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Guess Who’s Coming to Copyright and Technology NYC 2016? January 12, 2016

Posted by Bill Rosenblatt in Events, Uncategorized.
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There’s only a week to go until Copyright and Technology NYC 2016, next Tuesday January 19.  I thought you might like to know that we have people coming from these organizations:

  • BMI
  • CBS
  • CCIA
  • Charter Communications
  • Cisco
  • Copyright Alliance
  • Copyright Clearance Center
  • Elsevier
  • Entertainment Software Assn.
  • Facebook
  • Getty Images
  • HBO
  • Imagem
  • NBA (National Basketball Association)
  • NMPA
  • RIAA
  • Scholastic
  • Sony Music Entertainment
  • SoundCloud
  • SoundExchange
  • Thomson Reuters
  • Time Warner
  • Twitter
  • U.S. Copyright Office
  • U.S. Patent and Trademark Office
  • UFC
  • Universal Music Group
  • Vevo
  • Viacom
  • Warner Music Group
  • Warner/Chappell Music

You can meet these people and many more!  Register now.

Copyright Office Launches Inquiries into DMCA January 4, 2016

Posted by Bill Rosenblatt in Events, Law, United States.
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Last week, the U.S. Copyright Office published Notices of Request and Public Comment for both parts of the Digital Millennium Copyright Act: Section 512 (limitations of copyright liability for online service providers) and Section 1201 (prohibition of DRM circumvention).  Jacqueline Charlesworth, General Counsel of the Copyright Office, will be discussing both of these — and more — when she gives the keynote speech at our Copyright and Technology NYC 2016 conference on Tuesday January 19th.  (Register today!)

In both of the studies, anyone can submit written comments, and after the comments have been posted, the Office will hold public discussions.  Deadlines for written submissions are February 25 for the Section 1201 study and March 21 for the Section 512 study, though the Section 1201 study also has a March 25 deadline for replies to comments submitted by the February 25 deadline.

The Section 512 study is broad in scope.  It invites people to submit comments on a wide range of issues, including effectiveness of the notice-and-takedown process; accessibility of the law to small entities (both copyright owners and service providers); efficacy of automated processes for both detection of alleged infringements (e.g., through fingerprinting) and processing of notices; effectiveness and fairness of the counter-notification process; the potential for replacing “notice and takedown” with “notice and staydown”; and the overall effectiveness of the law in striking a balance between the interests of copyright holders and service providers.

The study notice mentions that because of a lack of specificity in the statutory language, courts have had to interpret various portions of Section 512.  As a result, we look to many court opinions to get clarity on concepts such as “red flag knowledge” of or “willful blindness” to alleged infringements, the “financial benefit” and “right and ability to control” standards for service provider liability, the precision of content identifiers or locators required in takedown notices, policies that service providers must have in place for terminating the accounts of “repeat infringers” in order to qualify for the safe harbors, and so on.  The study invites people to comment on whether or not the courts have interpreted these statutory concepts appropriately.  The study cites a “greatest hits” of Section 512-related litigations: Viacom v. YouTube, UMG v. Shelter Capital (Veoh), CCBill v. Hotfile, Columbia Pictures v. Fung (IsoHunt), UMG v. Lenz (“Dancing Baby”), and various others.

A huge amount of virtual ink has been spilled about inadequacies of Section 512.  Copyright owners, service providers, legal scholars, and others have all expressed frustration with it in Congressional hearings, court, the press, legal publications, blogs, etc.; the study notice summarizes the concerns that have been raised.  This is the case even though at least one study has found that stakeholders would generally prefer to have the law as it is rather than not have it at all.

This study should attract a larger number and broader range of inputs into Section 512 than previous attempts to assess it such as the March 2014 Congressional hearings.  It promises to be an excellent vehicle for intelligent summary of stakeholders’ concerns — including those who aren’t lawyers and can’t afford lobbyists — and of distillation of conclusions into recommendations.   The Copyright Office has no direct power to change the law, but as its mission is to serve as Congress’s official consultant on copyright, the findings from this study ought to carry a lot of weight in any legislative changes that Congress might consider.

