The following post comes from Dr. Nicola Searle, an economist who specializes in the economics of intellectual property and the creative industries. This post is derived from a paper that Dr. Searle prepared for CPIP’s Sixth Annual Fall Conference.
By Nicola Searle
The last two decades have made for interesting times in the media business. With rapidly changing technology, the digital era released content from the confines of physical formats and introduced a dazzling array of formats, channels, and other key elements of business models.
Business models describe how an organization creates, delivers, and captures value; business models have become increasingly important for companies to adapt to, and harness the opportunity arising from, the digital ear. In digital media, this transformation has been coupled with changing consumer preferences and delivery mechanisms, leading to increased copyright infringement. Unsurprisingly, copyright is a focal point of regulatory discourses in the digital media industry. A key theme has been the interaction of copyright and business models.
Thanks to support from CPIP, I have developed an in-depth analysis of the copyright-business models narrative in the digital media industry. My research uncovered different viewpoints, types of business models, and the existence of an unacknowledged theme in these debates: the legal business model.
Two contrasting perspectives on copyright policy-business models emerge from the research: the first, as in the quote below, where copyright is a fundamental legal tool to support the industry’s business models and the fight against infringement. This view argues that without copyright protection, digital media business models will fail. For example:
Our business is based on a robust copyright framework which allows us to reinvest in the works we produce and licence, anything that could jeopardise it, such as a reduced copyright term or a fair-use system would result in our business model becoming redundant and therefore obsolete.[1]
A second view suggests copyright law restricts business model innovation. This take often cites the wild-west of the early Google business model, and its relatively liberal approach to copyright in the United States, in contrast to more restrictive jurisdictions, such as the UK, where business model innovation has been relatively tame. It is demonstrated by this quote:
Fair use [a copyright exception] may offer benefits for businesses which rely on the reproduction of creative content. To the extent that it offers a broader range of exceptions, it may encourage investment in new business models if firms believe they will neither infringe copyright nor incur licensing costs.[2]
The question then is, does copyright hinder or enable business models in digital media? The answer is that is not the question. This debate is not about business models—it is about the legal business model.
My analysis of over 300 documents from the UK digital media industry identifies a latent concept in these discourses: the legal business model. The discussion is not about business models as such, but as business models viewed via copyright—which I term “the legal business model.”
In a traditional concept of business models, the focus is on value creation through goods or services. In the copyright-business model narrative, the “business model” is actually the legal model shaped and sustained by external legal structures (copyright), where regulations (copyright) create and protect value. It is a subtle difference, but it explains why UK copyright regulations to encourage business model innovation have not been successful and why copyright does not actually feature heavily in the descriptions of business models.
The research identifies various, yet inconsistent, labels for business models, as listed in the table below. The most cited is that of the “traditional model,” namely a model where content is sold directly to the consumer. The “digital model” is very similar—perhaps a digital equivalent of the sales of physical products. Other models talk about delivery and price mechanisms; however, only one business model is directly related to copyright—the licensing model. Only 16% of the business models mentioned in the sample are based on copyright; all the rest are framed instead around elements of the traditional concept of the business model.
In contrast to the drama and dynamism of the digital era and its copyright narratives, business models in digital media are surprisingly stagnant or resilient, depending on the perspective. The core model has not changed. For example, the CEO of Phonographic Performance Limited (PPL), a sound recording collective society in the UK, stated in 2017:
We have a strong and steadfast business model that forms the foundation for our future progress, and positions PPL well to deal with today’s ever-changing, competitive and complex market.[3]
Other authors, such as Feng Li, have also found relative stability in business models in the sector.[4]
Coupled with a further analysis of the discourse, details available in the paper here, a paradox emerges. While copyright-business models insist on a strong link between the two, in practice the industry’s own framing and use of business models downplay copyright. The legal business model offers an explanation: the narrative is copyright-legal business models, not copyright-business models.
Yet, the stability of the existing business models and structure of the industry are not given. Market power has shifted to large technology platforms and gateways, and tensions have emerged. As streaming services that license-in content, such as Spotify, grow, they become increasingly dependent on external content owners. Services such as Netflix and Prime are now content creators, and content creators themselves are launching their own services, such as Disney+. Platforms have also been criticized, as described in the following quote from UK Music CEO Michael Dugher:
Google’s YouTube is the world’s most popular music platform, yet it deliberately chooses to return a pittance to those whose creativity it has built its multi-billion pound business model on. Google remain the vultures that feed off music creators.[5]
Business models and copyright continue to play a part in both regulatory narratives in the industry and the future of the industry itself. However, discussions thus far have not been a true engagement with copyright and business models in the traditional sense—only with debates over the legal business model. Perhaps the correct question is, should business models adapt to copyright, or should copyright adapt to business models?
You might think that a copyright battle waged between tech behemoths Google LLC and Oracle America Inc. about computer code has little to do with the concerns of songwriters, authors, photographers, graphic artists, photo journalists and filmmakers. You would be wrong. These groups all filed amicus briefs with the U.S. Supreme Court in Google v. Oracle, argued on Wednesday Oct. 7.
Google v. Oracle is a long-running copyright dispute in which Google admits that, pressed for time, and wanting to compete with Oracle, it copied more than 11,000 lines of Oracle’s Java software code, as well as the organizational structure of the software program.
In doing so, Google avoided the research and development costs of authorship and even the licensing obligations to make its products interoperate with other Java products those using the code legally took on. Google then began competing with Oracle — earning billions of dollars in revenue using the code and structure it had copied.[1]
Google claims that either the portions of the code it took were not copyrightable or that Google’s use is a fair use.[2] It and its amici — many of whom would prefer reduced intellectual property protections for software to fuel their business models — deploy terms like “permissionless innovation” and “efficient infringement” as a public relations strategy.
However, the Copyright Act is clear that software is copyrightable as a literary work — with no carveouts for particular types of code — and that fair use is a defense to copyright infringement intended to excuse limited uses of works, especially for noncommercial purposes, where the use does not compete with the original work.[3]
That is why Google lost in the U.S. Court of Appeals for the Federal Circuit, where U.S. Circuit Judge Kathleen O’Malley opined “[t]here is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform.”
The First Transformative Use Case at the Supreme Court in a Generation
The Supreme Court has not revisited the transformative use test articulated in Campbell v. Acuff-Rose Music Inc. in 26 years. That case added a new gloss on the first fair use factor — the purpose or nature of the use — courts consider when analyzing a fair use defense.
Artist advocates believe that some lower courts have improperly expanded transformative use over time so that it now includes uses that should be licensed, resulting in losses in income to creators.
Today it is not unusual for defendants to assert arguments that a given use is transformative even if it does not add new expression, meaning or purpose to a work, as Campbell required. It is common to hear policy arguments used to justify the need to copy the creative work of another for the sake of efficiency, or because it will reduce the cost of a product. Notable copyright scholars have even observed that transformative use is becoming a conclusory label that means all things to all people.[4]
Although cloaked in terminology related to software code, all of the familiar transformative use debates were present in Wednesday’s oral arguments in Google v. Oracle.
Google’s counsel, Thomas Goldstein, repeatedly resorted to the public policy arguments of efficiency and cost that rankle artists. At various points Goldstein was questioned by Chief Justice John Roberts and Justices Clarence Thomas, Elena Kagan, Neil Gorsuch and Brett Kavanaugh regarding why Oracle should be penalized for developing a “particularly elegant or efficient or successful or highly adopted solution in the marketplace.”
Goldstein ultimately replied that it would “upend the world” if later competitors were unable to copy popular computer code that programmers had become accustomed to using and “make the creation of innovative computer programs less efficient.”[5]
Google likewise argued that its use of Oracle’s code was transformative because it used the code on a mobile platform rather than a desktop. This argument was refuted by Deputy Solicitor General Malcolm Stewart, who noted that Google copied the portions of Oracle’s code that were used in the smart phone environment, so it did not transform anything.
Moreover, for app developers to have confidence that their programs would trigger the same functionality they had triggered in Java previously, the code had to perform exactly the same function it had always performed.
Hence, Google has not and could not do anything transformative in that sense either. To analogize to a motion picture that has only been released in theaters, he explained if one were to obtain a print of that film and instead stream it on a digital platform, no court would excuse that as a transformative fair use.[6]
Why the Standard of Review Matters
What might seem like an arcane civil procedure dispute over the proper standard of review for a fair use decision may well be the most important issue for artists in Google v. Oracle because it could determine whether cases in which fair use is asserted can be decided by a judge as a matter of law or instead require a trial and determination by a jury.
Google, which has routinely requested that fair use be decided by courts as a matter of law, has raised an argument through its amici that fair use is a question that must always go to the jury.
