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

vs.

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.

Yesterday

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.

Here It Comes

From Kristine Kathryn Rusch:

[F]or years, I’ve been wondering why big traditional publishing companies aren’t licensing their backlist. There’s a million ways to make money off copyright licenses, and the most obvious is to keep books in print. Yet so many big traditional publishing companies don’t keep their books in print.

Or, worse, in my opinion, those companies don’t publish ebook versions of their catalog. All of their backlist in their catalogs. Realize that this isn’t thousands of titles for them. In the case of some of the larger companies, the title list has to be closer to a million.

But the companies have no idea which books they still can license, whether or not the old contracts have clauses in them that allow ebooks, or even who handles the estate of those old books. I had just read a Daphne Du Maurier novel, My Cousin Rachel,  which had recently been made into a movie, and it took me a lot of scrolling to find that book. I want to read more of her work, but I’m going slowly in ordering it or buying it.

. . . .

We’ve hit the point in the ebook revolution—the online revolution really—where we expect everything (and I do mean everything) to be at our fingertips.

So back to Led Zeppelin. The band is fifty years old this year. And yeah, jeez, that hurts. Because I remember when they were the epitome of cool (and being young and not being understood by the old fogies). Anyway, the folks at Warner Music Group which apparently owns or licensed most of Zeppelin’s catalog, were planning some kind of celebration of the band.

Instead of issuing a retrospective album, they set up a website with a logo name generator. You plug in your name, and it comes up in the Zeppelin iconic font. That’s not the coolest thing about the website, though. The coolest thing is the playlist generator, which allows users to compile their own playlist of Zeppelin songs or covers of Led Zeppelin songs, and then share those playlists on social media.

Think about that for a moment: the website, if set up properly, will help Warner Music Group know what songs from the Led Zeppelin catalog (and related catalogs, like Jack White’s, are the most beloved). That information can be used in marketing later.

This little landing page, with its logo generator and its playlist generator, will then direct users to the Zeppelin website, where you’ll find all the fiftieth anniversary goodies, including the ubiquitous best-of collection and an authorized book about the band.

. . . .

According to Rolling Stone:

The [logo] site received more than 200,000 unique visitors in its first 10 days, with users making 230,000 logos and 20,000 custom playlists. The “biggest uplift” was from White’s playlist, branded as “Led Zeppelin x Jack White,” which drew thousands of users each day — which translates to hundreds of thousands of streams, which translates to a steady stream of cash to Warner and Led Zeppelin without the band lifting a finger.

Hundreds of thousands of streams, “without the band lifting a finger.” Passive income, based on one idea. Yes, streaming services don’t pay a large amount for streams, but they pay. And even a small amount of money adds up when it is multiplied by hundreds of thousands. Not counting the visibility, discoverability, and all those other “abilities” that come from the social media shares, and the links between the various playlist generators. They all play into the streaming services algorithms, which results in even more recognition, and more plays.

Once upon a time (maybe as recently as three years ago) working with what we call the backlist and what the recording industry calls “catalog marketing” was the unlit basement of the industry. No one wanted that job. It wasn’t glamorous, and it barely earned its way.

But that’s changing, and changing rapidly. Apparently, consumers no longer care about the latest and greatest thing. They want what’s new to them. More than that, they want something that they like.

This is where sync marketing comes in. A lot of younger consumers buy music because they heard it on their favorite TV show or in an important scene in a blockbuster movie. From the Rolling Stone article:

Tiffany’s 1987 cover of “I Think We’re Alone Now” has seen 42 percent of its all-time Shazams come after it appeared in Netflix’s 2019 series The Umbrella Academy, and several tracks from the 1940s to 1970s climbed up the company’s global charts after floating into people’s ears from the background of Avengers: Endgame.

. . . .

I’ve noted for years now that traditional publishers have become reluctant to let go of a license once they receive it. In other words, books don’t go out of print anymore, no matter how badly the publisher is mismanaging the book. (In the past, if the book wasn’t in stores, the writer could get her rights back. Not anymore.)

