance authors suspect in the eyes of the intellectual community. On the contrary, they are increasingly joining the ranks of independent writers. I know, from experience, that it won’t be state patronage or employment by special institutions that will save them from the cold realities of pessimism, poverty and prosecution. No, don’t make them part of the state apparatus or turn them into ideologues or employ them as editors: if you want those writers to succeed, just pay them.”

Just How Long Should Copyright Terms Be? — A thought-provoking piece from Justin Colletti. “Recently, I read a blog post from a Duke University professor who laments that ‘Under current copyright law, we’ll have to wait until 2053′, for works such as On The Road, From Russia With Love, Funny Face, Atlas Shrugged and The Cat In The Hat to enter the public domainBut he never seems to fully explain to my satisfaction: Wait for what?

10 Great Internet Essays Condemning… the Internet — Paste Magazine rounds up some recent articles that take a critical look at the invisible technology of the internet.

Why TED is a Recipe for Civilizational Disaster — Not included in the list above, but along the same lines, is this recent TEDx talk by cultural theorist Benjamin Bratton. “Keep calm and carry on “innovating” … is that the real message of TED? To me that’s not inspirational, it’s cynical.”

How a Fabricated Story about Iron Maiden’s Love of Music Pirates Became Internet Truth — In case you missed it, last week saw the tech press breathlessly spreading a story about a band that “embraced piracy” to plan a tour. Except, as TechCrunch points out here, the story turned out to be fake.

Gibson Guitars On TV: How Props Master Danny Rowe Finds the Great Six-Strings on Nashville — Behind-the-scenes crew have the most fascinating jobs. Here, Gibson Guitars speaks with instrument wrangler Danny Rowe, who currently wrangles guitars for TV’s Nashville.

The Fascinating Method by which Megaupload Deleted Copyright Content without ever Deleting Copyright Content — The upcoming year is likely to bring new developments in the Megaupload criminal proceedings, though if what has gone on so far is any guide, then who knows what those developments may include. The DOJ publicly released hundreds of pages of evidence it had on Megaupload and its operations late last year, and here, Forbes digs into those bits that demonstrate how Megaupload operated behind a sham of DMCA compliance. Also check out the Southland Time’s editorial, Not Sitting on a Fence.

Cross-posted on the Law Theories blog.

Representing himself before the U.S. Court of Appeals for the Tenth Circuit, Andrew Diversey has managed to set a very interesting precedent (opinion available here or here). Senior Circuit Judge Terrence L. O’Brien, writing for a unanimous panel, held that when a library adds a work to its collection, indexes it, and makes it available to library patrons, a distribution is deemed to have occurred even if there is no evidence that any patron actually accessed the work.

The underlying brouhaha concerned Diversey’s dissertation as a doctoral candidate at the University of New Mexico. Against his express wishes, two copies of his dissertation had been made available to the public in the school’s libraries. Diversey sued the school and several administrators for violation of his exclusive distribution right under Section 106(3).

Diversey’s opening brief before the Tenth Circuit was remarkably well-researched and well-written for a pro se advocate, and he cited the Nimmer copyright treatise at length in arguing that merely making a work available constitutes distribution. I wrote about the fact that the Nimmer treatise has changed its tune on the making available issue in a previous post, and I predicted that, given how influential Nimmer is in the copyright realm, others would follow. 1For the argument that Nimmer was wrong to change its tune on the making available issue, see Rick Sanders, Will Professor Nimmer’s Change of Heart on File Sharing Matter?, 15 Vand. J. Ent. & Tech. L. 857 (2013).

And follow they did. Relying on the Fourth Circuit’s holding in Hotaling and the Nimmer treatise, the Court of Appeals reasoned:

As Diversey points out, § 106(3) explicitly protects the copyright owner’s exclusive right to distribute copies by lending. See Hotaling, 118 F.3d at 203 (“When a public library adds a work to its collection, lists the work in its index or catalog system, and makes the work available to the borrowing or browsing public, it has completed all the steps necessary for distribution to the public.”); 2 Melville Nimmer & David Nimmer, Nimmer on Copyright § 8.11[B][4][d] at 8–154.10 (2013) (“No consummated act of actual distribution need be demonstrated … to implicate the copyright owner’s distribution right.”). . . . The essence of distribution in the library lending context is the work’s availability “to the borrowing or browsing public.” See Hotaling, 118 F.3d at 203. 2Diversey v. Schmidly, 2013 WL 6727517 at *4-5 (10th Cir. Dec. 23, 2013).

The Tenth Circuit rejected the appellees’ argument that Diversey had to prove actual dissemination to the public:

The appellees argue [that] merely listing the work in the libraries’ catalog information system does not violate Diversey’s distribution right. They say Diversey must (but has failed to) allege the libraries actually distributed an unauthorized copy to a member of the public. They cite Atlantic Recording Corp. v. Howell, 554 F.Supp.2d 976 (D. Ariz. 2008) to suggest “‘§ 106(3) is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public.’” (Appellee’s Br. 14 (quoting Howell, 554 F.Supp.2d at 883).)

Howell does reflect some dissensus, particularly among district courts, about the applicability of Hotaling’s holding to cases of Internet file-sharing. We need not delve into the file-sharing issue today. Hotaling, like this case, involves a public library making “the work available to the borrowing or browsing public.” Hotaling, 118 F.3d at 203. A patron could “visit the library and use the work.” See id. This is the essence of a violation of the copyright owner’s exclusive right to distribute his work via lending. See 17 U.S.C. § 106(3); Peter S. Menell, In Search of Copyright’s Lost Ark: Interpreting the Right to Distribute in the Internet Age, 59 J. Copyright Soc’y U.S.A. 1, 52–66 (2011) (analyzing the legislative history regarding the distribution right and concluding the requirement of actual distribution of an unauthorized copy is unwarranted). 3Id. at *4 n.7 (citation omitted).

The applicability of the Hotaling holding to this case was pretty straightforward since both cases involved libraries lending out works to the general public. In Hotaling, the Fourth Circuit stated that distribution normally requires a showing that the work was actually disseminated to the public, but in the case of a library that keeps no records of public access to its works, it would unfairly prejudice the plaintiff to require any such proof of access. 4See Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199, 203 (4th Cir. 1997). Thus, the evidentiary issue was central to the Fourth Circuit’s holding.