To put into perspective what this would mean for artists: Because copyright is a body of federal law that preempts state law, it must be tried in federal courts. Most individuals and small businesses cannot afford to bring or defend against even simple infringement actions in federal court. The American Intellectual Property Law Association has estimated that the mean cost of fully litigating a copyright infringement lawsuit is $397,000. Adding a jury trial requirement to these already astronomical costs would put justice ever further out of reach for the majority of the creative community.
Requiring a jury trial on fair use is outside the norm. As counsel for Oracle Joshua Rosenkranz noted, “Professor [Barton] Beebe has identified over 100 fair use cases decided by courts on summary judgment in a 30 year time span. Google could identify only five cases that went to a jury in a similar 30 year span.”[7]
Additionally, fair use is a defense on which both the public and creators depend and that requires stability and predictability so that individuals may make legal and commercial decisions with some certainty that they are not exposing themselves to undue risk. Google often makes these very arguments itself. To leave fair use determinations wholly to juries would undermine that stability and make innovation more dangerous and licensing more challenging.
What Artists Are Watching
Some amicus briefs filed by artist advocates invited the court to take this opportunity to clarify and rein in what they view are overly expansive fair use decisions since Campbell.[8]
Others express worry that
Google has used its unprecedented online footprint to dictate the terms of the market for creative works. By tying together a set of limited exceptions and exclusions within the U.S. Copyright Act and analogous laws in other countries, and then advocating for the radical expansion of those exceptions, Google has amplified its own market power to the great detriment of copyright owners.The more amorphous and unreasonably expansive the analysis and application of the fair use doctrine, the harder it becomes to establish the value of the copyrighted work during licensing negotiations that are the lifeblood of the creative ecosystem.[9]
Dale Cendali, co-counsel for Oracle, is optimistic after Wednesday’s argument and wrote to me in an email:
We are hoping that the Court will uphold the copyrightability of software and protect the incentive to create that the Constitution provides to all creators — big and small. We also are hoping the Court will agree it is fundamentally not fair use to use a work for the same purpose as the original for commercial gain. Moreover, fair use requires a complicated legal analysis that makes it suited to determination by a court as a matter of law — as has been the history of deciding fair use on summary judgment — as opposed to the often unpredictable and frequently unaffordable process of a jury trial.
Conclusion
Artists have much reason for optimism. The weight of the law and the diversity of amici arrayed against Google’s view of copyright is mighty. Beyond the wide variety of independent artists groups mentioned, amici aligned with Oracle also included:
The U.S. government, which has aligned with Oracle under the administrations of both former President Barack Obama and President Donald Trump;
Members of Congress who enacted the provisions of law in question, confirming that they intended to fully protect software without any carveouts or loopholes and that subsequent Congresses have only strengthened those protections;[10]
A member of Commission on New Technological Uses of Copyrighted Works, or CONTU, the special commission convened by Congress to advise it in the late 1970s on whether and how to protect software — confirming that software is protectable as a literary work and that CONTU considered and rejected the arguments Google raises in this litigation;[11]
The former Register of Copyrights Ralph Oman, who served during the time period that protections for software were enacted by Congress and whose role was to advise Congress on copyright matters as it drafted and implemented legislation — noting that Google’s arguments “fly in the face of long-standing principles of copyright law codified in the Copyright Act, which Congress extended to software in 1980 when it amended the Copyright Act explicitly to encompass computer programs”;[12] and
A variety of software and technology companies that depend on copyright protection to facilitate their participation in standards development as well as startup investment and innovation.
There is reason for optimism for all innovators and creators, as Rosenkranz summed up for the court:
The software industry rose to world dominance since the 1980s because of copyright protection, not unlicensed copying. And … the sky hasn’t fallen. [The] six years since the court of appeals’ first decision have brought new bursts of innovation and interoperability. In that time frame, we’ve seen the explosion of interoperability, cloud computing, 5G, machine learning, and autonomous vehicles.
Cases like Google v. Oracle illustrate how important copyright protections are to all authors in safeguarding the excruciating investment they make in taking their work from “the passable to the masterful.”[13]
[13] Joshua Rosenkranz, counsel to Oracle in closing to the court “who will invest the excrutiating time it takes to refine code from the passable to the masterful if all of it can be stolen?”
The following post comes from Bradfield Biggers, a graduate of Boston College Law School and Founder & CEO of Timshel Inc., a music fintech company that provides data-driven cashflow solutions to musical artists in Los Angeles, California. This is the third of three posts (see day one recap and day two recap) summarizing our three-day The Evolving Music Ecosystem conference that was held online from George Mason University Antonin Scalia Law School on September 9-11, 2020.
By Bradfield Biggers
On September 9-11, 2020, the Center for the Protection of Intellectual Property (CPIP) hosted The Evolving Music Ecosystem conference online from George Mason University Antonin Scalia Law School in Arlington, Virginia. The conference featured a keynote address by singer, songwriter, and author Rosanne Cash.
This unique conference continued a dialogue on the music ecosystem begun by CPIP Executive Director Sean O’Connor while at the University of Washington School of Law in Seattle. In its inaugural year in the D.C. area, the conference aimed to bring together musicians, music fans, lawyers, artist advocates, business leaders, government policymakers, and anyone interested in supporting thriving music ecosystems in the U.S. and beyond.
SESSION 5: THE POWER OF DATA OWNERSHIP & ANALYTICS
Access to consumer data and the ability to process and respond to it is perhaps the most valuable component of our digital global ecosystems—no matter the industry. In the music business, collecting and analyzing data about listeners and their habits is occurring on a massive scale, and it’s informing the development of new business models and platforms. But questions of ownership and data sharing loom large, as musicians increasingly realize the value of knowing more about their fans. This panel discussed the current state of data collection and analytics in the music industry and explored ways that big data can foster creative ecosystems for all stakeholders. The panel was moderated by Prof. Sean Pager of Michigan State University College of Law.
Prof. Serona Elton from the University of Miami Frost School of Music kicked off the panel by describing the various places where artist data is aggregated, such as Spotify for Artists, Apple Music for Artists, Soundcharts, and collective management organizations (CMOs). Prof. Elton emphasized that while the number of data sources and quantity of data is extraordinary, the quality of data and specificity of the sources vary drastically. Moreover, while that data is accessible to everyone, the utility and granularity of the data will vary depending on who you are and how you want to use it.
Joshua Friedlander from the Recording Industry Association of America (RIAA) then described the history of data tracking in the music industry. Data analytics became prominent in the 1990s when the RIAA was tracking roughly a billion point-of-sale transactions for recorded music annually. Nevertheless, those billion transactions have been dwarfed by the 1.5 trillion datapoints the RIAA now tracks annually in the U.S. alone. Moreover, where the data of the 1990s merely tracked when and where a record was sold, music industry data today is infinitely more complex. The music data we collect now includes the demographics of the consumer, how long they consumed the song, how often they consume it, and many more analytics that continue past the point of sale or download. As a result, record labels and marketing plans are so intricately related to data that few will approve a marketing campaign without data-backed guidance. Finally, Mr. Friedlander advised artists to retain only representatives who understand and use music data. Without looking at this data to understand the disposition of fans, contemporary artists will have a more difficult time achieving success in this data-driven music business.
Prof. Jake Linford from Florida University School of Law followed Mr. Friedlander’s discussion of the endless potential of artist data with a critical discussion of the safety and usefulness of current data collection and analytics efforts. Prof. Linford agrees that this extraordinarily granular data has unlimited potential, but he also thinks that not all aspects of its potential are positive. For example, the data technology companies collecting from your online consumption habits may be able to help artists and record labels understand what style of music is likely to create the next big pop song. Nevertheless, such data collection can also reveal potentially sensitive information about users, such as political affiliation and sexual orientation. Prof. Linford went on to discuss how this data can also allow AI-driven robots to create compositions without human intervention. While many are excited about the prospect of robot artists, this does create an interesting philosophical debate of what constitutes a creator.
Prof. Tonya Evans then led the panel into a discussion of disintermediation in the music industry. Prof. Evans explained how too many gatekeeper intermediaries in music needlessly create friction. She recommended that blockchain can streamline music distribution and remove many of these costly friction points, which would leave more money for artists. However, despite the promise of modern internet technologies, she recognized that the effectiveness of streamlining music distribution with current blockchain technology is curbed by the pervasiveness of piracy. Prof. Evans then suggested that a solution to music piracy—which could pave the way for efficient music licensing—could be through a disaggregated, decentralized network of blockchain payment and smart contracts. She anticipates that this sort of technological framework could provide the certainty and trust that music stakeholders need to distribute music securely and efficiently.
