Fighting for Creators in Washington DC — Melvin Gibbs writes, “In the latest fight over TV set top box rules, [FCC] Commissioner Rosenworcel has been a strong and consistent voice demanding that the FCC honor copyright principles and ensure its new rules don’t undermine or sabotage the creative economy. She has voiced support for bringing consumers more choices and increasing competition, while remaining skeptical of the tech industry’s anti-artist push to inject the FCC into the business of micromanaging licensing.”
How We Got a Register of Copyrights — More excellent historical writing from Zvi Rosen. Here he looks at why the position is called “Register” (instead of the more conventional “Registrar”) and why the Copyright Office remains within the Library of Congress.
‘Star Trek’ Fan Film Lawsuit Boldly Goes Where No ‘Star Trek’ Lawsuit Has Gone Before — The parties in the lawsuit—involving an unauthorized new Star Trek film—have both moved for summary judgment. Defendants argue either that their film shares no substantial similarity with any of the existing Star Trek films owned by plaintiffs, or in the alternative, that any copying is excused by fair use. A hearing on the motion is scheduled for December 19, with a trial tentatively scheduled for January 31.
Amazon Sues Sellers for Offering Fake Goods on Its Site — The online retailer has stepped up efforts to combat the increasing problem of counterfeit goods being sold through its service. Earlier this month, it was reported that counterfeit CDs are even a problem on the site.
The average Netflix subscriber watches almost twice as much Netflix as they did 5 years ago — A separate study found that 37% of teens watch Netflix at least once a day, a number higher than YouTube, cable TV, and other streaming services.
A tribute to an outstanding Register of Copyrights — Former IP Subcommittee Chairman Howard Berman pens this tribute to former Register Maria Pallante, who was removed from her position several weeks ago. Berman writes, “In Washington, we have become accustomed to bureaucratic-style leadership that avoids tackling the tough problems and passes the buck. Instead, Register Pallante did exactly what we hope from our best public servants: She saw a problem, recognized her duty to fix it and forced us to consider the hard choices.”
What does a location manager do? A conversation with Tony Holley — CreativeFuture speaks with Holley, who most recently has worked on this summer’s fantastic Netflix show Stranger Things. Holley talks about some of the striking sets on the show and his role as “liaison between the producers and the home or business owner”—and how using one particular location helped save and preserve an historic building.
How copyright came to the Library of Congress — Copyright history buffs should absolutely start reading Zvi Rosen’s new blog, which presents not only in-depth looks at interesting moments in US copyright law history, but also primary documents digitized by Rosen himself which have previously been unavailable online. Here, Rosen begins a look at the events that led up to the establishment of the US Copyright Office within the Library of Congress.
The Librarian of Congress and the Register of Copyrights — Last week’s news that the Librarian had removed the current Register from office—the Register subsequently resigned—shocked the copyright community. Here, Zvi Rosen presents an interesting (and possibly relevant) historical anecdote: shortly after the first Register of Copyrights was appointed in 1897, the Librarian of Congress stepped down. Worried that the next Librarian would be a political appointee, the Register rallied the library community to push for a nonpartisan appointee with the necessary expertise to head the important institution.
Argument preview: Court to consider copyright protection for cheerleading uniforms — On Monday, the Supreme Court will hear oral arguments in Star Athletica v Varsity Brands, currently the only copyright case on its docket. SCOTUSBlog has that rundown on the issues that you asked for.
Content Industry Gets Favored Interpretation of “Repeat Infringers” in MP3Tunes Appeal — The Second Circuit’s decision in Capitol Records v MP3Tunes comes ten years into the decision, and it delivers welcome news on the issues of Section 512’s repeat infringer policy requirement and “red flag” knowledge.
AFL-CIO Pushes for Set-Top Text — The federation of labor unions is calling on the FCC to be “fully transparent” and release the text of its proposal regarding cable set-top boxes. Said the AFL-CIO, “The middle class Americans who depend on copyright protections to earn family-supporting pay and the consumers entrusting their personal information with corporations that deliver their entertainment content deserve a voice in the process.”
Bombshell: Copyright Office Talks about Copyright with Agencies and Interested Parties — MPAA’s Neil Fried writes, “The bottom line is that the Copyright Office did not approach stakeholders, selectively or otherwise. It spoke with any and all comers who asked for the opportunity. It then examined the issues and met its statutory obligation to advise federal agencies and Congress on the law. Any EFF suggestion to the contrary is entirely false.”