Interestingly, for the argument that distribution requires actual dissemination, the Hotaling court cited the Eighth Circuit’s opinion in National Car 5See Nat’l Car Rental Sys., Inc. v. Computer Associates Int’l, Inc., 991 F.2d 426, 433-34 (8th Cir. 1993). and the Nimmer treatise. National Car, in turn, cited only the Nimmer treatise for that proposition. So the notion in the Fourth and Eighth Circuits that distribution typically requires actual dissemination can be traced back to earlier versions of the Nimmer treatise. As I said in that previous post, it really is hard to exaggerate just how influential Nimmer is in copyright law.

Now we have the Tenth Circuit relying on the Nimmer treatise as well as the journal article by Professor Peter S. Menell, which was the impetus for the about-face on the making available issue in the Nimmer treatise. 6See Peter S. Menell, In Search of Copyright’s Lost Ark: Interpreting the Right to Distribute in the Internet Age, 59 J. Copyright Soc’y U.S.A. 1 (2011). The Tenth Circuit here explicitly declined to discuss the applicability of its holding to the file-sharing context, but I think the answer there is fairly clear. Several district courts have declined to extend the holding of Hotaling to file-sharing cases, citing the general rule that actual dissemination is required and reasoning that the same evidentiary problem found in the library context may not obtain when it’s file-sharing. 7See Atl. Recording Corp. v. Howell, 554 F.Supp.2d 976, 981-85 (D. Ariz. 2008) (gathering cases).

But the Tenth Circuit here has unequivocally adopted Nimmer’s new tune, which states that merely making the work available to the public is sufficient to constitute distribution. And it approvingly cited Professor Menell’s article, which reaches the same conclusion. Moreover, the Tenth Circuit adopted Hotaling’s holding without mentioning the underlying evidentiary rationale applicable in the library context that led other courts to distinguish its holding in the file-sharing context. While the Tenth Circuit did not address whether its holding would apply to file-sharing, it’s really difficult to see how it would not.

Follow me on Twitter: @devlinhartline

References   [ + ]

1. For the argument that Nimmer was wrong to change its tune on the making available issue, see Rick Sanders, Will Professor Nimmer’s Change of Heart on File Sharing Matter?, 15 Vand. J. Ent. & Tech. L. 857 (2013).
2. Diversey v. Schmidly, 2013 WL 6727517 at *4-5 (10th Cir. Dec. 23, 2013).
3. Id. at *4 n.7 (citation omitted).
4. See Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199, 203 (4th Cir. 1997).
5. See Nat’l Car Rental Sys., Inc. v. Computer Associates Int’l, Inc., 991 F.2d 426, 433-34 (8th Cir. 1993).
6. See Peter S. Menell, In Search of Copyright’s Lost Ark: Interpreting the Right to Distribute in the Internet Age, 59 J. Copyright Soc’y U.S.A. 1 (2011).
7. See Atl. Recording Corp. v. Howell, 554 F.Supp.2d 976, 981-85 (D. Ariz. 2008) (gathering cases).

VMG Salsoul v. Madonna — No details here other than the fact that the appeal has been docketed by the Ninth Circuit, but I include it because I think this will become one of the more closely watched copyright cases of 2014. Last month, a district court held that Madonna’s use of a digital sample without permission in her song Vogue was not infringing. The court held that the sample lacked originality, and even if it were protected by copyright, the use was de minimis. The appeal marks the first time that a Circuit Court will be looking at the same issue as Bridgeport, (although at least one other federal district court and a state court have) a 2005 decision from the 6th Circuit that attracted considerable attention for its holding that digital samples are not analyzed under the substantial similarity test like other copyrighted subject matter.

Shady Toymaker Attempts to Run and Hide from Beastie Boys LawsuitSPIN magazine has the latest from the GoldieBlox saga. On Tuesday, the Silicon Valley startup dismissed all the corporate defendants from its lawsuit, so it now only targets artists and producers.

Art and Music are Professions worth Fighting for — Musician Blake Morgan has an excellent essay on the importance of art and music as professions. “Every profession has daunting risks. And yet I’ve never heard of anyone who’s been successful in any profession who went for it half way. We artists and musicians have the right to expect from our profession what others expect from their professions. That through hard work and determination, perspiration and inspiration, we’ll have the same fair shot to realize our dreams, answer our callings, support our families.”

Appeals Court Won’t Penalize NFL Network for use of Artist’s Logo — The Fourth Circuit released a fair use decision this week, holding that the appearance of a copyrighted Baltimore Ravens logo in historical photos and videos is not infringing. At one point, the court cited to a brief filed by the MPAA and International Documentary Association to support its statement, “For creation itself is a cumulative process; those who come after will inevitably make some modest use of the good labors of those who came before.”

Sovereign Immunity and Copyright Law — Jonathan Bailey discusses a topic that I know everyone is excited to learn about more. But seriously, the issue of sovereign immunity may not pop up all that often, but it is worth knowing, especially for creators who work with state institutions like universities.

In Memoriam: Remembering the Photographers we Lost in 2013 — Time pays tribute to those photographers who passed away this year. “For photographers, the camera is a tool of existential negotiation. Regardless of the genre in which they work, they use the camera to mediate what is before them with what lies within. The best pictures are not a statement of fact, but a fully formed and articulated opinion.”

For over six years, the Electronic Frontier Foundation (EFF) has been doggedly pursuing Universal Music for a DMCA takedown notice that removed a 29 second clip of a dancing baby from YouTube for approximately six weeks. The case is currently in front of the Ninth Circuit on appeal. The EFF has soldiered on for so long in order to create a precedent that copyright owners should be punished if they make one wrong step protecting their works in order to stop what some call “rampant abuse” of the Digital Millennium Copyright Act (DMCA) notice-and-takedown provisions. Yet if the EFF is successful, it will create a much bigger burden to creators who are already overburdened keeping their works from being exploited by illegitimate sites.

The story is probably familiar to most readers. In 2007, mother Stephanie Lenz filmed her toddler dancing in the kitchen while Prince’s “Let’s Go Crazy” played on a radio in the background. Lenz uploaded the half a minute clip to YouTube. Universal Music, the administrator of Prince’s musical composition copyrights, regularly monitored YouTube for infringement of Prince works. After a brief review of Lenz’s clip, Universal sent a takedown notice to YouTube, which YouTube complied with. The EFF soon came calling, and helped Lenz submit a counternotice to YouTube to restore the clip online. Lenz then filed suit claiming that Universal knowingly made a material misrepresentation that Lenz’s video was infringing in its takedown notice, a claim that is actionable under 17 USC § 512(f).

