Happy New Year! I hope all my readers enjoy a happy and healthy 2019.

Argument preview: When has registration of a copyright claim “been made”? — On Tuesday, the Supreme Court will hear its first copyright case this term, Fourth Estate Public Benefit Corp. v Wall-Street.com. University of Michigan School of Law professor Jessica Litman takes a look at the issue involved: “whether a prospective plaintiff who submits an application to register its copyright may proceed immediately to file suit, or whether Section 411(a) requires the copyright owner to wait until the Register has either registered the owner’s claim or denied registration.” The difference, given the current pendency times at the Copyright Office for processing registration claims, may be one of 6 months or more.

Justice Alito ‘Unrecuses’ for 9th Time, Rejoining Oracle Copyright Case — Less than a week later, the Supreme Court will hear a second copyright case, Rimini Street v Oracle, and the National Law Journal reports that Justice Alito is no longer recused from the case, likely because he has since divested himself of any Oracle stock. So, no potential for a tied vote. The question for the Court is whether a statutory provision outside the Copyright Act limits the types of costs a prevailing party may recover under 17 USC § 505.

Looking Back at International Copyright Developments in 2018 — Hugh Stephens covers the world in just over a dozen paragraphs, reviewing a selection of major copyright developments over the last year in Canada, Australia, New Zealand, and Europe.

Meet Skull Snaps, a Forgotten Funk Band That Soundtracked Hip-Hop — Aaron Carnes, writing for Bandcamp’s newsletter, interviews the Skull Snaps, a funk band you may not have heard of, but whose music you’ve likely heard. A drum break from their track It’s a New Day has been reportedly sampled on nearly 500 records.

“Immediately everyone’s thoughts went to, ‘Oh my God, they’re here to sue us,’” Culley says. “But they found out it was just the opposite. We wanted to meet those people who had used that sample,” Culley says. “All of them were like, ‘You know how many careers you saved, how many lives you saved with that breakbeat?’ That’s amazing. And they’re still using it.”

Stezo, on the other hand, thinks that some of these rappers, particularly the more famous ones, should do the honorable thing and cut Skulls Snaps a check.  

“They live. They’re here. They’re healthy. Talk to them now while they can enjoy the money. Not when they’re gone,” Stezo says.

How Much of the Internet Is Fake? Turns Out, a Lot of It, Actually. — A disturbing but essential read on all the ways the internet is fake, from ad fraud, to bots, to counterfeit content. One of the questions for policy folks is how much of this fakery is a consequence of the (often inadequate) copyright rules that shaped the internet.

Group Registration of Short Online Works — Do you write a blog, or know someone who does? Than this might be for you. The US Copyright Office is proposing a new group registration option for short (between 100 words and 17,500 words) online literary works. Registrants will be able to register up to 50 works published within the same 3 month window on a single application for a single fee.

Judge Recommends Dropping ISP Grande’s DMCA Safe Harbor Defense — Torrentfreak reports on the recommendation from a magistrate judge in a copyright infringement case brought by record labels against a Texas internet service provider, similar to the Fourth Circuit’s BMG v Cox. If the magistrate judge’s recommendations are adopted by the district court, the ISP will not be able to rely on the DMCA safe harbor to shield it from any liability.

Google isn’t the company that we should have handed the Web over to — Peter Bright of Ars Technica writes how Google’s dominance in the web browser market means it holds considerable sway over how the web operates.

Spotify Settles $1.6 Billion Lawsuit from Wixen Publishing — The lawsuit was filed just shy of one year ago, and its claims involved issues at the heart of the since enacted Music Modernization Act. Of course, the digital music service is still involved in similar lawsuits, including one brought by publisher Bluewater, where it is seeking appeal on several issues.

Rising Instagram Stars Are Posting Fake Sponsored Content — The latest trend in user-generated content. “It’s street cred—the more sponsors you have, the more credibility you have.”

Capitol Records, Virgin Records Win Copyright Spat with ReDigi — The long-awaited opinion in a case involving the application of the first sale doctrine to works that are distributed through digital transmission—i.e., can you sell your “used” mp3s?—was published this week by the Second Circuit. Writing for the panel, Judge Leval explained that the first sale doctrine only applies to copyright’s distribution right, and because digital transmission necessarily involves the creation of a new copy, it implicates the reproduction right, which is not within the scope of the first sale doctrine. The court also held that ReDigi’s copying was not shielded by fair use.