Someone in that megaconglomerate knows that these rights are worth money. They’re worth a lot as assets on a balance sheet, but in the music industry, anyway, they’re also being turned into active revenue streams.

When this starts happening to books—and it will—writers are going to have to be vigilant about their contracts. They’re going to have to see if the contract’s vague 1997 language covers things like streaming rights or omnibus rights or any one of a dozen other ways to license that print book into something new.

What will probably happen is that publishing companies will do what they always do—figure it’s easier to ask forgiveness than it is to ask for permission. They’ll also not want to make payments, so writers are going to have to start auditing their publishers (which no traditionally published writer will do for fear of being blacklisted—because that’s what agents tell them to do. Sigh.

. . . .

So…be warned. Changes are coming, traditionally published writers. Within five years or so, expect a department of back catalog management in your publisher’s offices (if that department doesn’t already exist now). Expect to have every inch of your contract exploited by that department—and maybe some rights you didn’t license as well.

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.

PG says that many authors have so much emotional energy (and more than a bit of insecurity) tied up with their publisher that they desperately want to believe that publisher will always be honest and considerate of their welfare. Unfortunately, such is not always (or even frequently) the case.

Google in Australia: Sudden Conversion or Tactical Manoeuvre?

From Hugh Stephens Blog:

In news coming out of Australia, it has been reported that Google has voluntarily agreed to de-index several hundred websites that distribute pirated audio-visual content. This will make it more difficult although not impossible for Australian consumers to access these sites. Village Roadshow Chairman Graham Burke, Australia’s most prominent anti-piracy crusader, has been reported as saying, with regard to Google, “We’ve gone from being enemies to being allies”. That’s quite a transformation.

Google has apparently agreed to voluntarily remove from its search engine results any sites that ISPs in Australia are required to block as a result of court orders under relatively new provisions of Australian law.

. . . .

These amendments require internet providers to block websites identified by content owners (and ratified by a court order) that infringe, facilitate infringement or whose primary purpose or effect is infringement. In addition to an expanded requirement for action by internet providers (referred to as Carriage Service Providers in Australia), and new measures to prevent “site-hopping” by pirate sites, the 2018 copyright amendments also required search engines to block or de-index search results for sites subject a court order. Google fought long and hard against that particular amendment, without success.

. . . .

Google . . .  argued that the there was no evidence that the existing law was deficient and claimed its own voluntary takedown process in response to complaints from rights owners was sufficient. This prompted Graham Burke to describe Google’s efforts as a “sham”. Burke’s submission to the legislative review process claimed that; “Their sole interest is using a treasure trove of stolen movies as part of attracting people to a business model that is strengthened by theft…Google auto complete and search are used to steal movies”. Despite opposition from Google and some others, the amendment passed in the Australian Parliament last autumn, with broad bipartisan support.

. . . .

At the same time, in the aftermath to the tragic shootings in Christchurch, New Zealand, in April the Australian Parliament passed (again with bipartisan support) robust legislation holding the executives of social media platforms, including Google-owned YouTube, criminally responsible (and the companies corporately responsible), if violent material is not removed expeditiously after notification by authorities.

. . . .

The ubiquity of the Google and Facebook platforms and the lack of transparency of the operation of these platforms, have had adverse effects on news publishers and their opportunities to monetise their content”.

. . . .

This is relevant given Google’s experience in Canada in the landmark Google v. Equustek case. In that case . . . Google was required by the British Columbia Supreme Court to de-index search results for a competitor of Equustek (a Canadian company manufacturing internet routers) found to have stolen Equustek’s intellectual property in order to market online clones of Equustek’s products. Google agreed to de-index results for its Canadian site, Google.ca, but refused a blanket delisting on Google.com and its other national sites as ordered by the court, and appealed. The BC Court of Appeal upheld the global de-indexing order. Google then appealed to the Supreme Court of Canada and lost. It then resorted to a series of legal actions in the US designed to invalidate the order and then have it varied in Canada pursuant to a California court order. These tactics failed (although Google was able to get an unopposed order in California that the Canadian Supreme Court order could not be enforced in the US), but they demonstrate the lengths that Google will go to in order to retain its ability to do what it wants in the way that it wants.

