Katy Perry, Christina Aguilera sign letter calling for changes to copyright law — “Hundreds of artists, songwriters, managers, and other players in the music industry are calling on the U.S. Copyright Office to make what they consider to be long overdue changes to the Digital Millennium Copyright Act, a law they say is not only out-of-date, but detrimental to artists and the future of the industry.”

Guadamuz on the Monkey Selfie — Andrés Guadamuz (University of Sussex) looks at the copyright issues of the (in)famous monkey selfie from a UK and European perspective, concluding that, “Under current originality rules, David Slater has a good copyright claim for ownership of the picture.”

Video Creators Are Frustrated With Facebook’s Antipirating Efforts — Facebook has seen staggering growth in the amount of users watching videos on its platform, but its antipiracy efforts have not kept pace. This is especially frustrating for individual YouTube creators, who see their own videos “freebooted” onto Facebook, hurting their ability to earn revenue.

Web TV Company Not Entitled to License to Stream Content — A federal district court in Illinois held that FilmOn X does not qualify for the cable compulsory license in the Copyright Act, making it the third court to say as much, and making the sole court to hold otherwise even more of an outlier.

The Costs and Benefits of Copyright: Getting the Facts Straight — Hugh Stephens takes a look at the flaws in a number of studies purporting to show losses due to stronger copyright provisions in trade agreements.

How to Send a Takedown Notice to Google in 46 (or more) Easy Steps! — Unfortunately, not an April Fools joke!

Protecting copyright without stifling innovation — Paul Doda writes, “[C]ertain hosting platforms that did not exist in 1998 have structured their businesses to exploit the DMCA cloak from liability. They do so by taking material down while at the same time rendering the notices meaningless by encouraging the reappearance of the same infringing works from a sea of ready replacements. These structural infringers cannot be counted on to voluntarily adopt anti-piracy measures, such as the reasonable filtering techniques currently being deployed by other platforms, because that would cripple their free-riding business model, which depends on their users’ posted infringements to sell subscriptions and generate advertising revenue.”

Did pirates kill ‘Hannibal’? — Only so many names can fit onto a marquee, film poster, TV show’s credits or in a movie’s trailer. Maybe the millions of people who illegally download movies and TV shows are thinking only of the top-billed stars, excusing their actions with the notion that one viewing will not do much harm to a superstar. But on a set, every last crew member and creative — right down to the person who designed that poster or edited that trailer — is affected if the fruits of their labor are stolen.”

Creative Strategies for Beefing up Copyright Enforcement — Michael Carroll reviews a paper by professor Eric Priest, Acupressure: The Emerging Role of Market Ordering in Global Copyright Enforcement. In his paper, Priest examines two case studies which use market pressure, one through voluntary initiatives and the other through state unfair competition laws, to minimize copyright infringement. He then abstracts the key elements that make these types of strategies for copyright enforcement work.

Govt has ‘bungled’ copyright costs — When the Trans-Pacific Partnership was being finalized, the New Zealand government concluded that the changes it would need to make to its copyright law to comply with the agreement would cost the country $55 million. Now, economist Dr. George Barker is telling the government that estimate is incorrect. “Dr. Barker said that estimate was based on erroneous research in 2009 by an Australian economist. Officials were unable to provide access to the data behind the estimate, and Dr. Barker said one possibility was a decimal point could have been put in the wrong place.”

Apple Music, Dubset Partner to Stream Previously Unlicensed Remixes and DJ Mixes: Exclusive — A new service is using technology to automatically identify and clear the dozens of separate sound recordings that may make up previously unlicensed remixes and DJ mixes to enable them to be legally distributed through platforms like Apple Music.

“Dancing Baby” Appeals Court Decision Stands Minus the “Fair Use” Algorithms — This week, the Ninth Circuit refused EFF’s petition to overrule existing precedent and impose an unworkable objective standard on misrepresentation claims under Section 512(f). Or, to put it simply, you don’t need a lawyer to stop your work from being pirated online. Hollywood Reporter has more details on the latest in Lenz v. Universal Music, which also includes an amended opinion.

