This case fits squarely within the tradition of copyright enforcement. Turchin’s conduct—pirating and distributing dozens of copies of Glacier’s film—does not “promote the Progress of Science and useful Arts” by “assur[ing] authors the right to their original expression” and “encourag[ing] others to build freely upon the ideas and information conveyed by a work.” This is not a case of the infringer creating something new and incorporating a copyrighted element into that new, creative work. Rather, this case is the digital equivalent of standing outside the neighborhood Redbox—or Blockbuster Video, for fans of history—and giving away copies of the movie for free.

Glacier Films v Turchin, 9th Circuit (July 24, 2018)

The AG Opinion in Levola Hengelo: more questions than answers? — Can the taste of cheese be protected by copyright? This week, the Advocate General for the European Court of Justice advised that court that the answer is “no.” IPKat’s Eleonora Rosati takes a closer look at that opinion.

Nintendo Sues Console ROM Sites For ‘Mass’ Copyright Infringement — Torrentfreak reports on the lawsuit filed in the federal district court of Arizona against two websites alleged to offer a “vast library” of unauthorized copies of Nintendo video games. The suit is perhaps unsurprising given Nintendo’s new line of retro consoles for sale.

Five Reasons Why I Went from Making Films to Fighting for Those Who Make Them — Ruth Vitale, film producer and CEO of CreativeFuture, writes, “Creativity is at the heart and soul of our culture, of ideas that challenge us, and change our perception. Creativity is innovation. It’s the fabric of shared understanding that brings cultures together. And its success depends on strong copyright protections that ensure artists get fairly compensated for what they do. That’s been the American way for two centuries, and it is why we are global leaders in creativity. For a long time, I helped to tell stories about the human condition. Now, I do this work to help protect those very same storytellers, because I do not want to live in a world that doesn’t value creativity.”

Finally, today’s helpful tip comes from Vinton Cerf:

Copyright Alliance survey on copyright registration fee increase — If you register works with the Copyright Office, take five minutes to complete this survey, which will be used in response to the Copyright Office’s proposed fee schedule, which would raise fees an average of 41%.

Breaking the wall: copyright conflict reaches the Supreme Court — On the topic of copyright registration, the Supreme Court recently agreed to hear a case concerning when the registration requirement for filing a lawsuit has been met. Courts have split over whether the statute requires the Copyright Office to either complete or reject a registration application before a copyright owner can get into court, or whether the requirement is met earlier, when the copyright owner has submitted her registration materials to the Office.

As Clock Ticks, New Hurdles Mount Against the Music Modernization Act — Billboard’s Ed Christman has the latest on the Music Modernization Act, which was voted out of the Senate Judiciary Committee last month and has a few short months left to make it to the Senate floor before the Congressional term concludes.

Copyright found after brief search — Newhoff: “Nevertheless, having established an incomplete, if not outright false, premise for the purpose of copyright, [law professor Glynn] Lunney sets out in search of evidence to support his theory that higher revenue consistently fails to yield “more and better” works. And unsurprisingly, he finds exactly what he’s looking for in data that not only fails to prove his point, but actually has little to do with copyright.”

Google and the ennui of learned helplessness — The Supreme Court is set to hear a case concerning cy pres class action settlements. This article looks at an amicus brief filed by several artists who argue that Google has abused the process “to pay academics and nonprofits who support its causes instead of class members, avoid liability and damage payments to the public, and get a tax break for payments made to non-class members through use of the cy pres distribution vehicle.”

New Paper Takes on the Myth of Free — David Newhoff looks at a new paper by law professor John M. Newman that critiques the idea that the internet has ushered us into a post-scarcity economy.

Controversial Fair Use Copyright Ruling Faces Appeal — It’s rare to see a court decision that is so consistently erroneous. But we got one last month with Brammer v Violent Hues Productions, which held that defendant’s copying was protected by fair use. That decision is now being appealed.

Surprise! Pirate Sites Are Affected By Market Forces Too — Torrentfreak writes, “Pirate sites are regularly painted as places where markets are turned on their heads, with premium content being made available for free to the sounds of birds tweeting and lambs skipping across meadows. But try telling that to the users of FreeTutorials and KissAnime, who are now expected to pay for content using either hard cash or enforced advertising.”

The Death of the Public Square — Franklin Foer, author of the recent book World Without Mind, writes, “t took centuries for the public sphere to develop—and the technology companies have eviscerated it in a flash. By radically remaking the advertising business and commandeering news distribution, Google and Facebook have damaged the economics of journalism. Amazon has thrashed the bookselling business in the U.S. They have shredded old ideas about intellectual property—which had provided the economic and philosophical basis for authorship.”

