Copyright Infringers Rejoice And Beware

Google Allegedly Pays The Legal Costs Of Certain Alleged Copyright Infringers

On Vox Indie, Ellen Seidler (a copyright owner who has been ripped off multiple times) ponders why it is that Google will pay the legal costs of alleged uploaders of copyright infringing material to YouTube, but will not pay the legal costs of copyright owners who are forced to sue alleged uploaders of allegedly copyright infringing material.

Why are copyright owners "forced" to sue?  If a copyright owner sends a takedown notice, and if the alleged uploader posts a counter-notice to the original DMCA takedown notice (regardless of whether or not the counter-notice is bogus), then Google will republish the allegedly infringing material with no further recourse for the copyright owner other than to sue.

http://voxindie.org/youtube-covers-legal-costs-for-some-users/

Takeaway? The DMCA does a poor job of protecting copyright owners because there is no takedown-and-stay-down, and there is little downside for pirates if they file untruthful counter-notices.

When Insurance Policies May Not Cover Internet Service Providers For User-Generated Alleged Copyright Infringement.

Quoting an opinion piece... "Why is [an insurance company] denying coverage?  Because [the insurance company] quite correctly says it won’t insure [a Communication Company] for its intentional refusal to comply with the DMCA for largely the same reason that the DMCA has a repeat infringer requirement in the first place.  If you try to do it right and screw up, you can get insurance or you might be entitled to the safe harbor (and you can probably more easily get insurance if you promise to comply with the safe harbor).  You cannot insure your way out of doing something that is purposely bad behavior."....  Unquote.

Learn the names of the insurance company and the Communication Company by reading the full op ed here:

http://thetrichordist.com/2015/11/26/did-cox-communications-just-do-the-dirty-to-shareholders/

And just for good measure...

Digital Defamation Explored  (by Reed Smith LLP - Brian J. Willett and Justin H. Werner)

http://www.lexology.com/library/detail.aspx?g=341b6c7a-95f7-4abb-a848-0295d9fcea7b&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2015-11-26&utm_term=

A hyperlink to an allegedly defamatory blog or tweet or website without quoting the allegedly defamatory content is considered a "reference" and not publication of the allegedly defamatory allegations.

That's over-use of "alleged" and derivations of "alleged", but I am following a bunch of lawyers. One can never go wrong, as a commentator, if one lards ones prose with "allegeds" and "IMHOs".


Have a safe week, bloggers and copyright owners!
Rowena Cherry

Forced Consent

Forced Consent.  Now, there's an oxymoron for you, but that is exactly what "Consent Decrees" are--in my opinion--and I am talking about Government and big business imposing their will on writers, not old-fashioned romance.

Where is the consent when a Government-backed internet retailer decides to pay authors 0.006 per page read?  (Source: The Guardian ) (Aso Erica Verillo)

Where is the consent when Government-backed radio decides to pay music authors 0.004 per spin played?  (Source: The Trichordist )

Notice the similarity of the zero-point-double-0-digit rates!

Through "consent decrees" dating back to before most still-active musicians were born, the Government has treated songwriters as would-be exploitative monopolists, and has protected otherwise-hapless terrestrial radio broadcasters and internet music service providers by having one or two unelected, Government-appointed judges decide how much (or how little) a music copyright owner should be paid every time their music is played.

(BTW.  Consent Decrees are the reason that, come election time, a right wing politician will choose a theme song, and use it, and the left wing musician who wrote that song will object in vain.)

"...the consent decrees effectively substitute the opinion of a federal judge for that of a fair negotiation to set the rates at which those services compensate my fellow songwriters and me. After 73 years this has effectively become an unlegislated compulsory license. The consent decrees walk and talk like a compulsory license and after decades of practice they effectively are a compulsory license..."

Source: The Trichordist "Consent decrees violate individual rights..."

It's been a slow ride to the bottom for musicians, and book authors may find themselves in the same sinking boat.

The old music labels may have exploited musicians, but at least they promoted, edited, identified and groomed new talent and put out a quality product. Also, they stood up for the sale of albums as well as singles (with B-sides).

(Source: http://thetrichordist.com/2012/04/15/meet-the-new-boss-worse-than-the-old-boss-full-post/)

Likewise the traditional publishers may have exploited authors, but at least they paid advances, edited, and groomed and sometimes promoted new talent.  Also, they promoted new authors by putting out multi-author short story anthologies.

The music consent decrees applied to the Labels, but it also applies to the independents.... to the musicians who have their own labels.

Since Amazon allegedly complained to the Government that Apple and the 5 major publishers were endangering its monopoly of the ebook market (some would call it a monopsony), the door has been opened to consent decrees setting the market price for ebooks.

The Government did so, that time, for two years.... but even if agency has returned, it is "modified" and the new terms are applied to small press and indies as well as to the 5 publishing houses that may have "consented" to the "settlement".

