Tthe actual performance of music and lyrics fixed in a recording medium, as opposed to the underlying composition – were not protected by federal copyright law until 1972

It may come as a surprise to some that sound recordings – the actual performance of music and lyrics fixed in a recording medium, as opposed to the underlying composition – were not protected by federal copyright law until 1972 – and then only prospectively.  The Copyright Office has now recommended that the Copyright Act be amended to encompass such sound recordings. 

The reasons for the exclusion of sound recordings from the Copyright Act until 1972 are not entirely clear.  To protect sound recordings created prior to 1972, record companies and other rights holders had to rely on a variety of state statutory and common law, which is specifically permitted by the Copyright Act.  In California, for example, Civil Code section 980 grants the author of an original work of authorship consisting of a sound recording initially fixed prior to February 15, 1972, exclusive ownership of the sound recording until February 15, 2047. 

This situation obviously makes it more difficult for owners of pre-1972 sound recordings to protect their rights to those recordings.  State laws that may offer some protection have been described as a patchwork of often vague and inconsistent rights.  In addition, there is no presumption of validity that is accorded by a copyright registration from the Copyright Office, and chain of title thus may be more difficult to establish.  This is a significant limitation, given that these are older works and include, for example, recordings of old radio broadcasts.  It is also harder to have pre-1972 works that are being infringed on websites removed from those sites, given that the notice and takedown provisions of the DMCA (section 512 of the Copyright Act) apply only to copyrighted works.  Also, statutory damages (and often attorneys’ fees) are not available to plaintiffs in infringement actions of pre-1972 works.  Moreover, after February 15, 2067, the Copyright Act provides that all pre-1972 sound recordings will enter the public domain at once.  Ironically, this gives pre-1972 sound recordings – which are not protected by copyright – a longer term of protection than many old works that are subject to the Copyright Act for which protection expires after a set number of years.

In response to this issue, in 2009, Congress instructed the Register of Copyrights to conduct a study as to the “desirability and means” of extending federal copyright protection to pre-1972 sound recordings.  The Copyright Office took comments from numerous interested parties, including sound recording and other libraries, recording industry associations, broadcasters and satellite radio, music publishers, songwriters, universities, as well as other organizations and individuals.  It also conducted public hearings and met with interested parties.

The study has now been completed, and the Copyright Office has released several recommendations based on its results.  These recommendations include the following:

• Federal copyright protection should apply to sound recordings fixed before February 15, 1972.  (Special provisions will be needed to address ownership issues, term of protection, and registration.)
• All rights and limitations of the Copyright Act applicable to post-1972 sound recordings would apply to pre-1972 recordings, including a public performance right for digital audio transmissions, fair use, DMCA safe harbor for Internet service providers, and the anti-circumvention provisions of the DMCA.
• Authors of pre-1972 sound recordings would have the right to terminate grants of transfers or licenses of copyright that are made after (but not before) the date federal protection starts.
• The term of protection for pre-1972 sound recordings would be 95 years from publication, but in no event beyond February 15, 2067.
• A transitional period would be instituted during which owners of pre-1972 sound recordings would be able to seek statutory damages and attorneys’ fees in infringement litigation notwithstanding the lack of registration of those works prior to filing suit.

There are several other recommendations as well.  The full report can be accessed at http://www.copyright.gov/docs/sound/pre-72-report.pdf  If accepted, these recommendations should go a long way toward harmonizing copyright protection for all creative works of original authorship, regardless of the medium (and regardless of the reasons why pre-1972 sound recordings were treated differently to begin with).