All EFF’d Up: Silicon Valley’s Astroturf Privacy Shakedown — Author and journalist Yasha Levine offers a blistering account of EFF’s role in facilitating the large internet platforms’ policies. “On a fundamental level, these companies were like tapeworms—digital parasites that sunk their hooks into our networks of culture distribution and siphoned value as quickly as possible for themselves, without giving anything back to the people who produce culture. And just as these new platforms would asphyxiate without other people’s creative output, they wouldn’t stand a chance of turning a profit without a massive surveillance campaign on their own users. Naturally, as these companies grew and matured, two threats to their business loomed large: copyright and privacy. To make sure these never became a problem, Silicon Valley built up a powerful lobbying and public relations machine.”

What a Google Email to News Publications Means for the Music Business — Rob Levine writes, “The battle over the proposed European Union Copyright Directive is heating up — and technology companies have returned to their usual playbook. That means mobilizing nonprofit groups and academics they support, warning that policies will ‘break the internet,’ and trying to get some creators and media companies on their side. The latest example: An email from Google to news publications in its Digital News Initiative, a program the company established to help journalism online, asking them to lobby against parts of the Copyright Directive that are intended to help them.” This week, after publication of this article, the European Parliament declined to adopt the amendments and sent them to a plenary vote this September.

All the Forgotten IP Cases, Where Do they All Come From… — Zvi Rosen looks at Perris v Hexamer, an 1878 Supreme Court decision on copyrightability that has largely been forgotten.

Kim Dotcom loses appeal against extradition, will take case to Supreme Court — The New Zealand court held that Dotcom could be extradited to face criminal copyright infringement charges in the US, dismissing Dotcom’s argument that New Zealand lacks criminal copyright infringement provisions.

Kitty Pryde Owns the Trademark on the X-Men — It’s canon.

‘Critics of Article 13 are Weaving a Narrative with no Relation to Fact’ — Article 13 is part of a proposed update to EU’s copyright directive and would place more responsibility on certain online service providers providing content to users to make sure that content is authorized by copyright owners. BASCA’s Crispin Hunt responds to the avalanche of hyperbolic nonsense that critics of the article are pumping out, saying, “The reality is that Article 13 is hardly revolutionary. It is a modest proposal that returns some sense of fairness and responsibility to the manner in which internet platforms operate. We have had almost 20 years of experience under the existing regime where platforms have almost no accountability to the public, and in which they are rewarded for wilful blindness and inaction.”

Supreme Court to Resolve Split Over Copyright Registrations — The Supreme Court picked up its first copyright case this term on the last day of the term. The question: given that copyright registration is required before filing a lawsuit, does the statute allow copyright owners to sue once they’ve sent their registration application to the Copyright Office, or must they wait until the Copyright Office has reviewed the application and either granted or denied registration? Courts have split on the question.

Senate Judiciary Committee Unanimously Passes Music Modernization Act — The bill previously passed the House 415-0.

IP Norms’ Dark Side — “The early legal literature on law and social norms tended to paint a rosy picture. Social norms were generally depicted as an optimal set of organically developed rules, informed by the experience of a close-knit community, and thus superior to formal law as a way to regulate behavior. Later scholars came to realize that nothing guarantees the optimality of social norms: they may perpetuate practices that no longer make sense, or they may advance the interests of certain groups but not social welfare. In such cases, formal law holds the promise of overriding suboptimal norms and moving society to a better place.”

Putting “Fair” Back in “Fair Use” — “Partly to blame perhaps for an expansion of the boundaries of fair use was the lack of a coherent economic framework for evaluating secondary uses under the ‘transformative’ concept. A new academic paper entitled Fair Use in the Digital Age by scholars at the Phoenix Center for Advanced Legal & Economic Public Policy Studies and Auburn University’s Economics Department in the Journal of the Copyright Society of the U.S.A. (65 J. Copyright Soc’y U.S.A. 1 (2018)) offers a practical economic framework closely tied to the statute, judicial precedent, and Judge Leval’s ‘transformativeness’ idea. The analysis in this article is rich, but it generally points to two key steps in analyzing fair use disputes.”

Patent Injunctions, Economics, and Rights — Much of what Eric Claeys and Adam Mossoff say in this paper about patents applies just as well to copyright. The essay lays out “why a Lockean theory of rights supplies a more satisfying foundation for property rights and markets than consequentialist and law and economic foundations.”