AG's more measured explanation:

As part of a settlement with the Department of Justice, the publishers signed consent decrees requiring them to use the “wholesale” pricing model, where the publishers would sell books to retailers at list price, and retailers could set consumer prices as low or high as they wanted. Each publisher was free to return to agency pricing with Amazon after the expiration of its consent decree with the Department of Justice.

For an explanation of the original musical consent decrees,which are being reviewed:
 https://futureofmusic.org/article/fact-sheet/ascap-bmi-consent-decrees

In the United States, royalties from the performance of musical compositions are collected and distributed by the Performing Rights Organizations (PROs) ASCAP, SESAC and BMI. Of these organizations—which distribute revenue to their songwriter and publisher members—ASCAP and BMI are governed by “consent decrees” originally issued by the US Department of Justice (DOJ) as a means to curb the anticompetitive tendencies of the publishing sector.

Consent decrees are limitations agreed upon by parties in response to regulatory concern over potential or actual market abuses. Back in 1941, there was only one legally recognized copyright in music—the musical composition—and the balance of power in the industry was heavily tilted to the music publishers and ASCAP. At the time, ASCAP acted as a kind of gatekeeper to the world’s most valuable musical repertoires, to the extent that the DOJ took action that same year to balance the scales. The result of this intervention are consent decrees that, to this day, govern how radio, whether AM/FM or digital, licenses compositions. BMI was placed under a similar set of conditions in the same year. ASCAP’s consent decree was last updated in 2001; BMI’s in 1994.

In the old days, for musicians, the tour was the marketing strategy (or a second revenue source) and the vinyl sales were the bread and butter.  Now, musicians are forced to subsidize internet start ups such as Pandora and Spotify, they are told that touring is their bread and butter, and having their music distributed by anyone who wants to distribute it is a marketing strategy.

Upside down!

Authors aren't being told to perform on stage, but incomes are down, and they are being encouraged to allow their stories to be all but given away, and their income is supposed to come from marketing, advertising and affiliate fees. How sustainable is that?

Especially since, it appears, that the cat is about to come out of the bag regarding how effective internet advertising really is. http://www.bloomberg.com/features/2015-click-fraud/ (Hint, a lot of the eyeballs that "see" "traffic" are merely bots, which will never buy the advertisers' products, even if the bots click the links.)

According to the Authors' Guild,

https://www.authorsguild.org/industry-advocacy/the-wages-of-writing/

"Overall, the survey results showed that author incomes are down, hybrid authorship is up, and authors are spending more time marketing than ever before. In short, the business of authorship is both more varied and less profitable than just six years ago. The following document summarizes the results in more detail.
Click here to view the survey brochure that summarizes the results in more detail. "

My apologies for the somewhat disjointed flow.  I prefer to write, print out, edit on real paper.

Sincerely,
Rowena Cherry

Some useful links from this week

The USPTO has been discussing "orphan" works, or “Facilitating the Development of the Online Licensing Environment for Copyrighted Works.” 

There are already ways for would-be exploiters of copyrighted works to locate and seek permission from rights holders, but Google and others would rather enjoy an "opt-out" system where authors' and songwriters' must proactively search out every would-be exploiter and actively opt out of being exploited.

http://accrispin.blogspot.com/2015/04/finding-authors-importance-of.html

I resorted to Wikipedia for this (below), having seen a news item about a new interactive gaming app that appears to exploit the likeness and final hours of a young man who died in a manner that made national headlines.

The discussion by Cyberguy did not clarify whether the bereaved family sold the rights, or whether they are being ripped off. 

Wikipedia:

The right of publicity, often called personality rights, is the right of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one's identity. It is generally considered a property right as opposed to a personal right, and as such, the validity of the right of publicity can survive the death of the individual (to varying degrees depending on the jurisdiction).

Personality rights are generally considered to consist of two types of rights: the right of publicity, or to keep one's image and likeness from being commercially exploited without permission or contractual compensation, which is similar to the use of a trademark; and the right to privacy, or the right to be left alone and not have one's personality represented publicly without permission. In common law jurisdictions, publicity rights fall into the realm of the tort of passing off. United States jurisprudence has substantially extended this right.

A commonly cited justification for this doctrine, from a policy standpoint, is the notion of natural rights and the idea that every individual should have a right to control how, if at all, his or her "persona" is commercialized by third parties. Usually, the motivation to engage in such commercialization is to help propel sales or visibility for a product or service, which usually amounts to some form of commercial speech (which in turn receives the lowest level of judicial scrutiny).

IMHO, Science Fiction, Horror, Romance, and other genre authors should beware of assuming that just because a game app developer does something, it is safe and above board to emulate. It may not be. Rights may be involved. Permissions and contracts may be necessary.

On the other hand, there was an interesting article in an Authors Guild newsletter last year about the difficulties in copyrighting aspects of historical fiction where different authors relied on the documented life of a real historical person, that is, when one accuses the other of plagiarism for using identical historical details and events.