Finally, Will Page, the former Chief Economist of Spotify, began his presentation by rehashing and analyzing some of the main points made by the prior panelists. Particularly, he found blockchain to be a less capable solution in the music industry because of the issue of conflicting song metadata. Instead, he suggested the creation of a global repertoire database that would provide needed clarity in the music rights environment that regularly misattributes—or outright fails to attribute—artists to particular songs. Mr. Page later suggested that a country’s best solution to straightening out its broken song attribution status quo would be to create a natural monopoly to act as a central copyright depositor to coordinate with licensees. He then went on to stress the importance of music’s big data conversation, which he suggested should drive music innovation over longstanding industry customs. For example, the music industry continues to rely on country-level data for identifying fans because of longstanding touring customs, rather than the city-level data we have access to that is vastly superior due to its granularity.
SESSION 6: ARTIST MANAGEMENT & THE BUSINESS OF MUSIC
In today’s music business, when artists can act as their own producers, promoters, booking agents, managers, etc., is there still a need for traditional representation? What is the role of an artist manager? How has it evolved as the internet and interconnectivity have grown? This panel, moderated by Prof. Robert Heverly of Albany Law School, brought together artists, managers, lawyers, and venue owners to discuss the constant evolution of artist representation and the business of music.
Prof. Olufunmilayo Arewa from Temple University Beasley School of Law opened the panel by explaining how marginalized groups have been short-changed by record agreements in the past. Prof. Arewa described the financial discrimination and general injustice that has been felt by African American musicians for generations. For example, African American R&B artists between the 1960s and 1980s received royalty contract rates worth 20-60% of what were considered standard rates. Moreover, she noted that an additional consequence of failing to compensate African Americans and other groups fairly is that they cannot receive union sponsored health insurance. Finally, Prof. Arewa highlighted that considering the Black Lives Matter movement, there have been various proposals on how to make amends for past royalty rate inequities.
Attorney Lita Rosario carried on Prof. Arewa’s conversation about the injustices felt by marginalized groups by discussing her personal experience litigating unfair royalty agreements on behalf of African American artists. She then outlined her work in striking the down the “sharecropping” agreements between artists and record labels in favor of joint venture arrangements. Ms. Rosario noted that in the traditional sharecropping model, an artist’s royalties must recoup the recording costs before she is given any share of her royalties. In her proposed joint venture agreement, the artist would instead begin to earn royalties on the day the album breaks even. Also, Ms. Rosario noted, while it is a positive that major record labels have committed around $225 million to promote anti-racism, this gives little solace to those who continue to suffer from the chains of inequitable contracts.
Simon Tam of the award-winning band The Slants then brought home the conversation about systemic racism and marginalization in the music industry by speaking about his personal experience navigating injustice. He recalled an incident when a record executive offered his band a substantial record deal, so long as they replaced their Asian lead singer for a white person. The executive said this was because “Asians don’t sell.” Mr. Tam confronted the executive about the racism and walked out on the deal. Since then Mr. Tam and his band have leveraged online independent distribution platforms to release their music, which has allowed them to create a successful career without label involvement. However, he explained that artists who forgo record label agreements will generally need to find the right group of representatives to champion their careers. The music industry is full of complex arrangements and niches, which is extremely difficult to navigate on one’s own.
Ralph Jaccodine, who is an artist manager and a professor at the Berklee College of Music, then rounded out the panel by providing the perspectives of the record label and artist manager. Prof. Jaccodine emphasized that modern artists can no longer confine their activities just to creating music. Prof. Jaccodine believes that artists need to be able to wear a bunch of different hats in the music industry so they can delegate aspects of their business to effective representatives. Artists need to educate themselves about their business and understand how activities from concert promoting to publishing function so that they can hire the right representatives to drive their careers. Without a knowledge of their business, artists can be taken advantage of and will not know if a particular manager or agent is worth hiring. Prof. Jaccodine encourages artists that they don’t need record labels to be successful—just knowledge and a good team.
SESSION 7: SUPPORTING ARTISTS & COMMUNITIES
Recognition of and support for local artists and musicians is vital to the preservation of creative and culturally diverse communities. Whether full-time professional musicians or part-time hobbyists, creative individuals’ contributions to their communities are invaluable and difficult to measure. But like many who make a living through artistic endeavors, musicians often struggle to find steady work and lack the benefits that many of us take for granted. Musicians also often encounter mental health and substance abuse issues at a greater rate than non-artists. This panel discussed ways a vibrant music scene can benefit a community, ways that communities can give back, and resources available to musicians in need. The panel was moderated by John Good of the Washington Area Lawyers for the Arts.
Prof. Ying Zhen of Wesleyan College kicked off the panel by discussing her 2018 survey concerning the wellbeing of modern musical artists. This survey was an in-depth, multidimensional study involving 1,000 artists who identified as full-time musicians with sustainable careers and those who were transitioning into such careers. From this data, Prof. Zhen and her team were able to uncover interesting information about the modern working artist. For instance, Prof. Zhen identified that the median income from music for these artists was $35,000 per year, the median artist has around 3.5 different music income streams, and that one-third of their yearly income came from non-music sources. And while much of her research concerned the financial wellbeing of artists, Prof. Zhen also collected data on their general wellbeing. Unfortunately, this research tended to show that artists found the financial instability of music challenging, drug usage by artists in this survey was higher than the national average, and that 76% of women in music reported experiencing sexual harassment. Although these figures did not paint the rosiest portrait of artist wellbeing, Prof. Zhen hopes this survey will bring about social and financial change by educating artists and policymakers on the everyday struggles of artists.
Jennifer Leff from MusiCares then followed Prof. Zhen’s presentation by discussing the resources that MusiCares, one of the largest artist resource organizations in the world, offers to artists. Specifically, Ms. Leff spoke about MusiCare’s grant program that helps artists who are struggling financially due to the global COVID-19 crisis. To qualify for this program, artists must have five years of music industry experience or be able to show proof of six commercially released tracks. Qualifying artists can request small-quantity grants to pay personal expenses, such as rent, medical care, and other necessities. So far, MusiCare’s grant program has supported over 18,000 artists during the COVID-19 pandemic and distributed $20 million in grant relief. In addition to this grant program, Ms. Leff spoke about how MusiCares looks out for the broader music community by offering educational seminars ranging from money management and tax tips for musicians to addiction and recover information.
Yudu Gray Jr., the co-founder of House Studio, then transitioned the panel from discussing overarching artist support organizations to how artists are handling the state of the music industry today. Through his music production company, House Studio, Mr. Gray has not only helped artists create masterful music productions, but he also concedes that he has helped artists with the “boring stuff” such as LLC registrations and accounting practices. However, this more holistic approach to providing foundational artistic and business services has allowed his artists to achieve global notoriety, as in the case of the Gramm–winning artist Logic. Mr. Gray then discussed his firsthand account of watching artists he works with struggle to pay rent and access other necessities because of the COVID-19 global pandemic. He sees that technology and the music industry are trying to pivot to stay alive, which ends up leaving individual artists behind. Recognizing this inequity, Mr. Gray began to look for ways to help artists get money to finance their projects. This search resulted in House Studio connecting with technology companies like Apple and Amazon to help artists’ projects get funded. For example, Mr. Gray spoke generally of an upcoming project where artists could pitch music video ideas to an undisclosed technology company that would fund the project without demanding rights. The only catch is that the content the technology company funded would be exclusive on its platform for a period of time.
Erik Philbrook from the performing rights organization American Society of Composers, Authors and Publishers (ASCAP) rounded off the panel by providing artists with tips on how they can get compensated for their work. First, Mr. Philbrook emphasized that artists need to register their music properly so that ASCAP and other royalty distributors can identify and compensate artists for their works. Second, he noted that many artists are not collecting their full amount of performance royalties because they only register with performing rights organizations as writers. Mr. Philbrook explained that unless an artist has a relationship with a publisher, the artist herself needs to register as both a writer and publisher with her performing rights organization so that she can receive all of the performance royalties she is due. Finally, Mr. Philbrook wanted to publicize that ASCAP also supports artists with educational materials, seminars, and conferences to teach artists on how to navigate the nuances of the music industry.
CLOSING REMARKS
CPIP Executive Director Sean O’Connor closed the conference by expressing how pleased he was with how smoothly the conference operated and thanking everyone involved in making this conference possible. Prof. O’Connor provided special thanks to the CPIP team, including Prof. Sandra Aistars, Prof. Devlin Hartline, CPIP Deputy Director Joshua Kresh, Kristina Pietro, and Mary Clare Durel, for their phenomenal work behind the scenes. Additionally, Prof. O’Connor acknowledged the financial and general support of the conference’s sponsors, in particular the Recording Industry Association of America (RIAA) and Mitchell Silberberg & Knupp LLP.