The Motivations to Create — “Economists have long debated the degree to which inventive and artistic activities were either the result of instinctual urges on the part of creators, or the responses of creators to potential pecuniary rewards. Copyright and patent laws are based on a view that rewards are an important factor. In this paper we attempt to provide an empirical analysis of this question by using a recent data set covering the book production industry. We find evidence that authors publish more new books when they earned higher payments for previously written books, although at high enough levels of payment their production of new works begins to decline, consistent with a backward bending supply function.”

EU Parliament committee votes for tougher EU copyright rules to rein in tech giants — “The copyright rules, proposed by the European Commission two years ago, are designed to take account of the growing role of online platforms, forcing them to share revenues with publishers and bear liability for copyright infringement on the internet. The vote by the Legal Affairs Committee is likely to be the Parliament’s official stance as it heads into negotiations with EU countries on a common position, unless dissenting lawmakers force a vote at the general assembly next month.”

The internet apologizes… — “If you’re YouTube, you want people to register as many accounts as possible, uploading as many videos as possible, driving as many views to those videos as possible, so you can generate lots of activity that you can sell to advertisers. So whether or not the users are real human beings or Russian bots, whether or not the videos are real or conspiracy theories or disturbing content aimed at kids, you don’t really care. You’re just trying to drive engagement to the stuff and maximize all that activity. So everything stems from this engagement-based business model that incentivizes the most mindless things that harm the fabric of society.”

Leading Artist Groups Announce Opposition To Sen. Wyden’s So-Called “ACCESS to Sound Recordings Act” — The groups write, “The CLASSICS Act would ensure that artists who created and contributed to timeless songs finally get their due and would bring much needed certainty to one of the most contentious and confused areas of music licensing today. It is the product of a lengthy, considered process stretching back over several Congresses and represents a carefully balanced compromise that virtually all stakeholders have come together to support. We are disappointed that the introduction of the ‘ACCESS Act’ was done without consulting any artist group, organization, or union who would have made it clear that the bill’s eleventh-hour introduction is not a viable solution. The ‘ACCESS Act’ would undercut the goals of the [Music Modernization Act] by cutting compensation for the older artists that it is expressly designed to benefit.”

YouTube Download Sites Throw in the Towel Under Legal Pressure — Torrentfreak reports that several streamripping sites—which allow users to convert streaming media into downloadable files—have recently shut down. The article quotes EFF in defense of streamripping services, in part because the group says, “Some creators specifically allow others to download and modify their work.” But, if a creator lets you download their work… why do you need a streamripper?

The Normalization of Website Blocking Around the World in the Fight Against Piracy Online — ITIF’s Nigel Cory has written a handy survey of recent developments regarding the increasing number of countries adopting website blocking as a remedy for online piracy. Says Cory, “A growing number of countries recognize that website blocking is a reasonable and effective tool to reduce the consumption of pirated material and to increase the consumption of legal content. Furthermore, the various approaches to website blocking and years of operations establish a range of precedents and lessons learnt that can be used by other countries that are considering enacting or revising their own regime.”

Assistant Attorney General Makan Delrahim Delivers Remarks at the National Music Publishers Association Annual Meeting — A recommended read. Delrahim states, “Music does more than that, though. It connects us, even defines us, as an American people with a shared artistic and cultural heritage. When I emigrated from Iran as a child, I didn’t even speak English. The songs on the radio and in my tape deck helped to define America for me, as they have for so many others. The Jazz Singer album by Neil Diamond is what transports me to my first memories as a child in the United States. We can’t forget that every song starts with a songwriter: Someone, somewhere, sitting at a piano, strumming a guitar, or staring at a blank sheet of paper waiting for the lyrics to flow. Songwriters are the creators that give music its first breath of life; they make it all possible. They also inspire us.”

The Forum on Internet Governance — DC folks should check out this event next Thursday featuring Jonathan Taplin, author of Move Fast and Break Things. According to the event page, “For decades major internet players like Google and Facebook have been fighting off any attempts to put guidelines in place to address criminal and abusive activity on their platforms. But now, with last years foreign interferance in U.S. elections and the recent revelations about Facebook and Cambridge Analytica discussions about the need for internet governance have come sharply into focus. The Forum will bring together a diverse group of thought leaders and subject experts to discuss the absence of safeguards on the internet and make recommendations for ensuring a safe, secure internet for everyone.”

How Technology Is Changing Visual Art — “No doubt these tech tools make it much easier to create artwork, just as the high-quality cameras that come with today’s smartphones have turned us all into ‘photographers.’ But I believe you still need certain artistic skills to become an illustrator. You need to have a discerning eye and to be able to communicate by creating a visual vocabulary that’s uniquely your own. As an illustrator, you have to establish your point of view to solve problems and to go beyond just tracing a picture.”