The AG Opinion in Metall auf Metall: it’s not a fundamental rights violation to say that sampling requires a license — Also this week, the EU’s Court of Justice’s Advocate General delivered an advisory opinion on a case dealing with questions regarding whether digital sampling is an infringement of copyright. Among the answers, the AG argued that the right of artistic expression, protected under the EU Charter of Fundamental Rights, does not take priority over the property rights of the copyright owner. Wrote the AG,

It is the censorship of that content which is particularly likely to lead to a violation of the freedom of the arts. I take the view, however, that the freedom of artists is less extensive so far as concerns acquiring the means of their creation. Artists must adapt to societal living conditions and the situation of the market on which they operate. The freedom of the arts does not free artists from the constraints of everyday life. Is it conceivable for a painter to rely on his freedom of creation so as not to pay for his paint and paintbrushes?

Watch List: Commission sets sights on counterfeit and piracy hotspots — Also in Europe, the European Commission launched its first piracy watchlist, which identifies, among other things, online websites offering infringing materials. The Commission will “use the Watch List to continue the cooperation with EU’s trading partners in the framework of intellectual property rights dialogues and working groups and also in the framework of the ongoing technical cooperation programmes in China, Southeast Asia and Latin America.”

Norms for copyright reform: my submission to the INDU Committee — Canadian attorney and copyright expert Barry Sookman presents his written remarks to the Parliamentary Committee, which is currently reviewing Canada’s copyright law. The submission responds to a number of broader arguments seen in copyright debates outside of Canada and are well-worth a read.

U.S. Instrument of Accession to the Berne Convention – An Untold Story — In one sense, the U.S. joins a treaty when the President signs it and the Senate concurs. But in a strictly formal sense, joining a treaty requires depositing the accession instrument with the treaty body—in the case of the Berne Convention, the oldest and most widely adopted copyright treaty, that meant physically taking a signed document on a plane to Switzerland. Michael Remington, who carried the actual document, recounts the previously untold story.

Four Executives of the Year Will Be Honored at Billboard’s Women in Music Event — Billboard honored Danielle Aguirre, executive vp/general counsel for the National Music Publishers Association; Dina LaPolt, founder/owner of LaPolt Law, who serves as legal counsel to the Songwriters of North America; Jacqueline Charlesworth, of counsel, Covington & Burling; and Susan Genco, co-president, Azoff MSG Entertainment. All four were instrumental in creating and passing the Orrin G. Hatch-Bob Goodlatte Music Modernization Act.

Quality digital content can’t break through sea of online garbageAxios‘ Sara Fischer reports on how “Tech platforms have littered the media universe with crap — stolen ideas, pirated video, plagiarized text, manipulated content, and fake news.” Who knew there was a downside to watering down copyright protections?

The fight to save music online — UK Music, a music industry association, has published a handy guide to understanding Article 13 of the proposed EU Copyright Directive. Article 13 clarifies the copyright liability of user-uploaded content platforms, like YouTube, and it has attracted significant attention.

New Documents Show that Facebook has Never Deserved Your Trust — The EFF examines the documents, which allege troubling instances of the social media platform undermining user privacy and playing hardball with competitors. According to CNN, the documents were obtained and published by a UK parliamentary committee, one of those pesky “Governments of the Industrial World.”

Jaco’s Legacy — Stephen Carlisle writes a life that was cut short but a legacy that still lives on, and his role in ensuring that Jaco’s family could share in that legacy. Bonus tip: register your copyrights.

Jean-Michel Jarre talks creativity, tech and music’s AI future — Eamonn Forde talks with electronic music pioneer Jean-Michel Jarre about his work, touring as an electronic musician, and the role of technology in art. “Technological and technical limits are so important and this is probably the difficulty for young musicians today. Technology today makes you believe that there are no limitations.”

As the European Union engages in a “trilogue” on an updated Copyright Directive, here is a “trilogue” of pieces about one of the more contentious portions of the Directive, Article 13, which would place new conditions on service providers to qualify for exemptions from liability for copyright infringement by their users. First, in Behind the Epic Moral Battle Over Article 13: Youtube Money, Rob Levine provides a blow-by-blow account of the online video provider’s lobbying efforts against the Article. Then, in YouTube’s Tactics Re. Article 13 Are the Real Concern, David Newhoff considers the potentially troubling aspects of YouTube using its platform to urge users directly to lobby on its behalf. Finally, in this Twitter thread, Christopher Bingham (@helloiambing), a YouTube creator of 12 years, criticises and counters YouTube’s lobbying efforts against Article 13.

A lawsuit by rapper Big Freedia raises the question again: can dance be copyrighted? — Travis Anders of the Washington Post takes a look at the copyright issues underlying a dispute between Big Freedia and her former choreographer, with some quotes from yours truly.