Years of discovery followed. This past January, the district court denied both parties’ summary judgment motions on Lenz’s. Few would argue that sending a takedown notice because a poor quality version of a portion of a song appears in the background of a home video is a smart thing to do. The question is whether it gives rise to legal liability.

The court said that the DMCA’s requirement of a good faith representation that a use of a work is not authorized by law demands, at a minimum, an initial assessment of whether the fair use doctrine applies. But it rejected the EFF’s argument that failure to consider fair use by itself is sufficient to establish liability under § 512(f). The court relied on the Ninth Circuit’s earlier decision in Rossi v. MPAA, which held that the “good faith belief” requirement in the DMCA encompasses a subjective standard (that is, whether it is reasonable from the perspective of the actual individual), not an objective standard (that is, whether it is reasonable from the perspective of a hypothetical “reasonable” observer), and “[a] copyright owner cannot be liable simply because an unknowing mistake is made, even if the copyright owner acted unreasonably in making the mistake.” 1391 F. 3d 1000 (2004). Thus, the statute requires actual knowledge that a material misrepresentation had been made.

The EFF also argued that Universal’s failure to thoroughly consider fair use amounted to willful blindness – a form of actual knowledge under the law. As the court notes, the Supreme Court recently defined willful blindness as a subjective belief that there is a high probability that a fact exists combined with deliberate actions to avoid learning of that fact. 2Global Tech. Appliances, Inc. v. SEB SA, 131 S.Ct. 2060, 2070 (2011). The court rejected the EFF’s contention that the Prince song playing in her video was “self-evident” fair use, saying, “A legal conclusion that fair use was ‘self-evident’ necessarily would rest upon an objective measure rather than the subjective standard required by Rossi.” Ultimately, however, the court did not see enough evidence from either side to make a ruling as a matter of law at this stage in the proceedings. Both sides appealed.

512(f) and the proper standard

The DMCA in part provides a safe harbor from liability for infringing material uploaded to online service providers by third parties for purposes of storage if (among other requirements) those service providers remove the material upon notice by the copyright owner. The statute spells out what information is required on such notices, information that includes “A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” 317 USC § 512(c)(3)(A)(v). The statute also creates a cause of action against “Any person who knowingly materially misrepresents under this section … that material or activity is infringing.”

Rossi is the leading case interpreting these provisions. Michael J. Rossi owned the internet site “internetmovies.com” that boasted “Join to download full length movies online now! new movies every month”; “Full Length Downloadable Movies”; and “NOW DOWNLOADABLE” – it also included graphics of a number of MPAA member studio films. Upon discovering the site, the MPAA sent a takedown notice to Rossi’s ISP, which complied. The MPAA hadn’t attempted actually downloading any films from the site before sending the takedown notice, and apparently the site, despite its claims, did not contain any infringing material. Rossi sued for, among other things, misrepresentation under § 512(f), arguing that the MPAA should have known the site did not infringe.

The Ninth Circuit disagreed with Rossi, and held that the DMCA encompassed a subjective standard for two reasons. First, courts have traditionally interpreted the phrase “good faith” in other statutes as indicating a subjective standard. Second, the structure of the DMCA suggests Congress intended a subjective standard.

Juxtaposing the “good faith” proviso of the DMCA with the “knowing misrepresentation” provision of that same statute reveals an apparent statutory structure that predicated the imposition of liability upon copyright owners only for knowing misrepresentations regarding allegedly infringing websites. Measuring compliance with a lesser “objective reasonableness” standard would be inconsistent with Congress’s apparent intent that the statute protect potential violators from subjectively improper actions by copyright owners.

Rossi is on solid grounds, both for legal reasons and for policy reasons. As one recent court said, “The high standard for a § 512(f) claim reflects the reality that copyright owners face an uphill battle to protect their copyrights on the internet. … Without the subjective standard, copyright owners … could face limitless lawsuits just by policing [their] copyrighted material on the internet.” 4Ouellette v. Viacom Int’l, Inc., No. CV 10-133-M-DWM-JCL (D. Montana, April 25, 2012). The EFF’s primary argument for seeking an objective standard is based on a California district court case that was released before Rossi.

The EFF’s argument that copyright owners must consider fair use before sending takedown notices fails for an even more fundamental reason. Fair use is an affirmative defense, meaning the onus is on a defendant to raise it. It would be unusual — not to mention near impossible — to require a plaintiff to anticipate any possible defenses a defendant might decide to raise and then consider them.

An example illustrates the problems that arise from this approach. To bolster its argument that “Based on the facts readily available to it, Universal should have known Ms. Lenz’s video was lawful,” the EFF stitches together case holdings from the Ninth Circuit, the Second Circuit, the Southern District Court of New York, and the Central District Court of California. It also cites to one case that came out five years after Universal sent its takedown notice.

The EFF has inadvertently revealed the fatal flaw in its argument here. Its legal analysis that should make fair use obvious to a reasonable person only works if the analysis takes place in some sort of conglomerate circuit court. But that’s not how things work in the real world. The fact is that fair use is not so much a legal determination as it is an adjudicated determination, one far outside the narrow scope of § 512(f).

DMCA abuse and perspective

That’s not to say there isn’t abuse of DMCA takedown notices, nor that § 512(f) shouldn’t work to prevent such abuse.

There are certainly examples of bad actors sending takedown notices for sites or content that is not infringing or likely not infringing for purposes of harassment, suppressing criticism, or stifling competition. This is obvious abuse, and this abuse reflects poorly on the vast majority of copyright owners who don’t abuse the DMCA process.

(There is also a lot of other stuff that isn’t abuse but categorized as such nevertheless. This may include takedowns that are a result of either overzealous or inexperienced/mistaken creators, or automated processes. Technical processes are constantly improved, and copyright owners have incentives to makes sure they are accurate since they generally don’t want to spend time and resources going after works that don’t harm their own property. As for overzealous enforcement, many copyright owners have found that the bad PR that results from too heavy a hand in sending takedown notices is not worth it.)

Abusive takedown notices receive a lot of attention, amplified by groups like the EFF to be sure, but how big of a problem are they within the larger picture?

A recent paper by Prof. Bruce Boyden provides one data point. In The Failure of the DMCA Notice and Takedown System, Boyden notes that from March to August 2013, the MPAA sent 25.2 million DMCA notices and received a total of eight counternotices claiming the targeted work did not infringe or was fair use or otherwise authorized. Not eight million — just eight.

Google’s own amicus brief in this case states it receives “hundreds of notices” that are not targeted at infringement. That’s a lot to be sure, but Google also receives nearly 24 million notices in total every month.