Prof. O’Connor then invited artists, academics, and anyone else to join CPIP next year in a follow-up conference that he anticipates will be themed “Rebuilding the Music Ecosystem.”
The following post comes from Bradfield Biggers, a graduate of Boston College Law School and Founder & CEO of Timshel Inc., a music fintech company that provides data-driven cashflow solutions to musical artists in Los Angeles, California. This is the second of three posts (see day one recap and day three recap) summarizing our three-day The Evolving Music Ecosystem conference that was held online from George Mason University Antonin Scalia Law School on September 9-11, 2020.
By Bradfield Biggers
On September 9-11, 2020, the Center for the Protection of Intellectual Property (CPIP) hosted The Evolving Music Ecosystem conference online from George Mason University Antonin Scalia Law School in Arlington, Virginia. The conference featured a keynote address by singer, songwriter, and author Rosanne Cash.
This unique conference continued a dialogue on the music ecosystem begun by CPIP Executive Director Sean O’Connor while at the University of Washington School of Law in Seattle. In its inaugural year in the D.C. area, the conference aimed to bring together musicians, music fans, lawyers, artist advocates, business leaders, government policymakers, and anyone interested in supporting thriving music ecosystems in the U.S. and beyond.
SESSION 3: WHAT IS THE SCOPE OF A MUSICAL COMPOSITION?
Music copyright is unusual in that it can consist of two separate kinds of registered works. Musical compositions are the underlying song, most easily thought of in terms of notated sheet music. Sound recordings are particular performances captured in a recording. This panel focused on current hot topics in the composition rights. Panelists considered: how to determine the scope of composition for composers not fluent in written notation (including social justice aspects); whether and how juries should be used in assessing substantial similarity between works; new distribution and licensing models; whether it makes sense to distinguish compositions from sound recordings in today’s beats-forward studio-based composition approach for pop music; and AI compositions.
The panel included Prof. Robert Brauneis from the George Washington University Law School, Richard S. Busch of King & Ballow, Robert Clarida of Reitler Kailas & Rosenblatt, and Prof. Joseph Fishman from Vanderbilt University. The panel was moderated by CPIP Executive Director Sean O’Connor.
Robert Brauneis started the panel by clarifying that unlike the modern U.S. copyright landscape, the Copyright Act of 1909 required artists to deposit their compositions with the U.S. Copyright Office in the form of music notation to receive federal protection. If the artist submitted only a “lead sheet” with the lyrics and melody, the federal copyright protection was limited to what was in the lead sheet. However, after the passing the 1976 update to the U.S. Copyright Act, artists could deposit sound recordings instead of lead sheets, thereby providing protection for any musical elements in the entire recording. Prof. Brauneis then noted that the courts have regularly identified that the 1976 Copyright Act is retroactive. This means that artists with sound recordings made before 1972 could deposit their sound recordings and receive broad federal copyright protections in their work. This had a big implication because it allowed portions of a sound recording that may not have been notated in a lead sheet to receive copyright protection. This offered artists a broader set of rights in their music, which he argues is much more representative of how we perceive music rather than by the limited notations of lead sheets.
Richard Busch then used Prof. Brauneis’ presentation on the implications of offering copyright protections to sound recording instead of limited lead sheets to transition into a conversation about the notorious Williams v. Gaye lawsuit. Also known as the “Blurred Lines” case, it concerned whether Pharrell Williams and Robin Thicke’s “Blurred Lines” infringed the classic Marvin Gaye song, “Got To Give It Up.” The Blurred Lines case, which Mr. Busch litigated on behalf of the Gaye estate, furthered copyright jurisprudence by cementing that some combination of musical elements—even a unique combination of uncopyrightable elements—can maintain an infringement action. And to provide clarity and closure for those in the audience who did not follow the case, Mr. Busch explained how a similarly placed parlando present in both songs may have brought about the victory for the Gaye estate.
Robert Clarida then returned the conversation to the implication of allowing a sound recording to be deposited with the U.S. Copyright Office. Mr. Clarida noted that lead sheet deposit copies generally leave out many of the characteristic elements of songs, such as the guitar solo in “Hotel California” by the Eagles. To emphasize the importance of allowing copyright protection to exceed the lead sheet, Mr. Clarida highlighted how the strict observation of a lead sheet affected the Skidmore v. Led Zeppelin lawsuit. There, Led Zeppelin was sued for copyright infringement due to a piece that allegedly had similar elements to their megahit “Stairway to Heaven.” However, since Led Zeppelin had only deposited a lead sheet instead of the sound recording, the court remained ignorant about the true aspects of the song embodied in the sound recording. Consequently, the court did not consider the “undeposited authorship,” as Mr. Clarida put it, which could have resulted in an entirely different ruling.
Prof. Joseph Fishman turned the panel towards defining the scope of actionable similarity in copyright infringement cases. He recognized that this was a particularly interesting issue in the Blurred Lines case because it did not concern the top-line melody. Prof. Fishman explained that the earliest infringement lawsuits focused almost exclusively on whether there was a misappropriation of the top-line melody. However, there has been a modern trend of expanding protection to any combination of identifiable musical elements, as evinced by the Blurred Lines court. Prof. Fishman then went on to note that this modern shift in copyright jurisprudence increases the cost and complexity of litigating infringement cases because now they require expert testimony and jury verdicts.
KEYNOTE LUNCH / FIRESIDE CHAT
Singer, songwriter, Grammy winner, and best-selling author Rosanne Cash gave the keynote fireside chat from her home in New York. Ms. Cash is a devout artist advocate and a friend of CPIP, and she has testified to the U.S. House of Representatives on behalf of artists. She is also a major proponent of the Artist Rights Alliance organization.
Prof. Aistars opened the conversation by asking Ms. Cash about her personal music ecosystem. “I don’t ever think about it being all about me,” she responded. Ms. Cash believes the music ecosystem is about “provid[ing] work for each other” and that it relies on flight attendants, audio engineers, bus drivers, background vocalists, and all other tangential participants to function. She finds that everyone in the music ecosystem is family because they all speak the same language and inspire one another. As for her personal music ecosystem, Ms. Cash expressed her gratitude for all of her support—from road crews to studio assistants—and for the devotion of her fan base. However, her music ecosystem’s nucleus centers around her “in-house” producer, co-writer, sound engineer, and husband, John Leventhal.
Highlighting the expanse of Ms. Cash’s definition of what the music ecosystem includes, Prof. Aistars then queried Ms. Cash about what she thinks is the most important element for building a thriving creative community. Ms. Cash emphasized that “support for the arts is key.” She expressed her frustration with how quickly public schools have cut funding for the arts, thus demolishing the foundational support system of creative young students. Ms. Cash’s concern is that while schools are willing to provide support for students who are inclined to pursue math and science, there is a lack of educational support and nourishment for those with creative dispositions. This disparity contributes to a discounting of the arts in the public’s mind and stifles innovation in the American arts.
Ms. Cash also noted that a thriving creative community cannot survive if that community does not support its venues for showcasing the arts as well as those who create it. As small music venues continue to close due to COVID-19’s effective moratorium on in-person live music, Ms. Cash believes the creative communities that rely on those venues will disappear with them. She then stressed the importance of the Artist Rights Alliance and other nonprofit artists’ organizations that provide financial support and health care to artists. She also said that federal and state funding is crucial if artists are to survive this global pandemic. Ms. Cash brought attention to France’s recent budget allocation of $2 billion for supporting artists during the pandemic. She is disappointed that while U.S. legislators have supported other service industries, they are unwilling to put the same level of support towards protecting those who enrich and drive our American culture. As Ms. Cash put it, “We are in the service industry–we serve the heart and soul.”
Prof. Aistars then transitioned the conversation to the lighter subject of Ms. Cash’s creative process—specifically, as a songwriter and best-selling author, if her process varies depending on whether she’s writing prose or lyrics. Ms. Cash prefers to create lyrics in the comfort of her kitchen, which is supplied with a guitar, microphone, and digital audio workstation. Also, she finds that regular breaks are necessary for her creative process when writing songs. Ms. Cash notices that many times, after she’s taken a break to go to the store or run an errand, the song has found a way of finishing itself when she picks the guitar back up.
In contrast to the loose framework of Ms. Cash’s songwriting, she admitted that when writing prose, she appreciates having a word count, a defined topic, and a due date. She believes that song structure is like a house with blueprints: the rhyme scheme and each verse are built together in an existing structure. However, when writing prose, the piece’s blueprint is not as apparent, so she finds it easier to get lost. Consequently, Ms. Cash finds subtle comfort in the certainty of having defined parameters to guide her construction of the prose.
