Registered Banana Costume

From The Copyright Alliance:

In 2017, K-Mart was under fire for allegedly infringing the copyright on Rasta Imposta’s registered banana costume. In its complaint, Rasta Imposta alleges that the retailer ended its business relationship with Rasta Imposta shortly before Halloween 2017, after having sold Rasta’s banana costume for years, but began selling its own version of the banana costume, a move Rasta calls “willful disregard of [its] intellectual property rights and copyright registrations.” The parties eventually settled out of court.

Rasta filed a similar lawsuit, also in 2017, against its former business partner Kangaroo Manufacturing, Inc. after discovering that the company was selling banana costumes that closely resembled Rasta’s registered works. After the district court issued a preliminary injunction, Kangaroo filed an interlocutory appeal challenging the injunction. The appellate court affirmed the injunction and held that although the banana costume was a useful article, the costume’s artistic features (i.e., the combination of colors, lines, shape, and length) were separable and capable of independent existence, and thus were copyrightable. The court also denied the defendant’s arguments that the banana costume was ineligible for protection because of the merger doctrine and scene a faire doctrine.

Link to the rest at The Copyright Alliance

If your French is a bit rusty, per Wikipedia,

Sne à faire (French for “scene to be made” or “scene that must be done” . . . is a scene in a book or film which is almost obligatory for a genre of its type. In the U.S. it also refers to a principle in copyright law in which certain elements of a creative work are held to be not protected when they are mandated by or customary to the genre.

. . . .

For example, a spy novel is expected to contain elements such as numbered Swiss bank accounts, a femme fatale, and various spy gadgets hidden in wristwatches, belts, shoes, and other personal effects. The United States Court of Appeals for the Second Circuit interpreted the scènes à faire doctrine expansively to hold that a motion picture about the South Bronx would need to feature drunks, prostitutes, vermin, and derelict cars to be perceived as realistic, and therefore a later film that duplicated these features of an earlier film did not infringe.

. . . .

The policy rationale of the doctrine of scènes à faire is that granting a first comer exclusivity over scènes à faire would greatly hinder others in the subsequent creation of other expressive works. That would be against the constitutionally mandated policy of the copyright law to promote progress in the creation of works, and it would be an impediment to the public’s enjoyment of such further creative expressions. By the same token, little benefit to society would flow from grants of copyright exclusivity over scènes à faire.

. . . .

Another significant case in United States law was Ets-Hokin v. Skyy Spirits (2003), in which scenes à faire was upheld as an affirmative defense by the United States Court of Appeals for the Ninth Circuit. The case involved a commercial photographer, Joshua Ets-Hokin, who sued SKYY vodka when another photographer created advertisements with a substantially similar appearance to work he had done for them in the past. It was established that the similarity between his work and the later works of the photographer was largely mandated by the limited range of expression possible; within the constraints of a photo shoot for a commercial product there are only so many ways one may photograph a vodka bottle. In light of this, to establish copyright infringement, the two photos would have been required to be virtually identical. The originality of the later work was established by such minor differences as different shadows and angles.

. . . .

RG Anand v. M/s Deluxe Films, AIR 1978 SC 1613

The plaintiff was the writer and producer of a play called “Hum Hindustani” that was produced in the period of 1953-1955. The play was based on the evils of provincialism. The defendant in 1956 produced a film called “New Delhi“. One of the themes of the film was provincialism, too. While evaluating whether or not the defendant had infringed the plaintiff’s copyright, the Supreme Court of India held:

There can be no copyright in an idea, subject matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyright work. (emphasis supplied)

Therefore, the court held that there is a standard way of dealing with the theme of provincialism, and there can be no copyright over that theme. Consequently, a question of infringement does not even arise.

Back to the appellate opinion in Silvertop Associates, Inc., dba Rasta Imposta v. Kangaroo Manufacturing, Inc., the court provided an illustration with its opinion:


Small Claims Copyright ‘CASE Act’ Passes US House of Representatives

From Publishing Perspectives:

The Association of American Publishers (AAP) has released a statement late today (October 22), applauding the US House of Representatives resounding passage of the CASE Act, as it’s known, the Copyright Alternative in Small-Claims Enforcement act.

As Publishing Perspectives readers know, this is the legislation that, in the language of the Copyright Alliance, “creates a voluntary small claims board within the US Copyright Office that will provide copyright owners with an alternative to the expensive process of bringing copyright claims, including infringement and misrepresentation under 512(f), in federal court.

“This new board, called the Copyright Claims Board (CCB), would allow recovery in each case of up to US$30,000 in damages total, with a cap of US$15,000 in statutory damages per work infringed.”

. . . .

In its statement, the AAP cheers the CASE Act on, writing, “Going into the Senate, the CASE Act enjoys an impressive range of support from major organizations on all sides of the political spectrum, including the US Chamber of Commerce, the AFL-CIO, the American Conservative Union, the American Bar Association, among many others.

. . . .

The Washington-based Copyright Alliance—an advocacy nonprofit for the promotion and preservation of the value of copyright—has also issued a statement today, hailing the House’s vote.

In that statement, the alliance’s CEO, Keith Kupferschmid, points out that there have been critics of the CASE Act, notably the Electronic Frontier Foundation, this bill would re-ignite the nationwide problem of copyright trolling, just as the federal courts are beginning to address this abusive practice.”

Link to the rest at Publishing Perspectives

Lizzo Faces More Plagiarism Accusations as Producer Comes Forward, Demanding Credit for ‘Truth Hurts’

From People:

“We’ve tried to sort this out quietly for the last two years, only asking for 5% each but were shutdown every time,” producer Justin Raisen wrote on Instagram.

Lizzo has been hit with another plagiarism accusation for her Billboard No. 1 song “Truth Hurts.”

On Tuesday, producer Justin Raisen spoke out on Instagram on behalf of himself and his brother Jeremiah Raisen, demanding partial credit for the lyric “I just took a DNA test turns I’m 100% that b****” — the most celebrated verse on the track.

Raisen shared a video in attempt to back his claim writing, “The Truth about ‘Truth Hurts.’”

The clip shows moments of Lizzo, 31, and Raisen working together in the studio on a song “Healthy” from April 2017. Lizzo croons the exact same hook as “Truth Hurts,” but in a higher pitch and without the piano in the background.

He then explained, “‘I just took a DNA test turns out I’m 100% that b****,’ was taken from ‘Healthy’ and used in ‘Truth Hurts.’ We were never contacted about being credited for the use of the parts of ‘Healthy’ (melody, lyrics, and chords) that appear in ‘Truth Hurts.’”

Raisen shared that he reached out to “Ricky Reed and Lizzo’s team about fixing it, we put the song in dispute in 2017 when it came out.”

. . . .

While Raisen is demanding action, he said, “The last thing we want to do is throw any negativity toward Lizzo’s momentum and movement as a cultural figure.”

“If we believe in what she’s preaching, believing in ourselves & our own voices is something we thought she’d understand.”

Link to the rest at People

PG doesn’t remember posting anything from People magazine before and promises it won’t be a regular occurrence in the future.

For the record, PG has no opinion about whether Lizzo is or is not a cultural figure and doesn’t know if he “believe[s] in what she’s preaching.”

The First Amendment And Copyright Law: Can’t We All Just Get Along?

From Above the Law:

There’s been a lot of debate about the First Amendment recently. For example, should there be an exception to the First Amendment for hate speech? Some discussions have revolved around potential conflicts between various amendments. What is the relationship between the First Amendment and the Equal Protection Clause of the Fourteenth? What is the relationship between the First and Second Amendments? These are all issues that have been discussed and debated recently, but what about the First Amendment and copyright law?

The First Amendment, of course, protects our right to freedom of speech and expression. The First Amendment clearly states that “Congress shall make no law… abridging the freedom of speech, or of the press.”

Copyright, which is also grounded in the Constitution, gives the rightholder an exclusive legal right over his work, allowing him to restrict access to it, prevent others from using or reproducing it. If this were all there was to copyright law, a rightholder could certainly use his exclusive rights to block criticism and discussion, stifling free speech. Without proper safeguards, copyright law could conflict with the right to freedom of speech by giving the rightholder censorship rights.

For example, a blogger on gender equity might try to make a point about the portrayal of women in audiovisual media. Without the ability to use a clip from a film or music video, the writer would be less effective in illustrating her point. Without quoting dialogue or lyrics, we would just have to take the blogger’s word for it that a particular genre, movie or song is misogynistic.

Imagine what would happen if exclusive rights to copyright protection actually did conflict with, and trumped, the right to freedom of speech? Would journalists effectively be able to report on political speeches without fear of an infringement lawsuit? As my criminal law professor said on a daily basis, words have meaning. Paraphrasing and summarizing what someone has said may not adequately get the point across. Exactly what did President Trump say about the violence in Charlottesville? The phrase “on many sides” was plastered across news headlines for days

. . . .

Ultimately, there are fewer tensions between the copyright law and the First Amendment than one might think, particularly when we look to the purpose of both. While copyright gives the rightholder a “limited time” monopoly, the purpose of the intellectual property system, grounded in the Constitution, is “to promote the progress of science and useful arts.” Thus, its purpose — even as it grants monopoly rights — is to benefit the public.

The goals of the First Amendment are not as clearly laid out within the text itself, but have been the subject of extensive discussion. Of course, one goal is to protect our democracy by allowing an exchange of ideas through unconstrained speech. Access to a range of opinions and views helps inform policy positions of government officials and voters deciding for whom they should cast their ballots, as well as ideally enabling the search for truth. Access to information and freedom of expression not only protects democratic ideals, but is also essential to art and culture.

Ultimately, copyright and freedom of speech promote the same goals, seeking to further the public interest through creation and dissemination of speech, expression, and works. Indeed, the Supreme Court confirmed in Twentieth Century Music v. Aiken,

The immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.

When we see that they serve the same purpose, albeit through different means, we can seek to resolve any potential tensions by looking to see whether that purpose is being served.

While copyright provides an author exclusive rights and could be used as a censorship tool, it also includes a number of limitations and exceptions, the most significant one being fair use. The fair use doctrine has a long common law history, with the first United States case decided in favor of the user in 1841. Eventually, this doctrine was codified in the 1976 Copyright Act and allows a user to use existing works without permission, under certain circumstances and for various purposes including, for example, criticism, comment, new reporting, teaching, research, and scholarship and aids in ensuring that copyright serves the public good.

Justice Ginsburg called the fair use doctrine a “built-in free speech safeguard.” It prevents the right holder from possessing unlimited freedom to control all uses of their works and is indeed a “safety valve” for the First Amendment.

Link to the rest at Above the Law

The CBC – Canada’s National State Subsidized Broadcaster – Confronts in Court the Conservative Party and Copyright Law 10 Days Before the Federal Election: What Could Possibly Go Wrong?

From Excess Copyright:

Not for the first time, the CBC – Canada’s 83 year old, usually respected even if frequently controversial taxpayer subsidized broadcaster – has embarrassed itself badly on the copyright front. This time, however, it has outdone itself in terms of controversy by suing one of Canada’s two main political parties for copyright infringement just 11 days before a national election. It has taken, IMHO, an inexplicable and frankly unsupportable position seeking to prohibit the use of short excerpts from broadcast footage in the course of election campaigns. It will be recalled that in 2014, Jennifer McGuire, who is apparently still employed by the CBC in the same very senior position as General Manager and Editor in Chief of CBC News that she has held since May 2009, led the charge with a “consortium” to try to stop the use of such excerpts in political campaigns. The thought was even entertained by the government of the day led by Stephen Harper to pass legislation explicitly allowing for such usage by political parties, notwithstanding that I and others warned that that such legislation was not only unnecessary but could potentially and likely even be very counterproductive. I wrote about all of this almost five years ago just over a year before the last election, including how Rick Mercer demonstrated his sadly ironic apparent ignorance about copyright law. It’s déjà vu all over again, except that this time it’s much worse.

In any event, Ms. MaGuire is still in charge of the news network at CBC and is the apparent guiding mind behind what is likely to go down as one of the most misguided moments in the history of the CBC in terms of both journalism and the law and may well prove to be a defining moment in the increasingly possible demise of the CBC – especially if the Conservative Party of Canada wins the election, which this latest fiasco may ironically help to facilitate. Ms. McGuire is also CBC’s representative on the CDPP (Canadian Debate Production Partnership), which managed to present two French debates and only one English debate (go figure!).

The CBC has unaccountably and inexplicably sued the Conservative Party of Canada for a campaign video, visible above, that includes several short excerpts (only some of which are from the CBC) from various broadcasts, consisting of at most ten seconds in each case. Here is the remarkable Statement of Claim, which could serve as good teachable moment for any law school copyright or civil litigation class. Here’s a hint – why ask for an interim and interlocutory injunction where there is obvious doubt as to whether there is a even a serious issue to be tried just 10 days before the interim injunction would be moot anyway against activity that has already admittedly ceased, and where there is no credible evidence of irreparable harm arising from practices that are decades old?

. . . .

Michael Geist has succinctly parsed and measured the CBC’s possible claim in key quantitative and factual respects:

One of the clips features two short segments (total of ten seconds) of Prime Minister Justin Trudeau at a town hall event. There are no CBC journalists involved, though the town hall aired on the CBC. Displaying ten seconds from a town hall that ran over an hour hardly qualifies as a significant portion of the work and again does not implicate CBC journalists or journalism.

The remaining three clips do include CBC journalists. One involves four seconds of Andrew Coyne speaking on the At Issue Panel on conflict issues. Rosemary Barton appears in the clip (as does Chantal Hebert) but says nothing. The clip should qualify as fair dealing, but it is difficult to see what the fuss is about given that Barton does not even speak in it. Another clip involves five seconds of John Paul Tasker appearing on Power and Politics discussing support to Loblaws for energy efficient refrigerators and the last one features five seconds of Rex Murphy talking about moving expenses. The clips are short and demonstrate that CBC journalists engage in legitimate critique of government policies and action. That isn’t bias, that is doing their job. Indeed, all these stories were widely covered in the media and there is nothing particularly controversial about what is said in the clips. (highlight added)

Link to the rest at Excess Copyright

Explaining How an Author Terminated a Movie Studio’s Copyright to “Terminator”

From Pirated Thoughts:

“I’ll be back” said the author of the original Terminator movie. Gale Ann Hurd, the author of the original Terminator film starring Arnold Schwarzenegger, has informed Skydance Media that it is terminating the grant of copyright to the work and seeks to reclaims the rights…but how?

Copyright law is complicated and the ins and outs can be incredibly confusing even to people who claim to specialize in the field. When someone creates a work (painting, screenplay, or photograph) they are deemed the owner of the work. There is one exception, if it is a work made-for-hire. A work made-for-hire comes in two forms: 1) you are paid by someone to create a work for them; or 2) the work is create in the normal course of business for an employer.

First, someone can be commissioned to create a work for someone else, like I am paying you to take a photograph of me and I will own the photograph. As long as the agreement is in writing before the photograph is taken, I own the rights instead of the photographer.

Second, if you create something in your everyday work life for your employer, they own it. For example, if I am a salaried reporter for the New York Times, the Times owns the copyright to any story that I may publish.

. . . .

If a work is a made-for-hire the original creator cannot ever regain the rights to the work. This is how many movie scripts and other stories are created. However, there is an exception.

If I independently create a work, meaning not as a work made-for-hire, I am the owner of the rights and I can do whatever I want with the work including transferring the rights to someone else. However, copyright law provides that after 35 years following publication and author can terminate the transfer and regain the rights to the original.

Gale Ann Hurd was the author of the Terminator film may back in the 80’s.

. . . .

In 1984, the Terminator film was published and here we are 35 years later and, according to the Hollywood Reporter, Hurd has informed the studio who now owns the film, Skydance Media, that is terminate the transfer of rights. Also terminated is the right to make derivative works such as sequels to the original Terminator.  The author must give two years before the termination takes effect and then all such exploitation of the work must cease in any way.

So what does this all mean for movie studios? Utter chaos perhaps as the loss of rights to make valuable sequels and prequels or just another settlement negotiation. Skydance will likely make Hurd a large monetary offer to retain the rights to the valuable franchise.

Link to the rest at Pirated Thoughts

And from The Future of Music Coalition:

Unlike most countries, the United States copyright law provides musicians and songwriters an opportunity to regain ownership of works that they transferred to outside entities, such as record labels and music publishers. Congress established this “second bite at the apple” for authors of creative works after a period of 35 years. “Termination of transfer” is not automatic, however, and there are certain steps creators must take to regain the rights to their works. This guide aims to shed more light on the process for the benefit of musicians and songwriters who are eligible to reclaim ownership of their creations.

As you read this guide, it is important to keep in mind that there are two copyrights in a piece of music: the composition copyright (think notes on paper) and the sound recording copyright (think sounds captured on tape or hard drive). Songwriters often enter agreements with publishers to “grant” their songwriting copyrights in exchange for up-front payment and/or the promise of circulation in the marketplace. Musicians (and bands) transfer their sound recordings to labels for similar reasons, including distribution, promotion and marketing. Authors of both copyrighted works can reclaim the copyrights to their original creations after a period of 35 years.

. . . .

Why do creators have this right?

It is often difficult to determine the worth of a creative work at the time of its creation. Because the value is unknown, musicians and songwriters will not be in the most advantageous position when negotiating what labels and publishers will pay for commercially exploiting their work. Thus, Congress made a policy decision to give authors an opportunity to regain ownership of their copyrights and entertain new, potentially more lucrative licenses for their work. Creators may also choose to re-transfer their copyright(s) under more favorable licensing terms. Consider also that changes in the marketplace can increase the range of potential uses for a piece of music, which may not have existed at the time of its creation. For example, few could have anticipated the explosion of console video games and “synch” opportunities. In addition, artists can now “go direct,” selling music directly to fans without the high barriers to entry common to the historic marketplace. There are surely new platforms for music that have yet to arrive, so it is important that artists have the ability to directly participate in revenue streams generated by potential new uses.

Section 203 of the Copyright Act permits authors (songwriters and recording artists) to terminate deals that they made transferring or licensing their copyrights after 35 years. Meaning, if you transferred your recording or song to a record label or publisher at the beginning of your career or licensed certain rights, you may be eligible to regain ownership or terminate the licenses after this period. Artists may have more leverage than they did at the time that they signed away their copyright(s), and using this leverage, artists could re-grant their copyrights in a better deal or recapture ownership for the purpose of licensing directly.

. . . .

Generally, any type of transfer or license that authors make with their copyright(s) can be terminated. This includes assignments (even such grants that purport to give someone else power over your copyright forever!) The grants that you can terminate apply only to transfers of copyrights; trademarks and other “related” non-copyright rights are not affected or terminable (e.g., if you transferred the trademark in your band name to your label, it will retain ownership of the trademark).

Link to the rest at The Future of Music Coalition

Amazon Intellectual Property Accelerator

From dayOne, the Amazon Blog:

Today, we’re excited to launch Amazon Intellectual Property Accelerator, a new program that helps brands more quickly obtain intellectual property (IP) rights and brand protection in Amazon’s stores. We created IP Accelerator specifically with small and medium businesses in mind, and IP Accelerator helps these entrepreneurs by making it easier and more cost effective to protect their ideas.

Expert legal guidance is critical for businesses to protect their brands and avoid costly mistakes in the trademark filing process. IP Accelerator solves this challenge by connecting businesses with a curated network of trusted IP law firms that provide high quality trademark registration services at competitive rates to help brands secure a trademark. When businesses use these law firms to file trademark applications, Amazon provides their brands with accelerated access to brand protection in Amazon’s stores.

. . . .

Amazon has vetted the participating IP law firms for experience, expertise, and customer service, and all have agreed to competitive, pre-negotiated rates for the standard services involved in obtaining a trademark registration. These law firms help ease the trademark filing process, including researching a brand to see if anyone else is already using it and filing trademark applications to protect it. In addition to trademark applications, these firms can also help with additional IP needs such as copyright registrations, design patents, and broader IP protection strategies, making it easy for businesses to get tailored solutions for their brands.

“We’re very excited Amazon has a list of legal firms that can advise us in our trademark needs. We have struggled finding counsel for trademark specific questions as we are a small company and work with limited budgets. Having the peace of mind that Amazon has vetted these firms and negotiated pricing for us lets us focus on what matters—building our brand” said Sonali Nayak, owner of Indigo Paisley.

Using IP Accelerator takes the guesswork out of the trademark filing process. These law firms know the ins-and-outs of IP and can save businesses both money, and time—a proper, well drafted trademark application can significantly reduce the time required to secure a trademark registration. Amazon does not charge businesses to use IP Accelerator—they only pay their law firm for the work performed at the pre-negotiated rates.

