Mister Copyright

by Kevin Madigan

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Rejection of DOJ Consent Decree Interpretation is a Win for Songwriters

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Earlier this month, a federal judge in the Southern District of New York issued an order rejecting the Department of Justice’s (DOJ) interpretation of a consent decree governing the way the performance rights organization Broadcast Music Inc. (BMI) licenses its songs. The ruling was in response to a DOJ statement that the consent decrees controlling BMI and ASCAP should be interpreted to include a “full-work” licensing agreement that would require any entity that controls part of a composition to offer a license for the whole composition. The implications of the DOJ’s evaluation would be disastrous for both artists and the organizations that represent them, and while the judge’s order is likely not the final say in the debate, it represents a strong endorsement of the rights of publishers and songwriters to control their creative works.

PROs and the Consent Decrees

Performance rights

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European Union Draws a Line on Infringing Hyperlinks

Untitled.pngLast week, the European Court of Justice—the judicial authority of the European Union—issued an anticipated decision in the Sanoma hyperlinking case, declaring that commercial linking with knowledge of unauthorized content constitutes copyright infringement. The opinion comes after years of similar cases in Europe stirred debate over whether linking to pirated works was a ‘communication to the public’ and therefore infringing, and provides a sensible test that protects the works of authors and creators while ensuring the internet remains a bastion of free speech.

Sanoma involved the popular Dutch news and gossip site GeenStijl, which ran an article in 2011 that included links to an Australian website where copyrighted Playboy magazine photos were made available. The photos were published on the Australian website without the consent of Sanoma, Playboy’s editor and copyright owner of

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Despite What You Hear, Notice and Takedown is Failing Creators and Copyright Owners

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In a recent op-ed in the LA Times, Professors Chris Sprigman and Mark Lemley praise the notice and takedown provisions of the Digital Millennium Copyright Act (DMCA) as “a bit of copyright law worth saving.” They argue that Section 512 of the DMCA continues to serve its purpose of balancing the rights of copyright owners and creators with those of Internet service providers (ISPs), while leaving both sides only “slightly disappointed.” Satisfying these two groups is indeed a difficult charge, but it’s simply disingenuous to suggest that creators and copyright owners are satisfied with a system so clearly in need of an overhaul.

As the Copyright Office embarks on its review of the DMCA, supporters and critics of the nearly twenty-year-old doctrine are weighing in on its effectiveness in addressing online infringement. Sprigman and Lemley claim that the “process has worked well for

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Letter on FCC Set-Top Box Regulation Once Again Confuses the Issue

apple-tv-1049876_960_720.jpgLast week, a group of law professors wrote a letter to the acting Librarian of Congress in which they claim that the current FCC proposal to regulate cable video navigation systems does not deprive copyright owners of the exclusive rights guaranteed by the Copyright Act. The letter repeats arguments from response comments they filed along with the Electronic Frontier Foundation (EFF), accusing the Copyright Office of misinterpreting the scope of copyright law and once again bringing up Sony v. Universal to insist that copyright owners are overstepping their bounds. Unfortunately, the IP professors’ recurring reliance on Sony is misplaced, as the 30-year-old case does not address the most significant and troubling copyright violations that will result from the FCC’s proposed rules.

In 1984, the Supreme Court in Sony held that recording television shows on a personal VCR was an act of

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The Dangerous Combination of Content Theft and Malware

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Malware, short for malicious software, has been used to infiltrate and contaminate computers since the early 1980s. But what began as relatively benign software designed to prank and annoy users has developed into a variety of hostile programs intended to hijack, steal, extort, and attack. Disguised software including computer viruses, worms, trojan horses, ransomware, spyware, adware, and other malicious programs have flooded the Internet, allowing online criminals to profit from illicit activity while inflicting enormous costs on businesses, governments and individual consumers.