Prof. Aistars then recounted when Ms. Cash testified in front of the House Judiciary Committee on behalf of artists in 2014, which reference gave way to a discussion on Ms. Cash’s further artist advocacy work with the Artist Rights Alliance (ARA). The ARA seeks to achieve fair treatment and compensation for working musicians, performers, and songwriters online through advocacy work and by promoting its “Artists’ Bill of Rights.” Ms. Cash, who sits on the organization’s board, feels passionately about getting the voice of the ordinary musician heard. Although, she readily admits that she is “planting a garden I will never see bloom.” Ms. Cash discussed how she is particularly passionate about having the Artist Rights Alliance help artists receive attribution for their work, prevent politicians and other groups from using an artist’s work to promote their ideologies, and achieve just compensation.
In line with Ms. Cash’s conversation about politics, Prof. Aistars then asked her about how important the First Amendment is to her. Ms. Cash said that as a person who is loudly anti-gun violence and a regular public commentator on politics, she thinks the First Amendment is a crucial part of being an American. Ironically, she mentioned how many people expect musicians to not be involved in political discourse and instead “shut up and sing.” And while pointing out that this request is “anatomically impossible,” Ms. Cash emphasized—referring to a statement by American musician Tom Morello—that she “did not set down my First Amendment rights when I picked up my guitar.” She believes art is supposed to make the audience uncomfortable and arouse feelings, so artists should be encouraged to voice opinions that challenge the political beliefs of others.
Finally, Prof. Aistars concluded the keynote by asking about how Ms. Cash has been affected by the COVID-19 crisis and what others can do to help artists during these difficult times. Ms. Cash reflected on how interesting it is that COVID-19 shutdowns have made her “miss what I wanted to lose.” She discussed how before the pandemic she regularly missed home while touring because the road can be quite taxing. Also, her first true love is songwriting, which she finds difficult to do on tour. However, her long absence from touring due to the global pandemic has made her realize how much she misses connecting with her fans, working with the tour crew, and performing.
Ms. Cash encouraged everyone listening to the fireside chat to not take the message of this conference lightly. She stressed that music communities and ecosystems around the nation and the world are hurting, but there are certainly things people can do about it. She encourages people to donate to organizations that support independent artists directly, such as MusiCares and the Artist Rights Alliance. Also, to support music communities themselves, people need to donate to independent creative venues so that artists have a place to feature their work once people can return to public spaces and concerts. Finally, and most importantly—buy music! Ms. Cash says that if we are going to build a sustainable music industry for everyone, people need to move away from the free tiers of streaming platforms.
Ms. Cash ended the fireside chat with humbling words of appreciation for everyone involved in The Music Evolving Ecosystem conference and by showing a music video of her song “We’re All in This Together.” John Paul White and Ms. Cash wrote this song and made this video during the pandemic shutdowns, and all proceeds from the video go to the Music Health Alliance to help artists receive health care.
SESSION 4: THE NEW ROLE OF RECORD LABELS & PLATFORMS
From MP3s to YouTube to Spotify, the way we listen to music in the digital age has changed considerably over the past twenty years. At a time when physical copy records and full-length albums have been replaced by the streaming single, what role does a record label play? And as traditional lines between creator, copyright owner, and distributor continue to blur, how will labels and streaming services work together to ensure that artists are appropriately compensated and incentivized? This panel, moderated by Prof. Loren Mulraine of Belmont University College of Law, explored recent developments in copyright law as they apply to the music industry and looked ahead to how music ecosystems will evolve in the coming years.
Mitch Glazier of the Recording Industry Association of America (RIAA) began the panel by highlighting that while the COVID-19 crisis has created a sudden shift in the performance and monetization of music, this is not the first time record labels have met the challenges of a seemingly overnight evolution of the music industry. Mr. Glazier explained that over the last twenty years there have been five major inflection points marking evolutionary bursts of the music industry. It began with a Supreme Court victory in MGM Studios v. Grokster that brought certainty to the prospect of legal recourse for rights owners in the lawless landscape of peer-to-peer music piracy of the early 2000s. This was followed by Apple’s iTunes, the first secure, consumer-friendly online music distribution platform. Then, as the 4G internet revolution made mobile music streaming feasible, record labels introduced an entirely new catalog licensing dynamic when they brought Spotify to the United States. Finally, Mr. Glazier identified that the music industry is in the midst of establishing its most recent inflection point, which involves social media. To achieve this inflection point, record labels will need to create a licensing regime with social media platforms that is beneficial to technology companies and profitable for artists.
Mark Baker from Warner Music Group (WMG) then discussed how modern record labels are evolving to fit the contours of this rapidly expanding music landscape. Baker identified that record labels have always amplified the creativity of artists by providing the marketing, licensing, and career development expertise of their staff. And while modern artists have unprecedented access to online distribution and licensing opportunities, putting together a comparable artist development team piecemeal to service an artist’s career is no easy feat. Mr. Baker finds that traditional full-service record label agreements remain essential for many artists, but the needs for other artists have evolved with music technologies. WMG recognized this a number of years ago, which caused the label to create the a la carte artist service company, Alternative Distribution Alliance (ADA). Unlike a full-service record agreement, ADA allows independent record labels and artists to select individual creative services to leverage WMG’s global infrastructure. Mr. Baker suggested that ADA’s a la carte model shows WMG’s commitment to keeping pace with music technology.
Garrett Levin of Digital Media Association (DiMA) then expanded the scope of the conversation from how labels are evolving to digital technology to how artists’ careers can shift to utilize the power of streaming technology. Mr. Levin explained that while record income has dropped dramatically since the late 1990s, streaming revenue and subscriber numbers have been increasing at a promising rate. In addition to the prospect of increased record income, artists receive a multitude of other benefits when they embrace streaming technologies. Specifically, artists have more access to fans and granular consumption behavior data that will change how artists create and operate their business. Mr. Levin went on to suggest that artist-to-fan relations will become closer than ever through this technology’s ability to create custom music programming and connect with fans through their mobile devices.
In contrast to Mr. Levin’s unbridled enthusiasm for digital technologies, Prof. Larry Miller from NYU Steinhardt painted a more cautious picture of streaming. Prof. Miller highlighted that streaming technology’s ability to give consumers access to millions of artists only makes it more difficult to rise above the noise. He insisted that theoretical discoverability in a vast pool of artists is not the same as practical discoverability that will allow artists to create sustainable music careers. Additionally, Prof. Miller suggested that the low royalty rates of streaming have converted music into a consumption business plagued by sales plateaus. These sales plateaus occur because low revenue rates, coupled with the physical consumption limitations of fans, require artists simultaneously to pursue a variety of revenue sources, such as streaming, merchandise, and vinyl. Prof. Miller notes that this is where the expertise, infrastructure, and connections of record labels provide the most value to artists. Finally, he emphasized the importance for music industry participants and students to have a basic understanding of data science to survive in our data-driven music industry.
The following post comes from Bradfield Biggers, a graduate of Boston College Law School and Founder & CEO of Timshel Inc., a music fintech company that provides data-driven cashflow solutions to musical artists in Los Angeles, California. This is the first of three posts (see day two recap and day three recap) summarizing our three-day The Evolving Music Ecosystem conference that was held online from George Mason University Antonin Scalia Law School on September 9-11, 2020.
By Bradfield Biggers
On September 9-11, 2020, the Center for the Protection of Intellectual Property (CPIP) hosted The Evolving Music Ecosystem conference online from George Mason University Antonin Scalia Law School in Arlington, Virginia. The conference featured a keynote address by singer, songwriter, and author Rosanne Cash.
The past year has seen major changes to the music ecosystem and the laws and policies integral to its viability. For example, while the Music Modernization Act (MMA) provided a much-needed update to the way artists’ creative contributions are recognized and supported in the digital age, debates over royalties, infringement, piracy, and new distribution models remain. Diverse issues surrounding ownership and control of data, music festival arrangements, and the nature of artists’ roles in the gig economy have also made headlines. Despite encouraging steps forward and seemingly unlikely partnerships, arriving at a place of balance in music—where respect for artists and others on the music production side is just as important as facilitating innovative models for listener access—requires more work and cooperation.
This unique conference continued a dialogue on the music ecosystem begun by CPIP Executive Director Sean O’Connor while at the University of Washington School of Law in Seattle. In its inaugural year in the D.C. area, the conference aimed to bring together musicians, music fans, lawyers, artist advocates, business leaders, government policymakers, and anyone interested in supporting thriving music ecosystems in the U.S. and beyond.
