The digital environment has created something approaching a monopoly for digital entrepreneurs and technology corporations, at the expense of those who create works. The distribution of intellectual and creative content puts billions into hands of digital entrepreneurs while most artists and creators can no longer benefit economically from their work. This is not fair, and it is not what copyright, which is recognized as a human right under Article 27 of the United Nations Universal Declaration of Human Rights, was intended to achieve.

Krisellen Maloney & Janice T. Pilch, Comments of Rutgers University Libraries in Response to Notice of Inquiry Concerning Copyright Protection for Certain Visual Works, July 23, 2015. 1All comments available here.

Is Amazon Creating a Cultural Monopoly? — A group of authors has asked the Department of Justice to investigate the online retailer, arguing that its practices “squeeze publishers, which makes them more risk-averse in deciding which books to publish. As a result, they claim, publishers have been ‘dropping some midlist authors and not publishing certain riskier books, effectively silencing many voices.’ And this is bad not only for the non-famous writers who go unpublished, but for their would-be readers, who are denied the ability to hear those voices.”

Are Creators Really Thriving in the Digital Age? Doesn’t Look Like It — There were a number of pieces responding to a New York Times Magazine article claiming that a “creative apocalypse” had been predicted following Napster, but that, in fact, things were never better for creators. Here’s Rob Levine’s take.

A visual journey through the most loved and hated TV series finales — Or, more precisely, how much did the IMDB rating of a series finale differ from the average IMDB rating of all its episodes? Still, an interesting chart.

Creative Destruction and Disruptive Creation — “Content creators have always leveraged technology to tell better stories. Indeed, the history of Hollywood is perhaps best described as ‘disruptive creation.'”

The Most Popular YouTube Videos of All Time — Look at all that user-generated content.

References   [ + ]

How Google Could Rig the 2016 Election — Say the authors, “Our new research leaves little doubt about whether Google has the ability to control voters. In laboratory and online experiments conducted in the United States, we were able to boost the proportion of people who favored any candidate by between 37 and 63 percent after just one search session. The impact of viewing biased rankings repeatedly over a period of weeks or months would undoubtedly be larger.”

The Bizarre History of ‘All Rights Reserved’ — Ever wonder where it comes from? And if you’re a creator, do you need it? Jonathan Bailey looks at the origins of the phrase.

Google found its own Java libraries “half-ass at best”, needed “another half of an ass”, took Oracle’s APIs — Florian Mueller highlights a humorous bit of evidence in the long running litigation between Oracle and Google.

20th Century Props reopens amid production rebound in L.A. — “20th Century Props stunned the industry in 2009 when it closed its North Hollywood business amid mounting losses that it blamed on the flight of production from L.A. Several L.A. prop houses have closed or laid off employees in recent years as more business left the state. But owner Harvey Schwartz has decided to reopen at a new location in Van Nuys, citing an upswing in production in Southern California that has renewed demand for props used on film and TV shows. Newly expanded film tax credits have enticed four out-of-state TV shows to L.A. The California Film Commission on Tuesday announced that eight studio films also had been selected for tax breaks. ‘Business seems to be coming to town, so it’s looking good in Los Angeles these days,’ Schwartz said.”

The Next Great Copyright Office — Josh Simmons (Kirkland & Ellis) looks at the current copyright review process, how it compares to the 1976 revision process, and pays particular attention to the issue of Copyright Office modernization.

Creators, Innovators, and Appropriation Mechanisms — “O’Connor explains that tech innovators can ‘freely advocate for copyright reform that would weaken copyright enforcement for content owners without much risk that any changes would hurt their own appropriation mechanisms.’ Even if their efforts successfully weaken some of their own IP rights, such as copyright protections for their source codes, they have a panoply of other appropriation mechanisms that they can rely on instead, such as patents, trade secrets, contracts, and the like. Importantly, the same does not hold true for the many content creators that have only their copyrights to protect them.”

Police anti-piracy operation cuts advertising on illegal sites by 70% — A measure of success in the UK: “The Police Intellectual Property Crime Unit said there has been a 73% decrease in advertising from the UK’s top spending companies appearing on illegal websites since it launched a crackdown in 2013. For the last two years, the PIPCU has been running Operation Creative, with the backing of the ad industry and trade bodies representing the film, music, TV and publishing industry, to try to stop the flow of ad funds which are one of the main generators of profits for illegal sites.”