Music Canada, An Agent For Change With A Global Reach — “Undoubtedly, the driving force behind the trade association’s campaign for change is its president Graham Henderson, a hard-nosed entertainment lawyer for 14 years, five years the Senior Vice President at Universal Music Canada, and President of Music Canada for the past twelve years. Under his stewardship, Music Canada has shifted its focus from being a reactive assembly of entrenched domestic music industry establishmentarians to become an influential advocacy group that is relentlessly banging the drum for increased music educational programming in schools, the re-distribution of wealth for creators through effective municipal, provincial and federal economic policy–and a nuanced advocate in educating politicians of all stripes about the importance of IP and effective copyright legislation that respects and compensates Canada’s creative community.”
A2IM Warns of Counterfeit CDs Across Amazon.com — The independent music association issued a warning this week about “a serious counterfeit operation selling large numbers of CDs via Amazon’s FBA (Fulfilled by Amazon) system.” In somewhat related news, Quartz reports, Your brilliant Kickstarter idea could be on sale in China before you’ve even finished funding it.
Hyperpartisan Facebook Pages Are Publishing False And Misleading Information At An Alarming Rate — BuzzFeed reports, “They write explosive headlines and passages that urge people to click and share in order to show their support, or to express outrage. And in this tense and polarizing presidential election season, they continue to grow and gain influence. ‘They are, perhaps, the purest expression of Facebook’s design and of the incentives coded into its algorithm,’ wrote John Herrman in the New York Times Magazine.”
Rome Court of First Instance rules that copyright exceptions for news reporting and criticism/review do not apply to entertainment TV programmes — IPKat’s Eleonora Rosati reports on the recently published opinion from the Tribunale di Roma in Mediaset vs Gruppo L’Espresso.
Google Has Quietly Dropped Ban on Personally Identifiable Web Tracking — ProPublica reports, “The practical result of the change is that the DoubleClick ads that follow people around on the web may now be customized to them based on the keywords they used in their Gmail. It also means that Google could now, if it wished to, build a complete portrait of a user by name, based on everything they write in email, every website they visit and the searches they conduct.”
Above, a new clip from the forthcoming documentary Unsound looks at the difference between the cost of free and the price of free.
Piracy, Copyright & Censorship: A Call for Clarity — October 17 marks the beginning of Free Speech Week. In this article, John Degen disputes the too-common conflation of copyright and censorship. “Copyright law as constructed is not about stopping expression; it’s about encouraging and protecting it.”
Second Circuit Brings Some Sanity Back to Transformative Fair Use — Who’s on First? Devlin Hartline analyzes Tuesday’s Second Circuit opinion in TCA Television Corp v McCollum, a copyright dispute involving the famous Abbott and Costello routine. The panel found the incorporation of large parts of the routine into a dramatic play was not a transformative fair use, despite the trend of increasingly expansive fair use decisions in that circuit. (The motion to dismiss was, however, affirmed on alternate grounds since the court held the plaintiffs lacked ownership of the copyright at issue).
Choice of Law and Copyright Ownership — Pamela Chestak of Property, Intangible takes a look at the recent decision in RCTV Int’l v Rosenfeld, concerning ownership of the copyright in the Venezuelan telenovela, Juana La Virgen (a US version of the show, Jane the Virgin, airs on the CW). Chestak writes, “What I like about the decision is that the court very carefully parses out each step of the creation and ownership of the works, deciding at each step of the way what law applies, US or Venezuelan. As the court describes, the various cases in which foreign law is implicated have generally conflated the legal analysis. No conflation here.”
How to Memorize Scripts — Writer, director, and producer Ken Levine asked a bunch of actors: how do you remember all your lines? What follows here and in part 2 are responses from ten actors discussing their various approaches.
How Long Until a Robot Wins a Pulitzer? — “In 2014, a researcher in Sweden had a group of test subjects read one article written by a robot, and one written by a journalist. They were asked to rate the two articles on different qualifications. While the human-written article was labeled as better written and more ‘pleasant to read,’ the robot-written article was rated more objective and informative.”
Philip Glass on controlling your output and getting paid for what you make — The composer shares his thoughts on culture and commerce in a lenghthy but compelling read. “In one sense, we don’t care about the art belonging to the people anymore. But in another way, we do. I’m not sure about this, but I think that on YouTube, they’ll play anything. But if you are the owner of something, and you ask them to take it down, they’ll take it down. Their position is that art belongs to the people. On the other hand, the revenue from the advertising that’s done with your art belongs to them. [laughs]”
Why the Oberholzer-Gee/Strumpf Article on File Sharing Is Not Credible — Stan Liebowitz rebuts the popular 2007 study, which purported to show that piracy had no impact on record sales.
