Green party plan to limit copyright attacked by writers and artists

23 April 2015

From The Guardian:

The Green party may be forced to backtrack on its proposals to limit UK copyright terms to 14 years after a howl of protest from prominent writers and artists including Linda Grant, Al Murray and Philip Pullman.

The Greens’ manifesto said the party aims to “make copyright shorter in length, fair and flexible” with the party’s policy website saying it would “introduce generally shorter copyright terms, with a usual maximum of 14 years”. Representatives of the party said on Thursday that length could be revised after a consultation.

Kate Pool, deputy chief executive of the Society of Authors, said it would be an “appalling injustice” and that artists and writers would be first to lose out under the proposal, with more money being made by manufacturers or distributors.

“It could lead to all sorts of unfairness, and I can’t see how it’s in any way ‘green’,” Pool said. “Writers are human beings, and they deserve to be able to earn a living. After 14 years, the only person making money would be those producing the physical copy of the work, not the person who created it.”

Link to the rest at The Guardian and thanks to Simon for the tip.

Goebbels estate sues Random House Germany

20 April 2015

From The Bookseller:

The estate of Joseph Goebbels, Adolf Hitler’s minister for propaganda during the Second World War, is suing publisher Random House Germany for using an extract from his diaries.

The biography Goebbels, published in Germany in 2010 under the Siedler imprint, is by Peter Longerich, professor of modern German history at Royal Holloway University. Random House did not pay a fee to the Goebbel’s estate, run by Cordula Schacht, for using the diary extracts.

. . . .

Rainer Dresen, general counsel of Random House Germany, told the Guardian the publisher does not want to pay, saying: “We are convinced that no money should go to a war criminal.” When first contacted by Schacht, he “did not want to believe that anyone can claim royalties for Goebbels’ words”.

Link to the rest at The Bookseller

Author Suing Joss Whedon, Claims Cabin In The Woods Is Based On His Book

16 April 2015

From io9:

The Cabin in the Woods was one of the most original takes on the “kids encounter scary things in the woods” story that we’ve seen in ages, but one man is claiming that it’s not original at all. Author Peter Gallagher is suing the filmmakers, claiming that the film is infringing on his 2006 novel The Little White Trip: A Night In the Pines.

. . . .

It’s hard to say how profound these similarities are without reading the book (it’s available for free as an ebook through Scribd), but Gallagher’s complaint lists two dozen side-by-side, including similarities between some of the names. In The Little White Trip, for example, the female characters (one blonde, one brunette) are named Jules and Dura and they visit a cabin called “Brinkley house.” In The Cabin in the Woods, the female characters (one blonde, one brunette) are named Julie and Dana and they visit a cabin called “Buckner house.” In both books, the five protagonists receive a dire warning before arriving at the cabin, rummage through the cabin’s storage area, drink and flirt, and are subsequently terrorized by murderous forces.

Link to the rest at io9 and thanks to Joshua for the tip.

Tuning Music Royalties to the Times

6 April 2015

From The Wall Street Journal:

For some time, performers a notch below Beyoncé and Taylor Swift have complained about the change in music delivery from CDs to downloads to streaming, today’s dominant system, as the progression has chipped away at their already-modest royalties. These gripes are legitimate, but even worse off is the nonperforming songwriter, who can’t go on the road and sell signed CDs and merch, and who takes home significantly lower royalties.

Desmond Child, the co-writer of Bon Jovi’s “Livin’ on a Prayer,” recently reported that the song had been played 6.5 million times on Pandora over three months, for which he had earned $110. There is also writer and performer Aloe Blacc, whose song “Wake Me Up” by Avicii “was the most streamed song in Spotify history and the 13th-most-played song on Pandora since its release in 2013, with more than 168 million streams in the U.S.,” as he wrote last year in Wired magazine. That yielded only $12,359 in Pandora domestic royalties, which were split among three songwriters and the publishers.

The entire U.S. system of music royalties is confusing, contradictory and inequitable, a monument to more than 100 years of haggling among creators, purveyors and users. To call it Byzantine maligns that great empire.

For one, a musical composition (“the publishing” in music-industry parlance) and its recording (“the master”) receive separate copyrights, with separate licensing systems. There are dramatically different rate-setting mechanisms: Broadcast radio pays royalties for the composition, but nothing for the recording. Digital media—Pandora and satellite radio, for instance—pay for both, but nobody pays for recordings made before 1972, which are not protected under federal copyright law. (They may soon carry a royalty in certain states, thanks to lawsuits filed by former members of the Turtles.) Hardly any music licenses are negotiated in the free market.