ICANN Should Curb Anonymous Domain Name Abuses — Daniel Castro: “One requirement for registering any website domain name is that the domain owner must provide its contact information. This information is placed into WHOIS, a public, online database. Some website owners choose to use a privacy and proxy service, which submits contact information for the service provider and is then responsible for relaying any inquiries to the actual registrant. Unfortunately, not all privacy and proxy services fulfill their duties, creating a serious problem for law enforcement agencies. For example, FTC Commissioner Julie Brill has noted ‘…even ICANN recognizes that the system is flawed, often allowing bad actors to hide behind incomplete, inaccurate, or proxy information.'”

If Your Instagram #Selfies Aren’t Private, This Site Might Sell Them To Total Strangers — With no pretense of any “transformative purpose.” The article quotes an Instagram rep firmly taking no position, saying, “you can draw your own conclusions about whether this violates our policies.”

Attention recent law school grads interested in copyright: be sure to check out the following opportunities: the Copyright Alliance is looking for a legal fellow, the Center for Protection of IP at George Mason Law is looking for an IP research fellow, and the Copyright Office is seeking candidates for its Barbara Ringer Honors Fellowship.

Music Artists Take on the Business, Calling for Change — “Public relations missteps in the early 2000s kept many musicians from speaking out about economic issues, artists and executives said. Those include the music industry’s lawsuits against thousands of fans for online file-sharing, and the pillorying that the band Metallica received after it sued Napster for copyright infringement. But the shift toward streaming in recent years has prompted many musicians to investigate the changes in the business and comment online. Among them are independents like David Lowery of the band Cracker; Zoë Keating, a cellist who has documented her online royalties; and Blake Morgan, a singer-songwriter who owns a small record company and started an online campaign, #IRespectMusic, to draw attention to the issue.”

WATCH: A Passionate, Well-Reasoned Defense Of CGI — A great video that looks at the craft of computer-generated effects in filmmaking, and why they are not necessarily inferior to practical effects.

If You’re Reading This, the Internet Ain’t Broke — Creative Future’s Ruth Vitale addresses EFF’s bizarre defense of pirate site MovieTube. “Many of us in the creative community wonder why the Electronic Frontier Foundation goes to such great lengths over and over again to defend the actions of criminals who make it even harder to make a living doing what we love – telling stories and creating new worlds that audiences love. I have a number of friends and colleagues who work in entertainment and they are supportive of other EFF initiatives that are aimed at real harms, but they scratch their heads at its defend-piracy-at-all-costs posture.”

The Knights Who Say SOPA — Also check out David Newhoff’s take on the same. “For all the attorneys on staff at the EFF, they rarely seem to produce an even-toned, nuanced analysis for public consumption regarding cases of this nature. I guess it’s just easier to be The Knights Who Say SOPA. Maybe if somebody brings them a nice shrubbery, they’ll knock it off.”

Making Copyright Work for Creative Upstarts — “Creative Upstarts is a fascinating look into the world of creative upstarts. With their interests and the interests of the larger copyright ecosystem in mind, Pager skillfully traverses our complicated copyright regime and identifies ample opportunities to improve copyright protections for creative upstarts. The twenty-first century is a digital age, and creators and innovators have the technological ability to produce creative works right on their laptops. Pager’s hope is the Copyright Act will be updated to address the realities of this modern world for creative upstarts.”

The problem of online piracy remains acute, and enforcement is particularly challenging against for-profit operations which often operate anonymously and off-shore. 1See generally, Good Money Gone Bad, Digital Citizens Alliance (Feb. 2014). Even if a particular site can be successfully shut down, a new version can appear in a different location, sometimes within hours.

MovieTube is a particularly brazen example of such an operation. The MovieTube sites openly admit that “many movies we linked are pirated movies” but “Luckily we are not a US company so we do not need to respect US laws.” The operators exert full control over the sites—the complaint alleges, “All content streamed from the MovieTube Websites is selected, aggregated, organized, streamed and made available for viewing by the MovieTube Websites’ operators—Defendants—only.” Defendants market their sites heavily and profit off them through online advertising.

The major motion picture studios sued the MovieTube websites—consisting of a network of at least 29 different sites—on July 24, 2015 for direct and secondary copyright infringement, federal trademark infringement, and unfair competition and false designation of origin. The studios sought, among other remedies, injunctive relief against the MovieTube websites, as well as an order that “(i) registries and registrars disable the domains to the MovieTube Websites and (ii) third-party service providers cease providing services to the MovieTube Websites and Defendants in relation to the Infringing Copies.” Injunctive relief against third-party services that facilitate the operation of infringing sites gives effect to the legal judgment of the court while minimizing the “whac-a-mole” problem discussed above.

