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.'”‘

It’s Time to Modernize the Copyright Office — Gabriel Horwitz lays out the case for what needs to be done to make sure the Copyright Office can meet the challenges of a 21st century copyright system. Fortunately, the House Judiciary Committee has already begun work on the issue, issuing a policy proposal on Copyright Office reform last month, with public comments due Tuesday.

What Does an Independent Film Producer Do? A Conversation with Jeff Sharp — CreativeFuture sits down with Sharp, producer of films such as Boys Don’t Cry and You Can Count On Me, to discuss the role of the film producer, and the challenges and opportunities that indepedent film producers face.

Reading The Game: Red Dead Redemption — Jason Sheehan, writing at NPR, reveals that his favorite Western of all time is… a video game? A great reminder of the storytelling potential of a medium often perceived as shoot-em-ups and RPGs.

CBS, Paramount Settle Lawsuit Over ‘Star Trek’ Fan Film — In the wake of a court ruling putting a damper on the production of an unauthorized Star Trek derivative work, the two parties have settled. According to Eriq Garnder at THR, the producers of Axanar will continue production of their film after agreeing to make “substantial changes” as part of the settlement.

Bandcamp Reports Strong Growth, Adding 2000 Indie Labels, Hundreds of Thousands of Artists in 2016 — The site, which is open to any recording artist and focuses on physical and digital sales of music rather than subscriptions and streaming, announced positive performance over the past year.

VidAngel: It’s Not About Filtering — Jonathan Bailey takes a look at a case that has so far flown a bit under the radar. Currently on appeal to the 9th Circuit after a District Court granted the plaintiff’s motion for a preliminary injunction, Disney v VidAngel raises a number of issues, including Section 1201, first sale, and fair use, but defendants argue their video on demand service is authorized by an obscure provision in the Copyright Act that allows viewers to filter out mature elements from authorized copies of movies.

Digital copyright laws must protect content creators — Neil Turkewitz writes, “In a recent Hill op-ed, Public Knowledge’s Charles Duan and R Street’s Sasha Moss call for the Supreme Court to weigh in on a ten-year-old copyright case involving notice and takedown, copyright and a dancing baby. But their piece dances around inconvenient truths, and is predicated upon a rather ‘transformative’ use of reality.”

Lee staying on as patent chief under Trump administration — Yesterday, news broke that the Obama-nominated Michelle Lee will remain on board as Director of the US Patent and Trademark Office in the incoming administration. Despite its name, the USPTO also advises other Federal agencies on copyright policy.

Newman on Vested-Use Privileges in Property & Copyright — A common criticism of copyright is that it impinges on a person’s personal property rights. That is, if a copyrighted work is embodied in some material object like a book or a toaster, the owner of that object is limited by copyright law by what they might otherwise be able to do with that object. In this law review article, Christopher Newman offers a compelling argument in response to that criticism.

On January 12, 1977, Barbara Ringer, the register of copyrights, was presented the President’s Award for Distinguished Federal Civilian Service in 8 ceremony at the White House. This award, the highest honor for extraordinary achievement in the federal career service, cited the leading part taken by her in the movement to revise the copyright law and pointed out that her “energy, ability, and concern for the property rights of those who create literature, the arts, and science have ensured continuation of that creativity, thus enhancing life for all people.” Ms. Ringer had already received from the Librarian of Congress, shortly after the revision bill was cleared for passage, the Distinguished Service Award, the highest award offered by the Library, in recognition of her contribution to the quest for modern copyright legislation.

Library of Congress, 80th Annual Report of the Register of Copyrights, For the Fiscal Year Ending September 30, 1977

Peter Bart: How Content Creators Are Exploited By Monoliths Apple, Google, Facebook — Bart writes, “Why is it that, while vastly more creative content is being consumed worldwide, less revenue is flowing to the people who create it? This is the issue probed by Jonathan Taplin in an important new book that demonstrates how intellectual property has been hijacked by what he calls the new ‘marketing monoculture’ led by Facebook, Amazon and Google.”

Photographer Gets Cyberbullied After Defending Photo Copyright — As this story demonstrates, as important as it is for artists and creators to stand up for their rights, it’s rarely easy.

Transcribed Proceedings of CONTU — Zvi Rosen has provided another goldmine of copyright geekery reading pleasure: hundreds of pages of transcripts from the Commission on New Technological Uses of Copyrighted Works, established by Congress in 1974 as part of its broader copyright revision effort to focus on novel issues of technology such as photocopying and copyrightability of computer software.

A Bunch of Weak Anti-Piracy Measures Are Still a Pest to Pirates — Torrentfreak reports, “Clearly, none of these measures are good enough to hit piracy hard enough to kill it, but the barriers to entry are being raised. In addition to a fast broadband service, a decent VPN provider is now almost essential for many file-sharers, whether that’s for circumventing blockades or avoiding those pesky sharing warnings. Equally, keeping on top of the latest news, changes, developments, and domain switches can be a time-consumer in itself. That certainly wasn’t the case ten years ago. And if that isn’t enough, running the junk ad gauntlet requires a skill set all of its own, one that can potentially affect all sites running in a browser, whether they’re guilty of bad behavior or not.”

Fix the value gap – a reply to Michael Geist — Canadian attorney Barry Sookman discusses the value gap, the reallocation of value from creators to internet platforms due to free-riding on unauthorized content. Writes Sookman, “Online providers of services such as YouTube and Facebook would unquestionably be liable for substantial copyright infringements but for the safe harbours established around the world including in the U.S. under the DMCA. These legislative exceptions – which were pushed for by technology companies precisely to limit their liabilities – have enabled technology companies to avoid paying licensing fees (or fair market value fees) for which they would otherwise have been liable.”

2016: The Year We Stopped Listening To Big Tech’s Favorite Excuse — Charlie Warzel at BuzzFeed writes, “But in 2016, Big Tech’s well-practiced excuse became less effective. The idea that their enormous and deeply influential platforms are merely a morally and politically neutral piece of the internet’s infrastructure — much like an ISP or a set of phone lines — that should remain open, free, and unmediated simply no longer makes ethical or logical sense.”

‘Star Trek’ Fan Film Dispute Goes to Jury Trial in Big Ruling — In a ruling on motions for summary judgment, District Court Judge Klausner rejected Axanar’s talismanic “fan fiction” fair use argument. He also ruled that the planned Star Trek spinoff film was objectively substantially similar to Paramount and CBS’s works but the question of subjective substantial similarity was necessarily a question for the jury.

Breaking Windows — At CreativeFuture, film distributor Meyer Shwarzstein discusses the critical importance of “windowing” to indie films. “Do we need independent distributors? In 1948, the US Government became concerned that there was too much power in too few people’s hands. Once the chain of distribution was broken, more voices found their way into the marketplace and more talent was developed. And while this benefited viewers by bringing them more, diverse content, it also benefited the studios that are continually looking for emerging talent.”

Disney’s multiplane camera, an innovation in illusion — A great example of how those in the creative fields are also responsible for technological innovation as well.

Standing up for Songwriters: A Journey Through Recovery — Finally, in the must-watch video below, entertainment attorney Dina LaPolt talks about her recovery and how it informs her advocacy for songwriters.