Study: Over 20 years, Silicon Valley workers’ median wage has fallen by 14% — “In short, most workers—regardless of whether they work in the tech sector or not—are getting poorer due to venture capital-driven business models that prioritize outlandish returns fueled by low-wage work that captures a given market quickly.”

Do not mess with Taylor Swift on streaming money — “‘There was one condition that meant more to me than any other deal point. As part of my new contract with Universal Music Group, I asked that any sale of their Spotify shares result in a distribution of money to their artist, non-recoupable,’ Swift explained.” UMG agreed.

Stan Lee, Marvel Comics’ Real-Life Superhero, Dies at 95 — “I guess one person can make a difference … ’nuff said.”

Walt Whitman Championed Democracy and Fought for Copyright – Part I — David Newhoff shares a wonderful and well-researched look at the American poet’s views on literary property and push for international copyright protections. Be sure to also check out Part II.

The Unintended Consequences of the ‘Free’ Internet — From the Wall Street Journal, “…’free’ is intrinsic to the profit model of search and social media: to generate ads they must maximize users and engagement, which results in the lowest possible barriers to their platforms. To target those ads, they must learn as much about their users as possible. This pits volume and revenue against quality and privacy.” I would point readers also to Sean O’Connor’s essay, Creators, Innovators, and Appropriation, which makes the additional point that this business model also places pressure on copyright and creators’ rights: “The business models of Google/YouTube, Facebook, Pinterest, Instagram, and other search firms and social media platforms rely on content as a mere ‘commodity’ that is sent through the systems by users as fuel for this community of users to engage with the platforms in ever-increasing amounts. Because the business models are largely ad-based and depend on data mining for revenue, the number one imperative for the platforms is to maximize the number of users and click-throughs…Thus, when considering all the business and revenue models, none give the search or social media platform firms any incentive to protect user or third-party creator content, other than legal compliance.”

EU copyright reforms will preserve the creative ecosystem — “So are we scared the directive will take away our jobs? No. On the contrary, increased remuneration for uploaded creative works will make it easier for artists and their partners to thrive. Do we think that platforms will deal with big companies only? No. The directive levels the playing field in a way that means we can all negotiate in a normal licensing environment. That’s how you make the ecosystem sustainable for all. This is about the artists you haven’t heard of yet.”

IPA Warns South Africa’s Copyright Amendment Bill Conflicts with Berne — The International Publishers’ Association issued a statement this week warning about deficiencies in proposed copyright legislation currently being considered in South Africa. “The IPA opposes the introduction of a ‘fair use’ clause that captures more permitted purposes than the ‘fair use’ clauses in other jurisdictions, which, coupled with a clause that overrides all contracts, broad co-extensive general exceptions and new exceptions for educational institutions, libraries, archives, museums and galleries, will allow reproduction and making available of entire works without the consent of or remuneration to the rights holder.”

Are Electronic Course Packs Fair Use? — The Authors Guild looks at last week’s Eleventh Circuit decision in Cambridge University Press v Albert, an ongoing dispute over Georgia State University’s use of copyrighted works through its digital coursepack system.

Section 1201 Exemptions to Prohibition Against Circumvention of Technological Measures Protecting Copyrighted Works — Every three years, the US Copyright Office engages in a rulemaking to determine temporary exemptions to allow circumvention of technological protection measures in certain works. Yesterday, the exemptions for the most recent rulemaking were published.

Fox News Tells Supreme Court to Reject TVEyes Petition — As Eriq Gardner reports, Fox News has filed its opposition brief responding to TVEye’s Supreme Court cert petition. TVEyes, which copies and distributes clips of television programming to paying subscribers, failed to convince the Second Circuit that it is shielded by fair use and is now seeking to have the Supreme Court review its case.

Money for nothing: copyright law, YouTube, and the future of music [Part II] — “Musicians should take comfort that, 19 years after Napster launched, there’s a growing sense among legislators that music’s value has been detached from its price for too long. And that’s a start.”

Advocacy is a Verb: My Testimony on The Hill — A fantastic look (with some fantastic photos) at last September’s House Judiciary Committee hearing on the CASE Act, which would establish a copyright small claims process for creators who cannot afford to bring claims in federal court. The article is a first hand account of the experience by Jenna Close, a working photographer, and one of the witnesses who testified at the hearing.

The Orrin G. Hatch-Bob Goodlatte Music Modernization Act — A look at the landmark legislation, signed into law October 11, from the experts at the Copyright Office. Read to learn what the bill does, and what happens now that it has been enacted.

Riders on the Storm: How Ray Manzarek & the Doors Helped Change the Course of Copyright History — Neil Turkewitz provides an engaging look at the role Manzarek played in the first dispute brought under the TRIPs agreement in 1996.

