How Google Book Search Got Lost — Scott Rosenberg writes about how the service has become almost dormant: “The Google Books ‘History’ page trails off in 2007, and its blog stopped updating in 2012, after which it got folded into the main Google Search blog, where information about Books is nearly impossible to find. As a functioning and useful service, Google Books remained a going concern. But as a living project, with plans and announcements and institutional visibility, it seemed to have pulled a vanishing act. All of which felt weird, given the legal victory it had finally won.”

Trump Taps Vishal J. Amin as New ‘IP Czar’ — The current senior counsel of the House Judiciary Committee has been tapped to succeed Danni Marti as Intellectual Property Enforcement Coordinator.

AFL-CIO supports H.R. 1695 — In a letter to House Judiciary Committee Ranking Member John Conyers, the union writes in support of the Register of Copyrights Selection and Accountability Act, saying “On behalf of our more than 10 million members, the AFL-CIO strongly believes that working people in the arts and entertainment industry stand to benefit from a well-functioning, impartial Copyright Office. By finally making the Register of Copyrights a principal officer under the Constitution, nominated by the President and confirmed by the Senate, USCO will be able to fully exercise the various authorities granted in the U.S. Copyright Act. Furthermore, it will give the American people the opportunity to weigh in on the Register selection process every ten years through their elected officials.”

Indie Labels Report Struggle With ‘Whack-A-Mole’ Digital Takedowns, 30% Have Given Up Trying [SURVEY] — The American Association of Independent Music and the Future of Music Coalition teamed up to survey independent record labels about their experiences searching for and responding to online infringement. The results suggest they face significant challenges in doing so.

Comments on the ‘value gap’ provisions in the European Commission’s Proposal for a Directive on Copyright in the Digital Single Market (Article 13 and Recital 38) — Dr Silke von Lewinski of the Franklin Pierce Center for IP writes that the proposed “value gap” provisions do not modify EU law, as some critics have argued, but rather merely clarifies it.

Father of 808 and founder of Roland Ikutaro Kakehashi has died — Peter Kim at CDM writes, “Few people loom over electronic music instruments quite like Ikutaro Kakehashi. As founder of Japanese giant Roland, at Roland’s helm through decades of its most historic creations, and as an engineer, Kakehashi has had a hand in the evolution of electronic music instruments – and particularly the notion of the electronic drum machine – as we now know it.”

Announcing the Release of Over 2,000 Pages of Lost Pre-1870 Copyright Records — Very cool and monumental effort from former US Copyright Office Kaminstein Fellow Zvi Rosen. Prior to 1870, copyright records were maintained by individual Federal District Courts throughout the US, so it was no easy task to locate and digitize them all.

Critics Build House of Canards to Trash USCO Bill — David Newhoff at Illusion of More responds to critics who “feel the next Register [of Copyrights] could ‘go to eleven’ and be even more extra totally double-secret ‘captured’ by Hollywood. And the way this will happen is by reorganizing the USCO relative to the LOC. It’s an argument based on innuendo, laced with emotional triggers for readers (see references to SOPA & Disney); but there is no substantive case being made as to why this reorganization will increase the potential for inappropriate deference to major rights holders.”

Newspaper publishers lose over half their employment from January 2001 to September 2016 — The latest figures from the Bureau of Labor Statistics show the troubling decline. But there’s plenty of fake news to fill the gap.

Uber said to use “sophisticated” software to defraud drivers, passengers — It’s amazing the types of disruptive things you can do with technology.

On Piracy Culture — A must-read article from Siddhant Adlakha at Birth.Movies.Death that takes a look at what piracy means for art from the consumer’s perspective. Adlakha writes, “In the case of cinema and all visual art forms, the things people download involve labour. While it’s easy to see blockbusters as calculated products of evil, self-perpetuating conglomerates, we often forget they still depend on hundreds and thousands of below-the-line-artists, with even folks in key positions making far less than your average A-list actor. This is of course to say nothing of independent films, which also fall victim to rampant piracy if they don’t get widespread distribution (Hell, even if they do), and even the workers and artists who don’t benefit directly from ticket sales often find their future employment depending on the success of each project.”

Statement of House Judiciary Committee Chairman Bob Goodlatte Markup of H.R. 1695, the “Register of Copyrights Selection and Accountability Act” — Chairman Goodlatte notes in his statement, “The current vacancy within the Register’s Office is a timely one as we consider the Copyright Office of the future. But we should not hold up replacement of the Register to resolve the other issues that will take more time to address. So I and 29 of my colleagues introduced this legislation as a way to speed up consideration of this key component before other changes to the Copyright Office are made.” H.R. 1695 was reported out of the Committee on Wednesday by an overwhelming and bipartisan vote of 27-1.

first person: royalties from soundexchange kept our band togetherThe Rocketboys keyboardist Justin Wiseman shares the band’s story about how much hustle they had been putting into performing and recording, and just how critical royalty checks from SoundExchange for digital performances were to enabling them to continue doing those things.