Copyright and a Free Press — The US Copyright Office’s Brad Greenberg writes, “Our founding fathers saw copyright as a crucial vehicle for creating a free press. In England, the 1710 enactment of the Statute of Anne—the matriarch of copyright laws—unshackled publishers from the restrictions of a system that limited publishing to those who had received printing privileges from the Crown. Copyright law helped curb government censorship and at the same time provided new voices with economic incentives.”

FCC Asks Amazon & eBay to Help Eliminate Pirate Media Box Sales — Torrentfreak reports, “FCC Commissioner Michael O’Rielly has written to the heads of Amazon and eBay with a request to eliminate sales of pirate media boxes which illegally display the FCC compliance logo. In a letter to Devin Wenig and Jeff Bezos, O’Rielly seeks the total removal of such devices, noting that their fraudulent labeling is exacerbated by the effect they have on the entertainment industries.”

Jay-Z Triumphs in “Big Pimpin” Appeal as Egyptians Can’t Enforce Moral Rights — A long running suit appears to come to an end, as the Ninth Circuit held that the heir of an Egyptian composer could not sue Jay-Z “based solely on the fact that Egyptian law recognizes an inalienable ‘moral right’ of the author to object to offensive uses of a copyrighted work.”

On May 23, without the benefit of any studies, hearings, or stakeholder input, Senator Wyden introduced the “Accessibility for Curators, Creators, Educators, Scholars, and Society to Recordings Act” (“ACCESS to Recordings Act”).1S. 2933. The bill would preempt the state and common law protections that sound recordings fixed before February 15, 1972 have always enjoyed and make them subject to federal copyright protection. In doing so, it suffers fatal Constitutional flaws.

The Fifth Amendment of the Constitution establishes that the federal government cannot take private property “for public use without just compensation,” a principle stretching back at least 800 years to the Magna Carta.2Horne v Department of Agriculture, 576 US ___ [at pg 5] (2015). The Takings Clause, as this provision is referred to, applies just as much to intellectual property, like copyright, as it does to other forms of private property.3Copyright and the Takings Clause; James v. Campbell, 104 U.S. 356, 358 (1882) (“[A patent] confers upon the patentee an exclusive property in the patented invention which cannot be appropriated or used by the government itself, without just compensation, any more than it can appropriate or use without compensation land which has been patented to a private purchaser.”); see also most recently Oil States Energy Services, LLC, v Greene’s Energy Group, LLC, 584 US ___ at 17 (2018) (noting decision “should not be misconstrued as suggesting that patents are not property for purposes of the Due Process Clause or the Takings Clause”).

The US Copyright Office identified takings as one of the most prominent constitutional issues when it studied the federalization of pre-1972 sound recordings several years ago.4U.S. Copyright Office, Federal Copyright Protection for Pre-1972 Sound Recordings, Public meeting Tr. 06-03-2011 at 41 (June 3, 2011). Because federalization would entail preempting state law protection, the Office said in its final report, it “would deprive owners of vested interests currently held under state law and therefore could raise Fifth Amendment takings claims.”5U.S. Copyright Office, Federal Copyright Protection for Pre-1972 Sound Recordings Report at 155 (2011). The Office explained that this shouldn’t be an issue if “the state law-based property right is replaced by a federal right of equal strength and duration.”6Id. But it does become an issue if the new federal term of protection is shorter than the existing state law term of protection.7Id.

This type of taking seems as clear a taking as the one the Supreme Court dealt with in 2015 in Horne v Department of Agriculture.8576 US __. Note that in holding that Takings Clause precedent establishing that direct appropriation of real property is a per se taking applies just as well to direct appropriation of personal property, the Court used as an example a case concerning the alleged appropriation of intellectual property—a patent—by the Government. In that case, which succeeded the Copyright Office’s analysis of the takings issue, the Court examined a Department of Agriculture regulation requiring raisin growers to give a percentage of their crop to the Government free of charge in order to maintain a stable market. It held that this regulation was a per se taking that required just compensation because “[a]ctual raisins are transferred from the growers to the Government” and thus the growers “lose the entire ‘bundle’ of property rights in the appropriated raisins.” Like the taking there, cutting off protection for sound recordings where they previously enjoyed protection under state law would cause sound recording owners to “lose the entire ‘bundle’ of property rights” in their recordings.

The CLASSICS Act, now part of the Music Modernization Act, which passed the House 415-0 and is currently in the Senate, addresses one of the more acute issues involving pre-1972 sound recordings—uncertainty surrounding the right of digital performance—through a tailored, consensus-based approach. In doing so, it avoids any takings issues by providing roughly the same right at the federal level that it preempts at the state level (albeit with more uniformity and certainty, improving things for recording artists and sound recording users). And sound recording owners would enjoy this right for at least as long as they would enjoy state protections for under current law.