. . . .

Because the participating law firms have been thoroughly vetted, when a business works with one of the law firms in IP Accelerator and a trademark has been filed on their behalf, they will be strong candidates for registration. As a result, Amazon will provide these brands with accelerated access to brand protections in Amazon’s stores, to better protect their brand months, or even years, before their trademark registration officially issues. Brands will benefit from automated brand protections, which proactively block bad listings from Amazon’s stores.

Link to the rest at dayOne, the Amazon Blog

Medical Influencers Show Up in False Advertising Case

From Rebecca Tushnet’s 43(B)log:

Wright [Medical Technology] is a medical device developer, manufacturer, and distributor; its products include surgical plates and other instruments used to repair bones in the foot and ankle areas. Paragon, founded by three former high-level Wright employees, makes competing orthopedic plate systems and other devices used to repair bones in the foot and ankle. Trade secret claims ensued.

Also, Paragon allegedly promoted a “cadaver course” intended to teach surgeons to perform procedures of the foot and listed Dr. Christopher Hyer, a Wright “Key Opinion Leader” (KOL, a common term for a medical influencer), as “anticipated course faculty” on the course’s promotional material. It also allegedly engaged in unfair competition by submitting a patent application that was nearly identical to a patent application that Wright had filed a month prior and by offering several KOLs equity or ownership interests in Paragon, leading to the KOLs using Paragon products in surgical procedures without disclosing their interests.

As to false advertising, Paragon argued that predictions (here, about who would teach the course) couldn’t be false advertising. But Wright alleged that there was never any consent for the use of the doctor’s name in advertising, and that Paragon was aware of this lack of consent, which was enough. (But that reasoning has to be incomplete: did Wright allege that Paragon never even asked the doctor to teach the course/that he turned them down before they started promoting it? If he had agreed to teach the course, even without specifically consenting to use of his name in advertising the course, it shouldn’t be false advertising, though the right of publicity result might be different (given the First Amendment-implicating nature of the course, though, it might not).) Anyway, the rule is that, while “[a]n honest or sincere statement of belief about a future event is not actionable,”…a statement known at that time by the speaker to be false, or a statement by a speaker who lacks a good faith belief in the truth of the statement, may constitute an actionable misrepresentation.”

Link to the rest at Rebecca Tushnet’s 43(B)log

PG says it’s a generally a risky idea to use someone’s name in an advertisement without their consent. Presumably, the use of the name is designed to show the advertiser in a better light because of the advertiser’s association with the individual.

If someone complains about such a use, such a complaint may gain wider attention than the original promotion/advertisement did and tend to create a negative public image of the advertiser as dishonest or prone to make statements that can’t be relied upon.

The OP reminded PG of the tort claim called False Light. From Wikipedia:

In law, false light is a tort concerning privacy that is similar to the tort of defamation. The privacy laws in the United States include a non-public person’s right to protection from publicity which puts the person in a false light to the public. That right is balanced against the First Amendment right of free speech.

False light differs from defamation primarily in being intended “to protect the plaintiff’s mental or emotional well-being”, rather than to protect a plaintiff’s reputation as is the case with the tort of defamation and in being about the impression created rather than being about veracity. If a publication of information is false, then a tort of defamation might have occurred. If that communication is not technically false but is still misleading, then a tort of false light might have occurred.

False light privacy claims often arise under the same facts as defamation cases, and therefore not all states recognize false light actions. There is a subtle difference in the way courts view the legal theories—false light cases are about damage to a person’s personal feelings or dignity, whereas defamation is about damage to a person’s reputation.

The specific elements of the tort of false light vary considerably, even among those jurisdictions which do recognize this Tort. Generally, these elements consist of the following:

    1. A publication by the defendant about the plaintiff;
    2. made with actual malice (very similar to that type required by New York Times v. Sullivan in “Defamation” cases);
    3. which places the Plaintiff in a false light; AND
    4. that would be highly offensive (i.e., embarrassing to reasonable persons).

Link to the rest at Wikipedia

The bottom line from a general business and legal standpoint is to not use a person’s name without his/her consent. One of the major exceptions to the general rule would be if someone who is well-known (a “public figure”) made a statement about a product or service in public where he/she knew or should have known others besides her/his immediate companions would be likely to hear it.

To stay out of online spats and maintain a good relationship with a friend or someone who may influence others with respect to your product/service, ask them for permission to quote them in your promotions and/or advertising. If they say “yes,” send them a nice thank you email or text thanking them for their generosity and helpfulness. And keep a copy of your thank you for your records.

Intellectual property in Outer Space: still in the twilight zone

From The IP Kat:

The commercialisation of activities in outer space is booming. Space launches by private actors are skyrocketing (I know: terrible pun), and space tourism is expected to be an industry in full swing soon.

This change in the landscape of outer space raises the question whether intellectual property policy is on top of things in this area. A report on this question published last month by University of Exeter researchers . . . suggests that intellectual property policy lags behind the space industry, to the extent that it is likely to be a barrier for innovation and growth in the sector.

. . . .

The existing regulatory regime at the national level is built primarily upon the international legal framework developed in the 1960s-1970s, when the government had a monopoly over space-related technological capabilities. With the rapid increase in private commercial space activities, these traditional legal frameworks may not be well equipped to serve the flourishing of space technology as new business opportunities arise and diversify.

The privatization of space activities puts into bas relief the application of intellectual property rights in outer space, as organizations are keen to safeguard costly commercial enterprises. This issue was less pressing in the past for two main reasons. First, the commercial implications of outer space exploration were not as well-defined as they are today. Second, as space exploration was handled by state actors collaborating with each other, governments were able to settle issues around the subsistence, ownership and infringement of intellectual property by using inter-governmental agreements tailored to their needs . . . . These agreements serve to fill gaps existing at the intersection between space regulations and intellectual property laws.

Inter-governmental agreements are not available to private organizations, who can only manoeuvre within the framework of national law (and international regulations when they have been adequately implemented at national level). And, unfortunately, for private actors, there is currently no international agreement harmonizing national policies on what or how intellectual property rights apply in relation to assets created in or extracted from space. This is particularly problematic, considering that the space industry inherently involves cross-border activities.

. . . .

International space law (as formulated across various space law agreements and treaties) is premised on the idea that outer space is what we could call a ‘non-jurisdiction’; it belongs to no individual state nor can it  be annexed, owned, or colonised directly or indirectly by any one country. By contrast, intellectual property rights are territorial in nature and are defined by jurisdictional boundaries.

Moreover, intellectual property rights are inherently based on the notion of appropriation. Intellectual property rights confer legal titles, often in the form of ownership,  excluding others from accessing or using the relevant protected subject-matter. By contrast, international space law provides that outer space and its content may not be appropriated by anyone.

Link to the rest at The IP Kat

Stan Lee’s Daughter Sues to Reclaim His Intellectual Property

From The Hollywood Reporter:

Stan Lee’s daughter J.C. is picking up an intellectual property battle started near the end of her father’s life, while broadening its horizons to examine nearly two decades of dealmaking for the comic book legend. On Thursday, as the trustee for the Lee Family Survivor’s Trust, she filed suit in California federal court against POW! Entertainment.

. . . .

Before Stan Lee passed, he had brought a $1 billion suit against POW. That complaint detailed Lee’s deteriorating medical condition and alleged that POW executives took advantage by either inducing him to sign documents under fraudulent pretenses or forging his signature. The suit sought to reclaim name and likeness rights, while also objecting to the transfer of assets to Hong Kong-based Camsing International.

That lawsuit was dropped, and a press release conveyed the news along with an alleged statement from Lee, who was attributed as saying, “The whole thing has been confusing to everyone, including myself and the fans, but I am now happy to be surrounded by those who want the best for me. I am thrilled to put the lawsuit behind me, get back to business with my friends and colleagues at POW! and launch the next wave of amazing characters and stories!”

The latest lawsuit revives the battle but also takes a trip back to the 1990s when he was fired from Marvel after the now-Disney-owned division filed for Chapter 11 bankruptcy. Back then, Lee took his rights and set up a namesake company. Lee hoped to ride the dot-com boom before a financial collapse intervened. Eventually, Lee would make amends with Marvel, but not before co-establishing POW as the company that would possess his intellectual property.

. . . .

“When Stan Lee died in November 2017, his daughter, as his only heir and Trustee of his Estate, gathered a forensic team of lawyers and accountants to investigate the facts surrounding the actions of Stan Lee’s supposed partners with whom Lee had stopped communicating during the last year of his life,” continues the complaint. “In so doing, it was learned the extent to which the rights to Stan Lee’s intellectual property had been looted, muddied and entangled by POW! and a range of bad actors enabled by POW!.

Link to the rest at The Hollywood Reporter

Copyright and Artificial Intelligence

From Plagiarism Today:

Depending on who you talk to, true artificial intelligence can be right around the corner or an impossible pipe dream that humanity will never reach.

However, there is one unavoidable truth. Computers are increasingly doing more and more of the heavy lifting when it comes to creating new content. Just in the consumer market we’ve gone from basic word processors to ones with spell check and now ones that can suggest sentences, correct grammar and make major changes, all without user input.

It’s a similar situation with photography where modern cameras, even the ones in phones, take a lot of the work out of setting up a shot and handle things like focus, light balancing and more. Humans are becoming less and less involved in creating art and computers are taking more and more of the burden from us.

But as that burden is removed and we inch closer and closer to machines being able to create fully independently from us, there is a serious question: Who, if anyone, owns the works they produce?

. . . .

Today, this question about AI and copyright is more of a hypothetical. It’s something to be explored by academics and science fiction authors. The reason is that we just don’t have artificial intelligence that’s able to truly create art independent from its human overlords.

The fact that I use predictive text on my phone or the automatic setting on my camera doesn’t mean I’m not the copyright holder in the things I write and the images I take. This is something codified directly into the law itself with 17 U.S. Code § 102 saying that works that qualify for copyright protection do so whether they are made “directly or with the aid of a machine or device.”

Copyright is awarded to works of human creativity that are fixed into a tangible medium of expression. However, the creativity requirement is very low and the work only need to feature a “spark” of creativity to qualify.

As such, any work created by an AI in 2019 would likely be treated as a creative work by the person that directed the AI to make it. If you select a bunch of paintings and tell the AI to make a new one based upon them, the selection of the paintings is, of itself, a creative act, the AI is just a tool to interpret that creativity.

To that end, the AI is little more than a more complicated autocorrect or autofocus in that it’s a tool for interpreting human creativity and aiding in the creation of a new work.

However, this doesn’t mean that there aren’t some interesting questions in 2019. Take, for example, the following scenarios:

Heliograf: Since at least 2017, the Washington Post has been using Heliograf, an AI reporter, to cover sporting events that they can’t send a human reporter to. While humans are prompting it to write, all they are providing is factual information about the game including box scores and other data. The problem is that facts cannot be protected by copyright, even when compiled at great effort.

Obvious: Obvious is a group of artists and AI researchers that is using AI named Generative Adversarial Networks (GAN) to generate art. According to the collective, GAN operates without human interference and attempts to create artwork based upon images in its library (its unclear if Obvious chooses the images for GAN). The result is artwork that, while maybe not to everyone’s taste, has sold relatively well with one recent work selling for €10,000 ($12,000).

Link to the rest at Plagiarism Today

Google Refuses to Pay for News Links in France

From The Wall Street Journal:

Google said it would refuse to pay for licenses for previews of French news articles when the European Union’s new copyright directive goes into effect here next month, the first concrete signal for how the Alphabet Inc. unit plans to implement the divisive measure.

Rather than paying, Google said it would show only headlines in news results, as permitted under the new copyright law, unless a publication gives Google additional permission to show preview text and thumbnail images for free.

“We don’t pay for links to be included in search results. Doing so would not only skew the results we might provide but it would undermine the trust that users have in search and Google,” Richard Gingras, Google’s vice president of news, said in a conference call with reporters.

Link to the rest at The Wall Street Journal (Sorry if you encounter a paywall)

PG suggests that the European newspapers have more influence over European Union politicians than Google does.

PG further suggests that Google understands more about what drives click-throughs than the European newspaper executives do. PG further suggests that the newspapers will cave before Google does.

How the CASE Act Benefits Authors

PG has posted items about the proposed CASE legislation. While virtually any law can be abused, he thinks this legislation can help authors who are afflicted by small-time copying of their work.

From the Executive Director of the Authors Guild via Publishers Weekly:

Copyright law is the backbone of the publishing industry and the lifeblood of writers and other creators. It puts food on the table and pays the rent. It allows an author to write the next book or article, the photographer to set up the next shoot, the songwriter to keep writing music. The internet has made it easier for writers, composers, filmmakers, photographers, designers, and other creatives to distribute their work to the world—but it also makes it easier to steal or exploit others’ creative works.

Today, the vast majority of individual and small business copyright owners do not have the ability to enforce their copyrights. Copyright claims can only be brought in federal court, and such litigation generally costs hundreds of thousands of dollars. This is true even if the copyright owner simply seeks a reasonable license fee of a few hundred or thousand dollars. Such a system is absurd. A bill to create a much more sensible alternative to federal litigation has been working its way through Congress and promises to make copyright meaningful again for the millions of individuals and small businesses whose welfare depends on it.

The Copyright Alternative in Small-Claims Enforcement (CASE) Act would create an administrative tribunal within the U.S. Copyright Office to handle small copyright infringement cases. It would provide a streamlined, less formal process than federal court and would be drastically cheaper and more efficient. The parties would not need to hire attorneys, and all proceedings would be conducted remotely. To ensure impartiality, the Librarian of Congress would appoint a three-“judge” panel, with at least two of the panelists possessing previous experience representing a diversity of copyright interests. To address constitutional concerns, the process would be entirely optional for both parties.

With so many threats staring down 21st-century creators—many of them enabled by the digital transformation—a small claims court for copyright disputes is needed more than ever. Take book authors, for example. According to a recent Authors Guild survey, writing-related earnings plummeted to a median of $6,080 in 2017—down 42% since 2009. Full-time U.S. authors, meanwhile, earned a median of only of $20,300 from their writing. That’s well below the federal poverty line for a family of three or more. Over half of the authors surveyed reported earnings from their writing that were below the poverty line for an individual. These are not your typical federal court litigants.

Link to the rest at Publishers Weekly

Celebrities vs. Photographers: The Instagram Wars

From Plagiarism Today:

What do Gigi Hadid, Bella Hadid, Odell Beckham Jr., Jessica Simpson, Jennifer Lopez, Khloe Kardashian and dozens of other celebrities have in common?

They are all the subject of photographs that become flash point for a lawsuit after the images were posted on Instagram without the photographer’s permission.

To be clear, not every lawsuit was filed against the celebrity. Sometimes, such as in Odell Beckham Jr.’s case, the celebrity filed the lawsuit proactively. Other times, as with Bella Hadid

, it was a designer or other entity that posted the photo of the celebrity and was the target of the litigation.

Still, one thing has become very clear. Celebrities on Instagram are big business and that big business is leading to some serious litigation. So much so that The Fashion Law has compiled an ongoing list of legal battles paparazzi photographers and those that have used their images on social media, primarily Instagram.

As of this writing they are tracking 21 cases since April 2017, barely a year and a half ago. While those cases represent only a tiny percentage of the lawsuits filed by photographers in recent years, they represent the lion’s share of the headlines and public attention.

But this raises a question: Photographers have had their work misused on social media since the days of Myspace and Friendster. Why is there a sudden spike in photographer litigation now? The reason is extremely complicated but there is one thing to definitely understand: Photographers are punching back.

. . . .

Photographers have always had unique challenges when it came to copyright and the internet. In a print world, infringement was relatively rare as part of the benefit of licensing an image was getting a clean version of it.

In the digital world, not only is infringement as easy as a mouse click but the internet has also made photography, and all visual art, seem almost transient in nature. Photography is something to be downloaded, shared and repurposed without any consideration for the person who took the image and whatever skill, time or expense they used to create it.

But while it was annoying when it was personal people sharing over social media or other non-commercial purposes, the trend in recent years is that social media is itself big business.

On Instagram, for example, “Influencers” can make one cent per follower per sponsored post. For very popular users, such as celebrities, this can be worth tens of thousands of dollars for a single post.

. . . .

However, even as the value and commercialization of social media posts have gone up, the treatment of photographers and photography has not necessarily improved. Though many on Instagram do behave appropriately, either sharing their work or images they’ve licensed, many others do not and routinely slip into behaviors that were tolerated in earlier days.

Combine this with services such as Pixsy that enable easier tracking of images and aggressive lawyers, such as Richard Liebowitz, and you have a formula where you’re seeing increased commercial infringement, better tracking of said infringements and lawyers willing to go after them.

You also have the U.S. Copyright Office that, despite severely limiting group work registrations for most creators, has bent over backwards to help photographers enabling them to register 750 works at one time instead of just 10.

Link to the rest at Plagiarism Today

Why J.K. Rowling Should Walk Away From Harry Potter Forever

Note: This post is a few years old, but PG thinks it might be useful for authors writing in a variety of genres.

From The Legal Artist:

The other day, J.K. Rowling gave an interview with Matt Lauer about her charity Lumos and mentioned she probably wouldn’t write another story about Harry and the gang, although she wouldn’t foreclose the opportunity altogether. I don’t know whether Rowling will ever return to Harry Potter but I do know that she shouldn’t. In fact, I think she should relinquish all rights to the Potterverse before she messes it all up.

Okay what? Messes it up? J.K. Rowling is a goddamn international treasure and I should be strung up by the neck for thinking such heretical thoughts, right? Well maybe, but first let me say that I have nothing but admiration for Rowling’s skill and artistry. The books and films stand as towering achievements in their respective fields and the world is undoubtedly a better place with Harry Potter than it would be without. And that’s exactly the problem.

We revere authors and creators of valuable intellectual property. We assume they know what’s best when it comes to their work. And sometimes that’s true! George R.R. Martin certainly believes it. The general sentiment is that his voice is the only one worthy of steering the Game of Thrones ship. The same probably would have been said about J.R.R. Tolkien and Sir Arthur Conan Doyle. But as fans, I think we’ve been burned by too many Special Editions/ Director’s Cuts/ sequels/ prequels/ sidequels/ reboots/ and preboots to feel anything but trepidation when a creator remains involved for too long with their own work. I get it. It’s your baby, and it’s hard to walk away from something that you poured your heart and soul into. But I’m a firm believer in the Death of the Author, and I’ve stated on this blog several times that when a work takes on a certain level of cultural importance, it transcends the law and becomes the property of society at large, not just the creator. That was the original intention when copyright protections were baked into the Constitution. Remember too that history is replete with authors who aren’t the best judges of their own work; George Lucas is a prime example of how far from grace one can fall simply by sticking around for too long. And I want Rowling to avoid that fate.

. . . .

Obviously the law allows Rowling to do whatever she wants. Copyright law, particularly in the U.S., isn’t equipped to consider the cultural importance of works like Star Wars or Harry Potter. The result is that all art, regardless of quality, is treated the same, which can be a good thing because it prevents systemic discrimination. The downside to that approach is that financial reward becomes the only measure of success. And that just makes it harder to let go. It’s easy to convince yourself that you and only you are capable of maintaining the integrity of the work over the long haul. It becomes even easier if there’s a lot of money to be made by doing it. The law incentivizes you to stay. And because copyright terms last for so long (life of the author plus 70 years), Rowling’s great great grandchildren will be able to profit from her work.  And I think it’s a shame to keep something like that so closed-source.

To my eyes, the seams are already showing. Three years ago, Rowling publicly stated that she wished she had killed Ron out of spite and that Hermione really should’ve ended up with Harry. The fact that she admitted this publicly is problematic enough – it shows a tone-deafness to the effect her words have on the fan-base (which is surprising considering her generosity to her fans). It also suggests that she might not have a full grasp of what makes the story work (i.e. that Harry’s arc isn’t about romance).

Link to the rest at The Legal Artist

Book publishers sue Audible to stop new speech-to-text feature

PG has posted about this latest dispute between Big Publishing and Amazon before, but thought the OP was a good (though speculative) description of Amazon’s possible legal analysis supporting its offering of this new audiobook feature.

From Ars Technica:

Seven of the nation’s top book publishers sued Amazon subsidiary Audible on Friday, asking federal courts to block the company from releasing a new feature called Audible Captions that’s due out next month. The technology does exactly what it sounds like: display text captions on the screen of your phone or tablet as the corresponding words are read in the audio file.

The publishers argue that this is straight-up copyright infringement. In their view, the law gives them the right to control the distribution of their books in different formats. Audio is a different format from text, they reason, so Audible needs a separate license.