During last week’s public meeting on the USPTO Green Paper, the EFF’s Corynne McSherry made reference to a story that made waves earlier this year, involving several DMCA takedown notices intended for infringing copies of the television show Homeland targeting copies of Cory Doctorow’s book by the same name. The rhetoric certainly made it sound like a disaster: Doctorow’s book was “shut down” by “overzealous” takedowns, his novel “censored” by a veritable “dragnet.”

But take a closer look at the actual takedown notices that were at issue. Contained on them was not just URLs to copies of Homeland by Cory Doctorow but also URLs to copies of the TV show Homeland, as well as other television shows owned by the same copyright owner. Lots of URLs. One takedown notice has four links to Doctorow’s work out of around ten thousand total links. Another has sixty-two out of over 4,200 total links. A third has three out of around 9,600 total links. The “dragnet” captured a couple dozen copies of Doctorow’s book out of over 20,000 total URLs.

So we can ask two questions. Do we want to see noninfringing content become temporarily inaccessible at certain web sites? 5I’m certain that despite Doctorow’s novel being removed from sites like “http://tpb.5gg.biz”, it was still readily available at other sites, like Doctorow’s own home page. Of course not. But, at the same time, is a greater than 99.8% accuracy rate acceptable, especially when you’re dealing with tens of millions of notices a month?

Abusive takedowns are a problem, certainly, but they are a problem that exists at the far margins of the notice and takedown system. Seeking solutions could be a helpful discussion, but solutions shouldn’t come at the expense of the overwhelming majority of legitimate notices that are sent.

What shape would these solutions take?

Solutions, should they be needed, could come from the private sector. Because of the way courts have interpreted the DMCA, the burden falls almost exclusively on creators to identify infringing works. Service providers have little responsibility in cooperating with copyright owners to detect and deal with online copyright infringement, as Congress intended when it drafted the statute. 6Senate Report 105-190 at 20 (1998). That cooperation could include mitigating abusive notices since both service providers and copyright owners are motivated to prevent them. Unfortunately, many service providers have taken a minimal, hands off approach to the DMCA, doing little more than responding to takedown notices when they arrive. If service providers played a more active role in protecting creative works, perhaps the more egregious abusive takedowns could be prevented. This might be accomplished by incorporating best practices into voluntary initiatives or building more effective technical measures. Increasing transparency and streamlining internal appeals processes.

They might also come from government. The Copyright Office released a report on copyright small claims September 30, 2013. The report examined alternatives to litigation in federal courts that would be more accessible to individual creators with limited resources. The Office recommended a streamlined, voluntary administrative tribunal that would hear infringement claims with amounts at stake under a certain monetary threshold. The goal of such proceedings would be to afford effective remedies when federal litigation is resource prohibitive.

Interestingly, the Copyright Office proposes that the tribunal hear not only infringement claims, but also claims of misrepresentation in DMCA takedown notices or counter notifications under section 512(f). 7It’s unclear to me what remedies would be available under the draft legislation provided in the report. § 1403(c)(3) limits remedies in proceedings involving 512(f) claims, which I presume are not “infringement” claims, to “those available under this chapter.” But §1404(d)(1)(C), which sets remedies for claims other than copyright infringement, says damages “shall be awarded in accordance with applicable law.” The challenge with implementing the small claims court would be providing a process that is accessible to the general public without opening the door to a flood of frivolous or vexatious claims, but if that balance can be struck, the availability of hearing 512(f) claims may help address those rare cases of abuse that currently go unaddressed and relieve some tension in copyright debates.

Conclusion

The EFF spends much of its brief appealing to free speech values. 8Though it oversteps when it says that private actors can violate the First Amendment. Pg. 58. But courts should also be mindful of the free speech values that meaningful copyright protection promotes, and the chilling effect that the tidal wave of online infringement has on creators. As Susan Cleary of the Independent Film & Television Alliance said at a panel last week on creating a multistakeholder process to identify ways to improve the notice-and-takedown process, the game of whack-a-mole itself may be fun, but playing whack-a-mole with online infringement is not so much fun when it prevents your ability to finance your next film. Throwing up barriers against speech being made in the first place — especially speech from independent and niche voices — is a far graver threat to free speech then the temporary inaccessibility of already existing speech on a single website.

References   [ + ]

1. 391 F. 3d 1000 (2004).
2. Global Tech. Appliances, Inc. v. SEB SA, 131 S.Ct. 2060, 2070 (2011).
3. 17 USC § 512(c)(3)(A)(v).
4. Ouellette v. Viacom Int’l, Inc., No. CV 10-133-M-DWM-JCL (D. Montana, April 25, 2012).
5. I’m certain that despite Doctorow’s novel being removed from sites like “http://tpb.5gg.biz”, it was still readily available at other sites, like Doctorow’s own home page.
6. Senate Report 105-190 at 20 (1998).
7. It’s unclear to me what remedies would be available under the draft legislation provided in the report. § 1403(c)(3) limits remedies in proceedings involving 512(f) claims, which I presume are not “infringement” claims, to “those available under this chapter.” But §1404(d)(1)(C), which sets remedies for claims other than copyright infringement, says damages “shall be awarded in accordance with applicable law.”
8. Though it oversteps when it says that private actors can violate the First Amendment. Pg. 58.

Starting the Conversation on Copyright Issues in a Digital Age — Yesterday, the Department of Commerce held a public meeting to discuss issues it raised in last July’s green paper on Copyright Policy, Creativity, and Innovation in the Digital Economy. I have a full write up on the panels at the Copyright Alliance site with links to archived video of the event and additional background materials.

Hurd at Content Protection Summit: Google, Corporations Can Help Stop PiracyWalking Dead Executive Producer Gale Anne Hurd said Google and major brands could do more to minimize filesharing and ad-sponsored piracy at a recent event. Said Hurd, “I don’t buy into the philosophy that piracy helps [the business] … It creates a habit and I don’t think it’s something we should encourage.”

Oral Argument in Oracle v. Google: A Setback for Google? — Lee Gessmer has another excellent post covering the appeal in Oracle v. Google. Though it’s rarely wise to predict case outcomes from oral arguments, the judge’s questions did suggest vulnerabilities in Google’s arguments.

MPAA Studios Sent 25 Million DMCAs in Six Months, Only Eight Were Contested — Torrentfreak picks up on a interesting statistic from Bruce Boyden’s recent DMCA paper released by the Center for Protection of Intellectual Property: the Motion Picture Association of America only received 8 counter-notices from the 25 million takedown notices it sent in the past six months. This suggests a nearly 100% accuracy rate.