New Phoenix Center Study Demonstrates that DMCA “Safe Harbor” Provisions Cost U.S. Music Industry Nearly $1 Billion Annually in Lost Revenue [PDF] — “The source of the distortion in licensing negotiation appears to be that at any one time, there may be multiple unauthorized copies of a particular song available notwithstanding compliance with the safe harbors, suggesting that services may essentially be able to offer access to music without paying royalties and still claim safe harbor protection for infringement. The evidence appears to confirm the claim: market-based royalties for subscription-based services are about eight-times larger than that paid by YouTube.”

Study – Creators Frustrated with DMCA (with Pandas!) — Rebecca Cusey reports on the results of a survey of individual creators about their experience finding and addressing infringement of their own works and the extent to which they make use of the DMCA’s notice and takedown provisions. And, yes, there are pandas.

Goodlatte, Conyers, Grassley, Feinstein, Leahy Call for Quick Action on Legislation to Provide Selection Process for Register of Copyrights — An issue with bipartisan, bicameral support? Yes, please. Late Thursday, House Judiciary Committee Chairman Goodlatte and Ranking Member Conyers, along with 29 cosponsors, introduced a bill that would change the appointment process for the Register of Copyrights, a position that has not had anyone permanently in the role since last October. The bill is the first step in broader efforts beginning four years ago to modernize the US Copyright Office.

What the Supreme Court’s First Ruling on Fashion Copyrights Means for the Runway — It’s not often I get to link to a story on Vogue. The fashion magazine speculates on the impact of Wednesday’s Supreme Court decision in Star Athletica v Varsity Brands, which laid out a new test for conceptual separability.

Understanding ownership and property in the Digital Age — ICLE’s Geoffrey Manne and Neil Turkewitz explain why a “buy” button for digital files doesn’t deceive consumers, despite the fact that most often digital files are licensed rather than sold. “Quite simply, we are accustomed to buying licenses as well as products. Whenever we buy a ticket — e.g., an airline ticket or a ticket to the movies — we are buying the right to use something or gain some temporary privilege. These transactions are governed by the terms of the license. But we certainly buy tickets, no?”

Fox Television Stations v Aereokiller: Ninth Circuit Holds FilmOn X Not a “Cable System” Entitled to Compulsory License; Implicates Federal Agency Deference Doctrines — The 9th Circuit this week issued its opinion in the FilmOn case, holding that services which retransmit video over the internet are not eligible for copyright’s §111 cable compulsory license. Scott Sholder of law firm CDAS takes a look at the decision.

Google ‘promotes copyright piracy’: Getty ImagesThe Australian reports, “Getty Images has launched a ­blistering attack on Google’s attempts to water down Australian copyright laws, accusing the company of ‘adversely affecting’ its business and ‘promoting piracy’. The government is seeking to extend the copyright safe harbour provision to online intermediaries such as Google and Facebook, giving them immunity for infringing user-uploaded content on their platforms. A majority of local major rights holders in the entertainment and sports worlds have joined forces to oppose the proposal.”

Non-Profit Groups Urge Congress to Support Copyright Laws (Guest Column) — “In support of the millions of Americans who currently make a living in the creative industries and the next generation who will join them, our two organizations – the Copyright Alliance and CreativeFuture – recently sent a letter to all elected officials outlining the importance of copyright. Over 70,000 individuals signed their name to this letter because they understand that without a strong copyright system, content creation and the jobs it generates across film, television, music, photography, publishing, software, and other industries would be impossible.”

Review of Professor Thomas Höppner’s Lecture In Support of Neighbouring Right for Press Publishers — “Copying content is always cheaper than generating content. Professor Höppner argues that there are probably a greater number of start-ups which utilise an aggregation business model than start-ups engaged in the production of news – why bother investing millions in a global network of journalists, editorially review their work and build a trustworthy news brand if you can easily aggregate the news content generated by others?”

‘The Last Songwriter’ Documentary Spotlights Writers in the Age of Streaming — “Songwriters earn mere pennies when their songs are played on the radio, according to the documentary’s trailer. But in the age of streaming, songwriters are struggling now more than ever to turn music into money. Songwriters earn less than a thousandth of a penny for each stream. Although they’re the backbone of the music industry, many songwriters are being forced to leave the profession since they can’t afford to make a living.”

Who Does OpenMedia Really Speak For? — Hugh Stephens writes, “What I find questionable is OpenMedia’s attempt to masquerade as a US advocacy group, when it is not even based in the US. Partnership with like-minded organizations whether at home or in other countries is one thing, but passing yourself off as a US-based organization, speaking to and on behalf of Americans and in effect engaging in (one might say interfering in) the US policy process, is quite another.”