Is Richard Prince in a Jam? — Appropriation Artist Richard Prince recently filed briefs in two copyright infringement suits he’s currently involved in, arguing, unsurprisingly, that he is protected by fair use.

American Airlines sues over U.S. government’s refusal to copyright ‘garden-variety’ logo — What’s the deal with copyright protection for airline logos?

The Orrin G. Hatch-Bob Goodlatte Music Modernization Act — On Thursday, the monumental bill was signed into law. Here, from the experts at the US Copyright Office, is a summary of what the bill does as well as what the next steps are in building a more modern and equitable music licensing system.

‘Truly a Historic Moment’: Music Business Reacts to Music Modernization Act Becoming Law — Billboard rounds up statements from the many artist and industry groups on the passage of the Music Modernization Act. The unity of support on the bill is not something you see every day.

The Marrakesh Treaty Implementation Act — The Music Modernization Act was not the only copyright bill to become law this week. On Wednesday, the Marrakesh Treaty Implementation Act was signed into law. Here, Acting Register of Copyrights Karyn Temple recalls the diplomatic conference that led to the conclusion of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, which requires countries to provide exceptions to copyright law to permit the creation and distribution, by authorized entities, of books in formats accessible to the blind and visually impaired, as well as allowing the cross-border exchange of such works. The Marrakesh Treaty Implementation Act amends U.S. law to bring the Treaty into effect.

MPAA Granted ‘Dynamic’ Pirate Site Blocking Order in Singapore — Andy at Torrentfreak reports, “With plenty of experience of sites around the world taking evasive counter-measures to avoid blocking, the injunction in Singapore allowed copyright holders to return to Court to request an amended order to block new domains and/or IP addresses. However, this model has proven cumbersome in the past so it’s no surprise the MPA(A) has now persuaded the Court to adopt a more streamlined approach. After highlighting that several of the blocked sites changed their domains to avoid blocking, the High Court has now handed down a ‘dynamic injunction’ which will allow the Hollywood studios to block any new methods deployed by the 53 sites covered by the earlier injunction.”

SCOTUS Will Decide What the Copyright Act Means by “Registered.” — “The two approaches are known as the ‘application’ approach and the ‘registration’ approach. The courts following the ‘application’ approach hold that a work is ‘registered’ and the copyright owner can sue an infringer as soon as the applicant files the application, deposits the copy of the work, and pays the fee. The courts following the ‘registration’ approach hold that a work is not ‘registered’ until the Copyright Office has acted on the application by approving or refusing it, and as such, the owner cannot file suit until the Copyright Office has acted.”

Unfree Agents — “When Spotify claims its company mission is ‘to have more than a million artists to be able to live off of their art,’ what they mean, by ‘making a living,’ is that these artists must bend to Spotify’s will. In the domain of Spotify, ‘making a living’ demands that an artist—often one of personal means—acquiesce to what streams well, to what feeds the algorithms, thereby sacrificing their creativity to the tastes of the playlists (think chill music, ‘viral artists,’ sticky pop songs, mood and activity specific music, etc.).”

Libido for Dystopia: A Response to “The Second Digital Disruption” – Part I — David Newhoff writes, “A paper published in August by Kal Raustiala of UCLA Law and Christopher Jon Sprigman of NYU Law proposes a new, generalized rationale for limiting copyright protections: ‘data-driven authorship.’ Titled The Second Digital Disruption: Data, Algorithms and Authorship in the 21st Century, the central thesis hinges on the assumption that because authors of creative works will soon able to use Big Data to predict a greater likelihood of market success for a given work, this reduces the investment risk in producing that work, which in turn recommends limiting copyright protections.” Also see Part II.

American Chemical Society (ACS) and Elsevier File Copyright Infringement Lawsuit in U.S. vs. ResearchGate — “ResearchGate’s infringing activity is no accident. Infringing copies of PJAs are a cornerstone to ResearchGate’s growth strategy. ResearchGate deliberately utilizes the infringing copies to grow the traffic to its website, its base of registered users, its digital content, and its revenues and investment from venture capital.”

Why I Left My Big Fancy Tech Job and Wrote a Book — “You can’t tell your advertisers that you can target users down to the tiniest pixel but then throw your hands up before the politicians and say your machines can’t figure out if bad actors are using your platform. You can’t buy up a big bookstore and then a big diaper store and a big pet supply store and, finally, a big grocery store, national newspaper, and rocket ship and then act surprised when people start wondering if maybe you’re a bit too powerful. And you can’t really claim that you’re building for everyone in the world when your own workforce doesn’t remotely resemble the outside world.”