The Section 1201 study, in contrast, is considerably narrower in its scope.  Section 1201 has been the subject of fewer high-profile litigations than 512, especially during the last few years.  The way it was originally set up, Section 1201 forbids circumvention of technical measures designed to control access to creative works, yet it defines two sets of exceptions — types or situations of circumvention that aren’t forbidden.  There are eight permanent exceptions for things like security testing, cryptography research, and activities of nonprofit libraries and archives.

There is also a set of temporary exceptions that the Copyright Office defines in rulemaking actions every three years; these exceptions expire and must be renewed through fresh evidence at each rulemaking.  The rulemaking process solicits public input but has typically been dominated by public policy entities who know how to “work the system” and submit exception scenarios that fit the Copyright Office’s criteria based on past experience.

The temporary exception process was complicated recently by Congress’s passage of the Unlocking Consumer Choice and Wireless Competition Act of 2014, which effectively overrides Section 1201 to make it legal for people to “circumvent technical measures” by jailbreaking or rooting mobile phones.  Meanwhile, the Copyright Office has complained that the triennial rulemaking process is very resource-intensive, and some have complained that the Office’s criteria for exception scenarios have changed over the six rulemakings that it has run since Section 1201’s enactment.

Thus the main thrust of the Section 1201 study is to revisit the exception process: to re-evaluate the permanent exceptions, and to see if there is a more efficient way of soliciting and deciding on exemptions over time that still minimizes the ever-present risk of technological obsolescence.  The study notice assumes that the basic idea of Section 1201 — to forbid DRM hacking except where the hack fits one of the current exceptions — will stay as is.  In addition, the Section 1201 study will revisit the prohibition on “trafficking” of circumvention tools in situations where people legitimately need to have third parties help them perform activities that include acceptable circumvention.

We will have a lot of discussion about these issues at Copyright and Technology NYC 2016 on January 19th.  In addition to Jacqueline Charlesworth’s keynote, we will be featuring a presentation by Jennifer Urban of Berkeley Law School and Joe Karaganis of the American Assembly at Columbia University of their original research on the efficacy of Section 512 and the processes that copyright owners and service providers have evolved over time to deal with it.  This research will undoubtedly serve as important input to the Copyright Office’s Section 512 study — and our conference will be its first public airing.

In addition, we will feature two afternoon sessions on Section 512 issues featuring expert panelists: From Takedown to Staydown and Pleasures of the Harbor: DMCA Safe Harbor Eligibility.  So why not register and participate in these cutting-edge copyright discussions yourself?



New Presentation on Piracy Data at January Conference; Earlybird Deadline Approaching December 9, 2015

Posted by Bill Rosenblatt in Events.
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I’m pleased to announce that we have added a new presentation in the morning plenary session of Copyright and Technology NYC 2016 on January 19th: Incorporating Piracy Data into Everyday Business.  Here is the description:

Beyond copyright compliance enforcement, piracy data offers a view into the demand for a digital product without consideration for difficult topics such as licensing arrangements or price sensitivity. P2P is a popular mechanism for sharing of digital content, becoming more important with BitTorrent browsers like Popcorn Time. With many of the same attributes as sales data, piracy data offers a glimpse into the demand for content in an area where the price is free.

Whether it is understanding the drivers of demand or closing distribution loopholes, digital content owners have been using piracy data in a variety of forms. In this session you will see examples for how piracy data is mapped to more traditional metrics and used by content owners as a way of recapturing revenue lost to piracy.

This will be a presentation of original research by MarkMonitor, given by Nate West, MarkMonitor’s Director of Business Intelligence.  MarkMonitor has collected copyright monitoring data for many years and has developed unique insights on how copyright owners can use it to improve sales, marketing, and product strategy.

This joins another presentation of original research by Jennifer Urban of the Samuelson Clinic at Berkeley Law School and Joe Karaganis of The American Assembly at Columbia University, on how DMCA notice and takedown is working in practice among copyright owners and online service providers.  Both of these original research presentations will take place after the keynote by Jacqueline Charlesworth of the U.S. Copyright Office.