OPENING REMARKS & INTRODUCTIONS
CPIP Director of Copyright Research and Policy Sandra Aistars opened the conference by noting the aptness of coming together (albeit online) for music during a time when the global COVID-19 crisis has shut down much of the world. Prof. Aistars highlighted how music is a tool for eliciting solidarity during difficult times, and our current global pandemic is no exception. Prof. Aistars described how earlier this year, Italians banded together to play with and for each other from the balconies of their homes during the peak of their COVID-19 national lockdown. She found this brought home the importance of nourishing the music ecosystems that, in turn, nourish our communities.
Prof. O’Connor also wanted to emphasize that The Evolving Music Ecosystem would not be your garden-variety music law and policy conference. Where many music conferences fall into the mold of offering panel after panel of esoteric copyright infringement discussions, Prof. O’Connor wanted this conference to take a holistic approach that covered the entire music ecosystem. And while admitting there would be panels covering the copyright infringement landscape, his intention for this conference was to delve deep into pressing issues for working songwriters, performers, musicians, and other music stakeholders. By aligning with the broader music ecosystem, he hoped this conference would empower not just citywide music ecosystems, but also those spanning the national and the globe.
SESSION 1: IMPLEMENTING THE MUSIC MODERNIZATION ACT
The Music Modernization Act (MMA) is a revolutionary legislative bill that was the result of complex negotiations and compromises among songwriters, publishers, record labels, digital service providers (DSPs), and other music industry stakeholders. The MMA, among other things, set the framework for a new composition database and blanket mechanical licensing system, and designated the Mechanical Licensing Collective, Inc. (MLC) to administer it. Although the MMA was enacted in 2018, discussions of how this licensing system will be implemented continue to be prominent in music industry and academic circles alike. With the MLC beginning to administer blanket licenses under this new licensing regime on January 1, 2021, there is no better time to discuss the implementation of this legislation.
The panel included Danielle Aguirre from the National Music Publishers Association, Adam Gorgoni from the Songwriters of North America, Lisa Selden from Spotify, and Regan Smith of the United States Copyright Office. The panel was moderated by Prof. Mark Schultz of the University of Akron School of Law.
Danielle Aguirre set the stage for the panel by offering background information about how the MLC will administer mechanical licenses as a blanket license and how revolutionary this is in light of the old system of individual licensing. Ms. Aguirre explained that while digital service providers (DSPs), such as Spotify and Google, will fund the MLC, it will be the publishers and songwriters that will actually govern the administration of their royalties. She hopes this separation of funding and administration will align the incentives of DSPs and creators, as well as offer trust and transparency for all music stakeholders. Ms. Aguirre believes that the data quality initiatives and software the MLC is developing internally will allow the MLC licensing system to run as smoothly as possible when it launches at the end of this year.
Regan Smith then offered her perspective from the U.S. Copyright Office. Ms. Smith explained that the MMA created criteria for the MLC to operate, but it also went on to grant the Office discretion to regulate issues or schemes that may arise during the MLC’s implementation that were not contemplated by the MMA drafters. Consequently, the Office has been working with all music industry stakeholders to ensure the MLC comes together smoothly. In addition to the regulatory function, Ms. Smith said that the Office focuses on providing educational programs and materials to educate artists and the public about the MLC.
Ms. Smith was followed by songwriter and Songwriters of North America (SONA) founder Adam Gorgoni, who discussed how the previous licensing regime was unsustainable for artists, spoke on the importance of educating artists about music metadata, and provided insight into how SONA represented artists in the MMA negotiations. Reflecting on the MMA negotiations, Mr. Gorgoni recognized that the legislation was not perfect and that tradeoffs were made, but he was confident that the most important points for artists were included. Ultimately, Mr. Gorgoni found one phrase regarding the creation and negotiation of the MLC to be the most applicable: “Don’t make the perfect be the enemy of the good.” This mantra resonated with rest of the panelists.
Lisa Selden then offered her opinion about the negotiations and implementation of the MMA through the perspective of the licensees. In addition to her work at Spotify, Ms. Selden represents Spotify on the board of directors of the Digital Licensee Coordinator (DLC), which is a nonprofit entity that coordinates and represents the interests of DSPs. The DLC board members include representatives from other prominent DSPs, such as Apple, Amazon, Google, and Pandora. Ms. Selden emphasized the importance of the DLC in relation to the MLC, but she also discussed the challenges of creating a single voice from the diverse motivations of each individual digital DSP.
SESSION 2: THE CHANGING NATURE OF SOUND RECORDING RIGHTS
The sound recording category of music copyrights has been more limited in some ways than the composition category. Sound recordings received no federal protection before 1972 and then afterwards that protection did not apply to terrestrial radio broadcasts. The recent Music Modernization Act (MMA) extended a measure of protection to pre-1972 sound recordings, while proposed legislation would allow sound recording owners to seek compensation from terrestrial radio stations for public performances of their works similar to the system for digital webcasters and streaming. The panel, moderated by Prof. Steven Jamar of Howard University School of Law, discussed the current state of sound recordings, their curious history under U.S. law, and their future in the digital streaming age.
Producer Mikael “Count” Eldridge of Vertebrae Productions opened the panel with a sobering call for an artist-first focus to music industry discourse. He explained how the media and music industry often marginalizes the financial struggles of individual creators when it focuses purely on the macroeconomics of the touring and recording businesses. He believes this flaunting of aggregate music statistics—driven by the top 1% of artists—misleads the public as to the status of artists’ livelihoods and that this in turn perpetuates the myth that the artists on streaming services could earn a living by simply selling t-shirts and touring. Mr. Eldridge stressed that if we cannot increase streaming subscription fees to increase royalty rates for artists, we will lose the music and voices of thousands of independent artists who provide invaluable political and cultural contributions. He concluded by highlighting that many of these issues for independent artists are tackled in his forthcoming documentary Unsound, for which he is currently curating a lecture circuit tour.
Agreeing with Mr. Eldridge’s push for artist-first discourse, SoundExchange’s Brieanne Jackson gave a brief history of how her organization is empowering the lives of artists with its collection and distribution of digital performance royalties. Ms. Jackson then emphasized how SoundExchange not only fuels the lives of modern artists but was also instrumental in getting legacy artists compensation for their pre-1972 sound recordings. Before the MMA was enacted in 2018, artists prior to 1972 received no federal copyright protection or statutory compensation for their sound recordings. However, due in part to SoundExchange’s advocacy, pre-1972 sound recordings now receive protections under the MMA. Today, SoundExchange continues to push for artist sound recording rights in the U.S. by advocating for the Ask Musicians for Music Act (AM-FM Act), which was introduced to the U.S. House of Representatives in late 2019. Ms. Jackson explained that the AM-FM Act would finally provide sound recording rights owners with compensation when their music is played over terrestrial radio.
Attorney Eric Schwartz of Mitchell Silberberg & Knupp carried forward Ms. Jackson’s conversation of pre-1972 sound recordings by diving into how Congress came to include federal protections in the MMA for pre-1972 recordings, as well as its implications for artists. Mr. Schwartz explained that before the MMA, pre-1972 sound recordings were only protected by state and common law instead of federal law. This meant that while pre-1972 sound recordings did not generate digital performance royalties from streaming companies, rights owners had hoped they could use their state rights to pursue more effective infringement actions for online piracy directly, rather than through the broken notice-and-takedown and safe harbors regime of the Digital Millennium Copyright Act (DMCA). However, once the Second Circuit held that the DMCA safe harbors applied to pre-1972 recordings, artists and policymakers began to pursue a digital performance right for rightsholders, which manifested in the MMA.
Mr. Schwartz next highlighted that recent legislation in Canada, as a result of the United States-Mexico-Canada Agreement (USMCA), and a judgment by the European Court of Justice will provide U.S.-based artists the same rights (e.g., national treatment) that Canadians and EU citizens enjoy in their own territories resulting in significant new payments to American producers and performers from these territories. Lastly, he mentioned that the U.S. Copyright Office has proposed a new rule to allow certain artists to register entire albums of up to twenty songs at once, which will greatly cut down the expense and headache of registering copyrights for multiple works.
The final panelist was Todd Dupler of the Recording Academy, who discussed the implications of the MMA’s new “willing-buyer-willing-seller” standard for rate court proceedings and the introduction of the AM-FM Act. Mr. Dupler explained that before the MMA, the standard used to set the statutory royalty prohibited judges from considering what a licensee might pay for a license in the open market. As a result, this standard prevented artists from receiving just compensation for their work. However, with the MMA’s new standard, judges can consider how the fast-paced technology market values music and what a potential licensee may be willing to pay for using music. Mr. Dupler concluded with highlighting the Recording Academy’s advocacy of the pending AM-FM Act, which would provide artists with an additional source of revenue by creating a performance right in sound recordings for terrestrial broadcasts. Importantly, this sound recording performance right would require the radio industry to finally compensate recording artists for their music. However, Mr. Dupler stressed that if artists are going to pass this transformative legislation, they and the public need to “speak out and speak up.”