While this approach is relatively new in the context of online piracy, it is based on established and long-standing legal provisions and principles.

Active Concert or Participation

The Copyright Act provides copyright owners with a number of remedies they can seek against infringers, including common remedies such as damages and injunctions. Specifically, 17 USC § 502(a) provides that a court may “grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.”

Temporary injunctions—which includes both temporary restraining orders and preliminary injunctions in federal courts—are granted before judgment on the merits of a case, and their purpose is to preserve the status quo during litigation and prevent irreparable harm to a party’s rights before final judgment. 2Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F. 2d 1415, 1422 (9th Cir. 1984).

A court will grant a preliminary injunction if a plaintiff has demonstrated a likelihood of success on the merits, irreparable harm in the absence of an injunction, a balance of equities in her favor, and consistency with the public interest. 3Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365, 374 (2008). Courts also require plaintiffs to post a bond when seeking a preliminary injunction. 4FRCP 65(c). The bond ensures that defendants are covered for any harm incurred in the event that an injunction is erroneously granted. 5Thomas Patterson, Litigation: The bond requirement for preliminary injunctions, Inside Counsel, September 5, 2013.

Under the Federal Rules of Civil Procedure, an injunction binds “(A) the parties; (B) the parties’ officers, agents, servants, employees, and attorneys; and (C) other persons who are in active concert or participation with anyone described in … [](A) or (B).” The Supreme Court has explained that this rule (present in substantially the same form since the Rules were first promulgated in 1938) “is derived from the common-law doctrine that a decree of injunction not only binds the parties defendant but also those identified with them in interest, in ‘privity’ with them, represented by them or subject to their control. In essence it is that defendants may not nullify a decree by carrying out prohibited acts through aiders and abettors, although they were not parties to the original proceeding.” 6Regal Knitwear Co. v. NLRB, 324 US 9, 14 (1945).

In recent years, a number of companies have relied on serving injunctions on aiders and abettors of infringing sites given the difficulty of hailing the operators of such sites into court and the ease with which they can evade judgment. The practice has become routine for sites involving counterfeit goods and trademark infringement. 7See, e.g., Belstaff Group SA v. Doe, Temporary Restraining Order No. 15-cv-2242 (S.D.N.Y. Apr. 8, 2015); Richemont Int’l SA v. Xiao, Temporary Restraining Order, No. 13-cv-9071 (S.D.N.Y. Dec. 23, 2013); Tory Burch LLC v. Doe, No. 12 C 7163 (N.D. Ill. Oct. 2, 2012); Richemont Int’l SA v. Chen, Temporary Restraining Order, No. 12-cv-6689 (S.D.N.Y. Sept. 4, 2012); Burberry v. Doe, No. 12 Civ. 0479 (TPG) (S.D.N.Y. May 15, 2012); Hermès v. Doe, No. 12 Civ. 1623 (DLC) (S.D.N.Y. Apr. 30, 2012); The North Face Apparel Corp. v. Fujian Sharing Imp. & Exp. Ltd. Co., No. 10 Civ. 1640 (AKH) (SDNY June 24, 2011); The Nat’l Football League v. Chen, Temporary Restraining Order, No. 11-Civ-0344 (WHP) (S.D.N.Y. Jan. 19, 2011). More recently, courts have granted similar injunctions in cases involving copyright infringement. For example, in May, ABS-CBN, a media and entertainment company in the Philippines, sued a network of pirate sites that were alleged to provide unauthorized, on-demand streaming of its television shows and films. The court granted an injunction against the sites, and ordered domain name registrars used by the sites to transfer registration to ABS-CBN and privacy protection services used by the sites to disclose the identity of the defendants. Similar injunctions have been granted on a number of other occasions. 8Arista Records, LLC v. Tkach, Memorandum & Order, 15-CV-3701 (SDNY June 3, 2015); Showtime Networks, Inc. v. Doe 1, Temporary Restraining Order and Order to Show Cause, No. 15-CV-3147 (CD Cal. April 30, 2015); Warner Bros. Ent., Inc., v. Doe, Preliminary Injunction Order, No. 14-CV-3492 (SDNY May 29, 2014); AACS-LA v. Shen, Order, No. 14-CV-1112 (SDNY Mar. 4, 2014).