Copyright for Blockheads: An Empirical Study of Market Incentive and Intrinsic Motivation — I got to see author Jiarui Liu discuss this paper yesterday at the Center for Protection of Intellectual Property’s fall conference. In it, he presents empirical evidence of musician’s motivations for creating and how copyright fits in. He finds in part, “copyright incentives do not function as a reward that musicians consciously bargain for and chase after, but as a mechanism that preserves market conditions for gifted musicians to prosper, including a decent standard of living, sufficient income to cover production costs and maximum artistic autonomy during the creative process.
O.P.I.P. Yeah you know – Free? — Richard Burgess from the American Association of Independent Music describes what he sees as a “cynical business model”: online services “Co-opt the investment of creative people, publishers, and labels” and “Divert the value generated into their coffers,” then “Invest ensuing profits into: Lawsuits, and legislative lobbying against creators and owners; Infiltrating and influencing government and the courts through the corporate revolving door and lobbying power; PR campaigns claiming that creators are ‘stifling innovation’ and ‘depriving consumers of their rights’ (when they can no longer freely give up their valuable personal information in exchange for O.P.I.P.).”
Also, be sure to check out the brand new Copyright Alliance website!
“Music confounds the machine” — The transcript of T Bone Burnett’s keynote address at the AmericanaFest is a must read. A sample: “Technology does only one thing- it tends toward efficiency. It has no aesthetics. It has no ethics. It’s code is binary. But everything interesting in life- everything that makes life worth living- happens between the binary. Mercy is not binary. Love is not binary. Music and art are not binary. You and I are not binary. Parenthetically, we have to remember that all this technology we use has been developed by the war machine: Turing was breaking codes for the spies, Oppenheimer was theorising and realising weapons. Many of the tools we use in the studio for recording—microphones and limiters and equalizers and all that—were developed for the military. It is our privilege to beat those swords into plowshares.”
Green v DOJ Memorandum in support of Defendant’s motion to dismiss — Yesterday, the DOJ moved to dismiss the lawsuit filed by the EFF challenging Section 1201 of the Copyright Act under the First Amendment. The Section in part prohibits the circumvention of technological protection measures used to control access to copyrighted works, but as the DOJ points out in its memo here, “laws barring unauthorized circumvention of access controls do not regulate speech any more than laws barring unauthorized access to museums or libraries.”
Google swallows 11,000 novels to improve AI’s conversation — A Google spokesperson claims the use of the novels is fair use, “But [Authors Guild Executive Director Mary] Rasenberger isn’t convinced. ‘The research in question uses these novels for the exact purpose intended by their authors – to be read,’ she argues. ‘It shouldn’t matter whether it’s a machine or a human doing the copying and reading, especially when behind the machine stands a multi-billion dollar corporation which has time and again bent over backwards devising ways to monetise creative content without compensating the creators of that content.'”
Professors Mislead FCC on Basic Copyright Law — In a letter to the FCC regarding its set-top box proposal, a group of IP professors made the claim that a copyright owner’s right to distribute her work does not apply to electronic transmissions of works. But as Devlin Hartline explains here, “every single court that has ever considered this argument on the merits has rejected it.” Yesterday, FCC Commissioners decided at the last minute to postpone the set-top box proposal vote, which was subject to broad criticism by the creative community, among others.
Third Circuit Upholds Jury’s Award of $1.6 Million in Actual Damages for Infringement of Rare Photographs — In a July decision, the Third Circuit affirmed the lower court’s use of “multipliers” in calculating the actual damages to be awarded in an infringement lawsuit. The judge “applied a multiplier of three to five times the benchmark to account for the ‘scarcity’ or ‘rarity'” of the infringed photos “and a multiplier of 3.75 to 8.75 to account for the ‘exclusivity’ of [the] images during the infringement period.”
Feds Jump Into High Court’s Apparel Copyright Case — Give me an ‘S’! Give me a ‘G’! This week, the US Solicitor General filed an amicus brief in Star Athletica v Varsity Brands, where the Supreme Court is being asked to draw the line between the functional and the aesthetic in a copyright case involving cheerleader uniform designs. The SG, joined by attorneys from the Copyright Office, argues, “Nothing in the Copyright Act, which incorporates pre-existing regulatory language that authorized the registration of many designs of useful articles, supports a presumption against the copyrightability of a work that can be characterized as such a design.” The full brief can be found here.