Mr. Borkowski is a partner at Freeman Freeman & Smiley LLP.  He represents major entertainment and technology clients at the intersection of content creation and protection with technology, focusing on the impact of technology on traditional intellectual property rights and business models.  Mr. Borkowski has handled the full continuum of intellectual property, technology, and entertainment litigation, as well as anti-piracy and rights enforcement, and counseling.  He can be reached at george.borkowski@ffslaw.com  

In a blog post from the ABA by Deborah Cassens Weiss, the author writes that a law firm that helps clients defend their online reputations has purchased 3,000 domain names to keep them from being co-opted by the wrong people.  John Dozier of Dozier Internet Law in Richmond, Va. believes purchasing the domain names is effective insurance.  The post goes on to note that John Dozier has written a book about online defamation called Google Bomb.

On January 24, the Senate will have a procedural vote on the Stop Online Piracy Act (SOPA). The dynamics of SOPA are far-reaching and quite divisive. Supporters feel this legislation is the logical next step against foreign websites that circumvent current anti-piracy measures and those that offer counterfeit goods and pharmaceuticals. SOPA comes with the muscle of big name support. Some of the supporters include the MPAA, RIAA, NBA, MLB, NFL, as well as major studios such as Disney and CBS. Additionally, SOPA has the backing of the U.S. Chamber of Commerce, Microsoft, major pharmaceutical companies such as Pfizer, Eli Lilly and Company, and many others.

Yet, equally fervent are the opponents who worry about the resulting censorship from this Bill. Leading the charge in the opposition are Facebook, Twitter, Google, LinkedIn, Yahoo! and eBay to name a few. Besides vocalizing their objections, the opponents of SOPA are strategizing to make an attention grabbing protest. One idea involves an Internet blackout. Cnet describes this option as the “equivalent of a nuclear option.” Markham Erickson, executive director of NetCoalition (a trade association representing the leading global Internet and technology companies), confirmed to Fox News that such a blackout is under consideration. Erickson said, “a number of companies have had discussions about that.”

Currently, opponents have found success in boycotting SOPA supporters. When Go Daddy initially lent its support to SOPA (Stop Online Piracy Act), the company ended up suffering an exodus of domain customers. Those who feel the proposed legislation goes too far responded by sending Go Daddy a message. They spoke with their feet and left the company by transferring their domains to other providers. In order to stop the bleeding, Go Daddy released a statement withdrawing its support of SOPA. (Official statement from Go Daddy: http://www.godaddy.com/newscenter/release-view.aspx?news_item_id=378)

One article that breaks down the intricacies of this controversial legislation is: “What is SOPA Bill 2012? 7 Things to Know About Controversial Legislation” from the International Business Times. http://www.ibtimes.com/articles/272580/20111225/sopa-bill-2012-things-know-controversial-legislation.htm

A pending development in the Copyright Office will result in significant changes in the way an online service provider must designate an agent to receive notice of claimed copyright infringement under the Digital Millennium Copyright Act (DMCA).  As you will recall, an ISP that wants to invoke safe harbor protection under the DMCA for claims of copyright infringement by its users must, among other things, designate an agent to receive notice of claimed copyright infringement from content owners.  Failure to designate such an agent will make an ISP ineligible for DMCA safe harbor protection.

The current method of designating a DMCA agent is based on interim regulations that were promulgated by the Copyright Office when the DMCA was enacted in 1998.  Under the current rules, an ISP submits the name and contact information for its DMCA agent in a paper filing with the Office, which then maintains the information.  There is no enforceable requirement that this information be updated or maintained in a current state.  That obviously can create problems when designated agents change, or companies are bought or sold, or other changes occur at the ISP.

In recognition of these issues, the Copyright Office is proposing to amend its practices governing the designation of a DMCA agent by online service providers.  The proposal is to implement an electronic process under which service providers would designate DMCA agents to receive infringement notices.  If these new regulations are implemented, all online service providers would need to file new designations of agents within one year of the implementation of the new regulations.