I am also pleased to announce that, for the second time, MarkMonitor is the Conference Sponsor for Copyright and Technology.  In addition, MarkAny is sponsoring a cocktail reception right after the conclusion of the afternoon tracks.

Finally, our earlybird registration discount ends this Friday, December 11.  With all this great content — and more being added regularly — you won’t want to miss Copyright and Technology NYC 2016, January 19 at the Kimmel Center at NYU.  Register today!

New Research to Be Presented at January Conference November 30, 2015

Posted by Bill Rosenblatt in Events, Fingerprinting, Law, United States.
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I am excited to announce that Copyright and Technology NYC 2016 will feature a special presentation of new research: Notice and Takedown in Everyday Practice: Robots, Artisans, and the Fight to Protect Copyrights, Expression and Competition on the Internet.  This is a landmark study on how the Notice and Takedown provisions of Section 512 of U.S. copyright law work in practice.  It is the result of many interviews with copyright holders, service providers, and copyright enforcement services, as well as analysis of large numbers of takedown notices submitted to the Chilling Effects database.  Authors of the study are Jennifer Urban and Brianna Schofield of the Samuelson Law, Technology & Public Policy Clinic at BerkeleyLaw, and Joe Karaganis of The American Assembly at Columbia University.  The talk at Copyright and Technology NYC 2016 on Tuesday, January 19th will be its first public presentation.

Until now, very little empirical research has been done on the effectiveness of the DMCA’s notice and takedown provisions in addressing copyright infringement as well as due process for notice targets.  This talk will summarize research comprising three studies that draw back the curtain on notice and takedown: it gathers information on how online service providers and rightsholders experience and practice notice and takedown, examines over 100 million notices generated during a six-month period, and looks specifically at a subset of those notices that were sent to Google Image Search.

The findings suggest that whether notice and takedown “works” is highly dependent on who is using it and how it is practiced, though all respondents agreed that the Section 512 safe harbors remain fundamental to the online ecosystem.  Perhaps surprisingly, a large portion of service providers still receive relatively few notices and process them by hand. For some major players, however, the scale of online infringement has led to automated systems that leave little room for human review or discretion, and in a few cases notice and takedown has been abandoned in favor of techniques such as content filtering. Further, surprisingly high percentage of notices raise questions about their validity.  The findings strongly suggest that the notice and takedown system is under strain but that there is no “one size fits all” approach to improving it.  The study concludes with suggestions of various targeted reforms and best practices.

Please come and see this important research presentation on January 19th — register today!  Early bird registration ends December 11.


Copyright and Technology NYC 2016: Early Bird Registration Now Live November 23, 2015

Posted by Bill Rosenblatt in Events.
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Registration is now available for our next Copyright and Technology conference, which will be at the Kimmel Center at NYU on Tuesday, January 19, 2016.  As you can see from the agenda, the conference is filling up with lots of great speakers — although we have room for more on some panels.  If you would like to propose a speaker, please email me with the following information:

  • Name
  • Organization
  • Contact info
  • Panel(s) being proposed
  • Perspective and experience related to the panel topic

In addition, as in the past, we are offering sponsorship opportunities, including the opportunity to work with us in creating a plenary session on a topic of importance to the digital copyright community (no sales pitches please).  Please inquire and we’d be happy to send you a prospectus with details.

Otherwise, please register today!  Early bird pricing ends Friday, December 11.


Crowdsourced Cover Collections: A Copyright Conundrum November 17, 2015

Posted by Bill Rosenblatt in Law, Music, Services.

A friend recently introduced me to a website called Cover Me, in which contributors write about cover versions of songs.  There are artist-cover anthologies, lists of “Five Good Covers” of oft-covered songs, and entire albums’ worth of cover versions.  Accompanying text describes the songs, the original artists, and the various cover versions.  Sometimes the “art” is in finding cover versions of obscure songs; other times it’s in selecting among many cover versions of better-known songs and putting together an interesting collection.

Entire albums featured on this site include Led Zeppelin III, XTC’s Skylarking, and several Ramones albums.  The site is run by Ray Padgett, a Brooklynite whose day job is at a small PR/social media firm.