An Awareness Crusade Against the Online Piracy of Books — Author Rhonda Rees was shocked when she discovered pirated copies of her books available online, but soon learned that this was a problem that plagued all authors and the publishing industry. So, Rees says here, “I made it my mission to figure out all that I could about this issue of online book piracy, to become more knowledgeable and aware, and to open up a dialogue between authors, law enforcement, policy makers and the public.”

Dead Kennedys frontman goes after the modern music industry — “As a self-described DIY band, and the only U.S. band that can boast of having a gold record distributed on an independent label, [Dead Kennedys] sits at the crux of technology, distribution, and rights issues that are bringing vehement change to today’s music industry. A change that is, according to [East Bay] Ray, not for the better. Listing the monopolies as Google (with YouTube), Spotify, Apple, Pandora, and Amazon, Ray discusses the way their business models are systemically aborting creativity and diversity from the collective musical commons.”

Google is strip-mining the world’s culture — Author Amanda Foreman cautions that high principles are at stake in the Authors Guild v Google litigation, currently awaiting Supreme Court review of a cert petition. “I know it’s difficult,” she says here, “to imagine the toxic damage caused by Google’s strip-mining of the world’s creative content — especially since right now it offers such a pleasurable “all-you-can-eat” free buffet. But there it is: the world makes, Google takes. And takes.”

An Interview with Mickey Osterreicher, General Counsel of the NPPA — PetaPixel interviews Osterreicher, who handles all legal affairs and policy for the National Press Photographers Association. “Most visual journalists view our profession as a calling. No one really expects to become wealthy in this line of work, but most do expect to earn a fair living, support themselves and their family, and contribute to society. Copyright infringement reduces that economic incentive dramatically. This in turn may abridge press freedoms by discouraging participation in this field. It also devalues photography as both a news medium and art form, thereby eroding the quality of life and freedom of expression that are part of the foundation of this great nation.”

SoundExchange Launches Public Search Website with Access to Industry’s Best ISRC Data — “A free service that provides 24/7 access to data, SoundExchange’s ISRC Search Site will help all parties through improved tracking and reporting of sound recording usage. The database includes nearly 20 million ISRCs reported to SoundExchange. The initiative will also help ensure fast, accurate identification of sound recordings, which will help music creators receive prompt, accurate and fair compensation from the digital services that use their music.”

Software Piracy Hurts Linux Adoption, Research Finds — The theory is that if the commercial product is easily available for free, people will choose that over lower cost or even free open-source alternatives. Thus, weak copyright protections and enforcement hurt open-source developers and independent creators.

YouTube Trial: Juror Says YouTuber’s Incorporation of Unlicensed Clips Is Not Fair Use — The case settled, making the jury verdict, still under seal, moot. But it should give other YouTuber’s pause to know that not everyone considers all user-generated content a fair use free-for-all.

NPPA and other visual arts associations release copyright small claims white paper — “These organizations have identified the creation of a small claims option to be their most urgent legislative priority before Congress. They assert that the cost and burden of maintaining a lawsuit in the only existing venue for hearing copyright infringement claims—federal district courts—is prohibitive and all too often leaves visual artists no way to vindicate their rights. They see a small claims process within the Copyright Office as providing a fair, cost-effective and streamlined venue in which they can seek relief for relatively modest copyright infringement claims.”

Hijacking the Special 301 Process: We will all suffer the consequences — As part of the Special 301 Process US trade negotiators identify foreign countries that are not living up to the IP obligations they’ve agreed to with the US. Unfortunately, recently some groups have been pushing to use it as a vehicle to weaken and dilute IP protections. Hugh Stephens explains more here.

That’swhatshesaid Didn’t Ask Permission Because They Didn’t Have To, Says Attorney — That’swhatshesaid is a show that criticizes the underrepresentation of women in American theater by performing only the female parts from a number of current plays. Attorneys for the performer and playwright responded to a cease and desist from the publishers of some of the plays used in the show by claiming fair use. Based on the facts as discussed here and in other news stories, my guess is that this indeed is a classic example of fair use.

Last week, a group of organizations including the Association of Research Libraries, EFF, and Public Knowledge celebrated “Fair Use Week.”