The Paradox of Musical Description — From the Futility Closet: “Unlike the visual or literary arts, music seems to be impossible to describe in words — we’re forced to choose between the senselessly subjective and the incomprehensibly technical.” Perhaps this helps explain why the infringement analysis for musical works can seem so mystifying at times.
T Bone Burnett: Treading on Hallowed Ground – Google, the Ryman, and The Future of Nashville Music — T Bone Burnett writes, “And even when YouTube licenses music, it pays grotesquely below market royalty rates, tossing us scraps and pocket change on a ‘take it or leave it’ basis right out of the Sopranos. Don’t want to license your work at YouTube’s cut-rate rates? That’s fine, but unlicensed copies remain plastered all over the service anyhow. How does Google get away with this?”
Why innovators like Max Martin can benefit from the EU copyright directive — Helienne Lindvall reminds readers that, “songwriters innovate every day of the week. It’s not just us musicians that know this – just last week the Swedish Chamber of Commerce in the UK awarded the Innovation Award to, arguably, the most successful songwriter of the past 20 years: Auddly’s very own Max Martin.”
New Librarian of Congress Offers a History Lesson in Her Own Right — This week saw Dr. Carla Hayden sworn in as the 14th Librarian of Congress. The New York Times profiles Hayden and this historic occasion.
Amazon joins set-top box licensing critics — Amazon, which has not only created a successful OTT video service, but has also invested in the production of its own film and TV programs (programs which this year received 16 Emmy nominations), joins the chorus of other creative professionals, producers, and distributors telling the FCC thanks, but no thanks, to its proposed set-top box rules.
Nobody Is Watching Kim Dotcom’s Livestreamed Extradition Hearing — Gizmodo’s William Turton reports, “Considering extradition hearings are only a notch above watching paint dry, it’s pretty understandable nobody is bothering to tune in. It’s also hard to feel any sympathy for a guy who’s been accused of paying people to upload pirated content and makes these embarrassing god awful music videos about how rich he is.”
Kochan on Sharing & Ownership — Interesting paper examining the link between sharing and property ownership through the lens of psychology, economics, and the law. Those links are strong; as the abstract notes, “When we have a well-developed ownership regime—with a high reliability of enforcing ownership norms—we create the confidence in ownership that ‘ownership understanding’ reveals is necessary for individuals to feel secure in sharing.”
Tech firms urge Congress to pass Pacific trade deal this year — Tech groups, including BSA, CCIA, the Internet Association, and SIIA, are urging lawmakers to ratify the Trans-Pacific Partnership before the end of the year. Among other things, the groups say the TPP “promotes U.S. values of a free and open Internet.”
CJEU says that linking to unauthorised content is NOT a communication to the public unless one seeks financial gain and has knowledge of illegality — In an appeal from the Dutch Supreme Court, the Court of Justice of the European Union ruled that a hyperlink is not infringing unless the creator of the hyperlink knows it is linking to unauthorized copyrighted material. If the link is posted for profit, the court held that there is a rebuttable presumption of such knowledge. The decision, says the CJEU, strikes a balance between “the interests of copyright holders and related rights and…freedom of expression and of information.”
Carla Hayden Swearing-In To Be Broadcast on YouTube — Next week, members of the public will be able to watch as the 14th Librarian of Congress, Dr. Carla Hayden, is sworn in. The ceremony begins at noon on September 14.
At the News Media Alliance, more than the name is changing — The Newspaper Association of America, which represents 2,000 news organizations in the US and Canada, is now the News Media Alliance. The name reflects in part the growing importance of digital, and the Alliance will begin accepting digital-only publishers as members.
Sorry About That: Wells Fargo to End Ads Suggesting Science Over Arts — The financial institution this week apologized about an ad campaign that many took as prioritizing science careers over careers in the arts. On Twitter, the company said it “‘is deeply committed to the arts’ and that the ads ‘were intended to celebrate all the aspirations of young people and fell short of that goal.'”
FCC Chairman Tom Wheeler Puts Forward Big Proposal to Reshape Access to TV Programming — Finally, the agency that tells grown-ups what swears they’re allowed to hear thinks the golden age of television we’re currently experiencing can’t continue without more government involvement.