It has been 40 years since the last major overhaul to U.S. copyright law. Today’s technologies of music distribution bear no resemblance to those of the 1970s, and songwriters have borne the brunt of the ever-widening disconnect between law and reality.

But change may be afoot. In February the Copyright Office, part of the Library of Congress, issued a comprehensive study declaring that “the time is ripe to question the existing paradigm for the licensing of musical works and sound recordings.” To that end, the office put forth some “key principles,” including that music creators should be “fairly compensated,” that the licensing process should be “efficient,” that usage and payment rates should be “transparent and accessible,” and that a single standard “should apply to all music licenses.”

. . . .

The various interests have loud voices, varying agendas and, in the case of industry groups, deep pockets. Last year the Recording Industry Association of America spent more than $4 million on lobbying and the National Association of Broadcasters more than $18 million.

But another important stakeholder is involved—the public. “The immediate effect of our copyright law is to secure a fair return for an author’s creative labor,” Supreme Court Justice Potter Stewart wrote in the 1975 case 20th Century Music v. Aiken . “But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.”

Lind to the rest at The Wall Street Journal (Link may expire)

How Bitcoin’s Technology Could Revolutionize Intellectual Property Rights

24 March 2015

From CoinDesk:

The bitcoin block chain is well known for its use as a ledger for digital currency transactions, but it has the potential for other, more radical uses too – uses that are only now beginning to be explored.

The online service Proof of Existence is an example of how the power of this new technology can have applications far beyond the world of finance, in this case, giving a glimpse of how bitcoin could one day have a substantial impact in the fields of intellectual property and law.

Although in its initial stages, Proof of Existence can be used to demonstrate document ownership without revealing the information it contains, and to provide proof that a document was authored at a particular time.

. . . .

Proof of Existence allows users to upload a file and pay a transaction fee to have a cryptographic proof of it included on the bitcoin block chain. The actual file is not stored online and therefore does not risk unwanted publication of the user’s material.

After anonymously uploading the document and paying the network fee, a hash of the document (or any other type of digital file) is generated as part of the transaction.


. . . .

This, in effect, uses the public and ledger-like nature of the block chain to store the proof of your file, which can later be verified should an issue of authorship or dating arise.

“Basically, by inserting the cryptographic hash of the document in a transaction, when that transaction is mined into a block, the block timestamp becomes the document’s timestamp,” said Aráoz.

As well as time-stamping, Proof of Existence is also a way to make sure that files are what they are supposed to be.

As Proof of Existence says: “All we store is a cryptographic digest of the file, linked to the time in which you submitted the document. In this way, you can later certify that the data existed at that time.”

. . . .

Given this potential, it’s possible that the implications of solutions like Proof of Existence might be even more valuable than the per-bitcoin price many investors are fixated upon today.

Digital property can sometimes also be considered intellectual property, and block chain technologies could essentially prove ownership of such digital property, according to Aráoz, who explained:

“For example, if you are writing a paper or you have an idea for a patent, in some cases you need to prove that you owned the idea or the paper before someone else.”

Link to the rest at CoinDesk and thanks to L for the tip.

PG always likes cool new digital ways of doing old tasks, but he has to point out a couple of things:

1. For copyright purposes, there is seldom a problem with two people coming up with the same copyrightable work at the same time.

Remember, you don’t copyright ideas, you copyright the unique expression of ideas. Boy meets girl, boy loses girl, boy gets girl (or the reverse or Tramp meets Lady or amoeba meets amoeba) is not copyrightable because it’s just an idea. There are a zillion different copyrighted books, short stories, poems, movies and TV shows based upon the identical idea or variations thereof.

You’ll want to register your book with the US copyright office under any circumstances, so you may as well use them to certify when you wrote the book because they’re the gold standard.

2. For patent purposes, the US formerly had a first-to-invent standard where the first person to invent a patentable item was entitled to obtain the patent. This lead to some epic fights when inventors were independently working in the same field at the same time. Litigation about who first invented the laser, for example, relied on hand-dated notebooks describing elements of the invention.

While first-to-invent made for better stories, in 2013, the US joined most of the remainder of the world in awarding patents to the first inventor to file an application describing the invention, not the first to invent.

3. Finally, although PG loves this use of the BitCoin algorithm, if you search for digital notary on Google, you’ll find lots of other ways of obtaining a reliable and tamperproof or tamper-resistant date stamps on a document like a manuscript.

Sony fails to knock out 19’s Idol stars lawsuit

19 March 2015

From CMU:

Sony Music has failed to have a wide-ranging lawsuit filed by 19 Entertainment a year ago dismissed, though some elements of the case have been thrown out.