This would be a slam-dunk argument if Audible were generating PDFs of entire books and distributing them to customers alongside the audio files. But what Audible is actually doing is subtly different—in a way that could provide the company with firm legal ground to stand on.

The caption feature “is not and was never intended to be a book,” Audible explained in an online statement following the lawsuit. “Listeners cannot read at their own pace or flip through pages as they could with a print book or eBook.” Instead, the purpose is to allow “listeners to follow along with a few lines of machine-generated text as they listen to the audio performance.”

“We disagree with the claims that this violates any rights and look forward to working with publishers and members of the professional creative community to help them better understand the educational and accessibility benefits of this innovation,” Audible added.

. . . .

[A]n Audible executive explained that the technology was “built on publicly available technology through AWS Transcribe.” That’s Amazon’s cloud-based service for automatic text transcription.

So it seems that the Audible app is generating text captions in realtime as the user plays an audio file. The app sends snippets of audio files to an Amazon server and gets back corresponding sections of text, which it then displays on the screen one word at a time. (It’s possible that AWS Transcribe has an offline mode that allows the transcription to happen on-device, but I haven’t found any documentation about this. I’ve asked Audible about this and will update if they respond.)

Audible is likely doing this because it strengthens the company’s argument that it can do this without a license from publishers.

To see why, it’s helpful to review two of the most important copyright decisions of the modern era. The first was the 1984 decision of Sony v. Universal that declared the VCR legal. Hollywood argued that the “record” button on a VCR was an invitation for customers to infringe their copyrights. But the Supreme Court disagreed, arguing that copyright’s fair use doctrine allowed “time shifting”—recording a show now to play it later.

The courts built on this decision with a 2008 ruling known as Cartoon Network v. Cablevision. In that case, a bunch of media companies sued the cable company Cablevision because it was offering customers a “remote DVR.” Like a conventional DVR (or a VCR before that), Cablevision’s technology allowed customers to record and play back television shows at their convenience. But unlike a conventional DVR, the remote DVR was located in a Cablevision data center, not in the customer’s home.

Television content owners argued that Cablevision was infringing their copyrights by making unauthorized copies of their show on a massive scale. Cablevision disagreed, arguing that the copies were being made by customers, not by Cablevision. The physical DVR might be owned and maintained by Cablevision, but the customer was deciding which shows to record. And the customer was entitled to do that under the earlier Sony ruling. An appeals court ultimately accepted this argument.

The Cablevision ruling provided a legal foundation for cloud-based “storage locker” services that allowed customers to upload, save, and stream (but not share) their music and video collections.

. . . .

That brings us back to Audible’s new transcription technology. Audible doesn’t have the legal right to sell text versions of audiobooks to customers without publishers’ permission. But we can expect Audible to argue that it does have a right to sell software tools that allow customers to do speech-to-text conversion.

Audible’s case will likely be strengthened by the fact that its app never creates or saves a permanent, full transcript of an audiobook. Instead, the software only displays a few words on the screen at a time.

If Audible is sending audio files to Amazon’s servers for transcription, publishers are likely to argue this means Amazon—not users—are creating the transcripts. But this seems closely analogous to the Cablevision case: the conversion is being done by Amazon servers but only when explicitly requested by users. And each translation is only sent back to the user who requested it.

Link to the rest at Ars Technica




From The 1709 Blog:

The makers of a ‘Grease’ spoof have gone to the courts in the US seeking confirmation that their show is covered by the doctrine of “fair use” in retaliation to a ‘cease and desist’ letter from the publishers of the original musical. Grease, made world famous by the 1978 romantic comedy movie starring John Travolta and Olivia Newton-John is based on the 1971 musical of the same name by Jim Jacobs and Warren Casey. Theatre publisher Samuel French, now owned by Concord, represents the rights in the original musical.  According to Sketchworks which created the spoof ‘Vape: The Musical’  the new production “uses millennial slang, popular culture, a modern lens, and exaggeration to comment upon the plot, structure, issues and themes of ‘Grease’ and to criticise its misogynistic and sexist elements”. But Sketchworks say their argument that the play was a parody of Grease failed with Concord’s lawyers and indeed the theatre that was due to host the spoof was put off by the cease and desist letter. Sketchworks now wants “a declaratory judgment of fair use so that it may perform and otherwise exploit ‘Vape’ without further delay”

Link to the rest at The 1709 Blog

Mural, Mural on the Wall

From Hugh Stephens Blog:

For a small town in British Columbia, it’s a tale of high drama and threatened lawsuits. Merritt, BC, population about 7000, is a small ranching, sawmill and tourist town situated in the Nicola Valley in the interior of the province, a 3 hour drive from Vancouver. I passed a university summer of my misspent youth there, working in the big open-pit copper mine (Craigmont) that used to be one of the mainstays of the economy. The mine is long closed and now the good citizens of Merritt use various techniques to attract visitors, such as holding an annual country music festival, (which in some years increases the population of the town some twentyfold), hosting the Canadian Country Music Hall of Fame and displaying a number of creative murals that grace various buildings around town, all tied to the country music theme. It’s a rollicking little town that has become caught up in the crossfire of a copyright controversy.

The website of Merritt’s Country Music Hall of Fame highlights the murals, all of them painted with local youth under the direction of muralist Michelle Loughery, or by Loughery herself. Loughery, who lives in Vernon, BC, in the “next valley over” (the Okanagan) has worked with youth in both Merritt and other centres to engage them in employment and trade skills training through mural work, known as the Wayfinder Project. The website of the Hall of Fame, after giving credit to Loughery, notes that

“Not only has the (Wayfinder) program served to enrich our society, but it has helped to transform Merritt into the largest country music art gallery you’ll ever visit. A visit to Merritt and you’ll find ample opportunity to pose in front of larger than life murals or your favorite country artists.

It all sounds wonderful, but there is poison in paradise, all related to a copyright controversy. Now you might think that a copyright dispute involving the Country Music Hall of Fame might involve music, but you would be wrong. The dispute is over the murals.

The murals were painted on a number of buildings in Merritt by Loughery or by youth under her direction, over a period of several years up to 2012. The owners of the buildings were happy to contribute to a community project by allowing the paintings on the outside of their structures. As word of the murals spread, and as Merritt expanded its ambitions to become a tourist hub for country music fans, last year Merritt’s Music Hall of Fame, a partner museum with the Canadian Country Music Association, decided to have the murals appraised. According to press reports, the purpose was to place a value on the murals, in order to make it easier for the Association, which operates the Hall of Fame and its associated “Walk of Stars” (a tour of the murals and handprints in town) to apply for corporate or government funding. Appraisal is usually part of insuring something of value, a relevant consideration since probably the most famous of the murals, one of Elvis Presley painted by Loughery in 2007 (for which she secured permission from Elvis Presley Enterprises in order to reproduce the likeness), was inextricably half painted over last year by the new owners of the building on which it was affixed (the Desert Inn) much to the consternation of Loughery and the Hall of Fame.

While the Hall of Fame’s move to establish a value for the murals is understandable, a complication is that it doesn’t appear to hold the rights to them. Normally the value of a work would come from its potential re-sale value, but it is hard to imagine a work of art on a building owned by someone else having much value. Another form of value inherent in the work would be licensing fees for reproduction, and ownership of these reproduction rights appears to be the nub of the issue. When Loughery painted the murals, she did so in partnership with another non-profit, the Merritt Walk of Stars Society, which folded in 2012. Both she and the Society raised funds for the project, but Loughery was the artist of all the murals. In the case of the Elvis mural, her © 2007 is clearly marked on the work. From her perspective she was not commissioned to do the work, and even if she was, under Canadian law the copyright rests with her unless she licensed it to another entity, which she has not. As one noted law firm has described it;

“Unlike the U.S. Act, the concept of “work made for hire” does not exist in Canadian law. As a general rule, the authorship of a work made pursuant to a contract remains with the employee or contractor, even where the ownership is held by the employer. This is contrasted to the law in the U.S. where the author and owner of a work made for hire is the employer (often a corporation).”

. . . .

[I]t seems to me that it is pretty much a slam-dunk for Loughery when it comes to the copyright. She holds the rights to the murals and can control their reproduction and use even if they are painted on the walls of buildings belonging to someone else. Maybe the Society “owns” them–as an art collector might own a work of art–but the right to license or reproduce the murals surely still rests with the artist.

. . . .

I would add that to Loughery this is an important moral (and potentially legal) issue as the stars generously provided their images to her for the murals under the condition that there would be no assignment to third parties or economic gain. She feels it is her responsibility to protect that personal commitment, and is one of the reasons she has avoided monetization of the murals.

Link to the rest at Hugh Stephens Blog

PG says the takeaway for those encouraging or permitting artists to paint murals on the walls of buildings that are not owned by the artist is to forbid any artist from painting anything and call the police/sheriff/Mounties to arrest the artist for trespassing the first time the artist steps onto the property or touches a paintbrush  to a wall of a building resting on the property. The cautious property-owner may wish to install razor wire and buy or rent a pack of Dobermans to patrol the wall.

Such preventative measures should continue until the property owner acquires competent intellectual property counsel and consults with her/him/them. In all likelihood, the muralist and whoever is paying/encouraging/licensing rights to the muralist will be required to sign a well-drafted contract acknowledging that the property owner is the sole owner of the mural and is authorized to do anything he/she/it wishes with the resulting artwork, including, without limitation, painting or pasting on the building a billboard advertising Levi Garrett chewing tobacco that obscures some or all of the mural at any time in the future.

PG acknowledges that, instead of lawyers, it might be cheaper to just keep the Dobermans in place for a few generations. Perhaps a colony of copperheads could be substituted at some time in the future since they’re a bit less expensive to maintain.

And, yes, Amazon does sell razor wire and a variety of warning signs.

Commons Clause in open source licences: business necessity or betrayal of software freedom?

From IPKat:

Accommodation of new business models and technological advances has fundamentally disrupted the open source industry. Unlike on-prem solutions, which are installed in a user environment, cloud-based software remains hosted on the vendor’s servers and is accessed by users through a web browser. Because cloud-based offerings do not involve software distribution, the copyleft  effect of open source licences is not triggered.

Large cloud providers use their market power and infrastructure to generate significant revenues by offering proprietary services around successful open source projects, thus depriving such projects of an opportunity to commercialise similar services.

This has led to various licensing “experiments”, one of which is  imposing additional restrictions  on  the use  of open source software. Licence modifications effectively mean new licences being added to the open source ecosystem, a phenomenon known as licence proliferation.

. . . .

Cockroach Labs chose MariaDB’s Business Source License for its CockroachDB and included a restriction to “offer a commercial version of CockroachDB as a service without buying a license” but by also adding the following limitation:

In order to continue building a strong open source core, this restriction has a rolling time limit: three years after each release, the license converts to the standard Apache 2.0 license. Our goal in relicensing with a time restriction is two-pronged: to simultaneously create a competitive database as a service (DBaaS) while also providing a guarantee that the core product will become pure open source.

. . . .

Against this backdrop,  this post turns to  the Commons Clause, a licence condition that may be added to an existing open source licence allowing all original permissions contained in such licence, except selling the software. It also prohibits hosting or offering consulting or support services as “a product or service whose value derives, entirely or substantially, from the functionality of the software” (emphasis added). Technically speaking, the resulting licence as a whole is not an open source, but rather a source-available licence.

. . . .

As the FAQ document explains, the rationale of the Commons Clause is to incentivise investment in open source projects by preserving the rights of developers to benefit from commercial use of their work and, as well, to protect open source community from “those who take predatory commercial advantage of open source development”, but do not contribute anything back. The Commons Clause allegedly does not restrict code sharing or development. It is less permissive than non-copyleft open source licences, such as Apache, BSD, and MIT, and allows greater commercial freedom than reciprocal licences, such as AGPL or GPL.

. . . .

Indeed, Commons Clause is drafted in the spirit of a copyleft licence, thereby aiming to protect source code availability. Prima facie, therefore, it seems a better alternative to proprietary licensing and closed source, but is it really?

There are a few inherent problems in the Commons Clause. First, a concept of a “substantial derivative” is vital in determining the scope of the license, but it is not defined. The FAQ suggests that  it should be interpreted as restricting one from  “[s]elling  a product which adds only an insubstantial value to the software — such as changing the product name, changing some API or function names”. This may be helpful in a handful of use cases, but overall it seems open ended, vague and uncertain.

Another difficulty stems from the licence construct itself. Combining a known and trusted open source license with a proprietary (i.e., non-open source) rider  with unknown implications is set to cause user confusion as to licence compliance obligations as well as conforming with internal third party software usage policies.

The third argument against Commons Clause is eloquently made by the open source community. Commons Clause attached to the open source projects is likely to discourage the community from contributing to such projects because the new products made [Commons Clause is not retroactive] can only be monetised by the licensing entity.

Link to the rest at IPKat

This is of potential issue for authors because they may be using open source software for their work.

As one example, PG has used an open-source email program called Thunderbird for at least a thousand years. Both the Google Chrome and Firefox browsers are open-source.

The gravamen of the OP is that those who manage/control some open-source projects are attempting to restrict the commercial use of their projects while still representing them as open source.

One potential consequence of such an action is that a program utilizing open-source code being used by an author may suddenly be in violation of the claimed limits to the open-source license the program depends upon.

30 Years Since Milli Vanilli

From Plagiarism Today:

30 years ago, in the summer of 1989, Milli Vanilli was one of the most important musical acts in all of the world. Their debut album, Girl You Know It’s True (All or Nothing internationally) had produced three number one hits in the United States and would go on to sell 7 million copies in the states and over 30 million globally.

It was a major feat for a band that, just a year and a half prior, didn’t really exist at all. Their rocket ride to stardom seemed too good to be true and, as we all know, it indeed was.

Within a few months, the duo would be at the center of a mammoth lip-syncing scandal. They would have their Grammy Award revoked (the only band to have that happen to) and the downward spiral would sadly end in the tragic death of one of the two members.

. . . .

Robert (Rob) Pilatus and Fabrice (Fab) Morvan met sometime in the early 1980s where they became friends

, bonding over similar experiences of growing up black in predominantly white European cities. They reunited in Munich, Germany in the later 80s and were working to make their mark as models, dancers, singers or anything they could do.

There they met German music producer Frank Farian who, on January 1, 1988, signed the duo to a contract. He had what he felt was a ready-made hit for them in the song Girl You Know It’s True and set about recording it.

However, according to Pilatus and Morvan, Farian lied and misled them, signing them on as singers but eventually deciding that they didn’t have the talent to become stars and re-recording their songs months later using studio musicians.

Though it is unclear what Pilatus and Morvan knew and when, after the swap out was made they did agree to go along with the scheme, becoming the face of the band and lip-syncing in concerts and other performances.

The album, released as All or Nothing in Europe and Girl You Know It’s True in the United States, became an instant success. It would be certified 6x platinum in the United States and five singles from it would chart, including three number ones.

The narrative many remember (or even hear) is that the entire thing began to fall apart when their background track began to skip during a concert. While this certainly did happen at a concert on July 21, 1989, it was far from the beginning or the end of the story.

Suspicions about Pilatus and Morvan were rife almost from day one. Interviewers would note their limited English skills and that often raised doubts privately about whether they had performed on the albums.

However, the concert itself didn’t actually change much. Those in attendance either didn’t notice the issue or wrote it off as a technical glitch.

. . . .

Instead, what sank the band was backstage tensions between Farian and the duo. Though the exact nature of the tension is hotly debated, it seems to be a combination of Pilatus’ erratic behavior and the duo’s insistence on singing for the next album.

For Pilatus’ part, he famously gave an interview proclaiming the band the “new Elvis” and comparing themselves favorably to musicians such as Bob Dylan, Paul McCartney and Mick Jagger. Pilatus and Morvan have long denied this saying the quote is taken out of context and owed to the band’s limited understanding of English.

On November 14, 1990, Farian announced that he had fired the duo and that they did not sing on the records. This prompted the LA Times to sit down with Pilatus and Morvan where they admitted they had lied calling the past two years of their lives “Hell”.

Link to the rest at Plagiarism Today

The Final Knoedler Forgery Lawsuit, Over a $5.5 Million Fake Rothko, Has Been Settled, Closing the Book on a Sordid Drama

From Artnet News:

After more than eight years of legal wrangling over tens of millions of dollars worth of forged artworks sold through the now-shuttered Knoedler Gallery, the 10th and final federal lawsuit, over a $5.5 million fake Mark Rothko, was settled earlier this month.

The case was first filed in 2013 by the Lichtenstein-based Hilti Family Trust, which purchased the painting in 2002. After reports first started circulating around 2011 about authenticity concerns for a trove of Abstract Expressionist paintings sold through Knoedler, the trust submitted paint from their work for forensic analysis, and learned that the work was a fake.

. . . .

The settlement marks the end of a drawn-out, high-stakes legal saga that included only one case that made it to trial.

That case, filed in early 2016 by collector Domenico De Sole, a Sotheby’s board member and former Gucci executive who had also purchased a fake Rothko painting in 2004, eventually settled, but not before a string of experts laid out a damning trail of misinformation that showed how Knoedler had helped create a false story about a mysterious collector, referred to as “Mr. X,” who had amassed a trove of Abstract Expressionist paintings in the 1950s and ’60s. The story was used to explain the lack of provenance, or ownership history, of the paintings.

Forensic testing of many of the works showed that paints used to create them were not commercially available at the time the artworks were supposedly created. An investigation by the US Justice Department eventually revealed that most, if not all, of the works were created by Pei-Shen Qian at the behest of Bergantiños-Diaz in Qian’s home in Queens. The works were subjected to artificial aging techniques, including staining canvases with tea bags to make them appear older.

. . . .

Following the settlement of the 2016 trial, De Sole told artnet News that when the forensic report first came back, Knoedler officials “were insistent that this was not the case and that it was authentic.”

“My point of view was, ‘Fine, if it’s authentic, give me my $8.3 million back and I’ll walk away. Now you can sell this authentic Rothko for more than twice as much, $18 million, or whatever, and you can make a huge profit,’” De Sole said. “When they absolutely refused to do that, I knew that, one, the Rothko was definitely a fake; and two, they knew for sure that it was a fake.”

Link to the rest at Artnet News

Why is No One Talking About this Provision of the CASE Act? It’s Because It Benefits Users of Copyrighted Works

From The Copyright Alliance:

The Copyright Alternative in Small-Claims Enforcement Act of 2019 (the CASE Act), H.R. 2426 and S. 1273, a bill that would create an optional small claims tribunal within the U.S. Copyright Office, was introduced by Congress in May 2019. Before that, it had been introduced in different forms in prior Congresses as well.

. . . .

Ever since the Digital Millennium Copyright Act (DMCA) was passed, anti-copyright groups have been circulating horror stories about the DMCA notice and takedown process being used to harass users, suppress speech and remove material posted by users who have valid fair use defenses.[1] The DMCA includes provisions to protect against such misuse. One way that the DMCA protects against misuse is that it requires the sender of a DMCA takedown notice to assert under penalty of perjury that the material is infringing. Consequently, sending a takedown notice for the sole purpose of stifling speech opens that person up to a perjury charge. Another way the DMCA protects against misuse is found in Section 512(f) of the DMCA, which makes those who use the DMCA takedown process for the filing of false infringement claims liable for the damages suffered as well as for attorneys’ fees.

Anti-copyright groups like EFF, Public Knowledge and Engine counter that these protections are essentially ineffective because most of the recipients of takedown notices are individuals who do not have the money to sue in federal court [2] and because these recipients are often too afraid to file DMCA counter-notices because of the requirement in the DMCA that the counter-notice include a “statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located.…”

. . . .

If only there were a solution for this—perhaps some legislation in Congress that might help address these concerns. In fact, there is and it’s called the CASE Act, a bill that would create an optional small claims tribunal to resolve the following types of claims by both copyright owners and users of copyrighted material:

  • claims of infringement brought by copyright owners;
  • declarations of non-infringement brought by users;
  • claims of misrepresentation of infringement in takedown notices under Section 512(f) of the DMCA brought by users;
  • claims of misrepresentation of infringement in counter-notices under Section 512(f) of the DMCA brought by copyright owners; and
  • counterclaims and legal and equitable defenses (like fair use) brought by any party.

In the corpus of articles and blogs about the CASE Act, the primary, if not sole, focus has been on claims of infringement that can be brought by copyright owners. Unfortunately, there has been little, if any, discussion about claims that can be brought by usersunder the CASE Act.

Regrettably, anti-copyright vigilantes like EFF, ReCreate and Public Knowledge that purport to represent the interests of users are so laser focused on their disdain for copyright and the CASE Act’s provisions that will help copyright owners that they have FAILED to apprise users about the bill’s provisions that are designed to specifically benefit them.