Meet the U.S. Copyright Office: Creativity at Work — The US Copyright Office this week launched a new blog. In the first post, Acting Register of Copyrights Karyn Temple Claggett reintroduces the public to the four hundred employees of the Office.

DRM in HTML5 is a victory for the open Web, not a defeat — The organization that oversees development of web standards (W3C) recently proposed a standard that would allow browsers to deliver technologically protected media without the need for third party plugins. In this op-ed at Ars Technica, Peter Bright responds to critics of the proposal, writing, “Deprived of the ability to use browser plugins, protected content distributors are not, in general, switching to unprotected media. Instead, they’re switching away from the Web entirely. Want to send DRM-protected video to an iPhone? ‘There’s an app for that.’ Native applications on iOS, Android, Windows Phone, and Windows 8 can all implement DRM, with some platforms, such as Android and Windows 8, even offering various APIs and features to assist this. In other words, the alternative to using DRM in browser plugins on the Web is not ‘abandoning DRM;’ it’s ‘abandoning the Web.'”

Copyright Survives: Rethinking the Copyright-Contracts Conflict — In this forthcoming journal article, OSU Law professor Guy Rub examines court decisions dealing with the intersection of copyright and contract law to see what effect the 1996 ProCD v Zeidenberg decision had. Rub explains that the case “held that a contract that restricted the use of factual information was not preempted by the Copyright Act and therefore enforceable. The reaction among copyright scholars was swift and passionate. In dozens of articles and books, spreading over two decades, scholars cautioned that if the ProCD approach is broadly adopted, the results would be dire. Through contracts, the rights of copyright owners would run amok, expand, and in doing so they would invade, shrink, and possibly destroy the public domain.” After examining other court decisions, however, Rub reveals that “the doomsday scenarios scholars warned against did not materialize. The overall effect of contracts on the size and scope of the public domain, or over copyright law as a whole, seems minimal.”

Fox News Appears to Have Edge in Showdown That Could Curtail Sharing of Clips — This week, the Second Circuit Court of Appeals heard oral arguments in Fox News v TVEyes, on appeal after a district court held that a media monitoring outfit’s copying and distribution of television broadcasts was authorized by fair use. Eriq Gardner reports on the oral arguments, which were scheduled for thirty minutes but ended up lasting nearly two hours.

What Does a Motion Picture Film Still Photographer Do? A Conversation with Anne Marie Fox — “In my opinion, still photography is an art form and vital documentation of the entire production. It’s also a marketing and advertising tool. Sometimes stills become part of the collective conscience, evoking and inspiring generations to come. Film is a powerful medium and stills/key art imagery is its cousin. When you think about Breakfast at Tiffany’s, that still image of Audrey Hepburn holding her croissant and coffee cup while gazing into the window is like a distant memory. It’s strong, beautiful, iconic. Bud Fraker captured an exceptional moment. In other words, the artistic value of a great still can be priceless and have enormous longevity.”

The Trusted Notifier Program: Summary of One Year of MPAA Referrals — The Donuts domain name registry provides stats regarding its first year implementing a Trusted Notifier Program with film studios that addresses online copyright infringement.

Notice, Takedown, Borders, and Scale — Paul Vixie responds to criticism about the Trusted Notifier System described above. “At issue is the Trusted Notifier Program, as instituted in a series of Memorandum of Understanding (MoU) agreements between rights holders such as the Motion Picture Association of America (MPAA) and Internet domain registries such as Donuts, Inc. It is quite important when evaluating these agreements to note that they are nonbinding and that they lack consideration: no money is changing hands, and the parties are each self-motivated. These MoU agreements create no new category of action, in that any “takedown” activities which result from the existence of such MoU must be for causes and using remedies already enumerated in other contracts among Internet Corporation for Assigned Names and Numbers (ICANN) and the registry, and between the registry and some registrar, and between the the registrar and some registrant. Only the process of notification is affected.”

CPIP’s Sandra Aistars & Scalia Law Alumnae Urge Federal Circuit to Protect Creators and Rein In Fair Use in Oracle v. Google — The brief concludes, “Expanding the fair use defense to excuse appropriation of software code for commercial gain will harm both creators and the public, as creators will have less incentive to develop new software. The public will not be well-served by policy that slows down the creative advancement of software. Nor will the public be well-served by an application of fair use that will gut copyright protection for other creative works by excusing a purely commercial copying of a creative work that harms the market for the original or its derivatives.”

Fair Use, Fairness and the Public Interest — Neil Turkewitz writes, “In honor of Fair Use Week, let’s begin by unmasking the false premise underlying much of the celebration of fair use — that is, that the basic objective of the copyright system is to achieve a balance between the ‘public interest’ on the one hand, and the interest of private copyright owners on the other.” Be sure to also check out part 2 of the article.