The major proposed changes include the following:

• Implementation of an electronic (not paper) process, including an online submission form, by which service providers may designate agents to receive notice of claimed infringement, and the creation of an electronic database to search for designated agents.  ISPs that have already designated an agent under the current regulations will be required to file new designations.  The Office will no longer accept paper submissions.
• Any service provider that has filed an online designation of agent will be required periodically (most likely, every two years) to validate the information in its designation to keep the directory accurate.  Should an ISP fail to validate or amend its designation within the allotted time, the designation would expire and be removed from the directory.  This is significant, given that failure to have a designated DMCA agent will make an ISP ineligible for DMCA safe harbor protection.
• In addition to providing information about its designated agent, a service provider also would need to state its full legal name, physical address, and email address (in addition to that of its agent) so that the Copyright Office can send validation notifications to both the ISP and its designated agent.  Part of the reason for this proposal is to make it harder for rogue companies to hide from content owners who accuse them or their users of engaging in copyright infringement.
• The requirement of an actual signature would be eliminated.  The thinking is that, because all online filings will require the creation of an online account as well as payment of the accompanying fees with a credit card, checking account, or Copyright Office deposit account, the online system will reasonably be able to verify and authenticate the identity of the person submitting or amending the agent designation information.

There are additional proposals on more minor points that I have not mentioned here.  Whatever final regulations are implemented, it will be important for online service providers to submit and update DMCA agent information as required by the Copyright Office so as not to lose eligibility for the DMCA’s safe harbors.

The time for comments and reply comments closed on December 27, so we should expect new, final regulations in the not too distant future.  The proposed rules, plus comments from interested parties, can be found at the Copyright Office at this link:  http://www.copyright.gov/onlinesp/NPR/.

Mr. Borkowski is a partner at Freeman Freeman Smiley, LLP.  He  represents leading entertainment, video game and software companies and industry associations, as well as technology companies.

Recently, representatives from the MPAA and The Net Coalition debated the merits of the proposed Stop Online Piracy Act (SOPA) legislation on Los Angeles public radio station KPCC’s AirTalk. Michael O’Leary, senior executive vice president of the Motion Picture Association of America, exchanged heated comments with Markham Erickson, executive director of The Net Coalition, an organization that represents leading global internet and tech companies such as Google and Amazon. While at times, the discussion devolved into snarky, off-topic accusations of who makes more profits and who is behaving in a more self-serving manner, the discussion was a good representation of the dichotomous positions of the tech industry and the film industry when it comes to SOPA.

The proposed SOPA legislation aims to aggressively protect copyrighted content on the internet by allowing the government to shut down and block access to offshore sites that enable online piracy of copyrighted content. During the discussion on AirTalk, the MPAA’s O’Leary insisted that the legislation is necessary to protect American jobs. He stated that the legislation not only protects creative communities such as the movie and music industries, but also protects consumers by ensuring that the pharmaceuticals, electronics, and fashion items that they purchase online are legitimate and safe.

The Net Coalition’s Erickson countered that although he is not opposed to stopping online piracy, the proposed SOPA legislation is an over-reaching, ineffective piece of legislation that will do little to stop online piracy while at the same time dangerously diminishing internet freedom. Erickson cited the example of Wikileaks to illustrate his point that that stopping payment processors and advertisers from working with offshore sites is an effective solution to the online piracy problem. But, he said, the SOPA legislation goes way beyond that by also having the government impose technological measures that would block users’ access to offshore sites. He stated his concern that this kind of over-regulation would damage the internet’s infrastructure, limit internet freedom, and hamper innovation.

You can listen to the full piece here

(http://www.scpr.org/programs/airtalk/2011/12/21/21848/online-privacy-act/).

Azita Mirzaian earned her J.D. from the University of Southern California Gould School of Law.  Her areas of interest include copyright protection, trademarks, and other intellectual property matters

.

I am so very excited about our upcoming concerts on March 11, the
Shrine performance in April, and of course Carmina in July. We will
resume rehearsals on Monday, January 9 and will immediately begin work
on the Faure, folksongs, and Carmina. Please encourage your colleagues
to audition for the choir. I will be auditioning singers before the
first few rehearsals. Encourage all to audition, but especially
gentlemen. We need to double our men’s sections for the upcoming
performances.