. . . .

Complaint #1It is too costly for a user to challenge a cease and desist letter or DMCA takedown notice even when they have a meritorious defense.

These groups say that the high cost of litigation in the federal court system effectively prevents users from bringing declaratory action for noninfringement or DMCA misrepresentation claims against copyright owners. The CASE Act addresses these concerns by creating a low-cost, efficient, and streamlined way to resolve copyright infringement disputes that is accessible and affordable to individuals and small businesses and is a viable alternative to federal court. Here are a few ways that the CASE Act is much more affordable than federal court:

  • Attorneys’ Fees: The small claims process created by the CASE Act is simplified so that there is no need to hire an attorney. The largest cost associated with defending a copyright infringement case is the cost of hiring an attorney. In fact, the cost of hiring an attorney often exceeds the damages a user could obtain in a 512(f) misrepresentation case or a declaration of non-infringement action (since there would be no damages in such an action). Providing parties with the practical ability to defend themselves without paying tens of thousands of dollars (or more) to an attorney will enable users to bring claims (and defenses) that they cannot presently bring because of the high cost of doing so. If a party feels the need for legal representation, the CASE Act allows them to use the pro bono assistance of law students (supervised by a licensed attorney). The renowned copyright skeptic Larry Lessig famously argued fair use “is the right to hire a lawyer.” Once the CASE Act passes that statement will no longer be true (if it ever were).

. . . .

  • Travel Costs: Unlike federal court, participation in the small claims process takes place remotely. There is no need to travel to the Copyright Office in Washington DC. The CASE Act explicitly states that proceedings “shall be conducted at the offices of the Copyright Claims Board without the requirement of in-person appearances by parties or others”and that each party will make its case “by means of written submissions, hearings, and conferences carried out through internet-based applications and other telecommunications facilities.” The ability to participate remotely in the proceedings without the need to travel to Washington DC is a significant cost savings relative to bringing a case in federal court (where remote participation is generally not permitted), to say nothing of the tremendous convenience of not having to travel away from one’s home or business.

. . . .

Complaint #2: Users are too intimidated to file a DMCA counter-notice because to do so they must agree to be sued in federal court.

If, in fact, users with meritorious defenses or viable misrepresentation claims are not using the counter-notice process because they are intimidated by having to agree to litigate in federal court, the CASE Act provides an ideal alternative by allowing them to assert their claims and defenses without the complexity and trepidation they associate with federal court.

Complaint #3: The DMCA doesn’t give the parties time to explore alternatives to federal court litigation.

In comments filed with the U.S. Copyright Office, Engine, one of the groups that complained about the efficacy of the counter-notice process, said that one of the problems with the counter-notice process was that it “require[s] rights holders to proceed directly from notice to federal suit, with no time or ability to pursue mediation or other alternate dispute resolution.”  . . . .  The CASE Act effectively does what Engine is asking for by establishing a process to resolve copyright infringement claims and defenses in a cost-effective, quick fashion, without proceeding directly to federal court.

Link to the rest at The Copyright Alliance

PG would like to think that a Copyright Small Claims Court would work for individual authors, but has a couple of concerns:

— Small Claims Courts in various states appear to vary in efficacy according to the general attitude and qualifications of the judges in those courts. Typically those courts have jurisdiction over a limited geographic area so litigants can appear in person. The most recent version CASE Act (admirably) does not require the litigants to appear in person and contemplates that hearing officers in Washington DC will be resolving many cases based upon the written submissions of the parties and, in the event a hearing is required, that many such hearings will be conducted online or on the telephone with the litigants providing testimony, etc., from their homes or other nearby location without having to travel to Washington.

The current legislation does permit one or both of the parties to optionally appear in person, however. Based upon a lot of time spent in court during an early stage of his legal career, PG is a bit concerned about the asymmetry of methods of persuasion between an in-person party or advocate and one who is remote. He would prefer that, if one party wants to participate remotely, the entire hearing is handled remotely so the playing field is absolutely equal.

— Under the CASE Act, if a copyright holder/author files what the judge/hearing officer decides is a case without merit, the judge/hearing officer can assess costs and fees against the copyright holder in amounts large enough to heavily burden a great many indie authors.

Many Small Claims Courts in various states have upper limits for damages in the hundreds of dollars. CASE courts can assess damages of up to $30,000 plus attorneys fees if the hearing officer decides the claimant has acted in bad faith. That is enough to seriously harm a great many indie authors. PG understands that the UK has an IP Small Claims court that divides claims by the amount of damages claimed – equivalent to small, medium and large damages range. That type of system might assuage some of PG’s concerns about over-sized penalties imposed on authors who don’t have access to much money.

Eminem Publisher Sues Spotify Claiming Massive Copyright Breach, “Unconstitutional” Law

From The Hollywood Reporter:

Eminem’s publisher Eight Mile Style has filed a major new lawsuit claiming Spotify has infringed hundreds of song copyrights and challenging the constitutionality of a recently passed music licensing law.

In a suit filed Wednesday in federal court in Nashville, Eight Mile accuses Spotify of willful copyright infringement by reproducing “Lose Yourself” and about 250 of the rapper’s songs on its service to the tune of potentially billions of dollars in alleged damages. The suit also targets the Music Modernization Act, a federal law enacted last October that was intended to make life easier for tech companies and to get songwriters paid. The suit accuses Spotify, the $26 billion Stockholm-based streaming behemoth, of not living up to its obligations under the MMA, while also making a frontal attack on one of the few legislative accomplishments during the Donald Trump presidency.

According to the complaint, a copy of which was obtained by The Hollywood Reporter, Spotify has no license for Eminem’s compositions, and despite streaming these works billions of times, “Spotify has not accounted to Eight Mile or paid Eight Mile for these streams but instead remitted random payments of some sort, which only purport to account for a fraction of those streams.”

The suit adds that Spotify has placed “Lose Yourself” into a category called “Copyright Control,” reserved for songs for which the owner is not known. Eight Mile attacks the “absurd” notion that it can’t be identified as the owner of such an iconic song, which was the centerpiece of the 2002 film 8 Mile, hit No. 1 on the Billboard Hot 100 and won an Oscar for best original song.

Link to the rest at The Hollywood Reporter

PG has no knowledge of the facts alleged by Eminem in the OP, but he was reminded of Mark Zuckerberg’s motto for Facebook: “Move fast and break things.”

Tightening the Screws on Pirate Websites through Dynamic Website Blocking Injunctions

From Hugh Stephens Blog:

A pirate site is blocked through a court order yet like a chameleon it changes its colour (and IP address or URL) and is back up again tomorrow under a different guise. This is the reality that rights-holders have to face repeatedly in dealing with slippery pirate operators. But relief is coming.

In an important new development in India, the Delhi High Court recently issued a decision that allows rights-holders to seek “dynamic injunctions” against Indian ISPs. This requires them to block access to the spin-off “mirror” websites that typically appear as a result of the blocking of a primary offshore site that is providing copyright infringing content. Dynamic injunctions avoid the classic “whack-a-mole” problem where no sooner has a court issued an injunction against a specified website, than a clone hosted in some other unreachable jurisdiction pops up providing the same pirated content. Sometimes users seeking the original “free” content are even redirected to the mirror site. The Washington DC-based Information Technology and Innovation Foundation (ITIF) has prepared a detailed report of the Indian decision and its impact on India’s important film industry, focussing particularly on the dynamic injunction aspect.

According to the ITIF;

“Just as website blocking is a pragmatic reflection of a country’s efforts to use injunction orders to get local ISPs to block access to piracy websites hosted overseas (and outside its jurisdiction), dynamic injunctions reflect the fact these same operators can subvert a court’s decisions by shifting targeted piracy operations to alternative websites. The goal of using dynamic injunctions as part of a website blocking system is not just to combat online piracy, but also to change consumers’ behavior by raising the cost—in terms of time and willingness to find alternatives sites and circumvention tools—to make the legal sources of content more appealing.

Link to the rest at Hugh Stephens Blog


American Publishers’ Association Sues To Stop ‘Audible Captions’

From Publishing Perspectives:

The Association of American Publishers today (August 23) has asked the United States District Court for the Southern District of New York to enjoin Audible from providing to its audiobook consumers the machine-generated text of literary works “without any authorization from, compensation to, or quality control by the copyright owners.”

In media messaging this morning from the Washington DC offices of AAP, the organization says its lawsuit names seven AAP member-companies as plaintiffs. They include the Big Five major publishing houses.

. . . .

The suit is being filed in response to recent public statements from Audible, in which it announced its planned rollout of a feature called “Audible Captions.”

And in a special internal note to member publishing houses, AAP president and CEO Maria A. Pallante writes, in part, “The feature, wholly unauthorized, transcribes and displays the text of narrated performances, which are embodied in the audiobook sound recordings that publishers have otherwise authorized Audible to distribute.

“In this context, publishers and authors are the copyright owners of both the audiobook productions and the underlying literary works, and Audible is effectively a retailer—albeit one that has elected to unlaterally enhance its offerings for its own gain.

“On most days, publishers are in the business of investing in authors, inspiring readers, and disseminating knowledge to the public.  Today we find ourselves in court because it is, at times, essential to stand against deliberate acts of disregard and self-interest, particularly when they threaten the long-term viability of the publishing industry and the laws that are its foundation.”

. . . .

First made public knowledge in July, the Audible Captions feature is designed to transcribe and display the text of narrated performances—much as you might see subtitles on an international film or surtitles in an opera performance.

. . . .

On the same date, the 10,000-member Authors Guild also released a statement condemning Audible Captions, writing, “While Audible states that its new ‘Audible Captions’ feature will only display ‘small amounts of machine-generated text,’ existing ACX and Audible agreements do not grant Audible the right to create text versions of audio books, whether delivered as a full book or in segments.

“Nor is there an exception to the copyright law that would permit Audible to do this.”

. . . .

In addition, the association says the technique imposes on the content—and the user’s reception of it—”an error rate that stands in stark contrast to the high-quality and carefully-proofed ebooks that publishers produce, and for which they acquire exclusive electronic rights.” To understand what this means, note how easily your Alexa smart speaker may be “waked up” by the word “election” spoken nearby in a room or on a television newscast.

Link to the rest at Publishing Perspectives

David Streitfeld’s Orwellian Shopping List, and Amazon’s Retort

From Publishing Perspectives:

As Publishing Perspectives will remember, when The New York Times’ David Streitfeldwrote in June that “Amazon takes a hands-off approach to what goes on in its bookstore,” resulting in what the Authors Guild said has been a surge of counterfeit books, the retailer responded at unusual length to defend itself and its intentions of consumer protection and quality assurance.

On Monday (August 19), the San Francisco-based veteran Amazon observer and journalist published a new piece in the Times, in which he recounts buying “a dozen fake and illegitimate Orwell books from Amazon.”

For book industry players and those who respect literature, the story is harrowing and illustrates how many in the books business see what Streitfeld earlier has described as “a kind of lawlessness” in how Seattle sells books.

And yet, once again, a Streitfeld piece has elicited a substantive response from Amazon, indicating at the very least that the vast tech company does not take lightly the sorts of weaknesses the reporter discerns in its work–and making a case to publishing people for a “single source of truth” on copyright status.

. . . .

In describing the bad editions of George Orwell books he was able to order from Amazon, Streitfeld writes that some “were printed in India, where the writer is in the public domain, and sold to me in the United States, where he [Orwell] is under copyright.

“Others were straightforward counterfeits, like the edition of his memoir Down and Out in Paris and London that was edited for high school students. The author’s estate said it did not give permission for the book, printed by Amazon’s self-publishing subsidiary. Some counterfeiters are going as far as to claim Orwell’s classics as their own property, copyrighting them with their own names.”

In cases of such illicit content, of course, rights holders are being stiffed, as Streitfeld reminds us, and the readership is being sold bogus and often badly corrupted work. “After all,” he writes, “if you need a copy of Animal Farm or 1984 for school, you’re not going to think too much about who published it. Because all editions of 1984 are the same, right? Not always, not on Amazon.”

. . . .

Indeed, a lot of what Streitfeld describes in these bogus editions is remarkable as much for how small and random the changes seem to be as anything else. In that “edited for high school” version of Down and Out in Paris and London, for example, the bowdlerized result removes “my chicken” from Charlie’s call to a young seduction victim, “Come here, my chicken.” Can it possibly have been of much concern that a modern high school student might encounter the phrase “my chicken” in this context?

None of this is acceptable. Particularly in an age in which truth itself is under a furious assault by political forces in the United States and many other parts of the world, the protection of every author’s and publisher’s work is mandatory.

And Streitfeld is correct when he writes that the arrival of the biggest seller of books in history has presented an unprecedented challenge in which counterfeiters can profit from their ability to cheat us all: “Until recently,” Streitfeld writes, “improving Orwell was not a practical business proposition.

“Then Amazon blew the doors off the heavily curated literary world. No longer was access to the marketplace determined by publishers, booksellers, or reviewers.”

While Amazon is the company that has, he’s right, made it possible for “even the most marginal books” to be “suddenly available to everyone everywhere” from the most earnest but artless authors (self-published or from the trade), it also can enable the chicanery of ruthless forgers.

Books people struggle with this perhaps more than lawn mower manufacturers or apparel makers. As Faber & Faber’s director of digital and new business Henry Volans once said during a conversation in London, “Publishing has taken the digital disruption rather hard.”

. . . .

Publishing Perspectives has been provided by Amazon with a response to Monday’s Streitfeld article.

[PG asks: Is he alone in questioning the sentence structure of this bit?]

. . . .

(From Amazon’s response)

“The books in question are authentic titles provided to us by publishing houses and distributors for sale in our US store.

“However, there is an issue of differing copyright timing between countries and sometimes even different titles within the same country.

“Today, there is no single source of truth for the copyright status of every book in every country that retailers could use to check copyright status. Retailers are dependent on rights holders to tell them where they have the rights for each title and for how long. Without a single source of correct information, this is a complex issue for all retailers–a number of the books in question are for sale in the stores of several other US book retailers, from independent bookstore Web sites to large chains.

“We work with rights owners to quickly resolve questions about what publisher has what rights in each geography because only the rights holders know the disposition of the intellectual property rights to the works that they represent. We have removed these titles from our US store, and we have informed the publishers and distributors who listed them.

“We believe that a single source of truth for the copyright status of every book in every country would help all booksellers.”

. . . .

But neither can any level of vetting succeed in catching all counterfeited content. Streitfeld points out, “If Amazon vetted each title the way physical bookstores do, it would need lots more employees.” And even a good hands-on examination might miss faces changed to feces in an otherwise expertly produced copy of a book.

. . . .

At the same time, Streitfeld has put his finger on a problem in how Amazon at times displays its consumer reviews of books. “Amazon sometimes bundles all the reviews of a title together,” he writes, “regardless of which edition they were written for. That means an unauthorized edition of Animal Farm can have thousands of positive reviews, signaling to a customer it is a valid edition.”

In comments made on background by the company, Publishing Perspectives has determined that Amazon knows clearly the complaint Streitfeld is making but may not be convinced that exact matches of reviews to a given edition would prevent problems. There are, for example, consumers who might complain about what they consider to be poor-quality printing in a book that nevertheless is an authentic work.

And Amazon is correct that it’s not alone in carrying some of the precise bad Orwell editions that Streitfeld has pointed to here. Some of them can be spotted on competitors’ sites, including those of Barnes & Noble and the independent powerhouse Powell’s. Needless to say, a determined counterfeiter may find it pays well to spread his or her tawdry work to as many points of sale as possible.

. . . .

The Authors Guild reports good cooperation from Seattle in working on problems the guild’s member-authors run into sometimes in working with Amazon. Perhaps an organization like the Book Industry Study Group (BISG) led by Brian O’Leary could look into the development of some of the data centralization that Amazon’s developers believe could strengthen their ability to spot bad material.

. . . .

Update: 11:38 a.m. ET August 20: To help represent the kind of response that many in the industry will have to Amazon’s stance, we’re adding here part of the comment from Michael Cader today in his edition of Publishers Lunch, published shortly after this story. Cader refers to Amazon’s arguments as “worthy of a child. Both in the statement and on further background they complain that it’s hard, that other people do it too, and that it’s somehow your (the industry’s) fault for not having a universal catalog of every right throughout the world. It all ignores the fact that this is a problem of Amazon’s own creation. Their ‘global store’ initiative that started in mid- to-late 2017–which makes the default to sell everything everywhere, unless someone actively complains about rights issues–directly aligns with the explosion of infringing book editions.”

Link to the rest at Publishing Perspectives

PG will note that he is against counterfeit books and the failure of any publisher, small or large, to respect the rights of the owners of the copyrights to those books and pay appropriate royalties for properly-licensed books.

However, PG notes the OP is less about the existence and sale of counterfeit books by Amazon and any other ebook seller and more about a hard-core resistance to change in the world of traditional publishing (including the world of newspaper publishing) and an unwillingness to adapt to a digital world which most consumers really like, both in English-speaking nations and elsewhere.

PG says the traditional book industry, whose profits have been greatly aided by Amazon during a period in which the amount of leisure reading done by Americans (and perhaps residents of other nations) has been in significant decline, seem to want to turn the clock back to 1990 and somehow erase online commerce.

As PG has pointed out before, traditional publishing has committed a serious strategic error by overpricing ebooks. The reasons, of course, have been an irrational hatred of Amazon and the accompanying desire to prop up sales of traditionally-printed books and the bookstores that sell them.

In a purely rational book publishing world, traditional publishers large and small would be happily reaping profits from increases in sales of reasonably-priced ebooks while gently nudging printed books toward a respectable antiquarian retirement. (From an ecological standpoint, think of the millions of trees that would be saved along with the birds and tiny creatures whose forest homes would remain secure.)

Of course, the publishers would still have their secret worries about Kindle Direct Publishing and the steady stream of popular and talented authors, both new and established, who are going indie due to both the increased income and increased power over their own careers that KDP provides.

Besides, Amazon is consistently ranked as one of the most-admired companies in the world. PG doesn’t remember ever seeing any of the huge media conglomerates that own the major New York publishers (or, to come to think of it, The New York Times and its wealthy owners) on any most-admired list. Indeed, PG would rank these huge media conglomerates as among the most retrograde large business organizations found anywhere.



Billie Eilish Cancels Fashion Line After Designer Admits Plagiarism

From Clash:

Billie Eilish has been forced to cancel a new fashion line after a designer involved admitted plagiarism.

The new capsule was crafted in association with Siberia Hills, and on its launch last week fans noted a t-shirt and hoodie which made use of anime character Nozomi Tojo from the Long Live! show.

The close-knit anime community soon pointed out, however, that the designs were incredibly close to previous work by Makoto Kurokawa.

. . . .

After the comparison went viral Siberia Hills had an internal discussion, with the line now being pulled.

A full message was placed on Instagram, apologising to Kurokawa and explaining that Billie Eilish and her team were completely unaware of the infraction.

They wrote: “To the talented artist Mr. M_Qurokawa, we apologize for taking from your artwork for our merchandise collaboration with Billie Eilish. Billie and her team were not aware we used your art, they just believed in the product.”

Link to the rest at Clash

PG says copyright infringement and plagiarism that, in prior eras, would likely have gone undiscovered for years, maybe forever, won’t work anymore.

Publication of creative works online effectively crowd-sources the discovery of “borrowed” or copied works to a much wider range of eyeballs than would have been possible during the pre-internet era.

Google Is Monetizing Human Tragedy: Why Aren’t They Held Accountable?

From Hugh Stephens Blog:

My wife and I had just been visiting our daughter in her new home when we turned on the car radio. It was an interview on CBC with Andy Parker, whose daughter Alison had been murdered, live on TV, by a deranged former employee, back in 2015. The killer recorded and later uploaded video of Parker’s death to the internet, in addition to the live broadcast of the tragedy. The radio story was about the trials of a father who was being trolled by hate-mongers and conspiracy theorists, and about his ongoing efforts to get the videos of his daughter’s murder taken down by YouTube.

. . . .

One wonders why a corporation of this size and influence, one with such reach and the power to influence people’s lives for the better, doesn’t get it. When Parker first learned that videos of Alison’s death were circulating on YouTube, he contacted them and was informed that according to the company’s “moment of death” policy, the content could be removed. There is an online form available that states;

If you’ve identified content showing your family member during moment of death or critical injury, and you wish to request removal of this content, please fill in the information below. We carefully review each request, but please note that we take public interest and newsworthiness into account when determining if content will be removed. Once you’ve submitted your report, we’ll investigate and take action as appropriate.”