Active concert or participation is a fact-specific inquiry. “In order to show that a non-party ‘aided and abetted’ a party subject to the decree,” say courts, “the plaintiff must show that the non-party had actual knowledge of the judicial decree and violated it, and that the challenged action was taken for the benefit of, or to assist, a party subject to the decree.” 9Adcor Indus., Inc. v. BEVCORP, LLC, 411 F. Supp. 2d 778, 796 (ND Ohio 2005).

Upon notice of an injunction, a non-party can challenge the order in court. A non-party who does not comply with an injunction after having been served notice can be the subject of a contempt proceeding. Here, the non-party can also raise the argument that it is not in active concert or participation with the defendant.

CloudFlare and Grooveshark

One can see this process in action in recent litigation involving Grooveshark and CloudFlare. 10Arista Records, LLC v Vita Tkach, Memorandum & Order, 15-CV-3701 (SDNY June 3, 2015).

Following a finding that music streaming site Grooveshark was liable for copyright infringement, and a permanent injunction against the site’s operators, a “copycat” version of Grooveshark appeared online. The plaintiff record labels immediately sought a temporary restraining order against the operators of the copycat and “any persons acting in concert or participation with them or third parties providing services used in connection with Defendants’ operations.” The plaintiffs served notice of the TRO on Namecheap, a domain name registrar that defendants registered their domains with. Namecheap complied with the order, and defendants subsequently registered new domain names through a new registrar, Dynadot. Dynadot complied with the order after it was served notice. Defendants then registered another domain name with a registrar in Switzerland. Plaintiffs consequently turned their attention to CloudFlare, “an internet service provider that provides authoritative domain name system servers for its customers as a means of providing content delivery network and reverse-proxy services.” CloudFlare’s services had been used by each of the copycat domain names discussed above.

Plaintiffs then requested a court order requiring CloudFlare to comply with the TRO. Cloudflare argued that it is not in active concert or participation with the defendants and “should not be bound by the injunction because its service is ‘passive’ and not necessary for the operation of the Grooveshark sites.” The court rejected both of CloudFlare’s arguments. Cloudflare had knowledge of the TRO and subsequently permitted its services to be used for one of the copycat domain names. This conduct, said the court, “benefits Defendants and quite fundamentally assists them in violating the injunction because, without it, users would not be able to connect to Defendants’ site unless they knew the specific IP address for the site.” The court also said that it is not required to show that CloudFlare is necessary for the operation of Defendants’ site, only that it is in active concert or participation with Defendants.

Due Process

Civil litigation, of course, accords full due process to parties. But it’s important to note that binding nonparties to injunctions, as described above, is also fully consonant with due process. As the First Circuit has explained:

[T]he adjudicative framework surrounding contempt proceedings fully protects nonparties’ constitutional rights. If contempt proceedings are in fact undertaken, the forum court will resolve the fact-specific question of whether the cited nonparty was in active concert or participation with the named defendant. If so, the named defendant will be deemed the nonparty’s agent, and the nonparty’s right to due process will have been satisfied vicariously. If, however, the party prosecuting the contempt proceeding fails to show active concert or participation, a finding of contempt will not lie.

We explain briefly why, in either of these events, due process is not at risk. Contempt proceedings operate to ensure that nonparties have had their day in court. In order to hold a nonparty in contempt, a court first must determine that she was in active concert or participation with the party specifically enjoined (typically, the named defendant). This means, of course, that the nonparty must be legally identified with that defendant, or, at least, deemed to have aided and abetted that defendant in the enjoined conduct. The existence of such a linkage makes it fair to bind the nonparty, even if she has not had a separate opportunity to contest the original injunction, because her close alliance with the enjoined defendant adequately assures that her interests were sufficiently represented.

The coin, however, has a flip side. A nonparty who has acted independently of the enjoined defendant will not be bound by the injunction, and, if she has had no opportunity to contest its validity, cannot be found in contempt without a separate adjudication. This tried and true dichotomy safeguards the rights of those who truly are strangers to an injunctive decree. It does not offend due process. 11Microsystems Software v. Scandinavia Online AB, 226 F. 3d 35, 42-43 (1st Cir. 2000).