As previously reported, ‘American Idol’-owning 19 Entertainment, which also manages many of the finalists that appeared on the talent show franchise, last year sued Sony Music, which traditionally signed ‘Idol’ winners, claiming that it had found “systemically incorrect calculations” on two separate audits of royalty payments made by the major. It then added that the record company had failed to allow 19’s bean counters to access all the data they required to do a full audit.

. . . .

As previously noted, 19’s litigation includes one of the big fat debates of the moment in artist management circles, whether digital income should count as ‘licensing’ or ‘sales’ income with artist contracts that don’t specifically mention downloads and/or streams.

It’s an important distinction, because artists traditionally get a much bigger cut of the loot with licensing money that they do with sales income. Labels say that downloads and streams should be classified as sales for royalty purposes, but many heritage artists point out that what the labels negotiate with iTunes and Spotify are definitely ‘licensing deals’.

And this issue is one that will be allowed to proceed, potentially giving more court time to a dispute that has been subject to countless lawsuits and artist/label deals (some public, most under the radar), but which has generally had little judicial consideration, except in the famous FBT Productions case against Universal, which the majors have always insisted doesn’t set a precedent.

Among the other elements of the case also allowed to proceed is another favourite with artist managers and lawyers, the way labels sometimes confuse things when money moves between global subsidiaries, this time in relation to advertising spend. 19 accuses Sony of using “sleight of hand” tactics to reduce its royalty obligations to its artists.

Link to the rest at CMU

PG notes that since this case is in New York, it has the potential to provide some rulings that could impact a lot of tradpub publishing contracts.

Memphis Publisher Sues Salinger Estate

18 March 2015

From Publishers Weekly:

Memphis-based independent publisher The Devault-Graves Agency filed a lawsuit against the J.D. Salinger Literary Trust in a Tennessee court on March 16, claiming that the estate has, without legal basis, thwarted the press’s attempts to publish and distribute international editions of its collection of early Salinger short stories, Three Early Stories.

Devault-Graves released the U.S. edition of the title, which includes three stories from early in Salinger’s literary career which had fallen into the public domain, in July 2014. A culmination of what the publisher’s Tom Graves described to PW in July as an “exhaustive” and expensive process that involved a team of copyright lawyers, the book is, he said, the first legitimate Salinger book to be published in more than 50 years. Upon its release, the Salinger estate, after a brief investigation, confirmed it would not halt Devault-Graves’s publication in the U.S. But now, as the publisher attempts to sell the work abroad, Devault-Graves asserts the estate is “tortiously interfering with [its] contractual agreements with foreign publishers,” including those in the U.K. and Japan.

For its part, the Salinger estate contends that Devault-Graves is of the “erroneous view” that because the stories were in the public domain in the U.S., they would also exist in the public domain in countries where they were not previously published.

Link to the rest at Publishers Weekly and thanks to Ryan for the tip.

One apartment complex’s rule: You write a bad review, we fine you $10k

12 March 2015

From Ars Technica:

Trying to control customer opinions online is nearly always a losing game for a business, and there’s now a long line of cases where it has backfired on companies. We uncovered a new example this month, when a reader contacted Ars Technica to show us the “Social Media Addendum” that his Florida apartment complex, called Windermere Cay, included in his lease.

The Social Media Addendum, published here, is a triple-whammy. First, it explicitly bans all “negative commentary and reviews on Yelp! [sic], Apartment Ratings, Facebook, or any other website or Internet-based publication or blog.” It also says any “breach” of the Social Media Addendum will result in a $10,000 fine, to be paid within ten business days. Finally, it assigns the renters’ copyrights to the owner—not just the copyright on the negative review, but “any and all written or photographic works regarding the Owner, the Unit, the property, or the apartments.” Snap a few shots of friends who come over for a dinner party? The photos are owned by your landlord.

. . . .

Not only is such a contract unenforceable, but it could expose anyone promulgating it to legal repercussions, Santa Clara University Law Professor Eric Goldman explained.

“It would be a terrible idea to enforce this in court. A judge is going to shred it,” Goldman said in an interview. “If a person posts an Instragram photo of them having a party in their apartment, the landlord is saying they own that as well. The overreach reinforces that this clause is bad news, and it may be actionable just to ask.”

. . . .