So far, so good. But then Parker found out that he would have to flag each and every posting of the atrocity in order to get YouTube to act. Videos taken down today could be up again tomorrow, posted by people ranging from conspiracy theorists to plain vindictive sociopaths. YouTube refused to institute a blanket ban on the video, even though it had the technical means to do so. Moreover the algorithms that recommend content to viewers continue to serve up content related to the video. In frustration, Parker is now bringing a lawsuit against YouTube.

One has to ask why YouTube could not take the necessary steps to police its own content. Under pressure from copyright owners it has instituted a system of sorts that will take down all videos of a proven copyrighted work. While the system is unsatisfactory to many, at least there is a functioning system to take down copyright infringing works, as YouTube is required to do under the DMCA in order to keep its safe harbour. And there is other content that YouTube is required by law to block, and by and large it manages to do so, such as child porn, and sex trafficking. In addition, there are other forms of undesirable content that the platforms, YouTube among them, ought to block, as a matter of common sense, but here they do a poor job. Facebook’s slow-off- the-mark response to block the dissemination of the filmed violence against the mosque and worshippers in Christchurch, New Zealand, is but one example, as is the ongoing issue of hate speech and incitement to violence and terrorism as witnessed on the website 8Chan.

What really upsets Mr. Parker is that not only does YouTube require him to constantly police its site to identify postings of his daughter’s death (just as copyright owners have to spend the time to notify YouTube of infractions, although some of this is automated through ContentID), the clicks that it attracts enable YouTube to monetize the hateful video.

Link to the rest at Hugh Stephens Blog

PG understands that digital fingerprinting has reached the point where it can accurately identify specific digital content – video, audio, ebooks, etc. – with a high degree of accuracy and that, at least some providers of this service do so in a way that can’t be defeated with changes to the file hash, length, additions and deletions, etc., digital characteristics of the file. He understands that Audible Magic is a major player in digital fingerprinting.

Undoubtedly, licensing digital fingerprinting software and solutions costs money, but, particularly in situations like the one described in the OP, PG would think that YouTube might take action, if only to avoid future legislative or regulatory supervision over the company’s policies and business practices.

While many indie authors understand the Digital Millenium Copyright Act allows them to send take-down notices when someone offers their book online without the author’s consent. However, one of the significant benefits the DMCA provided online information providers like YouTube, Google, Facebook, etc., was freedom from claims by copyright holders if the online giants published copyright-protected content so long as the online publishers responded to takedown notices with reasonable speed.

For reasons that seemed sensible at the time (1998 for the US version of the DMCA), the onus of discovering copyright infringement placed on the owners of the copyright included no requirement that the online information provider notify or make it easy for the copyright holder to discover the publication of infringing copies by YouTube, etc.

PG will note that the fast-moving pace of innovation and change typical of the online world is a terrible match for the ponderous and sometimes witless process of getting legislation passed in the US and elsewhere.

Despite that unfortunate fact, PG suggests an amendment to the DMCA that permits efficient and accurate technical methods of identifying copyrighted works to be used by creators as and when they become commercially available. This would include methods for creating digital fingerprints or other tamper-resistant means of identifying protected works.

When such methods become reasonably available, online information providers would be required to check uploaded content against databases of digital fingerprints generally published or made available by third parties for the purpose of identifying infringing uses. Alternatively, copyright owners could submit digital fingerprints in a standard form directly to the online information providers so such organizations could create and host such databases themselves.

I Am Dyslexic

The original post is by a tenured law school professor who is a respected expert on copyright law.

PG is posting this because he suspects most of the visitors to TPV have had little or no trouble learning to read and reading as children or adults. That has been PG’s experience.

For PG, OP has some of the most approachable and understandable descriptions he has seen of dyslexia and about someone experiencing this condition.

From Matthew Sag:

If you don’t know that I am dyslexic, you really don’t know anything about me. That would not be your fault, I have spent most of my life trying to hide the fact that I am dyslexic. In fact, I used treat my ability to hide my dyslexia as a measure of how well I had overcome it. But mostly I hid for the same reason people always hide, for fear of exposure. Years of bitter experience at school and in the workforce  had taught me that if you have a learning disability, many people think you are stupid. Some of those who don’t think you are stupid think that you are just lazy or a liar instead.

Even though I knew early in my teaching career that I would have no trouble meeting the tenure standard at my school, I still worried that if my colleagues realized that I was dyslexic they would hold it against me when it came to tenure and promotion. I know other people in the academy who feel the same way, even now in 2019.

You might think that these fears are uncharitable to my colleagues, but I feared their ignorance more than their malice. When I became a tenured full professor I really did (mostly) stop worrying about what people thought. More importantly, I hope that by sharing my experiences I might offer encouragement to others coping with learning disabilities and help change attitudes towards dyslexia.

Reading with dyslexia

Dyslexia is characterized by difficulty with learning to read fluently and with accurate comprehension despite normal intelligence. American Academy of Pediatrics “Joint Statement—Learning Disabilities, Dyslexia, and Vision” 124 Pediatrics 837 (2009)

Dyslexia can mean a lot of different things. The term is used as an umbrella term for a combination of auditory, visual and attentional disorders that manifest as learning disabilities.  I can’t say what it means in general to be dyslexic, I can only say what it means to me.

My type of dyslexia is visual/attentional, but mostly visual. When you look at worlds on a page, chances are that you see words on a page. For most of my life I have had 20/20 vision, so I see the words too – but I don’t really see them. For some reason I just don’t process combinations of letters very well. I see what you see, but what I see is not very stable. The word reversals and word skipping associated with dyslexia seem to be the result of a software failure in the brain, rather than a hardware failure in the eyes. [Although the instability is more of a hardware issue than I had previously understood.]

Some common illustrations on the Internet can give you some idea of what a dyslexic might see, but they are not exactly right either. (These two are from the Irlen website)

Screen Shot 2013-08-12 at 11.39.16 AMScreen Shot 2013-08-12 at 11.38.22 AM

The best way I can explain it is that when I read a word, I can only process two or three letters at a time. A word like “detection” becomes

de – et – te – ct – ti -io – n

But I compensate by sort of flitting over the words so “detection” might actually be more like

det – [bla] [bla] [some kind of tall letter] [bla] – ion

Defection! That sounds like an interesting book, … why is it all about detective stories?

It took me a long time to learn to read. When I was in grade one I would chose my books for quiet reading time on the basis of which ones had the most pictures. I would figure out one or two words per page and then just make up the rest of the story. Even when I supposed to read out loud I found that making things up was pretty good substitute for actually reading.

All through primary school, my reading age lagged my actual age by two or three years. This confused my teachers because I seemed to have “normal intelligence” and my vocabulary was quite strong. I did the usual range of remedial exercises and vision therapy (this mostly involved crossing my eyes and making red and green circles come together). These things helped a bit but I still read poorly, and only when forced. [I recently did some more vision therapy and found it quite helpful. I had not realized how much vision had destabilized since I was a teenager, but it still was not the cure that some hold it out to be.]

In year seven, thanks to the loving tyranny of the diminutive Mrs. Johnson, I realized that I had to start reading. The first book I read was Battlestar Galactica, not a literary masterpiece but easy to follow since I had already seen all the TV episodes more than once. I spent weeks reading Battlestar Galactica at the glacial pace of about 10 pages an hour. After that I very slowly worked my way through my older brother’s sci-fi collection. I loved the escapism, but reading gave me a kind of dull headache and left me exhausted.

Reading in color

In year eight (the first year of high school in Australia) my English teacher told me that my written work showed that I was either stupid or lazy. He then explained that he could see (I am not exactly sure how) that I was not lazy and that he knew from my standardized testing (I was always good at multiple choice tests) that I was not stupid. My new school’s special education teacher referred my on to a psychologist who tested me for “scotopic sensitivity syndrome” also known as Irlen syndrome. The psychologist ran me through a battery of tests and then we spent about two hours trying different colored lenses while doing yet more tests to see which color worked best for me.

Reading with colored lenses was, and remains, a totally different experience. I began to read much more quickly and without headaches. By year 11 I had transformed from a C student in everything but math to an A student. Colored lenses have not cured my dyslexia, but they make it manageable. I still have a shorter than average span of visual focus and words still tend to swim around on the page, but now it is more like

det -ect-ion


de – et – te – ct – ti -io – n

How do colored lenses help? Do they really help at all?

This is very difficult to explain. Irlen syndrome and the associate Irlen colored lenses are controversial. According to the American Academy of Pediatrics, “Joint Statement—Learning Disabilities, Dyslexia, and Vision”

“Most experts agree that dyslexia is a language based disorder. Scientific evidence does not support the efficacy of eye exercises, behavioral vision therapy, or tinted lenses.”

There are studies showing the effectiveness of colored lenses, but the American Academy of Pediatrics does not think that much of them. I wear non-tinted lenses for social activities that don’t involve reading. When I forget to change back to my tinted lenses all my old symptoms come back. This is as close to proof as you can get that colored lenses work for me and that this is not just a placebo effect. On the other hand, it also seems clear that these lenses don’t work for everyone. Likewise, vision therapy is great for some people, but again, may not work for everyone.

What is it like to be dyslexic?

People who know me now think of me as confident, perhaps even a little brash. I did well at university and as a lawyer, but have only really excelled as an academic. I have published in Nature and many of the top U.S. law reviews (California, Northwestern, Georgetown, Notre Dame, Iowa, Vanderbilt, Ohio State, …) and I receive great teaching evaluations. So, yes, I am fairly self-confident — though not confident enough to leave these achievements unstated.

I have not always been so self-assured. For most of the time I was in school I my greatest intellectual aspiration was to be normal or average. I told myself that I was average and that it was just my dyslexia that held me back. For a long time this anchored my self perception, to the extent that when I started excelling in high school I wondered why 95% of my classmates were below average. I did not know about Bayesian inference then.  When my sister told me that I would never get the grades to get into law school I resented her because even though I was determined to prove her wrong, I also thought deep down that she was right.

Being dyslexic means being misunderstood, dismissed and underestimated. I was almost held back at the end of third grade. I failed the recorder in year 8. I always did poorly in English when it was graded on in class exams and then I was accused of cheating when I handed in high quality short stories and essays that my mother typed for me. [Thanks mum!]

My grade seven teacher asked me once, how do you expect to get a job if you can’t spell? I had just read Isaac Asimov’s Foundation where one of the characters  dictated into her screen and the words appeared in her own handwriting, so I pronounced that by the time I entered the workforce computers would spell for us. It actually only took until I was in year 12. I love words and I love language, but if not for spell check I probably would have become an accountant.

I am still a terrible speller, especially when writing by hand. Spell-check has made my life possible, but even without it, there is something about the muscle memory of typing that works better than the fine-motor skills required for handwriting. My spelling embarrasses me. Even today, I will do almost anything to avoid letting other people see my handwriting. If I have to write a card I usually type it on my computer and then carefully check each word.

When I write on the whiteboard in class I know that my students can see how poorly I spell and that I often write words out of sequence and then add in the missing letters. This used to be excruciating (a word I would never try to write on the whiteboard), but I try to think of it as a demonstration of how amazing I must be to be a successful law professor with this kind of spelling ability.

Proud to be dyslexic

Not all differences are defects. I grew up thinking of dyslexia as a problem to be overcome, a disability that was holding me back. It took me a while to realize that dyslexia is also a gift. I am a bad speller and my attention to detail is inconsistent. On the other hand, I am a great problem solver and and excellent generalizer. I can grasp general patterns based on what seems like insufficient data to most people. I am usually the first person in a movie theatre to get the joke. I also have great listening skills. When I was 26 I moved to the United States and studied for the California bar exam purely by listening to audio tapes from a cramming course. Life with dyslexia is an obstacle course — it is frustrating at times, but there are benefits if you can learn when to avoid and when to overcome. Dyslexia has made me creative and resourceful; it has also pushed me into a career path where these faculties are valued more than penmanship and spelling.

Link to the rest at Matthew Sag

As a bonus, Professor Sag makes available a collection of copyright materials he uses in his classes. You can find downloadable copies of Extended Readings on Copyright HERE. Note that the MS Word version of this document is 834 pages long (yes, PG did download it). Note further that Extended Readings on Copyright is available under the generous terms of the Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International (CC BY-NC-SA 4.0) license.

‘Going down’ Is a Trade Mark That Causes a Bad Influence on Morality, Says the Beijng High Court in China

From The IPKat:

‘Going down’ is a common English phrase whose meaning is descending or sinking. But when it tried to be registered as a trade mark for some sex-related products in China, it encounters the issue whether such a phrase leads to a bad influence on morality.

Similar to Article 7(1)(f) EUTMR, Article 10 (8) of the PRC trade mark law prevents a mark from registering if it is harmful to socialism morality or has other bad influence.

In its recent decision (here, in Chinese), the Beijing High Court affirms that ‘going down’ is a trade mark that causes bad social influence when it is designated for sex-related products.

. . . .

The trade mark office of the PRC refused the application because it held that the pronunciation of ‘going down’ is identical to that of Chinese words ‘够淫荡’ (pronounced as ‘Gou Yin Dang’ and translated to English is ‘enough to be lascivious’). This sexual implication of the trade mark harms Socialism morality and causes negative social influence. It shall then not be registered in accordance with Article 10 (8) of the PRC trade mark law.

. . . .

The applicant filed an appeal to the Beijing IP Court. Not siding with the trade mark office, the Court held that ‘going down’ is a regularly used phrase whose meaning is ‘descending or sinking’. The English words themselves have no immoral meaning, and the relevant public will not generally relate ‘going down’ to ‘够淫荡’. Thus, the use of the sign for the designated goods would not cause bad influence. Such a trade mark can be registered.

. . . .

Unsatisfied with the judgement of the Beijing IP Court, the trade mark office filed an appeal to the Beijing High Court. The Court sided with the trademark office and held that ‘going down’ is a trade mark that causes bad influence. The Court reasoned as follows:

1. What is a trade mark that causes other bad influence? 

A sign could be held to be a trade mark resulting in bad influence if it or its constituent element(s) may cause a negative influence on public interests and public order. The term ‘other bad influence’ in Article10 (8) of the trade mark law is used to refine an absolute ground to refuse the registration of a trade mark. The ‘other bad influence’ shall not be interpreted in an unduly broad way to restrict the freedom of expression and creativity. Nor shall it be interpreted in an unduly narrow way to allow the registration of a trade mark which has a negative effect on political, economic, cultural, religious and ethical public interests and orders.

2. Has ‘going down’ an immoral meaning?

The words ‘going down’ (phonetically) have immoral, negative and low-taste meaning when it is used for the designated goods such as vaginal syringes, condoms, non-chemical contraceptives and sex dolls, although the literal meaning of these words is ‘descending or sinking’. The trade mark office’s decision shall be upheld for the purpose of leading the public to build a positive mainstream culture and value; of prohibiting the act of meeting the ‘three forms of vulgarity’ (inelegant, indecent, and insipid) in a way of ‘play edge ball’; and of realizing the judiciary’s duty to preserve and pass on mainstream awareness and value.

3. Is ‘going down’ causing bad influence?

A trade mark is a commercial sign attached to products that disseminate to the public. In addition to distinguishing goods and services from others and bearing reputation, a trademark can also disseminate value and culture. A trade mark’s influential power and contact in the public are wide and uncertain. The cultural taste and the value represented by a trade mark would be widely disseminated through the use.

. . . .

In addition, the decision of the Beijing High Court briefly states that the freedom of expression and creation may play a role in trademark law. In this case, it relates to the assessment of whether a trade mark could cause bad influence. This statement echoes the recent decision of the Supreme Court of the US in Lancu v. Brunetti and the opinion of the AG Bobek in Constantin Film Produktion v. EUIPO. Both of the cases address the freedom of expression and creation and the trade mark consisting the immoral elements or words. The US Court directly claims that prohibiting registration of a trademark consisting of or comprising immoral or scandalous violates the First Amendment (free speech clause). In EU case, AG Bobek holds that the freedom of expression as a fundamental right does play in the field of the trademark. It is still waiting for the decision of the CJEU on the EU’s position on the freedom of expression and trade mark law.

. . . .

Lastly, it is also worth to mention that the Beijing High Court recognizes a potential new function of a trade mark, namely, disseminating culture and values. As argued by the Court, with the distribution of goods attaching a trade mark, the culture and value represented by the trademark could be also disseminated. If a trade mark disseminates a low-taste or inferior culture, it shall harm the society or public morality.

Link to the rest at The IPKat

A couple of months ago, the US Supreme Court struck down a law barring the registration of vulgar trademarks.

From The New York Times:

The Supreme Court on Monday struck down a federal law barring the registration of “immoral” or “scandalous” trademarks, saying it ran afoul of the First Amendment.

. . . .

The trademark case concerned a line of clothing sold under the brand name FUCT. When the case was argued in April, a government lawyer told the justices that the term was “the equivalent of the past participle form of the paradigmatic profane word in our culture.”

Justice Elena Kagan, writing for a six-justice majority, did not dispute that. But she said the law was unconstitutional because it “disfavors certain ideas.”

She gave examples. Government officials have granted trademark protection to antidrug messages but not to “Marijuana Cola,” to pro-religion messages but not to “Madonna” wine and to antiterrorism messages but not to “Baby Al Qaeda.”

The decisions were understandable, Justice Kagan wrote. “The rejected marks express opinions that are, at the least, offensive to many Americans,” she wrote.

. . . .

But a bedrock principle of First Amendment law, she wrote, is that the government may not draw distinctions based on speakers’ viewpoints.

In 2017, addressing a companion provision in the trademark law, a unanimous eight-justice court struck down a restriction on trademarks that disparage people, living or dead, along with “institutions, beliefs or national symbols.”

The decision, Matal v. Tam, concerned an Asian-American dance-rock band called the Slants. The court split 4 to 4 in much of its reasoning, but all of the justices agreed that the provision at issue in that case violated the Constitution because it took sides based on speakers’ viewpoints. (The decision also effectively allowed the Washington Redskins football team to register its trademarks.)

Link to the rest at The New York Times

Amazon Takes Aim at Patent Infringement in Its Marketplace

From The National Law Review:

Amazon CEO Jeff Bezos recently disclosed that gross merchandise sales in the Amazon Marketplace by independent third party sellers (as opposed to sales made directly by Amazon itself) had grown to 58% of total sales. According to data company Statista, 73% of those sellers were small businesses with between 1-5 employees. For many of them, sales on Amazon comprise their entire revenue.

Discussion of the opportunity Amazon Marketplace represents for small business, however, is joined by the voices of many retailers complaining about sales of counterfeit and stolen goods. To better police its online sales, Amazon has launched initiatives such as Project Zero which allows owners of brands to delete counterfeit products.

The online retail giant’s latest enforcement effort—designed to combat patent infringement—has been dubbed the Utility Patent Neutral Evaluation Procedure (UPNEP). Under this new trial program, a company that believes certain products for sale on the Amazon Marketplace infringe its patents can request an evaluation by depositing $4,000. If the seller does not dispute the accusation, Amazon removes the infringing products from the marketplace, and refunds the deposit to the patent owner. If the seller decides to fight the claim, it also deposits $4,000. Amazon then assigns a lawyer with patent expertise to resolve the dispute. The patent owner submits an opening brief, the merchant files a response, and then the patent owner may submit a reply. The lawyer reviews the submissions, and decides whether the listing should be removed or maintained. The winner gets its money back, and the loser’s $4,000 gets paid to the lawyer. There is no discovery, and no appeal or request for reconsideration. The whole process takes just a few months from start to finish.

Many stakeholders in the Amazon ecosystem have applauded the UPNEP as providing both patent owners and Amazon merchants with a quick and cost-effective mechanism for resolving infringement disputes arising from third-party listings. While participation in the program does not prevent a patent owner from commencing a lawsuit, many sellers do not reside in the United States, and thus may not be subject to service of process in a U.S. federal court. Without UPNEP, patent owners would have little to no recourse in such cases.

. . . .

Expert Peter Kent, who has served as an expert in several Amazon-related cases, is monitoring developments closely. “A critical question in my mind about the UPNEP program,” explains Kent, “is whether it will be exploited by larger companies trying to knock out competitors using spurious patent claims. For instance, if a small merchant who can’t afford the $4,000 doesn’t respond, their product listings are automatically removed, regardless of the merits of the petitioning company’s patent claims.”