In short, the process involves a court determining that the defendant in question is likely infringing copyright after hearing from both parties. If so, it may grant a preliminary injunction. The plaintiff serves notice of the injunction on a service provider, which requires them to stop facilitating the conduct of a party that a court has determined breaks the law (and in most instances violates the service provider’s own terms of service). A service provider who receives notice can challenge the order in court.

The court has ordered defendants here to show cause why a preliminary injunction should not issue by tomorrow, August 7.

References   [ + ]

1. See generally, Good Money Gone Bad, Digital Citizens Alliance (Feb. 2014).
2. Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F. 2d 1415, 1422 (9th Cir. 1984).
3. Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365, 374 (2008).
4. FRCP 65(c).
5. Thomas Patterson, Litigation: The bond requirement for preliminary injunctions, Inside Counsel, September 5, 2013.
6. Regal Knitwear Co. v. NLRB, 324 US 9, 14 (1945).
7. See, e.g., Belstaff Group SA v. Doe, Temporary Restraining Order No. 15-cv-2242 (S.D.N.Y. Apr. 8, 2015); Richemont Int’l SA v. Xiao, Temporary Restraining Order, No. 13-cv-9071 (S.D.N.Y. Dec. 23, 2013); Tory Burch LLC v. Doe, No. 12 C 7163 (N.D. Ill. Oct. 2, 2012); Richemont Int’l SA v. Chen, Temporary Restraining Order, No. 12-cv-6689 (S.D.N.Y. Sept. 4, 2012); Burberry v. Doe, No. 12 Civ. 0479 (TPG) (S.D.N.Y. May 15, 2012); Hermès v. Doe, No. 12 Civ. 1623 (DLC) (S.D.N.Y. Apr. 30, 2012); The North Face Apparel Corp. v. Fujian Sharing Imp. & Exp. Ltd. Co., No. 10 Civ. 1640 (AKH) (SDNY June 24, 2011); The Nat’l Football League v. Chen, Temporary Restraining Order, No. 11-Civ-0344 (WHP) (S.D.N.Y. Jan. 19, 2011).
8. Arista Records, LLC v. Tkach, Memorandum & Order, 15-CV-3701 (SDNY June 3, 2015); Showtime Networks, Inc. v. Doe 1, Temporary Restraining Order and Order to Show Cause, No. 15-CV-3147 (CD Cal. April 30, 2015); Warner Bros. Ent., Inc., v. Doe, Preliminary Injunction Order, No. 14-CV-3492 (SDNY May 29, 2014); AACS-LA v. Shen, Order, No. 14-CV-1112 (SDNY Mar. 4, 2014).
9. Adcor Indus., Inc. v. BEVCORP, LLC, 411 F. Supp. 2d 778, 796 (ND Ohio 2005).
10. Arista Records, LLC v Vita Tkach, Memorandum & Order, 15-CV-3701 (SDNY June 3, 2015).
11. Microsystems Software v. Scandinavia Online AB, 226 F. 3d 35, 42-43 (1st Cir. 2000).

Open Source Copyright Hub unveiled with ’90+ projects’ in the pipeline — The UK’s long-anticipated Copyright Hub officially launched this week. Andrew Orlowski explains, “The Hub aims to build rights-aware layers on top of the internet, so that people can track how what they make public is used, much as DNS added ease of use to naming protocols and VPNs added privacy standards to the basic bare-bones internet.” Last March, the US’s Internet Policy Task Force held a public meeting that considered whether the US should have something similar.

TVEyes Cannot Stand in the Shoes of its Users — “[I]t is one thing for a media critic to reproduce a segment of a news broadcast for the specific purpose of analyzing or commenting on that broadcast. But it is another thing entirely for a company to continuously and endlessly copy the content of thousands of television networks and offer that content to subscribers who may then make a fair use of the content.”

Annotated state laws of Georgia on my Mind — In a bit of sleight of hand, Carl Malamud proclaims that a recent lawsuit by the State of Georgia against his organization for reproducing in whole the Official Code of Georgia Annotated amounts to an attempt to copyright the law. However, the actual lawsuit alleges copyright infringement of the Code’s annotations, which includes notes and summaries of judicial decisions that have interpreted provisions of the Code. In 1709 Blog’s view, “the State of Georgia’s case has some merit.”

The Anti-Commons Revisited — A common claim among IP academics is that IP rights like copyright suffer from anti-commons effects, where numerous and overlapping rights prevent transactions and innovation. Jonathan Barnett examines the claim and finds evidence for it scarce, while finding evidence that markets and private actors correct for anti-commons effects is abundant.