Unlike the CLASSICS Act and the approach recommended by the Copyright Office, the ACCESS to Recordings Act falls far short of Constitutional requirements and would likely open the federal government up to liability for takings claims.

The bill would presumably give an owner of a pre-1972 sound recording the same general term as a post-1972 sound recording: 95 years from first publication or 120 years from the year of its creation—except, unlike the post-72 owner, the pre-72 owner would have not gotten the benefit of federal protection for that entire time, providing an unequal benefit. That also means many sound recordings would lose the property interests in their works that they currently enjoy until 2067 at some point before then. For sound recordings published between 1923 and 1930, the bill would only provide protection until December 31, 2025, and only then if the copyright owner takes affirmative steps—the bill would require that these copyright owners “engage[] in normal commercial exploitation through” that date and provide notice to the US Copyright Office that the work is subject to normal commercial exploitation. Under the ACCESS to Recordings Act, an entire class of sound recording owners would lose their “entire bundle of property rights” that they currently enjoy, without just compensation.

The serious Constitutional infirmity of the ACCESS to Recordings Act is just one of many problems with the bill, and isreflective of the bill’s lack of study and input. The Senate has the opportunity with the entire Music Modernization Act package, including the CLASSICS Act, to make significant and much needed improvements to music licensing provisions. Once these are in place, it can turn to consideration of the more challenging issues surrounding federalization of pre-72 sound recordings.

References   [ + ]

1. S. 2933.
2. Horne v Department of Agriculture, 576 US ___ [at pg 5] (2015).
3. Copyright and the Takings Clause; James v. Campbell, 104 U.S. 356, 358 (1882) (“[A patent] confers upon the patentee an exclusive property in the patented invention which cannot be appropriated or used by the government itself, without just compensation, any more than it can appropriate or use without compensation land which has been patented to a private purchaser.”); see also most recently Oil States Energy Services, LLC, v Greene’s Energy Group, LLC, 584 US ___ at 17 (2018) (noting decision “should not be misconstrued as suggesting that patents are not property for purposes of the Due Process Clause or the Takings Clause”).
4. U.S. Copyright Office, Federal Copyright Protection for Pre-1972 Sound Recordings, Public meeting Tr. 06-03-2011 at 41 (June 3, 2011).
5. U.S. Copyright Office, Federal Copyright Protection for Pre-1972 Sound Recordings Report at 155 (2011).
6. Id.
7. Id.
8. 576 US __. Note that in holding that Takings Clause precedent establishing that direct appropriation of real property is a per se taking applies just as well to direct appropriation of personal property, the Court used as an example a case concerning the alleged appropriation of intellectual property—a patent—by the Government.

Copyright Office Fees — The US Copyright Office has proposed a new fee schedule, with fees for registration and other services increasing nearly across the board. Read the details here.

Commentary: All music creators should be paid for their work — Singer and songwriter Roseanne Cash imparts her thoughts on music legislation pending in the Senate. “Ensuring payment for airplay of pre-1972 music is a question of basic fairness and economic justice – bringing an end to a vast windfall these services did nothing to deserve and making sure royalties get to the artists who earned them. For many older greats, the CLASSICS Act is also a lifeline: the difference between touring until they simply can’t go on and being able to get off the road with dignity and basic economic security. And finally, it’s a question of respect — and not just Aretha’s song for which she surely deserves to be paid — respect for our musical roots and the long lines of influence and inspiration that flows back through time and melody to the greats who have inspired us all.”

As Music Modernization Act Enters Senate, Anti-Copyright Activists Come Out Of The Woodwork (Column) — Rob Levine is fired up about the CLASSICS Act. He writes, “So how much would this law actually change? It would force ‘noninteractive services’ like Pandora and SiriusXM to pay rights holders and performers for the pre-1972 recording they use — much as they already pay for later recordings. They can do this under a statutory license, at a rate that’s set by the Copyright Royalty Board. This law would also apply to interactive services like Spotify and Apple Music. But it’s hard to know how much of a difference it would make, since they already need to license rights to later recordings as well as reproduction rights — which almost all state laws protect anyway. In less complicated terms, a few big companies will pay artists and labels a bit more money. That’s it.”

Canada PM Trudeau responds to artist advocate Miranda Mulholland — In a tweet, Mulholland shares Trudeau’s positive response to a letter calling for reform to the copyright board signed by over 100 artists. In true Canadian fashion, Trudeau begins his letter with an apology.