Now here’s the conundrum.  All of the song titles link to audio of the cover versions. Some are simply links to files on SoundCloud, YouTube, or other hosting sites, while others are links to iTunes or Amazon purchase pages.  But many others are downloadable MP3s hosted on the site, with embedded MP3 players for streaming the music.  Most of these tracks are available on YouTube; some are available on Spotify.

My friend told me that the site will take the MP3 files down when requested, although it does not have a written copyright policy.  The site does not carry ads and has no apparent source of revenue; the contributors are volunteers.

What do you think?  Fair use or not?



Partnership with Stroz Friedberg November 3, 2015

Posted by Bill Rosenblatt in Law.
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As some of you know, over the past several years I have occasionally served as an expert witness and consultant in litigations on digital media, copyright, and related issues.  I’m now thrilled to announce a partnership between my firm, GiantSteps Media Technology Strategies, and Stroz Friedberg. Stroz Friedberg is a global leader in cybersecurity, digital forensics, investigations and risk management, as well as IP litigation consulting and IP strategy and analytics. They have been involved in such high-profile and diverse matters as Oracle USA, Inc. et al. v. Rimini Street, Inc. et al. (copyright case), Paul Ceglia vs. Mark Zuckerberg (Facebook founder’s contract dispute), Enron’s “Nigerian Barge” trial (as the government’s expert), and Silicon Knights, Inc. v. Epic Games, Inc. (copyright case).

I had the good fortune to work side by side recently with some experts from Stroz Friedberg on a couple of different cases, and a partnership between my firm and theirs was a natural next step.  Stroz Friedberg’s depth of knowledge, intelligence, diligence, and effectiveness are very impressive, and they are a pleasure to work with.  We will be supporting each other in future engagements as needs arise, enabling GiantSteps and Stroz Friedberg to complement our mutual areas of expertise and bring a broader array of capabilities to our clients.

The Mysterious Case of the Fake Beatles Cover October 29, 2015

Posted by Bill Rosenblatt in Music, Rights Licensing.
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Several big-name recording artists have been “digital holdouts” who have refused to license their material for distribution through interactive streaming music services like Spotify, Apple Music, Google Play Music, Rhapsody, and so on.  One by one, most of them eventually gave in and joined the crowd: Led Zeppelin, Pink Floyd, Metallica, Kid Rock, Def Leppard, Black Sabbath, AC/DC, Frank Zappa.  Only a tiny number of artists remain digital holdouts by choice, including the biggest one of all: the Beatles.  Or are they?

A curious phenomenon occurs around digital holdouts: other artists distribute cover versions of the digital holdouts’ tunes and create appropriate metadata, so that users searching for the big-name artists find the cover versions and play them.  This results in royalties for the cover artists even if the music wasn’t what the users expected. Cover versions with the right metadata are also picked up by Internet radio services.  So, if you searched for “Led Zeppelin” or started a “Led Zeppelin Radio” channel before Led Zep licensed its music to the interactive services, you might have heard Zep covers from a band called Led Zepagain.  When Interscope held Carly Rae Jepsen’s monster hit “Call Me Maybe” back from interactive services a couple of years ago, users heard a cover version by an unknown singer.

If you listen to “Beatles Radio” on a pure Internet radio service like Pandora, you will hear Beatles tunes every once in a while.  That’s because Internet radio services have statutory licenses that allow them to play any song at all, as long as they pay appropriate royalties to record labels and songwriters.  (Similarly, anyone can record a cover version of any song.) But an interactive service can’t offer any song for on-demand listening unless the rights holders have licensed it to do so.

Yet something curious happened while I was listening to “Beatles Radio” on Google Play Music the other day. I heard a version of the Beatles song “In My Life” (a lesser-known track from the Rubber Soul album*) that sounded suspiciously like the real thing — even though the artist was listed as “Liverpool Beat,” not the Beatles. The radio feature on Google Play Music lets you go back and repeat songs you heard previously if Google Play has interactive streaming rights to them.  Sure enough, I was able to play “In My Life” as many times as I wanted.  Then I compared it with a download of the actual Beatles song.  Allowing for differences in codec quality, they were absolutely identical.  That’s right: this was a fake Beatles cover.