Link to the rest at The National Law Review

The Vexed Question of Samples and Songwriting Credits

From The Economist:

The thorniest question in popular music at the moment is this: who owns a melody? This week two court cases addressed the issue. In California, a jury decided that Katy Perry’s song “Dark Horse” had plagiarised the beat of “Joyful Noise”, a track by Flame, a Christian rapper. Meanwhile the European Court of Justice (ECJ) ruled in favour of Kraftwerk, a pioneering German electronic-music group, in their 20-year-long case against Moses Pelham and Martin Haas. The hip-hop producers had used a two-second sample from Kraftwerk’s “Metall Auf Metall” in the song “Nur Mir” without seeking permission. The ECJ decided that any recognisable sample from a recording should only be used if the original producers had authorised it. Modified, unrecognisable samples could still be used without authorisation, the court clarified.

In 1991 sampling in America—the home of hip-hop—was forever altered by Grand Upright Music Ltd v Warner Bros Records, a federal court case. Grand Upright Music successfully argued that Biz Markie, a Warner artist, should not have taken a sample from the Gilbert O’Sullivan song “Alone Again (Naturally)”. Since then, American artists have had to seek permission from the copyright holders before using excerpts of a record (or take care to sample from records so obscure that no one will notice). The immediate effect was that songs built around samples became prohibitively expensive to make, but artists and producers soon found a way around the restrictions: they would simply recreate the relevant section of music with new musicians, paying the original songwriters for what was, in effect, a miniature cover version, but without having to pay a licence fee.

. . . .

With only 12 notes in a chromatic octave, the quest to find new ways to construct melodies in pop songs has become ever harder. And new songs are studied ever more closely for their resemblance to records of the past, even when they don’t rely on samples. Ms Perry was merely the latest artist at the centre of a copyright case. A controversial ruling in 2015 found that “Blurred Lines”, a hit song by Robin Thicke released in 2013, had plagiarised Marvin Gaye’s “Got To Give It Up”, released in 1977. The judgment seemed to be based primarily on the style of the songs, rather than any similarity in melody, harmony, rhythm or lyric. The five writers of “Oops Upside Your Head” (1979) now collect 17% of the publishing royalties of Mark Ronson’s “Uptown Funk” (2014) after filing a legal action in 2015. Ed Sheeran settled a copyright infringement claim against him in 2017; Taylor Swift listed Right Said Fred as writers on her song “Look What You Made Me Do” as it made melodic reference to “I’m Too Sexy” (1991). The landscape of songwriting credits has been irrevocably altered.

Link to the rest at The Economist

Data-Mining Reveals That 80% of Books Published 1924-63 Never Had Their Copyrights Renewed and Are Now in the Public Domain

From BoingBoing:

[T]here’s another source of public domain works: until the 1976 Copyright Act, US works were not copyrighted unless they were registered, and then they quickly became public domain unless that registration was renewed. The problem has been to figure out which of these works were in the public domain, because the US Copyright Office’s records were not organized in a way that made it possible to easily cross-check a work with its registration and renewal.

. . . .

Enter the New York Public Library, which employed a group of people to encode all these records in XML, making them amenable to automated data-mining.

Now, Leonard Richardson (previously) has done the magic data-mining work to affirmatively determine which of the 1924-63 books are in the public domain, which turns out to be 80% of those books; what’s more, many of these books have already been scanned by the Hathi Trust (which uses a limitation in copyright to scan university library holdings for use by educational institutions, regardless of copyright status).

Link to the rest at BoingBoing and thanks to HM for the tip.

PG notes that BoingBoing has a less than sterling reputation for accuracy in reporting, but thought the possibility that this item might be correct was interesting.

The Two Victims of Plagiarism

From Plagiarism Today:

The narrative around plagiarism is often extemely simplified: There is a plagiarist and there is a victim.

It’s a simple and compelling narrative. There is a bad person that has stolen or lifted from a good person by using their work without the decency of at least giving them proper credit.

It’s a visceral and personal kind of theft, one that often feels more akin to identity theft than copyright infringement (which is the most common legal consequence, when there is one). Victims of plagiarism have every right to be angry and upset and society is right to throw support behind them.

However, simple narratives rarely tell the full story, especially with an issue as complicated and nuanced as plagiarism. Focusing as heavily as we do on the plagiarism direct victim not only misunderstands the nature of plagiarism, but risks giving a free pass to certain kinds of “victimless” plagiarism.

The truth is that there isn’t just one victim of most plagiarisms, there are two and it is time for that second victim to stand up and be heard. After all, they’re the ones being most directly lied to and the ones that may not realize they’re being misled at all.

. . . .

Plagiarism, at its most fundamental level, is a lie. It is the taking of works or ideas of others and passing them off as your own, either directly or indirectly. The misdeed itself is in the lie, the “I created this” when it is known to be untrue.

However, that lie isn’t being told to the original victim. It’s a lie about the victim, claiming that they didn’t create it or their contributions didn’t matter, but it’s not a lie to them. Instead, it’s a lie to the audience, which is the second victim and the actual target of the con.

A plagiarist doesn’t hope to fool their source. They know the source will recognize their work and plagiarists will often go to great lengths to hide their falsehoods from those they lifted from.

Instead, plagiarists attempt to fool the audience. They are trying to deceive whatever their target audience is whether that’s just one teacher in a classroom or the world at large. They are saying to that audience “I created this” and hoping that the audience trusts them and believes it even though it is untrue.

. . . .

There are two problems with putting so much emphasis on the original victim of plagiarism when discussing it:

  1. It ignores the intent of plagiarism. Plagiarists don’t aim to steal from others, but to fool an audience. They want to have created something without putting in the work. It was never about the victim.
  2. It excuses a wide variety of plagiarisms, even if the deception is exactly the same or even worse.

A good example is an essay mill. If a student buys a paper from an essay mill and submits it, the deception is the exact same as if they’d copied the paper from Wikipedia. The only difference is that the plagiarist went to much greater lengths to obtain the work and hide their misdeed. The plagiarism is no longer impulsive and stupid, but cold and calculating.

Yet, many ignore this or call it something other than plagiarism. The student is still presenting the work of someone else as their own. It doesn’t matter if the original author gives their approval, the fundamental lie is unchanged and there is still a very real victim.

. . . .

Expressions such as “Plagiarism is the sincerest form of flattery” not only trivializes the act of plagiarism itself, but omits the fact, depending upon the nature of the plagiarism, many other people were likely lied to and deceived.

Link to the rest at Plagiarism Today

An Argument for the Case Act

CASE = Copyright Alternative in Small-Claims Enforcement Act

From Medium:

I got an email from the Electronic Frontier Foundation, whose work I admire and mostly support. In the email the EFF asked its supporters to call their representatives and tell them not to support the CASE act.

Roughly, the CASE act would lay out a new way for copyright holders to seek payment when their work is infringed by establishing a small-claims-court-like board inside the US Copyright office. Damages would be limited to US$15,000 for each infringed work and a total of $30,000 per claim. The law is meant to protect infringers from much larger monetary claims and to give the infringed a way to obtain compensation without having to mount a prohibitively expensive lawsuit.

My work pays for my family’s shelter, food and education and for my ability to keep writing music. The CASE act would give me a simple, inexpensive way forward when someone in the US steals my work and refuses to engage with me to execute a license to use my copyrights.

The EFF says that the CASE act will spawn an industry of copyright trolls who will file frivolous claims in order to make money off innocent people. Does the threat of copyright trolling justify limiting my ability to obtain compensation when my work is stolen? As I hear it, the argument is that giving corporations the ability to collect damages from individual infringers who aren’t doing harm is so great an evil that we cannot craft legislation that would allow individuals to bring valid claims against corporate infringers who are doing real harm.

Let me tell you some of my experience as an artist who earns a living from their work and whose work is often infringed/appropriated/stolen by entities who include it in their commercial projects without permission or compensation and sometimes even try to pass it off as their own. My work is supposedly protected by copyright law but when such an infringement occurs I have little recourse beyond sending a stern letter or attempting to shame them on social media. I would like to explain why, from my perspective, the CASE act sounds like a good idea.

. . . .

When I say “stealing” I am not talking about the hobbyist who puts my music in their climbing video. I am not talking about the young dancer who posts a video of her routine to one of my songs. I am not talking about the gamer who posts videos of their gaming sessions with my music as soundtrack. I am not talking about the wedding photographer who has my music as the soundtrack to their photography slideshow. I am not talking about my work used in a meme. In fact, I am not talking about most of the 22,000 third-party videos on Youtube with my music in the background. I don’t see any of that as stealing, I see it as a compliment. It says to me “I love your work and I love it enough that I did my own work to it and here it is for the world to see”.

. . . .

While legally most of these uses of my songs and recordings are technically infringing, I do not view these uses of my music as problematic and I do not block upload of such videos to YouTube.

Every now and then I will stumble on a usage that I find offensive, like a homemade anti-abortion video. I’ve gone through the take-down process and written to the creator of a video asking them to remove my music. It’s offensive to my moral rights as an artist, which are unprotected in the US, but because the usage does infringe my master and synchronization rights, I can have it taken down. I haven’t been tested on this thankfully, but I would not bring suit against an individual unless they blatantly refused to remove my music.

So, what is the “stealing” that I would use the CASE act for?

– Stealing is when someone writes asking to use my work, doesn’t accept the fee my licensing agent quotes them and uses it anyway.

– Stealing is when my work is knowingly used inside another work and my work is passed off as someone else’s.

– Stealing is using my work in something, charging for it and not crediting me in the hope I won’t find out.

Financial losses aside, I find these last two kinds of thefts emotionally devastating. When I learn of a funded production that used my music as an integral part and didn’t credit me, I feel such incredible sadness. I feel bereft, like something I care deeply about was taken from me. I feel taken advantage of. My first response is often tears. An infringement, particularly one from a creative production — artists stealing from other artists — is profoundly shattering.

Link to the rest at Medium

Here’s a link to the proposed legislation (It’s not a law yet and may or may not become one in the future)

Although PG suspects some will misuse the CASE Act (just as some misuse a variety of other laws), as a general proposition, he thinks it’s a good idea.

For small-time infringers, an official document arriving from a government agency will, in many cases, prompt cessation of infringement, a little like a super takedown notice with teeth. Hopefully, the experience will also deter future copyright infringement by such individuals.

Since participation in proceedings under the CASE Act process is voluntary (a copyright owner can elect the CASE route instead of filing suit in federal court and the recipient of a notice that a CASE complaint has been filed can remove the matter to federal court), it’s not mandatory. As a practical matter, removing a matter that begins as a CASE complaint will require the hiring of an attorney by each side, however, so this may present an opportunity to settle the dispute.

As with any dispute resolution forum, crazy people will sometimes file CASE complaints against sane people who have committed no wrong. Judges and Hearing Officers generally have more experience than they would wish with crazy people, however, and PG would be surprised if summary dismissal of a CASE complaint brought by a crazy person would not be relatively easy to achieve.

Filing a prompt registration of the author’s copyright to a creative work is always a good idea (and probably does not require an attorney), but if CASE becomes a law, sending a copy of the author’s registered copyright to the book that allegedly infringes the work of another will likely be another way to resolve CASE complaints filed in bad faith.

Indeed, if a CASE complaint is filed in bad faith, the filing of a CASE counterclaim by the true author against the bad faith filer may serve as a deterrent against future bad behavior.

Is CASE likely to help an individual author whose work has been misappropriated by a large publisher,  motion picture studio, etc.?

PG suspects not. Such large organizations have ready access to counsel who will be competent in copyright litigation in federal court and will be quite likely to cause the CASE complaint to be removed to federal court.

Again, CASE isn’t a law and may never become the law. Those supporting CASE have tried and failed to get the legislation passed before. If CASE does become the law, the resulting law may be much different than the current bill PG linked to above and which provides the basis for PG’s commentary.

And finally, although PG is an attorney, he doesn’t provide legal advice in TPV blog posts. Those requiring legal advice will need to retain an attorney to provide such advice for them.

Plaintiff Had No Duty to “Scour” the Internet for Infringements – Statute of Limitations Did Not Bar Copyright Claim Made 7 Years After Infringement

From InternetCases:

Plaintiff freelance photojournalist sued defendant website publisher for copyright infringement over photos plaintiff took of a luxury maximum security prison in Norway in 2010. Defendants posted the photos on its website in 2011 without permission, in connection with a widely-publicized story of a notorious mass shooter being relocated there. Plaintiff registered the copyright in his photos in 2015 and filed suit in 2018, claiming that he did not learn of the alleged infringement until 2016.

Each party filed motions for summary judgment. Plaintiff claimed that the court should enter summary judgment in his favor because he had a valid copyright to the photographs, and there was no dispute that defendant published several of them without authorization. Defendant asserted that plaintiff’s claims were time-barred by the Copyright Act’s three-year statute of limitations, because he knew, or should have known, of the infringement when interest in the photos spiked following the remand of the alleged mass murderer to the prison where the photos were taken.

. . . .

The court found there was no genuine issue as to any material fact concerning plaintiff’s ownership of the copyright in the photos. And defendant conceded it published the photos without authorization. Defendant had challenged whether plaintiff’s copyright registration covered the photos at issue. Plaintiff had not introduced the deposit materials, but had submitted a sworn statement saying the photos had been included in the registration. The court found the sworn statement to carry the issue – had the defendant filed a motion to compel or sought the deposit materials from the copyright office, it may have been able to show the photos were not included. But on these facts, it was clear to the court that the copyright registration covered the photos.

. . . .

The court denied defendant’s motion for summary judgment, finding that the copyright infringement claims were not barred by the statute of limitations. Civil actions for copyright infringement must be “commenced within three years after the claim accrued.” 17 U.S.C. § 507(b). The Second Circuit has stated that the “discovery rule” governs when the statute of limitations begins to run: an infringement claim does not ‘accrue’ until the copyright holder discovers, or with due diligence should have discovered, the infringement.

Link to the rest at InternetCases

Copyright Law Has a Small Claims Problem. the CASE Act Won’t Solve It

This is a companion post to the one that appears immediately below this one in the grand march of thoughts and opinions that is The Passive Voice.

From The Authors Alliance:

The bill has a laudable goal: reducing barriers to copyright enforcement for those with limited financial resources by providing a faster and cheaper avenue to remedies. For many independent authors, creators, and users of copyrighted content, copyright litigation in federal court is not worth the candle; the high cost of litigation keeps many independent authors and creators from enforcing their copyrights. A well-designed copyright small claims process could fix this but, unfortunately, the deeply flawed CASE Act isn’t that. While failing to limit the tribunal’s scope to the types of claims and claimants that it’s best suited to and allowing recovery of excessive damages, the small claims process as set out in the CASE Act would also cause harm to many legitimate users of copyrighted works, including authors, educators, and other creators.

. . . .

The CASE Act’s small claims tribunal isn’t limited to those independent authors and creators who need it most.

The copyright holders who most need, and would most benefit, from a small claims process are those independent authors and creators who can’t afford to press their claims in federal court. Unfortunately, instead of limiting the small claims process to those independent copyright holders that really need access to this kind of forum to enforce their copyrights, the CASE Act opens the door widely, welcoming in large corporations, corporate assignees, and entities that buy up others’ copyright claims and profit from litigation.

We’ve already seen how copyright trolls and big content companies have sometimes abused the federal court system to raise questionable infringement accusations and threaten those accused with high statutory damages. By not limiting enforcement through the small claims process to individual creators, the CASE Act makes it even easier for these entities to get quick default judgments and disproportionately high damages awards. Absent enough protections for accused infringers and reasonable limits on damages, the CASE Act would invite more abusive litigation tactics by copyright trolls and opportunistic claimants while cluttering up the docket with cases that should be resolved elsewhere.

. . . .

The CASE Act’s “default judgment mill” favors sophisticated actors over independent authors and creators.

The CASE Act’s opt-out provision doesn’t provide independent authors (whether claimants or defendants) enough protection. Under the CASE Act, if someone accused of infringement fails to opt-out of the small claims process within 60 days of receiving notice of the claim, the small claims tribunal can enter a default judgment in favor of the claimant and award her damages. This judgment can then be enforced by the claimant in federal court. While this opt-out procedure is supposed to provide some protection for the accused, there’s a strong likelihood that authors, educators, and small creators without sophisticated legal knowledge or representation may not fully understand the implications and may ignore the notice – ending up on the hook for substantial damages awards without a meaningful opportunity to appeal. This quick and easy way to obtain default judgments is likely to create a “default judgment mill,”where big content companies and copyright trolls can churn out a mass of default judgments and high damages awards against unsophisticated individuals.

. . . .

The CASE Act’s statutory damages framework invites abuse.

There may be a role for a reasonably statutory small framework in a small claims tribunal when damages from infringement are difficult or impossible to prove. However, while substantially lower than the statutory damages available in federal court, the CASE Act’s statutory damages are still excessively high and are available in all cases. Under the CASE Act, claimants who timely registered their works can request up to $15,000 per work infringed, with a total limit of $30,000 per proceeding. Those who failed to timely register their works can request up to $7,500 per work infringed, with a limit of $15,000 per proceeding. As copyright law experts have pointed out, in federal court, the availability of excessive statutory damages has made it easy for unscrupulous plaintiffs to intimidate and extract settlements from individuals accused of infringement. Faced with the risk of a high statutory award, many defendants opt to settle, even when they have a valid defense. And without standards to guide those awards, copyright litigation is an unpredictable venture. With lower barriers for plaintiffs and a disproportionate statutory damages framework, the CASE Act could make these problems even worse.

As concerned scholars have noted, The CASE Act’s statutory damages framework won’t just harm defendants, though. It will also create an incentive for sophisticated or well-resourced defendants to strategically opt out of the small claims process when they think the claimant won’t be able to pursue her claim in federal court. This would undermine the CASE Act’s core objective, returning independent authors and creators to today’s unsatisfactory status quo.

. . . .

The Copyright Office probably isn’t the right place for a copyright small claims court.

A tribunal within the copyright office, designed to serve copyright claimants, and with officers selected and recommended by the Register of Copyrights may end up friendlier towards copyright claimants, and less receptive to arguments that a contested use is legitimate or qualifies as fair use. In concert with the limitations on appeal of tribunal decisions, this could create a forum inclined to issue more favorable judgments for big content companies and other copyright claimants, and in the process, harm those authors, educators, and creators defending their right to use copyrighted works.

Authors Alliance founder and law professor Pamela Samuelson points out that placing the tribunal within the Copyright Office could also run afoul of the United States Constitution. The United States Supreme Court has repeatedly stated that infringement claims belong in the federal courts. Placing some copyright infringement claims in an administrative forum may be unconstitutional under Supreme Court precedent.

Link to the rest at The Authors Alliance

Major CASE Act Copyright Legislation Passed by Senate Judiciary Committee

From PetaPixel:

The CASE Act, a major piece of legislation that would introduce a small claims court for copyright infringement cases, has officially been passed by Senate Judiciary Committee, clearing the way for a full vote on the Senate floor.

This is a major step forward for the copyright legislation, which was introduced by a bi-partisan group of senators from Louisiana, North Carolina, Illinois and Hawaii. As of now, defending your copyrights means taking your case to federal court—a complicated and expensive proposition. If passed, the CASE Act would remedy this by establishing a small claims tribunal within the U.S. Copyright Office, making it much easier and cheaper to defend your copyrights in court.

The unappealable court would be staffed by three full-time “Copyright Claims Officers” appointed by the Librarian of Congress, who would be allowed to assign damages of up to $15,000 per infringed work, and up to $30,000 total.

. . . .

The Copyright Alliance issued a statement commending the Senate Judiciary Committee for taking this step, writing:

We thank the members of the Senate Judiciary Committee, and especially the bill’s original co-sponsors […] for passing the CASE Act out of Committee today and for making it a legislative priority, one that will benefit hundreds of thousands of U.S. photographers, illustrators, graphic artists, songwriters, and authors, as well as a new generation of creators including bloggers and YouTubers.

We look forward to working with the Senate and other stakeholders as the CASE Act moves to the Senate floor and moves forward in the House of Representatives.

. . . .

Meredith Rose, Policy Counsel at the public interest non-profit Public Knowledge, told Billboard that the bill as it stands does not involve appropriate oversight.

“[The CASE Act] lacks meaningful opt-in consent for all parties, structural safeguards against abuse, and legal accountability through a right of appeal,” said Rose. “The bill would allow an unappealable tribunal to assign damages of up to $30,000, or nearly half the income of the average American household. A tribunal with that kind of punitive power must be accountable.”

Link to the rest at PetaPixel

PG thinks a Small Claims Copyright Court is a good idea, but should include strong provisions to prevent abuse.

A great many people don’t understand what a copyright protects and, given the existence of crazy people, PG is concerned that legitimate authors might be on the receiving end of “You stole my idea” sorts of lawsuits.