House Judiciary Committee Announces Next Step in Copyright Review — “The Committee has issued joint invitations to all prior witnesses of the Committee’s copyright review hearings to meet with Committee staff and provide additional input on copyright policy issues… The Committee is also openly inviting any interested party to come and discuss their interests in copyright law during this process as well.

Visual Artists: Recent Orphan Works Rumors Are Not True — A look at recent erroneous claims of new copyright legislation that hijacked an unrelated Copyright Office public comment proceeding.

Oracle and Google both propose Android-Java trial dates in the spring of 2016 — FOSS Patents has the latest on the litigation between Oracle and Google involving the Java API. The case has returned to the District Court following last month’s denial of a cert petition by the Supreme Court involving the 2014 Federal Circuit decision that held the Java API is copyrightable.

Coalition Asks WIPO To Follow Proposed Guidelines To Better Defend IP Rights — 85 organizations in 51 different countries published a letter this week affirming the importance of IP rights, including copyright. According to the letter, “Advanced societies have long understood that by protecting the proprietary rights of artists, authors, entrepreneurs, innovators, and inventors, they were promoting the greater public welfare. The continued protection of these fundamental rights is essential to global innovation, creativity and competitiveness.”

Sound is the forgotten flavor sense — “Manipulating sound can transform our experience of food and drink, making stale potato chips taste fresh, adding the sensation of cream to black coffee, or boosting the savory, peaty notes in whiskey.”

Now Hiring: Screenwriters — “When a writer types THE END, it is the beginning of a process that involves hundreds of jobs and services before the script even reaches the actual production stage. Staff at the Producer’s office, Studio execs and Story execs and their staff who are employed to read, develop, finance and produce your script get to keep their jobs because of writers. Agents, Managers, Lawyers who negotiate the writer deals, all have jobs in part because of writers. Once the script goes into the production stage, the amount of jobs required to produce a film grows exponentially; crews of 100-400 and more become necessary; local vendors and merchants in the location where my script is being filmed benefit and are able to boost employment. Hotels, car rental agencies, airlines, local restaurants, stores, shops, all benefit enormously by my typing THE END.”

Do weaker copyrights really increase economic growth? — No, says Tom Sydnor. Following an analysis of a recent Lisbon Council report that found it contained serious methodological blunders to reach its conclusion that weaker copyright protection increases economic growth, Sydnor looks at several of the “serious errors of law” the report also made.

‘Don’t Be Mad’: Scott Borchetta Talks Apple Negotiations, How Taylor Swift Told Him About Her Letter — “What really went down leading up to Taylor Swift’s show-stopping Father’s Day letter to Apple regarding streaming payments during Apple Music’s free trial?”

Modernizing the Copyright Office — “The key question is: Are at least some of the complaints about the copyright system more matters of the limitations of the Copyright Office than they are limitations of copyright law? The answer seems to be yes, and with more autonomy and better infrastructure, a 21st Century Copyright Office should be able to solve some of the logistical problems consumers face when trying to use creative works.”

Guild to Congress: Close Internet Piracy Loopholes, Implement “Notice and Stay-Down” — “Court decisions have construed the Digital Millennium Copyright Act’s Notice and Takedown provisions to mean that a copyright owner is required to send a notice for each separate instance (i.e., copy) of infringement, specifying the URL. But as soon as a pirated copy is taken down, it is usually put right back up. Needless to say, copyright owners cannot keep up with this senseless game, and individual authors do not begin to have the resources to send a new notice every time a pirated copy is posted or reposted. We are asking for a ‘Notice and Stay-Down’ regime: once a webhost knows a work is being infringed, it should not continue to receive “safe harbor” immunity from claims of infringement unless it takes reasonable measures to remove all infringing copies of the same work.”

After a brief hiatus due to vacation and holidays, we’re back!

Copyright And The Public Interest: Not Necessarily Competing Forces —  “It does not serve the aspirations of developing societies to return to a system in which the voices of the people serve the whims of the private elite, or worse, to allow governments to be the sole determining body in the matter of cultural works. By permitting creative genius to be fueled by market forces, we unleash the cultural power and potential of the diversity of individuals, freeing creative impulses from the tyranny of centralized controls and making creative works accessible to the public at large. While copyright may be inadequate on its own in creating fair market conditions, it remains by far the most powerful tool for fostering creativity and democratizing culture itself.”