Review of streaming TV issue urged — SCOTUSBlog reports on Aereo’s rebuttal to the broadcaster’s cert petition, which somewhat unusually urges the Court to review the case even though Aereo won at the Second Circuit. Broadcasters have 10 days to file a reply brief, at which point the Court will consider the petition at its next conference, though that is not likely to be until January due to the holidays.

Silicon Valley Kings Write Half-Assed Outrage Letter to NSA — “It only took half a year for the un-beating heart of America’s tech sector to show any unified opposition to NSA dragnet techniques: ReformGovernmentSurveillance.com is a lazy piece of PR dreck—and about as transparently self-serving as it gets. Of course, companies like Google and AOL—which stay in existence by trading in private information—don’t want competition.”

Legal Theory Lexicon: Consent — A longer version of “permission is a foundation of a free civilization.”

Any given Sunday: inside the chaos and spectacle of the NFL on Fox — Read this amazing behind-the-scenes look from the Verge about what goes into a typical TV broadcast of a professional football game: the investment in technology, the employees who can only pull it off after developing their skills and talents. To wit: “Kevin Callahan, Fox’s director of technical operations, estimates Fox credentialed between 150 and 200 people for the weekend, from Troy Aikman and director Rich Russo to runners and microphone holders. The network brings in about $25 million worth of equipment, with thousands of individual parts.”

David Lowery: Silicon Valley must be stopped, or creativity will be destroyed — Love or hate the idea of an artist actually speaking out, David Lowery has provide much food for thought over the past year. He is in top form in this interview with Spin, particularly here where he is talking about resistance to making the internet more ethical: “That would be like in the Industrial Revolution saying, ‘You can’t have a non-polluting factory; you can’t have a factory that doesn’t have child labor; you can’t have a factory that’s safe to work in.’ Of course you can! We’re the fucking masters of our own destiny, we pass the laws for this country, we create this country, we decide what kind of a society we’re going to have — not the Internet.”

Silicon Chasm — How bad is Silicon Valley? The extreme economic inequality present there shocks even Laissez-faire conservatives.

Best photos of the year 2013 — Beauty, tragedy, hope, sorrow: the range of human experience is captured by photographers. I couldn’t get through all these in one setting because of how powerful they are, but it is worth it — not just to see the images but also to read the observations from the photographers themselves.

The Failure of the DMCA Notice and Takedown System — Bruce Boyden has released a new paper with the Center for Protection of Intellectual Property that details the Digital Millennium Copyright Act after fifteen years. “A tool that was originally designed as an emergency stopgap measure, to be used in isolated instances, is now expected to manage infringement on a persistent, ubiquitous, and gargantuan scale.”

Thom Yorke Calls Himself a ‘Luddite and Proud of It’ in Spotify Debate — The only people who think “Luddite” is an insult are people whose exploitative machines are being smashed. As Spin points out, the Luddites “weren’t anti-machine — they were against low-paying bosses, against being put out of a job in the name of efficiency, you name it.”

This morning, the Federal Circuit dove into the wild and wooly world of software copyright, hearing oral arguments in Oracle v. Google. The case between the two juggernauts could have enormous implications for the software industry, which contributes more than $260 billion to the U.S. GDP each year and employs 2 million U.S. workers.

Oracle licenses the programming language Java. 1Which it acquired after purchasing the original creator of Java, Sun Microsystems, in 2010. To keep things simple, I’ll use “Oracle” throughout this article to refer to Oracle or Sun. One of the key features of Java is the Java Virtual Machine, which enables Java programs to run on any platform – a software developer can “write once, run anywhere” using Java.

To facilitate development of Java applications, Oracle also created a set of packages, or APIs. Each package is made up of multiple classes, and each class consists of a set of methods, each of which performs a specific function. Rather than writing a specific function from scratch, a Java developer can simply drop in a reference to the API.

While Google had become dominant in the desktop world by the mid 00’s, it was facing a lot of competition in the quickly growing mobile space. It acquired Android, Inc., in 2005 for the mobile software platform the company was developing, and began discussions with Oracle to license the Java operating system in order to quickly tap into a community of developers to build up a universe of apps.

But after five years, negotiations fell apart. Undeterred, Google created its own virtual machine and packages, but also copied verbatim the declaring code of 37 of the most popular Java packages. Oracle sued for copyright and patent infringement.

The procedural history of the case so far is a bit complicated because of the complexity of the issues. The trial was broken up into phases to address the patent and copyright issues separately. During the copyright phase, the jury was told to assume that the code was copyrightable to determine whether Google infringed the API packages, whether the infringement was fair use, and whether any copying of other snippets of code was de minimis. The trial court would later determine whether, as a legal matter, the code actually was copyrightable – the thinking was that this sequence would avoid a retrial if the judge found the code was not copyrightable and an appeals court reversed; the appeals court could then simply reinstate the jury’s verdict.

The jury found that (assuming the code was copyrightable) Google had infringed the 37 Java API packages but deadlocked on the fair use question. It also found that all snippet copying was de minimis except for one, a snippet named “range-Check.”

However, when the court then looked at copyrightability in the first instance, it held that Google had not copied anything protected by copyright. It based its holding first on the fact that Google had not copied the code that implemented methods from Java. Second, the “structure, sequence and organization” of the 37 packages that Google did copy from Java – amounting to over 7,000 lines of code – was not copyrightable because the court considered it a “system” or “method of operation,” both of which are not copyrightable under Section 102(b) of the Copyright Act.

Oracle appealed the decision to the Federal Circuit, which must determine whether the statutory copyright protection for software extends to source code and the structure, sequence and organization of the Java packages that Google admits to copying and whether that copying qualifies as fair use. Affirmation would endorse the type of free-riding Google engaged in here and erode the ability of software creators to invest in the constant innovation that drives this vibrant sector.

When does copyright protect software?

Software is protected under the Copyright Act as a “literary work.” Figuring out what exactly is protected and is not protected, however, can quickly become complicated, as application of copyright’s doctrines occur at a much more conceptual level than other subject matter. For example, copyright protects form, not function 2Mazer v. Stein, 347 US 201 (1954). – but how is that applied to software code, all of which performs some sort of function?

The district court’s holding that Google only copied nonprotected “methods of operation” seems most vulnerable on appeal. The court itself even admitted that “nothing in the rules of the Java language . . . required that Google replicate the same groupings.” Any concerns that protecting Oracle’s expression in its Java packages would prevent other developers from the underlying functional ideas are overstated. Indeed, Google was here able to deliver the same functionality without copying the Java implementations.