 It’s been clear that such contracts are legally questionable since at least 2003, when the New York v. Network Associates decision came out. In that case, a judge found that telling customers they couldn’t publish reviews of software “without prior consent” violated New York’s unfair competition law. In Goldman’s opinion, “no review” contracts like the one pushed by Windermere could also lead to legal trouble under federal law, since the FTC Act bars “unfair and deceptive” business practices.

Goldman has written about some of the most notable attempts by businesses to squelch customer reviews, although he said the Windermere Cay Social Media Addendum is the first time he has seen such an attempt in the landlord-tenant context.

Link to the rest at Ars Technica

PG hadn’t heard about New York’s Unfair Competition law, so he did a little research (a little research can be a dangerous thing for a lawyer assisting a client, not so much for a blogger).

From The New York Litigation Guide:

We have long recognized two theories of common-law unfair competition: palming off and misappropriation.” ITC Ltd. v. Punchgini, Inc., 9 N.Y.3d 467, 476 (2007).

  1. Defendant misappropriated the fruits of Plaintiff’s labor by obtaining access to plaintiff’s ideas through fraud or deception, or the abuse of a fiduciary or confidential relationship; and
  2. “(1) that the defendant’s activities have caused confusion with, or have been mistaken for, the plaintiff’s activities in the mind of the public, or are likely to cause such confusion or mistake; or (2) that the defendant has acted unfairly in some manner.”

KG2, LLC v. Weller, 105 A.D.3d 1414, 1415 (4th Dep’t 2013).

. . . .

Misappropriation is “[t]he principle that one may not misappropriate the results of the skill, expenditures and labors of a competitor has . . . often been implemented in [New York] courts.” ITC Ltd. v. Punchgini, Inc., 9 N.Y.3d 467, 477 (2007).

“‘While [t]here is no complete list of the activities which constitute unfair competition, [t]he general principle . . . is that commercial unfairness will be restrained when it appears that there has been a misappropriation, for the commercial advantage of one person, of a benefit or property right belonging to another.’” IDG USA, LLC v. Schupp, No. 10-CV-76S(F), 2012 U.S. Dist. LEXIS 151554, at *31-32 (W.D.N.Y. Oct. 21, 2012).

Link to the rest at The New York Litigation Guide

PG did a little research because he immediately thought about the non-compete clauses included in the contracts of every large New York publisher. Basically, these clauses say something like “author shall not publish any book that might compete with (the books subject to the contract).” These same contracts also specify that New York law will apply to them.

Since the non-compete clauses are included in contracts that last for the full term of the copyright – the rest of the author’s life plus 70 years in the US – PG wonders if such non-compete clauses represent “a misappropriation, for the commercial advantage of one person, of a benefit or property right belonging to another” or that the publishers have “acted unfairly” under the relevant law and cases.

PG will warn all and sundry visitors that this isn’t a legal opinion or even a legal speculation, just a blog post.

WordPress Wins $25,000 from DMCA Takedown Abuser

7 March 2015

From TorrentFreak:

Automattic, the company behind the popular WordPress blogging platform, has faced a dramatic increase in DMCA takedown notices in recent years.

Most requests are legitimate and indeed targeted at pirated content. However, there are also cases where the takedown process is clearly being abused.

To curb these fraudulent notices WordPress decided to take a stand in court, together with student journalist Oliver Hotham who had one of his articles on WordPress censored by a false takedown notice.

Hotham wrote an article about “Straight Pride UK” which included a comment he received from the organization’s press officer Nick Steiner. The latter didn’t like the article Hotham wrote, and after publication Steiner sent WordPress a takedown notice claiming that it infringed his copyrights.

. . . .

The case is one of the rare instances where a service provider has taken action against DMCA abuse. The defendant, however, failed to respond in court which prompted WordPress to file a motion for default judgment.

. . . .

“Steiner’s fraudulent takedown notice forced WordPress to take down Hotham’s post under threat of losing the protection of the DMCA safe harbor,” WordPress argued.

“Steiner did not do this to protect any legitimate intellectual property interest, but in an attempt to censor Hotham’s lawful expression critical of Straight Pride UK. He forced WordPress to delete perfectly lawful content from its website. As a result, WordPress has suffered damage to its reputation,” the company added.

Link to the rest at TorrentFreak and thanks to Paul for the tip.

Update from Becca

6 March 2015

Regular visitors will remember Becca Mills’ post about dealing with a scammer who filed a DMCA Takedown Notice with Amazon, causing Becca’s book, Nolander, to be removed from sale:

Here’s an update PG received from Becca:

Dunno if it was my email to Jeff Bezos or the 20 emails other people on Kboards sent, but Amazon has agreed to restore Nolander to sale.

Here’s a link to Nolander back on sale

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