As a bit of a copyright enthusiast (you noticed?) I am silently cheering The Turtles for their sterling work in going after exploiters of their copyrighted musical works. 

http://www.lexology.com/library/detail.aspx?g=bbe7f946-023f-4249-8609-400add5aaf2e&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+Federal+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2015-04-22&utm_term=

What I do not understand is why there isn't a class action suit involving all my favorite musicians and bands (living and deceased) from the 1950's, 1960's, and early 1970's who have not been paid any royalties at all by various subscription services. 

Big tech has taught us all to call copyrighted works "content"....  as www.TheTrichordist.com puts it, it is not so much "the internet of things" as "the internet of other people's things."

Excellent quote from The Trichordist on copyright (where the British Green Party allegedly proposes to cut copyright protection to just 14 years, and redistribute authors', musicians', movie makers', photographers' and others' rights to Google:

Ask yourself this: Exactly how does technology make it any less expensive to write a novel?   Writing a novel is purely a work of intellectual labor.  I suppose it’s easier to spell check…,  the backspace key is more convenient than White-out™ and a brush…  But I’m not seeing any evidence it’s less expensive.   In fact I would argue that since the modern English author lives in a much richer society than Dickens, that the relative cost of his labor is much much higher. 

All the best,

Rowena Cherry

Singers and Songwriters are Canaries in the Gold Mine

What do Harlequin (Publishing) and Pandora (music streaming) have in common?

For one thing, in my opinion, they are both major businesses attempting to screw content creators any way they can, using ruthless (as it seems to me) legal manoeuvres to change laws and find loopholes in contracts so that they pay less and pocket more.

I think, but I often feel that I am nearly alone in my suspicions, that the almost universal acceptance of copyright infringement, and the attempts by powerful lobbies to make online "looting" legal, is going to result in more and more big businesses trying to find ways to exploit content creators. It is not going to stop with the "free music" movement.

Music is a shot across the bows for authors.

Moreover, the liberal Media is mostly on the side of Big Business. How ironic. The ignorance of the media is absolutely gobsmacking. For instance, one article stated  "this is a choice about how America wants to subsidize its musicians and other artists."

Word to the wise, America does not "subsidize" musicians and authors and artists. Musicians, and authors, and artists, and other creators are paid royalties, which are a fraction of the profits made on legal sales or licensed rights of copies of their creations. If their good stuff is not paid for, they don't get paid.

For The Trichordist's perspective on Pandora, look here:

http://thetrichordist.com/2013/06/28/artists-speak-out-on-pandoras-proposed-royalty-rate-cuts/

Streaming music is likely to be a very big deal, and some suggest that fewer people will "share" music illegally if they can subscribe to a legal service, but ... how much better will that be for songwriters and musicians if a song can be played 3,000,000 times and the musician gets $30 ?

Is it inconceivable that the same could happen to authors on day? An e-book is "read" 3,000,000 times, and the author gets $30?

Reference: Songwriter Ellen Shipley in Digitial Music News, “My Song Was Played 3.1 Million Times on Pandora. My Check Was $39…“

This recent study http://musically.com/2013/01/16/copy-culture-study-outlines-us-and-german-filesharing-streaming-habits/ finds that, "Nearly half of adults in the US and Germany participate in a broad, informal ‘copy culture’ characterised by the copying, sharing, and downloading of music, movies, TV shows, and other digital mediaT 

Some "sharing" and re-selling of digital content has been made legal in Europe, and may be made legal in the USA at some point in the future. If it happens, Big Business is ready.... and authors are not ready, and won't know what hit them.

An older study http://piracy.americanassembly.org/the-copy-culture-survey-infringement-and-enforcement-in-the-us/ from 2011 and based on a relatively small sample found, among many things that piracy is common (46%), and almost 70% of the population are opposed to copyright enforcement or to meaningful copyright penalties for repeat offenders.

Ah, well. All I can say is that I encourage authors to join the copyrightalliance.org and at the very least to refrain from infringing the copyrights of cover models, photographers, musicians and other creators because at some point, creators may need to come to the table with clean hands and support one another.

On a happier note, I am pleased to announce that on Tuesday July 2nd my 5pm Eastern Time radio show on pwrtalk.com will be Real History And Regency Marriage with Romance Author Cheryl Bolen.

Rowena Cherry

SPACE SNARK™ http://www.spacesnark.com/ 

‘Piracy’ is common

‘Piracy’ is common. Some 46% of adults have bought, copied, or downloaded unauthorized music, TV shows or movies. - See more at: http://piracy.americanassembly.org/the-copy-culture-survey-infringement-and-enforcement-in-the-us/#sthash.x8Ufk7Iq.dpuf

‘Piracy’ is common. Some 46% of adults have bought, copied, or downloaded unauthorized music, TV shows or movies.* - See more at: http://piracy.americanassembly.org/the-copy-culture-survey-infringement-and-enforcement-in-the-us/#sthash.x8Ufk7Iq.dpuf

‘Piracy’ is common. Some 46% of adults have bought, copied, or downloaded unauthorized music, TV shows or movies.* - See more at: http://piracy.americanassembly.org/the-copy-culture-survey-infringement-and-enforcement-in-the-us/#sthash.x8Ufk7Iq.dpuf