Google v. Oracle: Fair Use of a Copyrighted API — Last week, amici filed briefs in support of Oracle in its appeal against Google involving Google’s copying of Oracle’s Java platform. The Federal Circuit is set to review a jury verdict finding the copying was fair use. Dennis Crouch looks at the arguments made in each of the briefs.

What Would Judge Gorsuch Mean for Fair Use? — Kevin Madigan looks at the 10th Circuit decision in Meshwerks, authored by Supreme Court nominee Judge Gorsuch, to see what it might foretell of his approach to copyright issues.

The Myth of DRM-Free Music, Revisited — Bill Rosenblatt: “The fact is that sometime during 2015, digital music with some sort of encryption scheme became bigger than DRM-free — by consumer choice. Sales of downloads have been dropping since 2013 and are now essentially in free fall, while all forms of streaming and subscription downloads (a/k/a ‘offline listening mode’) are on the rise.”

Megaupload executives still eligible for extradition: summary of latest decision in Dotcom case — On Monday, the High Court of New Zealand held that Kim Dotcom and other Megaupload executives were eligible for extradition to the US to face charges of criminal copyright infringement. This article provides a full rundown of the decision.

Copyright Office Q&A Session About The New Online DMCA Designated Agents Directory — Franklin Graves chats with US Copyright Office attorney-adviser Jason Sloane about the Copyright Office’s recently updated DMCA Designated Agent Directory. Service providers wanting to avail themselves of the DMCA safe harbors are required to provide current contact information with the US Copyright Office.

Statutory damages in copyright law: “On forgetting how to read a statute” — An interesting deep dive into language in the 1909 Act related to statutory damages. “The ‘shall not be regarded as a penalty’ clause becomes a parade example of why scholars need to know the contemporaneous legal-intellectual milieu to read statutory terms. Legal scholars are of course aware that to be good readers of a legal text, we need to read it in its legal context. But that point is usually expressed in terms of relatively specific and discrete categories, such as ‘terms of art’ and ‘background presumptions.’ Gómez-Arostegui’s essay is a reminder of how our appreciation for legal-intellectual context should not be reduced down to those categories.”

Cox Must Pay $8 Million to Cover BMG’s Legal Fees in Piracy Case — Last year, a jury found ISP Cox liable for willful infringement and awarded music publisher BMG $25 million in damages. This week, Judge O’Grady awarded an additional $8 million in attorney’s fees to BMG. The question of whether to award damages followed the standard set by the Supreme Court several months ago in its Kirtsaeng II decision.

The song remains the same: Exceptionalists against the application of the law — Neil Turkewitz shares a recent article he penned that “highlights the problems associated with a school of internet exceptionalism that would treat the internet as largely outside the reach of laws and regulations — not by affirmative legislative decision, but by virtue of jurisdictional default.”

Goodlatte Announces Agenda for 115th Congress — That agenda includes advancing the House Judiciary Committee\’s ongoing review of copyright law. Goodlatte says, “At the end of 2016, we issued our first bipartisan proposal to ensure the Copyright Office keeps pace in the digital age. Among the reforms contained in our first proposal are granting the Copyright Office autonomy and requiring it to maintain an up-to-date digital, searchable database of all copyrighted works. This proposal is the first of what we intend to be numerous policy proposals to reform aspects of our copyright laws.”

Creating a USCO Capable of Succeeding in a Changing World [PDF] — The Judiciary Committee policy proposal mentioned above also refers to the creation of a small claims process. In its comments to the Committee, an ad hoc coalition of visual artists—who are essentially shut out from enforcing their rights in federal court due to litigation costs—thoroughly cover the many details of the small claims process that would need to be addressed to make it a reality.

Police Seize Domains of Fifty ‘Pirate’ Newspaper and Magazine Sites — One tends to think of movies and music when one thinks of piracy, but any creative work that can exist in digital form is likely being distributed illegally online. TorrentFreak reports on a recent operation by Italian authorities that successfully shuttered a large scale pirate operation illegally distributing “‘vast quantities’ of material originally published by major newspapers and periodicals including Cosmopolitan, Fashion Magazine, and Vanity Fair.”

IP Scholars Explain Why We Shouldn’t Use SurveyMonkey to Select Our Next Register of Copyrights — “Rather than crowd sourcing the job description, the Librarian should review the Copyright Act and consider candidates that would be best qualified to fulfill the explicit and established standards of 701(b). By handing this over to anyone willing to fill out a SurveyMonkey form, the Library of Congress is politicizing a process that shouldn’t be politicized. The letter warns that ‘[w]hile it is often laudable to seek public input on important issues of policy, an online survey seeking input on job competencies from any internet user is an inefficient and inappropriate approach for developing selection criteria for this important role, particularly where such minimal background is provided to survey-takers and where there appears to be no mechanism to encourage constructive comments.'”‘