PG thinks the existence of such a law would make it even more important for authors to register their copyrights as soon as their book is finished to establish the nature and timing of their creations.

While the passage out of a Senate committee is an important step in creating such a law, it still has to pass through several other stages in the Senate and House of Representatives and be signed by the President before it becomes a law.

For those who would like more information, Wikipedia has a brief description and links to some opinion pieces, pro and con, concerning the CASE Act.

Below is the original Senate CASE Act. PG was not able to determine with a quick search what changes, if any, were made in the Senate Judiciary Committee prior to the legislation being approved there.

Senate CASE by Michael Zhang on Scribd

Amazon’s Upcoming Audible Captions Feature = Unhappy Publishers

From The Verge:

Earlier this week, Audible revealed that it was working on a new feature for its audiobook app: Audible Captions, which will use machine learning to transcribe an audio recording for listeners, allowing them to read along with the narrator. While the Amazon-owned company claims it is designed as an educational feature, a number of publishers are demanding that their books be excluded, saying these captions are “unauthorized and brazen infringements of the rights of authors and publishers.”

On its face, the idea seems useful, much in the same way that I turn on subtitles for things that I’m watching on TV, but publishers have some reason to be concerned: it’s possible that fewer people will buy distinct e-book or physical books if they can simply pick up an Audible audiobook and get the text for free, too.

And Audible may not have the right to provide that text, anyhow.

In the publishing world, authors and their agents sign very specific contracts with publishers for their works: these contracts cover everything from when the manuscript needs to be delivered, how an author is paid, and what rights to the text a publisher might have, such as print or audio. As an audiobook publisher and retailer, Audible gets the rights to produce an audiobook based on a book, or to sell an audiobook that a publisher creates in its store. Publishers say that a feature that displays the text of what’s being read — itself a reproduction from the original text — isn’t one of those specific rights that publishers and authors have granted, and they don’t want their books included in Audible’s feature when it rolls out.

. . . .

Audible tells The Verge that the captions are “small amounts of machine-generated text are displayed progressively a few lines at a time while audio is playing, and listeners cannot read at their own pace or flip through pages as in a print book or eBook.” Audible wouldn’t say which books would get the feature, only that “titles that can be transcribed at a sufficiently high confidence rate” will be included. It’s planning to release the feature in early September “to roll out with the 2019 school year.”

Penguin Random House, one of the world’s five biggest publishers, told The Verge that “we have reached out to Audible to express our strong copyright concerns with their recently announced Captions program, which is not authorized by our business terms,” and that it expects the company to exclude its titles from the captions feature.

Other publishers have followed suit. Simon & Schuster (disclosure: I’m writing a book for one of its imprints, Saga Press), echos their sentiments, calling the feature “an unauthorized and brazen infringements of the rights of authors and publishers, and a clear violation of our terms of sale,” and has also told Audible to “not include in Captions any titles for which Simon & Schuster holds audio or text rights.” A Macmillan spokesperson said that “the initiative was not authorized by Macmillan, and we are currently looking into it.”

The Authors Guild also released a statement, saying that “existing ACX and Audible agreements do not grant Audible the right to create text versions of audio books,” and that the feature “appears to be outright, willful copyright infringement, and it will inevitably lead to fewer ebook sales and lower royalties for authors for both their traditionally published and self-published books.”

When asked about the feature squares up against the existing audio rights that are granted to it, an Audible spokesperson told The Verge that it does “not agree with this interpretation,” but declined to comment further on whether or not the company actually has the right to go through with it.

Link to the rest at The Verge and thanks to Jan for the tip.

This looks like one more instantiation of Big Publishing’s ancient credo, “New is bad, old is good.” Heaven forfend that books of any sort be improved without more money going to legacy publishers.

Absent a problem with the definition of “ebook” in the contracts between Amazon and the publishers, PG thinks what shows up in Amazon’s video at the end of this post is clearly distinguishable from an ebook.

PG suggests complaining publishers are attempting to extort more money from Amazon.

He predicts it won’t work.

If Amazon wants to play serious hardball, it can begin to delist audiobooks from major publishers which don’t agree to permit the new feature.

If Amazon wants to play a step-below-serious hardball, it can penalize audiobooks that don’t offer the new captioning feature in Amazon search results or tag those audiobooks with a warning to potential purchasers that the audiobooks are only available in an outmoded format or some such thing.

Back to even more serious hardball, how about declining to sell new print and ebooks released by publishers unless the accompanying audiobooks include the captioning feature?

If the publishers want to continue their snit fit, who are they going to turn to for sales, Barnes & Noble?

Photographer’s Copyright Claim Against Officer of Company over Photos on Website Moves Forward

From Internet Cases:

Plaintiff, a professional photographer, sued defendant company and an individual who was its “registered agent and … officer, director, manager, and/or other genre of principal” for copyright infringement over two photographs that appeared on the defendant company’s website. The infringement claims against the individual defendant included one for vicarious infringement.

The individual defendant moved to dismiss the vicarious infringement claim. The court denied the motion.

One “infringes vicariously by profiting from direct infringement while declining to exercise a right to stop or limit it.” Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005). “In order to establish vicarious liability, a copyright owner must demonstrate that the entity to be held so liable: (1) possessed the right and ability to supervise the infringing activity; and (2) possessed an obvious and direct financial interest in the exploited copyrighted materials.” Nelson-Salabes, Inc. v. Morningside Dev., LLC, 284 F.3d 505, 513 (4th Cir. 2002).

In this case, plaintiff alleged that the individual defendant controlled nearly all decisions of the company and was the dominant influence in the company.

. . . .

As a principal of the company, the individual defendant’s financial interests were intertwined with the company’s. Therefore, the individual defendant had a direct and obvious financial interest in the company.

Link to the rest at Internet Cases

PG suspects this is a case with a backstory that is more interesting than that described in the pleadings.

As a general proposition, one of the benefits of a corporation, limited-liability company (LLC) or limited-liability partnership (LLP) is that the business entity protects individuals who are acting in the name of the entity and within the scope of the entity’s business operations from being sued in their individual capacity for debts or obligations of the entity. Anyone with a claim against the entity must look to the assets of the entity to satisfy that claim instead of the personal assets of the officers/directors/partners/employees, etc.

If a limited-liability entity is operated as a shell with no assets from which to satisfy any sort of meaningful claim for business debts, a court may permit a claimant to sue the entity’s owners directly. This is sometimes called “piercing the corporate veil” in a legal context.

The copyright infringement claim against the individual owner/controlling person described in the OP is what caught PG’s attention.

Unlike most species of personal or business debts or other claims against a person or business, Section 504 of the United States Copyright Act provides for the potential for statutory damages which can help to avoid an argument about how much the reasonable royalties for the infringing use of the creator’s work might have been.

In a case such as that described in the OP, the fight over the appropriate amount of damages would likely be the most difficult and expensive part of the litigation if the infringer wanted to put up a fight.

Section 504 statutory damages are often between $750 and $30,000 per work, as determined by the court.

However, the damage amount can be increased up to $150,000 per work if the infringement is found to be willful (intentional). If the infringement is “innocent,” meaning the infringer did not know they were violating copyright law, the damages can be reduced to a minimum of $200 per work (if the work did not contain a proper copyright notice).

There is one important precondition for Section 504 damages, however. In order to qualify, the work that is the basis of the infringement claim must be registered with the US Copyright office (1) within three months of publication of the work, or (2) before the infringement starts.

See a more detailed but easy-to-understand description of Section 504 damages at The Copyright Alliance.

For indie authors, it’s a good idea to include copyright registration as one of the checklist items when the author releases a new book. For books, it’s a simple task that should not require an attorney.

Here’s a link to the Registration Portal for the US Copyright Office. Here’s a link to an online Form TX for non-dramatic literary works that includes detailed instructions.

In most cases, the Registration Portal is the easier and faster way of submitting Form TX or another standard copyright form. The Registration Portal will walk you through the process of selecting and filling out the appropriate form, then submitting the completed form electronically to the Copyright Office.

If an indie author has released books without registering their copyright to those books in the past, registering them after publication is still a good idea. As stated above, statutory damages can be awarded if the books were registered before infringement by a particular party began.

Also, it is important for indie authors to include a copyright notice in their books. This is inserted semi-automatically by Amazon and other online booksellers as part of the upload process.

Here’s an example of a copyright notice:

© 2019 John Doe

Here’s a link to a US Copyright Office Circular discussing copyright notices.

IMPORTANT NOTE for visitors from countries other than the US – PG’s discussion of infringement, penalties for infringement and copyright registration benefits and processes are applicable only to US copyrights and their infringement in the US.

There are two principal international copyright treaties/conventions – the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) and the Universal Copyright Convention (UCC) which can provide an author who is a national or domiciliary of a member country or works first published in a member country with protections against copyright infringement and rights to pursue infringers for damages or other remedies. The US and many other western countries are members of these conventions.

Sticking Copyright Criticism Where It Doesn’t Belong

From The Illusion of More:

There I was reading a perfectly interesting article by Sarah Jeong on the potential hazards of selling one’s personal data, when she took an incomprehensible—if mercifully brief—detour into the realm of copyright law.  She presents a reasonable enough case that the companies now offering to help us “broker” our private data (e.g. health information) may be counting on the fact that, “There’s no legal property right to personal data.  Once personal data is gathered, it’s out there for anyone to buy and sell. At the moment, there are no legal grounds to demand compensation for use,” Jeong writes.

Fair enough.  It is certainly true that the whole prospect of selling private data, even if it were a good idea, does implicate a relatively novel legal framework.  And while I am personally inclined to agree with Jeong that the whole notion is fraught with hazards, I am at a loss to understand where she is going with this interjection …

“In any case, we already know what happens when property rights get slapped on information, because we’ve already done it, to some degree, in copyright law. 

Giving people ownership of their creative expressions means they can buy and sell them on the open market. The risk is that an artist will wind up, like Taylor Swift, alienated from her own work because she no longer possesses the masters of some of her earlier recordings.”

Swift in late June stated publicly that she was very disappointed to learn that mega-star manager Scooter Braun will be acquiring Big Machine Label Group, which still owns her master recordings dating back to the start of her career.  Swift calls the prospect of being under contract to Braun her “worst nightmare,” and for the sake of this post, we will take her word that he is an “incessant manipulative bully” because digging into that backstory could not matter less to Jeong’s ham-fisted allusion to the supposed problem with copyright.

Even more bizarrely, Jeong happened to pick an artist who has adamantly defended both her own rights and those of much smaller artists, and who told Rolling Stone in 2014, “Important, rare things are valuable. Valuable things should be paid for. It’s my opinion that music should not be free, and my prediction is that individual artists and their labels will someday decide what an album’s price point is. I hope they don’t underestimate themselves or undervalue their art.”  So, I’m just spitballing here, but maybe Swift did not recently do an about-face on the purpose of copyright, or even abandon all prospect of working with labels, so much as she was just saying she really does not like Scooter Braun.

Turning to Jeong’s implications about the nature of copyright, it is clear that she should refrain from the topic altogether.  For one thing copyright does not “slap property rights onto information.”  Quite the contrary.  There is in fact a long history of statutory development and caselaw that makes it very clear that information is not the subject of copyright.  Expression is the subject of copyright, but the way Jeong slaps these two sentences together makes it seem as though information and expression are the same thing—especially in the context of an editorial that is all about data, which has no resemblance to expression.

. . . .

[M]y friend Neil Turkewitz observes …

“If property rights are the model, then Silicon Valley’s dismal track record on intellectual property rights is a giant red flag that simply vesting property rights is of little consequence to the extent that such property rights are essentially unenforceable — particularly for individuals. Since the dawn of the internet, notwithstanding their legal rights, creators and innovators have had to endure an avalanche of illegally available copies of their works online.”

Link to the rest at The Illusion of More

Iconic Ferrari 250 Gto Recognised as Work of Art in Bid to Protect World’s Most Valuable Classic Car

From The Telegraph:

An iconic Ferrari has been recognised by an Italian court as a work of art, in an unprecedented judgment that will protect it from reproductions and imitations.

The Ferrari 250 GTO is acclaimed as the world’s most valuable classic car, with one example selling at auction last year for $48 million (£38 million).

Regarded as the Holy Grail of classic cars, just 36 of the models were made, between 1962 and 1964.

All 36 are believed to survive and each now has its own unique history.

An Italian commercial tribunal in Bologna has recognised the model not only as a classic, but as a work of art that is entirely original and must not be imitated or reproduced.

“It’s the first time in Italy that a car has been recognised as a work of art,” a Ferrari spokesperson told The  Daily Telegraph from the company’s headquarters in Maranello in northern Italy. “It’s not just its beauty that makes it special – it also has a long racing history.”

The judgment was handed down by the tribunal in Bologna after Ferrari complained that a company in the northern city of Modena was planning to produce 250 GTO replicas.

Link to the rest at The Telegraph

Moto “Club4AG” Miwa from USA [CC BY 2.0], via Wikimedia Commons

Rethinking the Writing Business

From Kristine Kathryn Rusch:

When the disruption hit the publishing industry ten years ago, I watched with a wary eye. After I finished The Freelancer’s Survival Guide in the summer of 2010, I repurposed this weekly blog to help me understand the changes the publishing industry was undergoing. It seemed, in those heady days, that everything changed daily. And there was a large contingent of brand-new writers who knew so much better than the rest of us how revolutionary this indie publishing thing would be.

Most of those writers—the hoards that used to come screaming (literally) to this site every Saturday to denounce me and tell me what an idiot I am and how wrong I was—are gone now. They quit the business not because they weren’t earning money—most of them earned a boatload—but because they couldn’t handle what they had set up.

Many of them published rapidly and followed an insane publishing schedule that couldn’t be maintained in the face of real life. Some based everything they had and everything they knew on Amazon algorithms, only to be shocked when Amazon persisted in changing up those algorithms.

Others couldn’t handle the financial ups and downs of freelancing and some, frankly, didn’t give themselves a chance to succeed. They saw others making thousands every month while they were making coffee money, and decided that they’d never succeed and quit without ever completely learning their craft or building up an audience.

. . . .

New, hot, and trendy has a shorter shelf life these days than it did, and I wasn’t sure why. There’s a lot about this new world of publishing, as I called it, that I couldn’t figure out.

. . . .

We’ve been doing this wrong.

By this, I mean the writing business post-Kindle. We’re all approaching our business like we’re still in the publishing business. But we’re not. We’re part of the entertainment industry, and that entails a lot more than we think it does.

Let me see if I can retrace some of this thinking, so that I don’t just spring my ideas on you and have you balk at them.

I signed up for the Licensing University classes connected to the [Las Vegas Licensing] Expo. I saw those last year, and felt that I would miss a huge opportunity if I failed to attend.

This year, I looked at the roster of classes, and promised myself I could leave any class that was too basic for me. The “Is Your Brand Ready For Licensing” was a case in point (although I didn’t realize it until later). That was a copyright/trademark basics course that falls into the well-duh category for me, but is probably necessary for most first-time attendees at the Expo (and for most writers as well).

But the Basics of Licensing class? Holy Crap-Poodles. I figured I’d sit there for ten minutes before going out to the floor to look around. Instead, I took 30 pages of notes. (In future posts, I will deal with much of what I learned on a detail level.)

That class laid out the basics of a licensing deal, while acknowledging that each deal is different.

Let’s back up. We writers are creators of intellectual property. We have the property to license. We are the licensors. We’re looking for licensees. Okay? Got that?

The terms of a basic licensing deal includes these elements:

  • A Royalty
  • An Advance Payment Against That Royalty
  • Net Sales Definition
  • Some Kind of Reporting Process
  • Termination
  • Insurance/Warrantees/Indemnification
  • Jurisdiction

A basic licensing deal includes a lot more than that, things like minimum royalty guarantees, an audit schedule, minimum performance threshold, quality and approvals, advertising and marketing requirements, and so on.

The licensor is a participant in all of that. An active participant, who can terminate if, for example, the quality of the product (based on the sample) doesn’t come up to snuff after several tries.

I remember thinking in the middle of that class that the publishing agreements that I signed back in the 1990s had a lot more in common with a standard licensing agreement than standard publishing contracts do now. In fact, there was a lot in the old publishing contracts that were just like a licensing agreement. In fact, the old publishing contracts were licensing agreements with the pro-licensor stuff (the stuff that benefits the licensor/writer/creator) taken out.

. . . .

Fast-forward through the afternoon to the class on How To Negotiate A Licensing Deal, which was listed as a negotiation class, without the “licensing deal” part added in. I wrote a book on negotiation, for godssake. I’m damn good at negotiating. I figured I’d be leaving this one early as well.

Nope. Another 30+ pages of notes. With two surprises added in.

First, from a passing comment on royalty rates.

In licensing, the royalty rates can vary from 2% to 20% of the net sales price (usually wholesale, but that’s changing depending on distribution). One of the instructors (an agent) mentioned that really big brands with a lot of clout like Disney can get the 20% royalty without a lot of pushback because their brand is so valuable.

. . . .

Once upon a time, I was a work-for-hire writer, and one of the properties I wrote work-for-hire was Star Wars. I got a 2% royalty on the books published (see above).

In most work-for-hire publishing projects, the royalty rate gets split between the licensor who created the intellectual property and the writer who does the actual work on writing the novel. I do not know what Bantam paid LucasFilm for those early books. It might have been 10%, it might have been 15%. I do know it was less than 20%. At the time, you see, Star Wars was considered moribund. The books, Tim Zahn’s first trilogy in particular, led the entertainment industry to realize that there was a hungry audience for more Star Wars. The revival of the brand dates from that very first publication.

So I know that, in those days, LucasFilm didn’t have the Disney-level clout that it would later achieve. Which had an impact. Because, when it came time to renegotiate the license with Bantam, LucasFilm asked for a 20% royalty.

Bantam balked. They claimed they couldn’t make a profit. They claimed they couldn’t pay their writers. They claimed they wouldn’t get writers.

So, LucasFilm threatened to pull out, and the dance began. LucasFilm came down to 19% which still didn’t give Bantam enough room to pay the writers from the royalty rate (the standard way that writers did/do business in traditional publishing).

Bantam came with a compromise. Rather than a 2% royalty, they’d pay the authors $60-90,000 for the book, which was what those books earned out at in those days. Those payments would be guaranteed, but they’d be a flat fee. So if the books sold better than that, the writers would get no more money. If the books sold less, the writers would get more than they usually would.

Business-minded writers realized this: that if they took their upfront payment (which Bantam was offering in four payments) and banked it, they’d make more than they would off the 2% royalty rate. (Money in hand is worth more than money promised. Money in hand allows things like paying down credit cards rather than charging them, and having an emergency fund, rather than borrowing, and so on.)

A bunch of us agreed, our contracts were in the works, and then the idiots at the Science Fiction Writers of America got their undies in a bundle and denounced the entire deal and faxed a protest letter to LucasFilm, naming every single Star Wars writeras agreeing, even those who didn’t agree (and had threatened them if they used our name, like me) and even those who weren’t members (like me). That piece of idiocy cost me at least $90,000 if not more, because I was slated to write a bunch of books, and LucasFilm canceled all communication with me and cut me out of everything, just like they did with all the other authors named.

The books went on without us. And I just thought it a weird deal—that LucasFilm wanted 20%–believing what Bantam put out there (that LucasFilm was greedy) and what SFWA put out there (that LucasFilm was greedy) rather than understanding that LucasFilm was treating the books as a standard licensed product.

My brain was spinning as the negotiation class went on, because I finally understood the other side—the other side not being Bantam Books, but LucasFilm. I was just a sorry little contractor caught in the middle of a negotiation for a licensing deal, with a stupid idiotic third-party organization sticking its ignorant foot into the mess.

. . . .

The royalty rates class looked at all kinds of things that can have an impact on royalty rates, including net sales.

In that discussion, one of the agents on the panel clicked the next slide in the deck, which showed Publishing. She made a face, and said, with great disbelief, In publishing, the product is 100% returnable, so you have to figure out how to cap the losses.

She went on to talk about how difficult traditional publishing was to work with because of all the quirks in its contracts.

But I sat there and found my brain spinning again. When I was a baby writer, my book agents could get a minor cap on returns, limiting them to only two or three years. After that, the publisher had to eat the returns.

A standard licensing deal has a three-year term, which meant that publishers were already set up to cap returns earlier than that.

The licensing agent also went on to talk about how she had to explain basic licensing to her publishing partners, and how she had to hold them to the fire to get them to agree to a full royalty for all the participants (meaning that if the brand was say, a star quarterback for the NFL, the NFL would get its share of the royalty and the star quarterback would get his—so maybe a 50-50 split of a 20% royalty—meaning the author would write for a flat fee).