IPA: ‘Freedom of expression linked to copyright’ — A new report from the International Publishers Association looks at the connection between weak freedom of expression protections in developing countries and weak copyright protections.

The Lisbon Council’s 2015 Intellectual Property and Economic Growth Index: A Showcase of Methodological Blunder (PDF) — According to a Phoenix Center analysis, a recent report purporting to show that so-called flexible copyright limitations and exceptions have a positive economic effect “is junk science and should be ignored.” The analysis details some of the report’s methodological flaws.

Five Hard Lessons We Learned Making GHOST SHARK 2: URBAN JAWS — Some perhaps helpful advice for new filmmakers, as well as an interesting look into DIY filmmaking. And the filmmakers conclude by saying, “Enjoy our strange little movie, and please, for the love of God, don’t pirate it.”

40 states line up with Mississippi in Google Adwords pharma scrap — “‘In my ten years as Attorney General, I have dealt with a lot of large corporate wrongdoers. I must say that yours is the first I have encountered to have no corporate conscience for the safety of its customers, the viability of its fellow corporations or the negative economic impact on the nation which has allowed your company to flourish,’ Hood wrote in a letter to Google chairman Eric Schmidt.”

Copyright Office modernization efforts deserve broad support — From Tom Sydnor at American Enterprise Institute: “the outdated and ineffective IT procurement processes at the Library of Congress have forced the US Copyright Office to try to run a 21st century copyright system with 19th and 20th century technologies. That anachronism disserves the legitimate interests of everyone affected by copyrights – creators, creative industries, content distributors, and users of expressive works. The Copyright Office needs independent IT funding and procurement authority, and internal IT personnel, in order to use the latest technologies to make copyright registration, recordation, and search far more effective, efficient and accessible than they are today.”

Supreme Court Recognizes that Patents are Property — In a case involving raisins, obviously. The Court’s discussion applies just as much to copyright.

Authorship and Authority in the Moral Foundations of Moral Rights — Brian Cwik sketches out an alternative justification for moral rights, one that shows that moral rights and copyright have more in common than often suggested.

How Television Won the Internet — Reports of “old media’s” demise have been premature. “The fundamental recipe for media success, in other words, is the same as it used to be: a premium product that people pay attention to and pay money for. Credit cards, not eyeballs.”


‘Mad Men’ era Copyright Office needs to be brought into the 21st century — “Let’s start with where the U.S. Copyright Office is housed: in the Library of Congress. Why? Well, in 1890, placing it there was a convenience to help the Library build its collection of books that were deposited for registration. Of course, this is meaningless in the electronic era and allows the Library to re-direct funding to other projects. Although knowledge of copyright law is not a requirement to be Librarian of Congress, that person is in charge of issuing copyright regulations. Congressional hearings have produced a consensus that the Copyright Office needs budget and operational autonomy to function properly.”

Making John Lasseter Cry: Pete Doctor and Jonas Rivera on “Inside Out” — Great interview with the producer and director of Pixar’s latest, “Inside Out”, out today. The original story took five years to develop.

Justin Bieber Must Face Copyright Suit, Appeals Court Rules — The Fourth Circuit reversed the decision of a lower court to dismiss a copyright complaint alleging Usher and Bieber infringed an existing song. The Circuit held, after listening to the two songs itself, that “a reasonable jury could find the songs intrinsically similar,” so the litigation should survive the pleadings stage.

Jenner & Block Accuses Google of Abusive Litigation Tactics — “‘The most fundamental purpose of these subpoenas is to send a message to anyone who dares to seek government redress for Google’s facilitation of unlawful conduct: If you and your attorneys exercise their First Amendment right to seek redress from a government official, Google will come after you,’ Jenner & Block partner David Handzo wrote. ‘The court should not allow Google’s abuse of the litigation process.'”

Canadian court reflects common sense in rejecting Google appeal — Google lost an attempt in Canada to ignore a court order to restrain infringement. Here’s David Newhoff’s take. “The case of Equustek v Google demonstrates that a very narrow and carefully weighed judicial approach to de-indexing clearly criminal sites can coexist with free speech and of course not break the Internet. More importantly, the Canadian court places what seems like a very fair and minimal degree of burden on the site owner, rejecting the all-too-popular claim that sites are to be treated exclusively and universally as neutral, passive entities in these matters.”