For more information visit Los Angeles Lawyers Philharmonic or email info@lalawyersphil.org.

When you think of Encyclopedia Britannica you probably think of High School research assignments and the voice of authority. I know I do. As a young child I had a Funk-and-Wagnalls set the folks dutifully purchased in installments from the grocery store. Britannica was the gold standard, a reason to go to the library, or a more affluent friend’s house. Britannica was where it was at, the undisputed leader in the encyclopedia space.

That was then. Now we have wikipedia. Where Britannica’s claim was an optimax ratio of authoritative knowledge to shelf space, wikipedia raises the stakes by letting us all participate. Just need a quick fact? You can use wikipedia passively. See something that needs tweaking, a typo or mis-quote? Change it. Better still, read the discussion page and see what has already been said, then make your change in the context of that information. And where Britannica was deemed the final word, wikipedia is just a jumping off point, with reference links galore for those who like to really dig deep on an issue.

As an example, wikipedia founder/contributor “Jimbo Wales”, recently posted the following on wikipedia:

(Please help me publicize this widely.)
A few months ago, the Italian Wikipedia community made a decision to blank all of Italian Wikipedia for a short period in order to protest a law which would infringe on their editorial independence. The Italian Parliament backed down immediately. As Wikipedians may or may not be aware, a much worse law going under the misleading title of “Stop Online Piracy Act’ is working its way through Congress on a bit of a fast track. I may be attending a meeting at the White House on Monday (pending confirmation on a couple of fronts) along with executives from many other top Internet firms, and I thought this would be a good time to take a quick reading of the community feeling on this issue. My own view is that a community strike was very powerful and successful in Italy and could be even more powerful in this case. There are obviously many questions about whether the strike should be geotargetted (US-only), etc. (One possible view is that because the law would seriously impact the functioning of Wikipedia for everyone, a global strike of at least the English Wikipedia would put the maximum pressure on the US government.) At the same time, it’s of course a very very big deal to do something like this, it is unprecedented for English Wikipedia.

SOPA is, as L.A. Progressive readers already know, a terrible bit of legislation, right up there with the Military Commissions Act of 2006 and the Orwellian H.R. 3162 of 2001, lovingly known as USAPATRIOT (and, yes Virginia, someone got paid to work up that false-flag acronym), and one can only hope readers of this site will flood all of their friends and family with Wales’ request for feedback, but the real point of this particular entry is this: Wikipedia is yours. It is a participatory effort to which you are cordially invited. It’s power to the people whether the government likes it or not…unless of course we let the various governments of the world break the interenet with officious nonsense in the name of “fighting piracy”, which brings us to the tech tip for the day:

Pirates notoriously rape, pillage, murder. They are less known for making or sharing unauthorized copies of “Lawrence of Arabia” or “The Hurt Locker”. The use of the word “pirate”, with all it’s truly horrendous connotations, is a technological ploy, using the technology called language, designed to prevent serious, substantive conversation about the pros and cons of various methods of promoting science and the useful arts, much as the “War is Peace” connotations of H.R. 3162, the so-called “patriot” act uses the technology of language to paint anyone who opposes it as a traitor. Today’s tip, then: Be on the look out for when language is being used against you, to bind you, to paint you into a corner, rather than to communicate, as with the so-called “Stop Online Piracy Act“.

Tech Tip: The Pervasive Power of the Plain

November 8, 2011 By Robert Link Leave a Comment

There is some irony in my having been assigned this column. I’m as tech savvy as the next person, I suppose, but my tastes run to the tragically un-hip. I read my email in a way that only shows me actual text, no html, no pictures, and not even black-text-on-white background but a matrixesque green on black, generally.