Link to the rest at Hugh Stephens Blog

These Trump Socks Went Viral—and a Nightmare on Amazon Began

From Wired:

When Donald Trump visited Louisiana earlier this month, he was greeted with an unexpected hairy surprise. Billy Nungesser, the state’s lieutenant governor, got dressed with the commander-in-chief in mind that morning. With the president and news cameras as his witness at the airport, Nungesser joyfully lifted the leg of his pants to reveal a goofy pair of socks: Each ankle bore Trump’s face, complete with a signature tuft of fake blond locks waving daintily in the breeze. The bizarre-looking socks quickly went viral and were covered by a smattering of news outlets. Stephen Colbert even mentioned them on The Late Show.

For Erica Easley, all the attention was great, at least at first. Easley is the founder of Gumball Poodle, a small Los Angeles–based sock company that originally came up with the hirsute design during the last presidential election. “They went really viral, beyond anything we’d ever experienced before,” she says about the aftermath of Nungesser’s photo-op. “And these socks have been on Rachel Maddow, The View, a bunch of things in 2016.” Wholesale orders started ticking up. Several media outlets linked to Gumball Poodle’s Amazon listing, and soon the Trump socks reached Amazon’s best-seller list for men’s novelty socks.

About a week passed before Easley noticed that something had gone horribly wrong. Dozens of third-party merchants, most of whom looked to be from China, had jammed her Amazon listing with what Easley believed to be knockoffs, selling for a fraction of the original $30 price tag. (Included in that price, for the record, is a tiny comb, to style your socks’ hair. Everything is made in the USA.) To make matters worse, Amazon had chosen one of the frauds as the default seller, shutting Gumball Poodle out. Meanwhile, other third-party sellers appeared to have taken Easley’s photos and set up their own, much cheaper listings.

Easley had done everything to protect her business from exactly this kind of attack. Her hairy sock design is patented in the US, and her logo, which is stamped on the bottom of the socks, is trademarked. What’s more, Gumball Poodle is enrolled in the Amazon Brand Registry, an enhanced suite of tools the company provides eligible brands to protect their intellectual property. But Easley found Amazon’s protections weren’t enough, and she says the company largely ignored her pleas for help. Only after WIRED reached out to Amazon for this story were the counterfeits removed.

. . . .

Gumball Poodle isn’t alone. “There are thousands of other trademark owners who face the same kind of nonsense every single day,” says James Thomson, a former Amazon employee and a partner at Buy Box Experts, a firm that consults with Amazon sellers. “Amazon does have a problem with counterfeits.”

Counterfeiting is a booming, trillion-dollar industry that costs businesses around the world billions of dollars a year. Its growth has been fueled by the rise of ecommerce, which a government report says has led to “a fundamental change in the market for counterfeit goods.” That report, published last year by the Government Accountability Office, found that the volume and variety of counterfeit goods seized by officials has grown year after year, and it’s increasingly difficult to distinguish knockoffs from the real thing. It also notes that fraudulent goods are sold on a number of different ecommerce platforms.

. . . .

But on Amazon, counterfeits can be uniquely devastating, in part because of the site’s sheer scale. Half of all US ecommerce sales go to Amazon, and the site is also where about half of all product searches on the web begin. Not many companies can afford to avoid it. If they do stay away, they risk letting other sellers determine how their brand is marketed on one of the biggest online retailers in the world.

Another problem is the way Amazon is designed. Unlike on eBay, Etsy, or other online marketplaces, a single Amazon product listing can feature offers from dozens of independent sellers. The company uses an algorithm to decide which merchant’s goods should be the default, based on factors like price and shipping speed. Winning the default slot, referred to as the “Buy Box,” gives sellers an enormous advantage. Customers can “Add to Cart” or “Buy Now” their products with a single click, while the losers are hidden behind a dropdown menu. The idea is to allow consumers to quickly make a purchase, without needing to sift through every similar option. But the system, experts say, also makes sneaking counterfeits into the hands of consumers easy.

Link to the rest at Wired