The following post comes from Liz Velander, a recent graduate of Scalia Law and a Research Assistant at CPIP.
By Liz Velander
Last week, the Senate Intellectual Property Subcommittee, led by its Chairman, Senator Thom Tillis (R-NC), held a hearing entitled “Are Reforms to Section 1201 Needed and Warranted?” The hearing explored Section 1201’s operation, as well as potential reforms to improve the effectiveness of Section 1201 in the administration of the triennial rulemaking proceeding that establishes temporary exemptions. Chairman Tillis was particularly interested in hearing proposals to further streamline the rulemaking process and to amend the statute so that exemptions permit third-party assistance.
The hearing consisted of two panels. First, the U.S. Copyright Office, who administers Section 1201 rulemaking. Second, industry and academic experts who shed light on how Section 1201 has been working for copyright owners and users, and the practical implications of potential reforms. Regan Smith, General Counsel and Associate Register of Copyrights, U.S. Copyright Office, was the sole panelist on Panel I. Panel II included: Vanessa Bailey, Global Director, Intellectual Property Policy, Intel Corporation; Professor Blake Reid, Director, Samuelson-Glushko Technology Law & Policy Clinic, University of Colorado Law School; Matthew Williams, Partner, Mitchell Silberberg & Knupp LLP; Seth Greenstein, Partner, Constantine Cannon LLP; Morgan Reed, President, ACT | The App Association; and Aaron Lowe, Senior Vice President, Regulatory and Government Affairs, Auto Care Association.
Section 1201 of the Digital Millennium Copyright Act (DMCA) protects “technological measures,” also known as “technological protection measures” (TPMs), employed by copyright owners to protect their works from unauthorized access or use. Section 1201 gives copyright owners a cause of action when someone circumvents TPMs that have been employed to prevent unauthorized access or use of their copyrighted works. Common examples of TPMs include password systems that prevent nonsubscribers from accessing streaming services, code that prevents DVDs from playing on unauthorized devices, and code that prevents a purchaser from copying the text of an e-book or sending the file to others.
Congress enacted Section 1201 to foster a lawful online market for copyrighted works while providing several statutory exemptions to avoid impeding lawful uses. For additional flexibility, the law authorizes the Librarian of Congress to adopt temporary exemptions following a rulemaking proceeding administered by the Copyright Office every three years. During the triennial rulemaking, the Copyright Office solicits exemption petitions from the public and develops a comprehensive administrative record using information submitted by interested parties. Based on the evidence submitted, the Register of Copyrights provides a written recommendation to the Librarian of Congress as to which exemptions are warranted, along with proposed regulatory text. Upon the Librarian’s approval, the exemptions are published in the Federal Register and remain in effect for three years.
In the seventh triennial rulemaking (2017-2018), the Copyright Office instituted a new “streamlined” process for renewing existing exemptions. In this streamlined process, proponents of an existing exemption can petition to have the exemption renewed by certifying that they are not aware of material changes in fact, law, or other circumstances that would justify reevaluating the basis for the exemption. If the Copyright Office does not receive an objection outlining relevant new circumstances, the exemption will be renewed without going through the traditional three-step commenting process. These changes have greatly improved the efficiency of the rulemaking process.
On the first panel, Ms. Smith, representing the U.S. Copyright Office, explained the crux of the dispute about Section 1201 reform. On the one hand, “some Section 1201 stakeholders credit the subsequent explosion of legitimate digital dissemination models to the protection established by section 1201 in 1998.” On the other hand, “stakeholders express that the growing ubiquity of software-enabled products in American life—automobiles, refrigerators, medical devices, and so on—raises concerns that Section 1201 may be operating with an unintended reach that the permanent exemptions and the triennial rulemaking only partially address.” In 2017, the Copyright Office “completed a comprehensive study in the operation of the law, taking into account stakeholder perspectives throughout the copyright ecosystem.” It concluded that “while the overall framework of Section 1201 appears to be functioning as intended, the system would benefit from certain updates to the rulemaking procedures, as well as targeted legislative reforms.”
Ms. Smith listed the recommended legislative reforms in order of priority. First, for Congress to provide discretion in the rulemaking to adopt exemptions that permit third-party assistance at the direction of the intended user. Second, for reconsideration of several changes to the permanent exemptions for security testing and encryption research, “including expanding the types of permitted activities, easing the requirements to seek authorization from the owner of the relevant system or technology, and eliminating or clarifying the multifactor eligibility tests for certain statutory exemptions.” Third, for Congress to adopt new permanent exemptions, such as: “an exemption to enable blind, visually impaired, or print disabled person to utilize assistive technologies; an exemption for unlocking used mobile devices; and an exemption to allow diagnosis, repair, or maintenance of a computer program, including to circumvent obsolete access controls.” Finally, Ms. Smith recommended legislation to provide for presumptive renewal of exemptions adopted in the previous rulemaking cycle.
On the second panel, stakeholders argued for and against legislative reform. Ms. Bailey, representing Intel Corporation, testified that “the Librarian of Congress has struck the right balance between ease of use and content protection under the existing regulatory framework.” She described Section 1201 as “the bedrock on which the digital content ecosystem is built.” She urged against legislative revision, arguing that “the reliable protection provided by Section 1201 is essential to the maintenance of industry-standard TPMs and the digital content ecosystem.”
The next panelist, Prof. Reid, strongly disagreed with Ms. Bailey. He represented “people who are blind, visually impaired, or print disabled, educational disability services professionals, and security researchers.” Prof. Reid argued for expansive changes to the triennial rulemaking process, asserting that “the triennial review regularly imposes an unnecessary and unfair burden on decent, hard-working people who play by the rules and who merely seek to go about their livelihoods and serve their communities without fear of breaking a law that could subject them to ruinous liability in federal court litigation or even criminal charges.” Mr. Greenstein echoed many of Prof. Reid’s concerns about Section 1201’s overreach. He proposed a number of legislative reforms to the Subcommittee, such as allowing third parties to obtain the means to circumvent access in order to repair consumer products at the direction of the intended user. “Congress intended Section 1201 is protect copyrights, not business models,” stated Mr. Greenstein.
Senator Chris Coons (D-DE) sought feedback from other panelists about the suggestion that Congress provide the Librarian flexibility to allow consumers to seek third-party help. Mr. Reed, representing the App Association, asserted that we already have a “robust ability” to conduct authorized repair. Ms. Bailey agreed, stating “the Copyright Office has already taken steps to make the exemptions more usable.” She pointed out that “unlike anti-circumvention exemptions, which can be modified or abandoned if they prove less useful than expected, should an anti-trafficking exemption be improvidently granted, the effects on the marketplace would be permanent because the tools can’t distinguish between permissible and impermissible use.”
Senator Richard Blumenthal (D-CT) was specifically concerned about voting machine integrity, asking the panel whether they would support a permanent cybersecurity and voting machine exemption. Prof. Reid stated that such an exemption is “critical to the cybersecurity of this country and the future of our democracy.” Mr. Reed and Ms. Bailey both reiterated their position that a legislative change was unnecessary because the Copyright Office already had the flexibility to address the issue.
The hearing was cut short by a live vote, and Chairman Tillis concluded the hearing by thanking each panelist and stating that they may submit further comments to the record.
As America mourns the passing of one of its great civil rights icons and judicial pathmakers — Justice Ruth Bader Ginsburg — stakeholders and other observers must not only contemplate what her absence means for the upcoming election but also next month’s start of oral arguments at the U.S. Supreme Court.
Among other cases on the docket, the Supreme Court will hear oral arguments in the watershed copyright case Google LLC v. Oracle America Inc. on Oct. 7.
Justice Ginsburg’s Legacy
Justice Ginsburg inspired documentaries and Oscar-nominated, full-length feature films and made cameo appearances in three operas: twice with Justice Antonin Scalia in Richard Strauss’ “Ariadne auf Naxos” and also in Johann Strauss’ “Die Fledermaus,” where she, Justice Anthony Kennedy and Justice Stephen Breyer entered Prince Orlofsky’s ball in the second act of Fledermaus billed as “the Supremes.”
The justice had a deep appreciation for the arts that went beyond her love of opera. Two Mark Rothkos, a Josef Albers and a Max Weber — some on loan from the National Gallery of Art — hung in her chambers, and she took a literature class at Cornell University under Vladimir Nabokov, which she sometimes referred to in interviews and lectures, noting that law should also be a literary profession.