Apparently, Liverpool Beat is one of a couple of Beatles cover bands that are designed to sub in for the Beatles in circumstances similar to Led Zepagain for the real Zeppelin.  (There are also a couple of Beatles tribute bands called Liverpool Beat that play bars, weddings, etc., but this is different.)  Liverpool Beat has dozens of Beatles songs available on the major interactive streaming services — including Spotify, Google Play, and Apple Music — from all phases of the Beatles’ career.  I listened to all of them.  They range in quality from mediocre to pretty decent imitations, but they are clearly not the Beatles… except for “In My Life.”  That’s definitely John Lennon singing and George Martin’s double-speed piano solo.

Evidently someone uploaded the real Beatles track to a distributor that feeds to the interactive streaming services.  It was included with other Beatles covers by Liverpool Beat on a four-part “album” called… wait for it… Sergeant Pepper’s Lonely Hearts Club Band.

Given that the Beatles’ online distribution is tightly controlled and exclusive to iTunes downloads, and that the terms of their 2011 deal with Apple are unique in the industry, this is just a little bit remarkable.  The question is, whodunnit?  Here’s a poll:

Update: through further research, I found the likely source(s) of Beatles covers by “Liverpool Beat.”  I’ve written an article on Forbes about it.  Props to Nate Hoffelder of The Digital Reader and David Leibowitz of CH Potomac for help.

*There is no point in calling it a “classic.” All Beatles songs and albums are classics.

Copyright and Technology Conference Returns to NYC October 29, 2015

Posted by Bill Rosenblatt in Events.
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I’m pleased to announce that the Copyright and Technology Conference is returning to New York.  Our next event will be Tuesday, January 19, at the Kimmel Center at NYU, Eisner & Lubin Auditorium.  After a three-year hiatus in London, we’re back and better than ever.

I am especially proud to announce my new partners in the conference: the Copyright Society of the USA and Musonomics.  The Copyright Society is a leading professional association for attorneys and others involved in the copyright field; it is well known and respected for its events around the country, its Journal, and its influence through the industry honors it offers.  The Copyright Society will be handling event registration, which will be up and running shortly, as well as New York State CLE credits for attendees.  I’m working with Eleanor Lackman, co-chair of the NYC chapter of the Copyright Society and a partner at the law firm of Cowan DeBaets Abrahams & Sheppard, who has been a speaker at past Copyright and Technology conferences.

Musonomics is a music industry consultancy founded by Larry Miller, a highly respected digital music executive who now runs the Music Business program at NYU’s Steinhardt School of Culture, Education, and Human Development.  Musonomics is also a very informative and timely podcast about the music business.

The agenda for the conference is posted.  Our keynote speaker will be Jacqueline Charlesworth, General Counsel and Associate Register of Copyrights at the U.S. Copyright Office.  We’re accepting proposals to speak and moderate panels through Friday November 20; proposals to moderate panels will be given priority.  Please email proposals to me with the following information:

  • Name
  • Organization
  • Contact info
  • Panel(s) being proposed
  • Perspective and experience related to the panel topic

In addition, as in the past, we are offering sponsorship opportunities, including the opportunity to work with us in creating a plenary session on a topic of importance to the digital copyright community (no sales pitches please).  Please inquire and we’d be happy to send you a prospectus with details.

Roundtable Discussion October 14th: Algorithms and the DMCA Post-Lenz October 2, 2015

Posted by Bill Rosenblatt in Uncategorized.
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I wlll be appearing as the featured guest speaker at a roundtable discussion at Fordham Law School in NYC on Wednesday, October 14th at 8:45-10:00 am.  We’ll discuss the state of algorithms for monitoring online services and detecting possible copyright infringements, and what effect the recent decision in Lenz v UMG might have on them.  I’ll be providing some background on the relevant technologies and industry practices.  The event is part of the Fordham Center for Law and Information Policy (CLIP) monthly roundtable series.

This event is by invitation only, so if you’re interested in attending, please email me.


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