But it isn’t because I am anti-tech. It is because I am pro-tech and specifically pro-tech-that-serves-me rather than pro-tech-that-serves-the-one-percent. There was a time one could confidently say that the same features that made Windows the easiest interface to learn also made it the greatest host for virus writers. I work with old-school apps and open-source software largely because it just isn’t as heavily targeted.

But it isn’t just protection from third-party malefactors. Corporate software, like other consumer goods, runs largely on the principle of planned obsolescence. The latest new-shiny makes outmoded and outdated the formerly-new-shiny with which one is currently saddled. It takes a real effort of will and appeal to wisdom not to get on the never ending consumer conveyor belt of having the latest greatest gadget.

One facet of the American dream, of course, is a new car every two years. Only a fool would imagine the capital invested in transportation, the tens of thousands of dollars spent on new wheels, could really have reached their useful end a mere 24 months later. That dream was of and for an America of corporate greed and profits.

Now pretend that where I wrote “car” I wrote, “operating system” or “smart phone” or whatever happens to be the hot new-shiny when you read this. While the 1% has most of us on that never ending circle, there are many fine folks making sure you and I have access to the tools we need to get things done, for no more price than downloading it and taking the time to learn a little.

Considering the purported correlations of ease of learning new interfaces and neurological function (and I’m thinking specifically of remarks in Jared Diamond’s “Guns, Germs, and Steel“) one could argue it’s worth your while just for the health benefits.

With the above in mind, then, today’s tech-tip: Learn about charityware, like the venerable text-editor, “Vim, and even if you aren’t likely to take the time to learn how to use the product, consider it an act of faith in the future to make a donation.

Robert Link

Comments welcome at either venue.

The internet is a network of networks. If that sentence makes your eyes glaze over just a bit, if you get a little dizzy just thinking about what the difference is between a giant network and network of networks, you are not alone, but it is an important difference, and without understanding that difference one cannot really appreciate the net neutrality debate.

CRAIGSLIST TERMS OF USE

1. ACCEPTANCE OF TERMS

craigslist provides a collection of online resources, including classified ads, forums, and various email services, (referred to hereafter as “the Service”) subject to the following Terms of Use (“TOU”). By using the Service in any way, you are agreeing to comply with the TOU. In addition, when using particular craigslist services, you agree to abide by any applicable posted guidelines for all craigslist services, which may change from time to time. Should you object to any term or condition of the TOU, any guidelines, or any subsequent modifications thereto or become dissatisfied with craigslist in any way, your only recourse is to immediately discontinue use of craigslist. craigslist has the right, but is not obligated, to strictly enforce the TOU through self-help, community moderation, active investigation, litigation and prosecution.

If you haven’t read through them, the ILTSO Standards are a solid resource for the legal profession. Attorneys, from solos to BigLaw, are look for guidance when using technology in law practice. There is a strong focus in the Standards on the use of cloud computing and mobile devices for law practice. The Standards also include an ethics section. Obviously, the document will need to be updated regularly which is another purpose of this nonprofit.

Google Adwords Rep: Alright well I will actually have to check with my higher up to get this approved because we recently stopped running Adwords for Facebook.

The comments at Tech Blog suggest this might be as simple as retaliation for Facebook having similarly banned ads for the new Google+ service. Others suggest this is more than Gimbles refusing to run ads for Macys and instead calls into question Google’s commitment to principles of so-called “net neutrality.

In making the move – which took effect this past May 1st — EMI is reasserting its exclusive rights to license performing rights for its 200,000-song strong EMI April Music catalog to digital accounts. ASCAP will continue to license EMI’s performance rights with respect to traditional media services, including television and radio stations, according to the announcement.

EMI touts the move as streamlining. But while such a move may streamline rights negotiations with a given publisher, it would seem to generally balkanize the overall licensing process. It seems not unfair to speculate that EMI’s concern is less with streamlining and more with capturing revenues directly rather than through a middle-man.