Purveyors of malware target unsavory websites to embed and distribute their programs, often making deals with those in the business of disseminating stolen content. Content theft websites that appear online through legitimate hosting and content delivery systems are frequently riddled with devious malware

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THREE YEARS LATER, DMCA STILL JUST AS BROKEN

by Matthew Barblan & Kevin Madigan
cross-posted from the CPIP Blog

In 2013, CPIP published a policy brief by Professor Bruce Boyden exposing the DMCA notice and takedown system as outdated and in need of reform. The Failure of the DMCA Notice and Takedown System explained that while Section 512 of the DMCA was intended as a way for copyright owners and service providers to work together to fight infringement in the digital age, the notice and takedown system has been largely ineffective in managing the ever-increasing amount of piracy.

Three years later, the DMCA is still just as broken. Since we published the brief, courts have further diminished service providers’ responsibility to cooperate with copyright owners to detect and deter infringement, rendering the DMCA even more fruitless and desperately in need of retooling.

Boyden explained the fundamental problems with the system at

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Advertiser Pledge Sets Example of Accountability in the Fight Against Piracy

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It should come as no surprise that popular websites make money by hosting advertisements. Anyone surfing the web has undoubtedly been bombarded with ads when visiting certain sites, and for websites that offer free services or user experiences, advertisements are often the only way to generate revenue. Unfortunately, websites that promote and distribute pirated material also attract advertisers to help fund their illicit enterprises, and despite a recent push for awareness and response to these sites, legitimate advertisers, search engines, and domain name registrars continue to enable them to profit from flagrant copyright infringement.

A 2014 study by the Digital Citizens Alliance found that ad-sponsored content theft is a big and growing business. Even after a year that saw the shutdown of some of the most notorious file-sharing websites, an examination of 589 illicit websites

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Radiohead Video Makes Unauthorized Use of Fictional Characters

Last month, Radiohead released their ninth studio album, A Moon Shaped Pool, after a five-year hiatus from recording. In true Radiohead fashion, the album’s release was preceded by a unique succession of mysterious social media postings, teaser artwork and music videos for the singles Burn the Witch and Daydreaming.

The Burn the Witch video was shot in stop-motion animation and features an alarming narrative in which an outsider is welcomed into a seemingly idyllic village, only later to be burned alive inside of a wicker man structure. While the creators of the video have acknowledged that the story is an allegory for the current migrant crisis in Europe, viewers have noticed something suspicious about the video unrelated to the chilling subject matter.

Burn the Witch uses claymation figures to portray its characters and soon after the video’s debut, viewers began recognizing

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FCC’s Extreme Proposal Threatens the Livelihood of Creators

Capture.PNGBy Matthew Barblan and Kevin Madigan

Cross-posted from the Center for the Protection of Intellectual Property (CPIP) blog.

Earlier this year, the FCC proposed a new regulatory scheme ostensibly designed to improve the market for pay-TV set-top boxes. Chairman Wheeler claimed that the proposed rules would “tear down the barriers that currently prevent innovators from developing new ways for consumers to access and enjoy their favorite shows and movies on their terms.” But set-top boxes are already on their way out as more and more consumers turn to streaming apps to watch their favorite movies and shows. So what is the FCC up to here? A close look at the proposed rules reveals that this isn’t about set-top boxes at all. Instead, the rules are designed to benefit a handful of companies that want to disseminate pay-TV programs without negotiating with or paying a license to the owners of

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Google Image Search and the Misappropriation of Copyrighted Images

b8hgWFyNTvubhEPTqD9w_IMG_4649.jpgLast week, American visual communications and stock photography agency Getty Images filed a formal complaint in support of the European Union’s investigation into Google’s anti-competitive business practices. The Getty complaint accuses Google of using its image search function to appropriate or “scrape” third-party copyrighted works, thereby drawing users away from the original source of the creative works and preserving its search engine dominance.

Specifically, Getty’s complaint focuses on changes made to Google’s image search functionality in 2013 that led to the appealing image galleries we’re familiar with today. Before the change, users were presented with low-resolution thumbnail versions of images and would be rerouted to the original source website to view a larger, more defined version and to find out how they might legally license or get permission to use the work. But with

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