I immediately got retroactive anger.

Licensors from outside the publishing industry—that is, nonwriters. Celebrities. Grumpy Cat—got not just an advance against a substantial royalty, but a term-limited contract, and minimum royalty payment guarantees, and guaranteed marketing/advertising budgets, and the ability to easily and routinely audit the publisher, and, and, and…

. . . .

The licensing professionals who worked for a nonwriter licensor, like LucasFilm, got a licensing deal that would make writers and their book agents fall over in stunned surprise. Simply by using industry standard.

Okay, got all of that?

In the past, writers have gone begging to book agents, to publishers, to comic companies, to gaming companies, hoping to get someone to “take a chance” on their writing.

Writers weren’t acting as brand owners, licensors, people in control of their IP, asking for a standard licensing arrangement. Writers were beggars, which put them in a terrible long-standing position with the publishers.

. . . .

The book, the published book, is not the holy grail.

The story, the thing that the writer has created, is the holy grail. Before publication of any kind.

Because publication is a license. Whether you do it yourself and upload to Amazon (Direct to Retail, is what that’s called) or whether you go through a traditional publisher (Business to Business, is what that’s called {and notice that the businesses are on equal footing in that definition}),  you are licensing a tiny portion of your copyright to make distribution of some product (in this case a book) possible.

We’ve been teaching for years that publication is a license. Not a “sale” because you don’t lose the copyright. You license it.

But Dean and I and damn near every other writer out there (with only a handful of exceptions throughout the last 100 years) have not gone any farther than that. We haven’t thought about the published book as being a single licensed product.

We’ve been conditioned by our upbringing in the business culture of the previous century to think of the published book as the be-all-and-end-all of everything we did.

. . . .

We are not in the publishing industry. We are in the entertainment industry.

Link to the rest at Kristine Kathryn Rusch

Here’s a link to Kris Rusch’s books. If you like the thoughts Kris shares, you can show your appreciation by checking out her books.

For PG, Kris is one of the most interesting commentators on the publishing business, traditional and modern, and he always appreciates her Business Musings posts.

In these posts, Kris often looks above and beyond agents and publishers, KDP, etc., etc. in a way most authors do not.

In a former legal life, PG represented some software and technology companies whose products were sometimes licensed to very large business organizations, including Goldman Sachs, Morgan Stanley, Merrill Lynch, Fidelity Investments, Apple, IBM, Oracle, Disney, Hallmark, Intel, Hewlett-Packard, and American Express.

(For context, at an earlier stage in his legal career, PG also represented abused spouses, dairy farmers, the tenants of small-time slumlords, people who wanted a divorce and/or needed to file for bankruptcy, a couple of arsonists, drunk drivers and people who couldn’t afford to pay an attorney and got help from Legal Aid.)

PG provides the big business list not to show what a big deal he is or was, but simply to demonstrate the variety of different licensing agreements he has seen outside of the traditional publishing business.

From a legal standpoint, as Kris says, a publishing contract is not a special snowflake, it’s a license of intellectual property, specifically, the copyright to a book which is owned by the author. Copyrights to software are what Microsoft owns and licenses to everybody who buys and uses MS Word, Excel, Windows, etc.

Although PG has not seen very many publishing contracts that acknowledge the fact, a traditional publishing contract also includes a sort-of implied license to the author’s right of publicity, sometimes called personality rights (which may include individual’s image, personal data and other generally private information).

However, most publisher-provided publishing contracts don’t look much like licensing agreements used elsewhere in the business world. Publishing agreements have little quirks that would seem strange to any attorney accustomed to seeing licensing agreements for technology or almost anything else.

PG understands the principle of customs of the trade, assumptions that govern niche businesses and the agreements they make. For example, in another case from PG’s olden days, he learned all about the New York City garment business and the strange ways it operates.

However, trade publishing and, to an even greater extent, academic and professional publishing still operate as if ebooks and other epublications have never existed. Even more important for authors, many publishers operate as if the cost of publishing was still based upon the expense and compensation structure that existed when printed books and journals were the only way to disseminate knowledge and long-form writing.

PG suggests that even for traditionally-published authors, Amazon has provided a great service by offering both self-publishing and Amazon Press as alternative methods of reaching readers. Absent Amazon’s influence, publishers would still be operating as if it were 1955 and today’s authors would be earning much less and accepting it as the author’s burden in life.

Yet, from a legal and commercial viewpoint, traditional publishing is still a screwy business and authors bear most of the burden of its bizarre practices.

PG repeats the admonition of Kris in the OP –

The book, the published book, is not the holy grail. We are not in the publishing industry. We are in the entertainment industry.

Amazon, Youtube and the ‘Too Big to Police’ Platform

From Plagiarism Today:

Back in February, hot on the heels of the Christiane Serruya plagiarism scandal, we took a look at how Amazon could fix its massive plagiarism problem.

The idea was fairly straightforward. Simple, cursory plagiarism checks as works are submitted for publication would help detect a large percentage of would-be plagiarists and would discourage the practice more broadly. However, we noted that such an effort would likely still require a massive human investment that Amazon is likely either incapable or unwilling to make.

Unfortunately for Amazon, a recent report by David Streitfeld at the New York Timeshighlights that the problem goes much deeper than plagiarism. Counterfeit books, AI-generated biographies and “bait and switch” titles are also rife on the service.

According to the article, this is largely owed to Amazon’s aforementioned “hands off” approach to its store and that it assumes all of its sellers are operating in good faith until an issue is brought to their attention.

. . . .

According to the Authors Guild, counterfeiting on Amazon is seeing a “massive rise” and Amazon itself has acknowledged the issue, noting that counterfeiting is a risk factor in financial disclosure forms.

There, they said they “May be unable to prevent sellers in our stores or through other stores from selling unlawful, counterfeit, pirated, or stolen goods, selling goods in an unlawful or unethical manner, violating the proprietary rights of others, or otherwise violating our policies.”

So what is going on? How is Amazon spending millions and having the problem only grow? The reason is that Amazon has built a platform that’s too big to police and it shares that honor with another site we all know very well.

. . . .

As we discussed back in May, YouTube has become almost as well known for its copyright failings as it has for being the host of videos. Its Content ID system routinely makes mistakes and flags non-infringing content while, at the same time, it is still very easy to find infringing videos on the site.

But the problem goes far beyond copyright. YouTube has become a haven for a wide variety of objectionable content including hate speech, terrorism, conspiracy theories, sexualization of minors and much, much more.

YouTube has responded to these issues in much the same way that it’s responded to copyright issues, with a mixture of technology and policy changes. Whether it’s demonetizing certain kinds of content, using algorithms to remove unwanted material or applying age gates to hide certain content from minors.

However, all of these approaches have one thing on common: Humans are never the front line of defense.

The reason is quite simple, they can’t be. With an estimated 500 hours of video being uploaded to the site every minute, there’s simply no way. Even if only a fraction of a percent of all videos have copyright, community guideline or other issues, (which would be phenomenally low) that’s still far more than can be done with humans.

So, YouTube uses bots, like Content ID, to detect and stop most of the problems. According to YouTube, Content ID handles about 98 percent of all copyright issues on the site. Even if we assume that Content ID is 99% perfect, that’s still a large number of videos that require human intervention.

Link to the rest at Plagiarism Today

Spotify: We ‘Overpaid’ Songwriters and Their Publishers in 2018, and We Would like Our Money Back

From Music Business Worldwide:

If you hadn’t noticed, tensions between the music publishing community and Spotify have taken a turn for the sour in recent months.

This all began in March when Spotify, alongside other music streaming operators like SiriusXM/Pandora, Google and Amazon, lodged an appeal against mandated pay rises for songwriters and publishers in the US.

The headline news about that pay rise, decided by the US Copyright Royalty Board, was that mechanical streaming payouts from the likes of Spotify would rise by 44% or more between 2018 and 2022.

It turns out, however, that there was some additional and under-reported complexity to the CRB decision concerning Spotify’s student discount offers and its family plan bundles – which allow up to six family members to stream Premium Spotify for a single price of just $14.99 a month.

“According to the new CRB regulations, we overpaid most publishers in 2018… rather than collect the 2018 overpayment immediately, we have offered to extend the recoupment period through the end of 2019.”

Spotify spokesperson

Because of this additional complexity, Spotify has now calculated that, retrospectively, according to the CRB decision, many music publishers actually owe it money for 2018, due to an overpayment based on the prior rates. And guess what? It wants that money back.

Spotify told the publishers the news this week and, as you can imagine, these companies – already up in arms over Spotify’s CRB appeal – are fuming about it.

One senior figure in the music publishing industry told MBW: “Spotify is clawing back millions of dollars from publishers in the US based on the new CRB rates that favor the DSPs, while appealing the [wider CRB decision]. This puts some music publishers in a negative position. It’s unbelievable.”

Spotify isn’t expecting the publishers to hand over the money that it’s owed right away; instead, this negative balance will be treated as an advance by the company, which will be recouped from its 2019 royalty payouts to publishers (and, by association, their songwriters).

. . . .

David Israelite, the CEO of the National Music Publishers Association who has consistently and publicly decried Spotify’s CRB appeal, told MBW in response to Spotify’s request for reimbursement from the publishers: “I find it so hypocritical for a digital service that is appealing the CRB decision to then take advantage of the parts of that decision that benefit it. I guess we shouldn’t be surprised.”

Link to the rest at Music Business Worldwide

PG says this sounds like the behavior of an organization that holds a monopoly position in the music business.


Not much to do with writing, but perhaps a writing prompt.

The premise for a new movie PG just stumbled upon, Yesterday, is that due to some cosmic occurrence a small-time struggling musician is the only person on the earth who remembers The Beatles and their songs. For everyone else, The Beatles never existed.

Here’s a trailer:

From The Wall Street Journal:

How much is an idea worth? In show business it often depends on who came up with it.

In the surreal comedy “Yesterday,” a struggling musician catapults to fame by singing Beatles tunes as if they were his own, following a freak occurrence that erases the band from the world’s collective awareness.

The real-life story behind the movie, in theaters Friday, tracks nearly the opposite trajectory: A struggling screenwriter comes up with an original idea, but can’t get the project made until he passes the torch onto someone much more famous.

. . . .

Moderately successful TV writer Jack Barth had spent many a hard day’s night trying to write for the big screen, penning more than 20 scripts over the course of his career—none of which he had ever managed to sell. Then, inspired partly by his own failures, the 62-year-old Mr. Barth had the idea for “Yesterday,” and spent a few years trying to get his script made into a movie. But it wasn’t until Richard Curtis—the acclaimed writer and director of “Four Weddings and a Funeral” and “Love Actually”—heard Mr. Barth’s idea that the dream started to become a reality.

Although Mr. Curtis had experience adapting other people’s ideas—most notably with Helen Fielding’s novel “Bridget Jones’s Diary”—in this case he preferred to write his own version of the story. Mr. Barth, selling his idea for what he calls “a fair price,” hoped for the best, knowing he no longer controlled the film’s fate. He didn’t reveal the price.

Mr. Barth credits Mr. Curtis with writing a charming movie, even though their respective scripts take different turns; in Mr. Barth’s more cynical version, the film’s protagonist, also named Jack, fails to attain stardom.

“My view was, even if I woke up and I was the only person to know “Star Wars” or Harry Potter, I probably wouldn’t be very successful with it, because that’s kind of the way things have gone for me,” Mr. Barth says.

. . . .

“When I wrote my version I hadn’t actually read Jack’s; that was the deal,” Mr. Curtis says. “So I guess it was my natural instinct that went for a more optimistic version.”

. . . .

Because of his decision to sell the script, Mr. Barth can’t take credit for writing the movie and isn’t accorded the coveted “Screenplay By” credit. Instead, he shares the less prestigious “Story By” credit with Mr. Curtis, which means he is also ineligible to receive major awards.

Link to the rest at The Wall Street Journal (Sorry if you encounter a paywall)

Supreme Court Strikes down Ban on ‘Immoral or Scandalous’ Trademarks

From The Wall Street Journal:

The Supreme Court ruled 6-3 Monday that the government may not deny registration to trademarks it deems “immoral or scandalous,” finding that the Patent and Trademark Office violated the First Amendment when it applied such criteria to brand names.

“The most fundamental principle of free speech law is that the government can’t penalize or disfavor or discriminate against expression based on the ideas or viewpoints it conveys,” Justice Elena Kagan said, summarizing the court’s opinion from the bench. “The First Amendment does not allow the government to penalize views just because many people, whether rightly or wrongly, see them as offensive.”

All nine justices agreed that the government had no business deciding what images or words were immoral and thus excluded from the benefits of trademark registration. But three said the ban on scandalous trademarks could serve a legitimate purpose in withholding legal protection from vulgarity and profanity.

Link to the rest at The Wall Street Journal (Sorry if you encounter a paywall)

More on Copyright Suit Against Andy Warhol Foundation over Prince Paintings

More on the lawsuit of photographer Lynn Goldsmith against the Andy Warhol Foundation claiming that Warhol violated the photographer’s copyright to the photo.

PG just received a comment from the photographer’s attorney who says (Suprise) the OP in ArtNews did not properly report the factual background for the suit and the photographer’s arguments.  This link takes you directly to the comment.

In a prior life, PG was counsel in a couple of lawsuits which were the subject of news articles. Based upon his experience and conversations with other attorneys who had similar experiences, PG always takes reports about lawsuits written by non-lawyers with many grains of salt.

‘Selling Everything but the Wallpaper’—Auction Reopens Old Wounds over Barnes Legacy

From The Art Newspaper:

While the Barnes Foundation continues a $100m funding campaign towards its centenary celebrations in 2022, two smaller transactions—a $98,000 auction of objects and a $100 lease of its former suburban headquarters for 30 years—raise questions about the institution’s commitment to the legacy of its founder, Albert C. Barnes.

The foundation made waves in 1990 when its president proposed selling off Post-Impressionist paintings from its collection in defiance of the rigorous instructions left by Barnes before his death in 1951. This indenture of trust banned sales of works, any changes to the unique displays and even colour reproductions of the art. It also stipulated that the collection must limit public admission to Saturdays and be open “exclusively” for students during the week.

The Montgomery County Orphans’ Court overruled the indenture in 2004, permitting the Barnes’s controversial move in 2012 from its original home in Lower Merion, Pennsylvania, to a new $150m building in downtown Philadelphia, open to the public six days a week.

In March this year, the Pook & Pook auction house in Downingtown, Pennsylvania, offered 156 lots of around 430 objects that had belonged to Barnes and his wife Laura. The lots included furniture, clocks, textiles and porcelain objects, and hammered at $98,000 in total. One attendee dismisses the items as minor material—“the cleaning out of an office”. There was a “hush-hush atmosphere”, she says. “I think they’re worried it’s going to get out that they’re selling everything but the wallpaper.”

. . . .

The foundation issued no press release about the sale, which was publicised by the online auction platform Bidsquare, and no catalogue was published.

“It’s not what [Barnes] wanted,” says a former student of the art education programme in Merion, who bought some objects at the sale. However, a spokeswoman for the foundation says: “These items were not part of the Barnes collection; they were personal items which Albert Barnes specified should be sold after his death and that of his wife. It is unclear why this did not happen 50 years ago.” She adds that other minor objects, such as doilies, were sold through an affiliate auction company.

The Pook & Pook sale took place almost a year to the day after the Philadelphia Inquirer revealed that the foundation had leased the galleries and administrative building inside its 12-acre arboretum in Merion to Saint Joseph’s University, which adjoins the site.

The Inquirer’s article—headlined “Barnes Foundation says St Joe’s lease deal does not mean sales are in the works”—also reported that a collections assessor had been hired to decide which objects to keep and which to sell. “We hired a collections assessment project manager with museum expertise in American decorative arts to work with our curatorial and collections team in reviewing these household items and our other non-collection holdings,” the foundation’s spokeswoman explains. The temporary position has since been eliminated. “There are no plans to sell other objects, and there is no plan to tour the objects in the collection,” she says.

. . . .

Land in Lower Merion is some of the most valuable property in the Philadelphia area. Saint Joseph’s is paying just $100 for the entire 30-year lease of the Barnes land and buildings, with options to extend. “In addition to the nominal annual payment, Saint Joseph’s has taken on the financial responsibility for the management of the property and the horti-culture programme,” Collins says. “The Barnes retains oversight of the arboretum and the historic buildings.” The arrangement “advances our educational mission and commitment to our horticultural programme” and was approved by the Orphans’ Court, he says. A foundation press release in September 2018 celebrated the “long-term educational affiliation” but made no reference to the $100 lease agreement.

. . . .

The recent auction exhumes a bitter dispute dating back to 1990 between the foundation’s management and students in its art education programme, which was developed by Albert Barnes and taught in the Merion galleries.

The foundation argued then that its financial woes made a relocation to downtown Philadelphia necessary. The students countered that Barnes himself had said objects in his living quarters in Merion and his rural Pennsylvania farm Ker-Feal (which is rarely open, and by appointment only) could be sold to keep the educational programme going or to avoid moving the collection.

At the time, management said that objects in Ker-Feal, which is filled with furniture and ironwork, were crucial to the foundation’s three-campus conception, with the contents reflecting the collector’s taste. The judge in the case was sceptical about the feasibility of running the Merion and Ker-Feal properties as well as the new museum in Philadelphia, but permitted the foundation to move. Now, the former students say, the foundation has sold what it once claimed were essential objects.

Link to the rest at The Art Newspaper

PG says that, as a general practice, in former days, he always advised estate planning clients against putting provisions in their will or trust to the effect of, “No matter what happens, don’t sell the old home place.” His reasons were that in the future, it might make perfect sense to sell the home place for reasons the testator could not visualize at the present time.

However, PG also suggests that if someone wants to manage the Barnes Foundation, that person will certainly be apprised of the no-sale provisions that limit what management can do. Accepting the job/board position, then making management decisions that directly violate those provisions seems unseemly and dishonest to PG.

This relates to serious authors because of the long time during which copyrights to their books will remain in force. The term of copyright for works created by individuals in the United States is the life of the creator plus 70 years, so the copyrights will most definitely outlast the author.

Lawyer for Andy Warhol Foundation Says Pop Artist Did Not Copy Photo of Prince

From ArtNews:

In New York’s Southern District Court on Monday, lawyers for the Andy Warhol Foundation for the Visual Arts and photographer Lynn Goldsmith stood before Judge John G. Koeltl in service of their clients in a case taking up a 1984 series of Warhol screenprints of the storied musician Prince.

. . . .

Goldsmith has alleged that Warhol copied an image she took of Prince in 1981 and, in doing so, violated her copyright. She shot her image of Prince while on assignment for Newsweek, and Warhol used her image for “Prince,” a series of 16 screenprints he made in 1984.

The Warhol Foundation first filed a preemptive motion against Goldsmith’s claim in 2017, alleging then that she was attempting a “shake down.” As the case has continued, the foundation is now demanding a “declaratory judgment” to the effect that Warhol did not infringe upon the photographer’s copyright.

The case takes up complicated issues surrounding art and appropriation. Did Warhol artfully reconstitute Goldsmith’s image, or did he merely copy it? How could one side prove its position either way?

. . . .

Luke Nikas . . . attempted to address such questions. He said that, however similar they might appear, Warhol and Goldsmith’s representations of Prince serve different purposes. “Andy Warhol took images of people, goods, and companies to force us to confront how we consume them,” Nikas said—adding that, as viewers, “we’re not consuming Prince the person or the icon—we’re consuming the image.”

. . . .

Nikas suggested that “Goldsmith conveyed no intent to deal with the same topics as Warhol,” adding that their work was made for “entirely different purposes.” The judge concurred, asserting that if one were to put the two prints next to each other, the “common person would point to one and say, ‘Hey, that’s a Warhol!’ So that is its own work of art.”

Lawyers from both sides debated the “protected elements” of Goldsmith’s photograph—formal aspects of it that involved creative choices, such as lighting, color palette, angle, and cropping. Nikas argued that the Warhol work differed from Goldsmith’s photograph in all these respects. Goldsmith’s lawyer . . . said another protected element ought to be considered—that Warhol’s work did itself appear in Vanity Fair in 1984, meaning that it, too, could have been made for a magazine. Judge Koeltl disagreed with Werbin’s assertion, noting that the Warhol “Prince” works were art objects originally and not intended for editorial use.

Link to the rest at ArtNews

PG will note that he doesn’t think the reporter from ArtNews has spent much time in court prior to this case.

PG interprets the quotes from Judge Koeltl as reflecting that he doesn’t spend much time on cases of interest to anyone beyond police reporters and hopes to become the go-to guy for cases involving famous artists.