As part of the celebration, a trio of writers and illustrators released a comic book explaining the Supreme Court’s 1994 Campbell v. Acuff-Rose decision.

Campbell v. Acuff-Rose is the most recent Supreme Court decision on fair use. It is also a pivotal one, adopting Judge Pierre Leval’s “transformative use” framing. 1Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990). Nowadays, this idea of transformativeness predominates fair use analysis. 2See Neil Weinstock Netanel, Making Sense of Fair Use, 15 Lewis & Clark Law Review 715, 734 (2011) (“the transformative use paradigm, as adopted in Campbell v. Acuff-Rose overwhelmingly drives fair use analysis in the courts today”).

One of the authors of the comic is Kyle Courtney, a copyright advisor at Harvard University. Courtney is also the originator of Fair Use Week, launching it in 2014.

Having said all this, it remains startling that the comic incorrectly states the Court’s holding in Campbell.

Campbell began when rap group 2 Live Crew created the song “Pretty Woman”, a bawdy take-off of Roy Orbison’s classic “Oh, Pretty Woman.” They initially sought permission from Orbison’s publisher, Acuff-Rose, but were denied. They released the song anyway, and Acuff-Rose sued.

2 Live Crew claimed the song was a parody, and thus a fair use, and the case went all the way up to the Supreme Court.

The comic walks through the Supreme Court’s analysis, but completely misstates the Court’s conclusion regarding the third fair use factor, which directs courts to look at “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.”

According to the comic, “2 Live Crew’s copying of the original (e.g., the opening bass riff and first line of the Orbison song) was not deemed to be excessive to its purpose.”

Contrast this with what the Supreme Court actually said: “we express no opinion whether repetition of the bass riff is excessive copying, and we remand to permit evaluation of the amount taken, in light of the song’s parodic purpose and character.”

But this misstatement pales in comparison to getting the Court’s holding wrong. The comic concludes, “Overall, 2 Live Crew’s use of Pretty Woman was found to be a transformative fair use.” But that’s not at all what the Supreme Court said. It instead reversed the Sixth Circuit’s decision and remanded the case to the district court “for further proceedings consistent with [its] opinion”—that is, not ultimately deciding whether the use was fair or not.

If anything, the Court was leaning against fair use. Justice Kennedy filed a concurring opinion solely to express his doubts, saying

While I am not so assured that 2 Live Crew’s song is a legitimate parody, the Court’s treatment of the remaining factors leaves room for the District Court to determine on remand that the song is not a fair use. As future courts apply our fair use analysis, they must take care to ensure that not just any commercial takeoff is rationalized post hoc as a parody.

In fact, the two parties settled following the Supreme Court’s decision, with 2 Live Crew agreeing to a license with Acuff-Rose. According to a contemporary news account, Acuff-Rose said of the settlement, “That means we will be getting paid for the song.”

The above demonstrates the importance of care and accuracy when reading cases, as well as the potential pitfalls of relying solely on secondary sources, even from experts.

References   [ + ]

1. Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990).
2. See Neil Weinstock Netanel, Making Sense of Fair Use, 15 Lewis & Clark Law Review 715, 734 (2011) (“the transformative use paradigm, as adopted in Campbell v. Acuff-Rose overwhelmingly drives fair use analysis in the courts today”).

Future of TV Coalition: FCC Set-Top Item Is Google Gift — “Glist said that the set-top proposal was essentially a battle between Google and apps. ‘Google would like to have all information assimilated and searchable through their browser so they can find data and sell ads against their content,’ he said, ‘and they are unhappy with the choice of consumers to consume more and more content, including MVPD and over-the-top video content, through apps, in which they have very little visibility.'”

George Washington key to intellectual property rights — May and Cooper write, “George Washington regarded protection of property rights a matter of justice. He also considered protections for copyrights and patent rights necessary for sustaining the new nation’s economic independence. Washington’s consistent support for IP even precedes the Constitution’s adoption. In the early 1780s, he became an acquaintance of author Noah Webster. Washington’s letters of introduction helped Webster successfully lobby the Virginia legislators for a state copyright law in 1785.”