It’s difficult also to see how the interoperability argument holds up: Java and Android are not interoperable. Oracle’s appellate brief points out that this, in fact, is one of the primary reasons the two parties failed to reach a licensing agreement: “Google wanted to be the only company ever allowed to use the Java packages commercially without making its implementation compatible with the Java virtual machine and therefore interoperable with other Java programs.” The reason Google copied the 37 packages was to attract app developers more easily, not to create a compatible product. At the very least, the question of interoperability should be addressed as part of the larger fair use inquiry, not under the threshold question of copyrightability.

Last week, IP attorney Lee Gesmer discussed some further legal nuances in the case that are well worth a read.

In the end, a win for Google at the Federal Circuit would not, as some have said, be a win for innovation and interoperability – just the opposite, in fact. A win would create a preference for copying and free-riding over innovation. And, as stated above, the copying here created less interoperability rather than more.

This is especially concerning because of how Google increasingly operates. Some have suggested that Google uses open source as a “Trojan Horse” for locking users into its own closed ecosystem. That is, it creates an open space that is freely available to jump start its marketshare, than slowly creeps toward closed systems as it increases dominance. Last month, Rom Amadeo discussed this in an Ars Technica article, Google’s iron grip on Android: Controlling open source by any means necessary. Amadeo said:

While Android is open, it’s more of a “look but don’t touch” kind of open. You’re allowed to contribute to Android and allowed to use it for little hobbies, but in nearly every area, the deck is stacked against anyone trying to use Android without Google’s blessing. The second you try to take Android and do something that Google doesn’t approve of, it will bring the world crashing down upon you.

Judges seemed skeptical of Google’s argument this morning, but a ruling is not expected for several months.

References   [ + ]

1. Which it acquired after purchasing the original creator of Java, Sun Microsystems, in 2010. To keep things simple, I’ll use “Oracle” throughout this article to refer to Oracle or Sun.
2. Mazer v. Stein, 347 US 201 (1954).

On November 19, the International Intellectual Property Alliance (IIPA), released its latest report that shows the value added by copyright industries each year to the US economy. This was the 14th such report IIPA has released since 1990, and for the first time, core copyright industries 1Defined in the report as it is defined by WIPO in its Guide to the copyright and related rights treaties administered by WIPO and glossary of copyright and related rights terms: “The core copyright industries are those industries whose primary purpose is to create, produce, distribute or exhibit copyright materials. These industries include computer software, videogames, books, newspapers, periodicals and journals, motion pictures, recorded music, and radio and television broadcasting.” contributed over one trillion dollars.

Among the marquee findings, the report concludes that copyright industries:

  • Employed nearly 5.4 million U.S. workers – nearly 5% of the total private employment sector – with jobs paying an average of 33% more than the rest of the workforce.
  • Grew at an aggregate annual rate of 4.7%, more than twice the rate of growth for the U.S. economy.
  • Accounted for $142 billion in foreign sales and exports, far more than sectors such as aerospace, agriculture, food, and pharmaceuticals and medicines.

The reaction from copyright skeptics about the report’s conclusions that copyright contributes significantly to the US economy was, essentially: “Does not.”

The spin seems to be that, yes, industries that create and disseminate copyrighted works may make substantial contributions to the US economy, but that does not necessarily mean that the success is a result of copyright itself. Jonathan Band, writing at the CCIA’s Project DisCo, says, “The report itself does not in any way attribute the success of these industries to copyright protection.”

It’s an odd argument — that the fundamental building block of a market for expressive works doesn’t play a role in the success of that market. How sound is it?

One way to test the argument would be to take a comparative look at the economic contributions of copyright industries between jurisdictions with different levels of copyright protection. If copyright protection is related to the economic contributions of copyright industries, then we would expect countries with stronger copyright protections to have a higher economic contribution from copyright industries compared to countries with weaker copyright protections.

And that, in fact, is exactly what happens.

Since 2002, WIPO has supported and collected reports on the economic contributions of copyright industries in nearly forty countries around the world. Last year, it released a report, WIPO Studies on the Economic Contribution of the Copyright Industries, that analyzed and compared the data from these reports.

One of the things WIPO looked at was how the economic contributions of copyright industries in countries related to those countries rankings on the International Intellectual Property Index, a study prepared by the Property Rights Alliance (PRA) that looks at data from 129 countries. The study “measures the significance of both physical and intellectual property rights and their protection for economic well-being. The Index focuses on three areas: legal and political environment, physical property rights, intellectual property rights.” Among the metrics the PRA looks at is the strength of IP law and how well it is enforced.

WIPO’s conclusion: “The analysis suggests a strong and positive relationship that exists between the contribution of copyright industries to GDP and the IPR Index.” That is, copyright industries contribute more to a country’s GDP when they are better protected. 2It’s worth noting the other conclusions from the report. WIPO also found the following: “There is a positive relation between the contribution of copyright industries to GDP and the GDP per Capita”; “Contribution to Copyright industries to GDP exhibits strong and positive relationship with the Index of Economic Freedom”, which measures “economic openness, competitiveness and the rule of law, such as business freedom, trade freedom, fiscal freedom, property rights, freedom from corruption, etc.” — WIPO explains, “Countries that score well demonstrate a commitment to individual empowerment, non-discrimination and the promotion of competition. Their economies tend to perform better, and their populations tend to enjoy more prosperity, better health care and more positive measures on a variety of quality-of-life indices”; “Contribution of Copyright industries to GDP exhibits strong and positive relationship with the Freedom from Corruption indicator,” an index prepared by Transparency International; “The analysis suggests that there is a strong and positive relationship between the contribution of copyright industries to GDP and the Global Competitiveness Index,” an index prepared by the World Economic Forum; and INSEAD’s Global Innovation Index “has a positive and highly significant relation with performance of the creative industries.”

Okay, that’s settled. But the question remains: why is it that copyright skeptics have such a knack for making obvious points like “incentives do more when they work better” sound counterintuitive?

Fundamental economic logic of property systems

Earlier this month, influential and distinguished legal scholar Richard Epstein spoke at a Federalist Society event titled “Intellectual Property, Free Markets, and Competition Policy.” Though his talk focused primarily on patents, his concluding remarks are just as applicable to copyright. Said Epstein:

One of the great tragedies of modern time is we have too much scholarship with respect to intellectual property. And the problem about this scholarship is it becomes deeply introspective, and what it does is it takes a perfectly beautiful structure, puts it under a microscope and sees every pore and deformity in the system at this minor level and then blows them up out of all proportion. What people need to do is take a tranquilizer to relax … That’s because they’re overstating difficulties, and they overstate difficulties because they do not understand the fundamental economic logic of all property systems, and therefore they don’t understand it with respect to intellectual property. So count me as a dissenter from the modern establishment on this area.