The Reality of Touring Revenue From Someone Who Has Done It For 32 Years — David Lowery sheds light on the financial aspects of touring for musicians and why it is very rarely a substitute for declining recorded music revenues.

Video: Understanding the Problem Behind #WTFU — Earlier this week, a popular YouTube creator posted a video criticizing YouTube’s approach to protecting copyright, saying, among other things, that it didn’t adequately preserve fair uses of copyrighted material. Here, Jonathan Bailey responds, noting that, while sympathetic to the concerns expressed in the video, the problem is that the amount of material uploaded to YouTube requires the use of automated systems to deal with infringement, and those automated systems are not 100% perfect.

SAG-AFTRA Applauds WIPO Beijing Treaty On Performers’ Rights — This week, the White House transmitted the WIPO Beijing Treaty on Performers’ Rights to the Senate for advice and consent. The treaty, concluded four years ago, sets minimum standards for the protection of audiovisual performers. The White House also transmitted a second WIPO treaty, The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.

How they shot GREASE LIVE — A fantastic interview of Carrie Havel, associate director of Fox’s recent production of Grease Live, that takes a behind the scenes look at the work that went into pulling off the show.

Universal and Disney’s Arrangement on Marvel IP in Theme Parks — Although Universal and Disney are competitors, Universal’s Island of Adventure theme park includes a Marvel Comics attraction, Marvel Super Hero Island. The attraction was licensed prior to Marvel’s acquisition by Disney, and Universal has committed to maintaining that arrangement. This article looks at this interesting arrangement in more detail.

Kacey Musgraves Puts Hammer Down on Stolen Work: ‘Think Before You Buy’ — “Theft is not a compliment,” says the young country music star about unlicensed uses of her song lyrics.

What Exactly Does the EFF Want? — David Newhoff asks, “What in blazes does the EFF want? They don’t like law-enforcement remedies for online piracy, and they apparently don’t want to see voluntary cooperation between OSPs and rights holders either. At a certain point, it seems we have to conclude that what they want most of all is to maintain their relevance by constantly finding a problem for every solution.”

Copyright Works: Professional Authors Tell It as It Is — Read the personal experiences of authors from South Africa, Sudan, Panama, Canada, Australia, Malawi, and India in this booklet from the International Authors Forum.

Sorry slacktivists: The Man is shredding your robo responses — Orlowski: “The EU this week binned thousands of responses to a copyright consultation generated by a Canadian lobbying group OpenMedia, a groupuscule funded by Canada’s technology industry. In December, OpenMedia declared that the European Commission was going to “copyright the hyperlink” and urged people to submit a roboform to “Save The Link”. Scared out of their wits, 75,000 people did just that. The problem was that the scare was entirely bogus. Even academics hostile to copyright declared that the EU wasn’t proposing anything of the sort. The protections safeguarding publishers large and small would remain intact.”

FilmOn X Not Entitled To Cable License, Broadcasters Tell Appellate Court — Last week, broadcasters filed a brief in the Ninth Circuit arguing that the Copyright Act’s compulsory cable license does not apply to internet retransmissions. On Wednesday, they were joined in support by a number of amici, including the Copyright Alliance, the International Center for Law & Economics and the Competitive Enterprise Institute, the National Association of Broadcasters, and the Washington Legal Foundation.

Bestselling Authors and Rights Organizations Support Authors Guild in Asking Supreme Court to Review Authors Guild v. Google Ruling — Amicus briefs supporting the Authors Guild cert petition also rolled in this week. The Authors Guild collects seven of them from a broad group of individuals and organizations.

Authors Guild v Google: The Fair Use Transformed — Speaking of the Authors Guild petition, be sure to check out my article at the Copyright Alliance site explaining why the Copyright Alliance filed an amicus brief supporting Supreme Court review.

Attacking the Notice-and-Takedown Strawman — Devlin Hartline makes a sharp observation regarding criticisms of certain proposals to improve the DMCA notice and takedown process, “supporters of notice-and-staydown today are actually advocating for what the EFF recognized to be reasonable over eight years ago.”