Copyright, like any other form of property, is an economic asset. For many creators, it is often the only economic asset they bring to the table, whether they are negotiating with a “traditional” entity like a film studio or record label or a newer distributor like YouTube. It also serves a building block for an entire marketplace for cultural, educational, and scientific works. All the features of a free market are present: property, private ordering, and nondestructive competition. The result is that the value of these works is maximized, and their creation and dissemination are promoted.

Part of the misunderstanding of the logic of copyright may come from the focus of skeptics on only the incentive to create, to the exclusion of the incentive to disseminate. 3See, e.g., Rob van der Noll & Joost Poort, Assessing the Economic Contribution of the Copyright-Based Industries, CCIA (2011): “From an economic perspective, the incentives for creative production are the main rationale for the existence of copyright.” The Supreme Court has been clear this is not the case:

Nothing in the text of the Copyright Clause confines the “Progress of Science” exclusively to “incentives for creation.” Evidence from the founding, moreover, suggests that inducing dissemination—as opposed to creation—was viewed as an appropriate means to promote science. Until 1976, in fact, Congress made “federal copyright contingent on publication[,] [thereby] providing incentives not primarily for creation,” but for dissemination. Our decisions correspondingly recognize that “copyright supplies the economic incentive to create and disseminate ideas.” 4Golan v. Holder, 132 S. Ct. 873, 888-889 (2012); see also Adam Mossoff, How Copyright Drives Innovation in Scholarly Publishing, forthcoming (2013).

Copyright’s contribution to the public benefit

Another big reason for misunderstanding the fundamental economic logic of copyright is a myopic look at the public benefit of copyright. All property rights serve the public benefit. 5See, e.g., State v. Shack, 58 N.J. 297, 303 (NJ 1971), “Property rights serve human values”; Armen A. Alchian, Property Rights, The Concise Encyclopedia of Economics (Library of Economics and Liberty) “Private property rights do not conflict with human rights. They are human rights.” James Madison, who proposed and drafted the Copyright Clause of the US Constitution explicitly recognized this same principle in copyright law. Writing in the Federalist Papers, Madison said of the Clause, “The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged in Great Britain, to be a right of common law. … The public good fully coincides…with the claims of individuals.” Copyright skeptics often see only the exceptions and limitations on copyright as the parts that benefit the public while ignoring the inherent public benefit of recognizing individual, exclusive rights in creative works.

This leads to the oft-quoted fallacy that copyright law only “makes reward to the owner a secondary consideration.” That this quote is the result of a misreading of case law should be enough to put it to bed. However, one commentator has explained why, accepting it on its face, it is premised on faulty logic:

It would be similarly fallacious to say that in a real estate transaction, the money paid to the seller is only a secondary consideration, with the primary value of the transaction consisting of the conveyance of the parcel to the buyer. Both the money and the land in such a transaction are consideration; neither is more important to the public, although at the time of the transaction the money is more important to the seller and the land is more important to the buyer. The value to society consists merely in the existence of a market for the land so that property may be obtained by those who are likely to put it to better use. Likewise, for intellectual property; the value to society consists in the existence of a market for the authors’ writings. The money paid to the author is by no means secondary. Rather, it is the unavoidable result of the creation of a market because a market cannot exist without the promise of reward to owners of property who choose to place that property on the market. 6David A. Householder, The Progress of Knowledge: A Reexamination of the Fundamental Principles of American Copyright Law, 14 Loyola L.A. Entertainment Law Review 1, 35-36 (1993).

More recently, the Supreme Court has explicitly rejected this erroneous secondary consideration reasoning, reiterating the basic economic logic of copyright in Eldred v. Ashcroft:

JUSTICE STEVENS’ characterization of reward to the author as “a secondary consideration” of copyright law understates the relationship between such rewards and the “Progress of Science.” As we have explained, “[t]he economic philosophy behind the [Copyright] [C]lause … 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. Accordingly, “copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge…. The profit motive is the engine that ensures the progress of science.” Rewarding authors for their creative labor and “promot[ing] … Progress” are thus complementary; as James Madison observed, in copyright “[t]he public good fully coincides . . . with the claims of individuals.” JUSTICE BREYER’s assertion that “copyright statutes must serve public, not private, ends,” similarly misses the mark. The two ends are not mutually exclusive; copyright law serves public ends by providing individuals with an incentive to pursue private ones.

So, yes, it is accurate to say that meaningful and effective copyright protection plays a critical role in the success of creative industries that produce and disseminate works protected by copyright. And with one trillion dollars in value added to the US GDP and employment of over five million workers at above-average wages, that success is no small feat.

References   [ + ]

1. Defined in the report as it is defined by WIPO in its Guide to the copyright and related rights treaties administered by WIPO and glossary of copyright and related rights terms: “The core copyright industries are those industries whose primary purpose is to create, produce, distribute or exhibit copyright materials. These industries include computer software, videogames, books, newspapers, periodicals and journals, motion pictures, recorded music, and radio and television broadcasting.”
2. It’s worth noting the other conclusions from the report. WIPO also found the following: “There is a positive relation between the contribution of copyright industries to GDP and the GDP per Capita”; “Contribution to Copyright industries to GDP exhibits strong and positive relationship with the Index of Economic Freedom”, which measures “economic openness, competitiveness and the rule of law, such as business freedom, trade freedom, fiscal freedom, property rights, freedom from corruption, etc.” — WIPO explains, “Countries that score well demonstrate a commitment to individual empowerment, non-discrimination and the promotion of competition. Their economies tend to perform better, and their populations tend to enjoy more prosperity, better health care and more positive measures on a variety of quality-of-life indices”; “Contribution of Copyright industries to GDP exhibits strong and positive relationship with the Freedom from Corruption indicator,” an index prepared by Transparency International; “The analysis suggests that there is a strong and positive relationship between the contribution of copyright industries to GDP and the Global Competitiveness Index,” an index prepared by the World Economic Forum; and INSEAD’s Global Innovation Index “has a positive and highly significant relation with performance of the creative industries.”
3. See, e.g., Rob van der Noll & Joost Poort, Assessing the Economic Contribution of the Copyright-Based Industries, CCIA (2011): “From an economic perspective, the incentives for creative production are the main rationale for the existence of copyright.”
4. Golan v. Holder, 132 S. Ct. 873, 888-889 (2012); see also Adam Mossoff, How Copyright Drives Innovation in Scholarly Publishing, forthcoming (2013).
5. See, e.g., State v. Shack, 58 N.J. 297, 303 (NJ 1971), “Property rights serve human values”; Armen A. Alchian, Property Rights, The Concise Encyclopedia of Economics (Library of Economics and Liberty) “Private property rights do not conflict with human rights. They are human rights.”
6. David A. Householder, The Progress of Knowledge: A Reexamination of the Fundamental Principles of American Copyright Law, 14 Loyola L.A. Entertainment Law Review 1, 35-36 (1993).

… And we’re back. Unfortunately, the site has been suffering some technical difficulties over the past couple of weeks, preventing any updates. But things seem to be running smoothly once again.

That there is property in the ideas which pass in a man’s mind is consistent with all the authorities in English law. Incidental to that right is the right of deciding when and how they shall first be made known to the public. Privacy is a part, and an essential part, of this species of property.

— Prince Albert v. Strange, 1 McN. & G. (1849).

The Internet Does Not Reset the Copyright-Free Speech Balance — Law prof Sean O’Connor takes on the meme that “free speech trumps all other legal rights in cyberspace — including copyright.” Says O’Connor, “Commercial websites that play on this invalid meme are doing a disservice to their users and to copyright owners. In their rush to attract ever more users, and pump ever more commoditized content through their sites, these firms are inducing or contributing to widespread infringement under the guise of ‘free speech.'”

Should Wikipedia be allowed to ban paid advocacy editors? — Over at the Copyright Alliance blog, I write about the news this week that the non-profit that runs Wikipedia has taken a strong stance against a firm alleged to write positive articles on behalf of paying clients, sending a cease and desist letter that warns of future legal action. It’s not a copyright issue per se, but it shares similar underlying principles. “Wikimedia wants to maintain some right and ability to control its content, even as it makes it freely and publicly accessible. That control serves as a basis for the innovative service they provide and the community that has been built up around it. We as a society should recognize that ability to control.”

Spin This: Copyright Industries Grow at Twice the Rate of US Economy — David Newhoff looks at a report from the International Intellectual Property Alliance that shows the tremendous contribution of copyright industries to the US economy, industries that directly employ over 5.6 million workers, with above-average wages. Newhoff says, “here’s the bottom line I think we should take away from this report and any pollyanna attempts to rebut or redirect its relevance: copyright works, don’t break it.”

Copyright is still essential to a free market in creative works — Just in time for this week’s IIPA report revealing that core copyright industries’ contribution the US economy have for the first time topped $1 trillion comes this article from Matt Barblan, who writes, “even in today’s digital age, strong property-based copyright protection remains an essential component of our creative economy. It is the bedrock supporting the free market for creative works, and it is vital to maintaining the market mechanisms that promote the creation, commercialization, and distribution of creative works. Repeated calls to weaken copyright (and accompanying suggestions of alternative legal or business models) routinely ignore copyright’s fundamental economic importance.”

Internet myths, part 1 — Some great background and information on the genesis and development of the internet from tech expert Richard Bennett.

Film Industry In Developing Countries Needs To Implement Copyright, Speakers Say — A reminder of the fact that, among other things, copyright plays an important role as an economic asset — sometimes the only economic asset — that creators have to enter into negotiations in the marketplace. “An event held today alongside the World Intellectual Property Organization committee on development gathered several cinema professionals working in emerging or developing countries and said that film makers in those countries need to better understand the functioning of the intellectual property system to be able to be part of the global film industry.”

Notes on the Revolutionary Expansion in Digital Content Availability — This week the ITIF hosted a panel discussion on the evolution of digital content, with panelists from Google, the NMPA, DiMA, and MPAA. John McCoskey of the MPAA shares some post-panel thoughts here. “One thing that’s clear is that quality content has never been more influential to the growth of the Internet than it is today.  If you want to attract visitors to your website, subscribers to your service, or eyeballs to your advertisements, your content needs to be compelling. That’s why players like Amazon and Netflix have begun producing their own original programming, and that is just as true for Hollywood studios who continue to be on the cutting-edge of the digital content revolution.”

Why Buy the Cow? — Writer Alex Epstein reflects on last Sunday’s article by Tim Krieder in the NY Times, Slaves of the Internet, Unite! He offers the observation that the internet has decimated the middle-class of creative professionals. “But it does feel like what used to be a pyramid has shrunk its middle, so its base is impossibly wide, and the top quite pointy. The middle seems to be disappearing. There’s room for star journalists, and free Huffington post contributors, but no room for journeymen…Before recorded music, if you were semi-good, you could become a traveling musician. You could make a living, of a sorts, playing to crowds of 40. Or, at least, you could eat. That living hasn’t existed for a long time. Instead you play to crowds of 40 to get exposure (and learn your chops) so you can play to crowds of 10,000 for money.”

The Echo Nest And Getty Images Upgrade Stale Album Art — Photo licensing service Getty Images has partnered with innovative music service Echo Nest to make thousands of high quality images available to developers through the Echo Nest API. Pretty cool.

Is this really what Congress had in mind when it created the DMCA? — Ellen Seidler presents evidence that suggests the answer to that question should be “no.” “Not only does sending out DMCA notices required a great deal of time–time that most indie content creators do not have–but often times it’s ignored entirely by pirate sites that feign compliance.”

Woody Allen Pens Rare Open Letter to Hollywood (Guest Column) — A lot of people in the creative industries work behind the scenes. They are just as creative and essential to the success of a work, but too often don’t get recognized for their contributions. In this open letter, filmmaker Woody Allen calls attention to the contributions of casting directors to the success of films. “In my case certainly, the casting director plays a vital part in the making of the movie. My history shows that my films are full of wonderful performances by actors and actresses I had never heard of and were not only introduced to me by my casting director, Juliet Taylor, but, in any number of cases, pushed on me against my own resistance.”

I’ve Spent Two Years Making a Documentary About What Really Happened to Musicians… — Producer Count debuted this extended trailer of the in-progress doc “Unsound” at the Future of Music Coalition Summit this week. Essential viewing, and currently raising funds on Indiegogo to get it ready for film festivals.

The $4 Billion Secret: Don’t Bother Making Any Money — Tech startups can raise millions without even having a plan to make money in place. Perhaps that’s why so many think creators can just give their work away for free and be successful?