White Paper on Remixes, First Sale, and Statutory Damages — The Department of Commerce’s Internet Policy Task Force, led by the USPTO and NTIA, released its anticipated White Paper on copyright policy yesterday, highlighting a number of recommendations regarding the legal framework for remixes, first sale in the digital environment, and statutory damages.

The High Price of Free — The focus of this article is on web developers, but many of the points are relevant to other creative disciplines. “We know that not paying speakers and not covering speaker expenses causes events to become less diverse. The ability to give time, energy and professional skills free of charge is a privilege. It is a privilege that not everyone has to begin with, but that we can also lose as our responsibilities increase or as we start to lose the youthful ability to pull all-nighters. Perhaps we begin to realize how much that free work is taking us away from our families, friends, and hobbies; away from work that might improve our situation and enable us to save for the future.”

Some Pirate Sites Have Little Respect for their Users — Torrentfreak: “It’s a bitter pill but it needs to be said. While there are thousands that don’t, there are large numbers of pirate sites that fall way below the standards those who pay their bills deserve. Why some site operators sink to these levels isn’t always clear, but aggressive redirects, misleading advertising, fake virus warnings and malware are always unacceptable.”

Cosplay, Copyright and Fair Use — “Despite Public Knowledge’s attempt to have cosplayers believe otherwise (and support them and Star Athletica), cosplayers are not going to feel the brunt of any decision the Supreme Court makes on the designs of cheerleading uniforms. The highest court of the land is not ‘quite literally deciding the test by which the legal status of cosplay will be judged.'”

Torrenting the Oscars 2016 — John August, on a piracy group’s “apology-slash-justification” following a leak of 15 Oscar screeners: “So by leaking the movie before it was released, then backtracking, they’re pretty sure Miramax will make its money back because imaginary math is magic.”

A Primer on Oscar’s Sound Editing and Mixing Categories — Speaking of the upcoming Oscars (February 28), Variety explains two of the categories: sound editing and sound mixing. Contrary to common misconceptions, the former involves editing sounds while the latter involves mixing sounds.

Penguin Random House Ebooks Now Licensed for Perpetual Access — Robert C. Maier, a member of the American Library Association’s Digital Content Working Group, has this to say about the benefits of licensing, “Though we were in shock when HarperCollins instituted its 26-loan limit in 2011, that rental model is now recognized as an attractive alternative to high-priced perpetual access. At this point, the ideal arrangement would be the ability to license any title for perpetual access and to license the same title for a set number of circulations or a set time period, combining the library’s need to build its collection and to meet current popular demand.”

Endless Whack-A-Mole: Why Notice-and-Staydown Just Makes Sense — “A quick search of YouTube today shows that The Hateful Eight, which is still in theaters, is legitimately available for pre-order and is illicitly available to be streamed right now. One wonders why YouTube chooses to compete with itself, especially when it has the tool to prevent such unfair competition.”

It’s Wikipedia mythbuster time: 8 of the best on your 15th birthday — Here’s number 6: “But isn’t Wikipedia all about the democratisation of knowledge, and diversity? No, actually. Wikipedia, being a free resource, holds an inherent price advantage. It has no real competitors. As academic Heather Ford points out, ‘rather than this leading to an increase in the diversity of knowledge and the democratisation of expertise, the result has actually been greater consolidation in the number of knowledge sources considered authoritative.'”

Photographer Sues Twitter for Not Removing Photos Despite DMCA Requests — “The DMCA’s ‘Safe Harbor’ provision protects Internet companies from being responsible for the copyright infringements of their users, but only if they promptly and adequately respond to DMCA take down requests. If a company fails to honor DMCA requests, they could be held liable. Reilly says that’s what happened in this case. ‘Twitter had actual knowledge of the Infringing Uses,’ the lawsuit states. ‘Reilly provided notice to Twitter in compliance with the DMCA, and Twitter failed to expeditiously disable access to or remove the Infringing Uses.'”

No, Piracy Is Not the Sincerest Form of Flattery — Robert Atkinson observes, “while most people would recognize an uptick in criminal activity as a problem, perennial piracy apologists defiantly insist, against logic and evidence, that this is a sign of good fortune for Hollywood.”