Given her love for the arts, it’s not surprising, then, that Justice Ginsburg was a knowledgeable justice in copyright matters. The justice authored numerous important opinions affecting creators’ rights and was highly respected for her ability to offer clear, concise judgments that were understandable even to ordinary readers.
Some of her most notable opinions in copyright law include: New York Times Co. v. Tasini — upholding protections for freelance authors in the digital age; Eldred v. Ashcroft — upholding Congress’ extension of the duration of copyright for existing and future works as consistent with both the copyright clause and the First Amendment; and Petrella v. Metro-Goldwyn-Mayer Inc. — articulating that the equitable defense of laches cannot be used to bar a claim of copyright infringement brought within the three-year statute of limitations window.
By the end of her career, she had earned the respect of arts and technology lawyers alike. For instance, in 2015 Justice Ginsburg was inducted into the Chiefs in Intellectual Property Hall of Fame for her commitment to the advancement of women in IP and technology careers. ChIPs was started by seven female chief counsels of patents and intellectual property at Silicon Valley companies to promote women in the high-tech industry.
Google v. Oracle: The First IP Case to Be Heard Without Justice Ginsburg
Now, with a momentous, tech-centered copyright case again making its way to the court, there’s a sad irony that one of the most thoughtful justices, able to cut to the heart of a matter and make it readily understandable, is no longer with us. But while Justice Ginsburg’s thoughtful scholarship and legal acumen will no doubt be missed by her colleagues in every case they consider, they’ll have her legacy to guide them in Google v. Oracle.
Google v. Oracle is a relatively straightforward case. Google committed an obvious act of copyright infringement for business convenience. Oracle Corp. owned Java, a creative and intricately crafted work of software, widely popular among device manufacturers and application designers.
Google wanted to compete but didn’t want to invest the time and resources needed to develop its own platform, nor did it wish to take any of the multiple licenses offered by Oracle, which would have required Google to make its platform interoperable with Java. So, Google copied over 11,000 key portions of code, along with the organizational structure and began competing with Oracle — earning billions of dollars in revenue using the code and structure it had copied.[1]
While Google doesn’t dispute that it took the code, it argues that the portions of Java in question are not copyrightable, that fair use justifies its unlicensed usage, and that the Seventh Amendment right to a jury trial prevents an appellate court from overturning a jury’s decision on fair use.[2] All of Google’s arguments are wrong.
Software is copyrightable.
Congress has protected computer code as a literary work under the Copyright Act since 1980, and it has never sought to limit protections applicable to software, despite the many opportunities it has had to do so.
As copyright scholars noted in an amicus brief to the court:
Even [in 1980,] at that relatively early stage in the development of the computer software industry, Congress considered versions of many of the arguments and issues present in this litigation, including whether computer code should be protected as a literary work, the degree to which computer programs can be considered “functional” or necessary “machine-controlled elements” (as opposed to expressive works protectable under the Copyright Act), and the interests of protecting and incentivizing innovation. After careful analysis and debate … Congress legislated that computer programs are protected under the Copyright Act with no qualifications that would differentiate software from any other type of literary work under the statute.
Since 1980, software development has grown exponentially, and its application continues to expand into new industries. Congress has amended the Copyright Act to address issues raised by technological advances in particular industries — by enacting, for example, the Computer Software Rental Amendments Act in 1990, the Digital Millennium Copyright Act in 1998, and the Music Modernization Act in 2018. Congress has not, however, amended the Copyright Act to decrease the scope of protection for computer programs. Because the statutory protections for computer software remain the same as for all other creative works, adopting Google’s position would amount to a judicially created software-specific amendment. It would also result in singling-out the protections afforded to computer programs, which contradicts the plain text of the Copyright Act.[3]
Google’s copying of Java doesn’t qualify as fair use.
Google’s arguments that its theft of Oracle’s code should be excused as fair use — a defense to copyright infringement intended to excuse limited uses of works, especially for noncommercial purposes, where the use does not compete with the original work — also fall flat.
There is no business convenience exception under the fair use doctrine. As the copyright scholars’ amicus brief noted:
Google and its amici try to characterize [their infringement] as “efficient infringement,” or “permission-less innovation.” Yet its conduct is entirely contrary to the goals of copyright law as expressed in the Copyright Act or the Constitution.[4]
In her 2018 opinion for the U.S. Court of Appeals for the Federal Circuit, in favor of Oracle, U.S. Circuit Judge Kathleen O’Malley said as much, writing, “There is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform.”[5]
While there is an essential role for fair use in copyright law, Congress and the courts have set reasonable parameters, which do not include business convenience or efficient infringement.
The Supreme Court can rule on fair use.
Having failed to convince past judges of the merits of its position, Google has now raised the argument that neither the appellate courts below, nor the high court’s justices can reverse the jury trial’s previous findings on fair use. Google made a last-ditch Seventh Amendment procedural argument challenging the standard of review applied by the courts, which the court will also consider.
That decision is also straightforward: The fair use issue was put before the court because of Oracle’s successful motion for judgment as a matter of law. A party is always entitled to a judgment as a matter of law if no reasonable jury could find for the nonmoving party.[6]
The Federal Circuit correctly found that only one finding is reasonable — that it is not fair use to infringe many thousands of lines of creative and intricately designed literary computer code for business convenience and to use it for the identical purpose in direct competition with Oracle.
Or, as Judge O’Malley put it: “There is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform.” Hence, Oracle was entitled to a judgment as a matter of law regardless of the standard by which fair use is determined.
There are of course other, more nuanced, reasons to find for Oracle on this procedural issue as well. On a motion for judgment as a matter of law, the court determines matters of law de novo and assumes that all matters of fact have been found by the jury consistent with the verdict.
In applying the law to the facts, the court determines de novo any mixed questions of law and fact, especially where it is required to “expound on the law, particularly by amplifying or elaborating on a broad legal standard.”[7] Whether a use is a fair use is exactly the kind of determination that presents a mixed question of law and facts to be determined by a judge de novo.[8]
In making fair use rulings, judges routinely are called upon to balance the interests of property owners and the public, to ensure that the intent of the framers of the constitution are upheld by enforcing both the copyright clause and the First Amendment and to apply each of the four fair use factors in a manner that ensures the body of law develops in a stable fashion that the public can rely on. De novo standard of review for such an examination is thus entirely appropriate.
Conclusion
While debates over who will replace Justice Ginsburg are focused on the political makeup of the court, for this case, as well as for many other IP-related matters, decisions are rarely influenced by a justice’s political leanings. The court of course aspires to politically unbiased justice in all matters, but copyright law in particular has always been an area where decisions are rendered without a view to whether one’s politics are progressive or conservative.
Nevertheless, the stakes in Google v. Oracle are high, and a strong opinion from the court is needed to ensure a company cannot blithely assert business convenience when it wishes to appropriate the creative work of another.
Although unlikely, it would be alarming if the court should be split 4-4 in its decision, but were that the case, the Federal Circuit’s ruling in favor of Oracle would stand, and the Supreme Court would not issue an opinion. Such a result, while technically correct, would be anticlimactic for copyright scholars and a missed opportunity for the court to once and for all time do away with the outlandish notion of efficient infringement.
[8] See Harper & Row Publishers Inc v Nation Enters , 471 U.S. 539, 560 (1985) ([w]here the district court has found facts sufficient to evaluate each of the statutory factors, an appellate court ‘need not remand for further factfinding but may conclude as a matter of law that the challenged use does not qualify as a fair use of the copyrighted work.).
On September 21, 2020, Librarian of Congress Dr. Carla Hayden announced that she has appointed Shira Perlmutter Register of Copyrights and Director of the United States Copyright Office.
Ms. Perlmutter has a deep knowledge of copyright law and policy, as well as an appreciation for the nuance with which domestic and international copyright issues must be administered to ensure a flourishing of creativity and dissemination of knowledge to benefit the public. Ms. Perlmutter’s experience as a policy maker in the various government roles she has occupied—most recently as chief policy officer and director of international affairs at the United States Patent and Trademark Office (USPTO), but also in earlier years as Associate Register for Policy and International Affairs at the United States Copyright Office—means she is already poised to consider and take on board the many varying inputs of stakeholders, user communities, and international partners and to advise Congress and other leaders on how to best manage priorities for the public good.
Significantly, Ms. Perlmutter is also a scholar. She taught copyright, trademark, and international intellectual policy at The Catholic University of America’s Columbus School of Law, has authored numerous academic articles, and co-authored a leading international IP law textbook. Her business experience, at law firms and in the private sector, will bring a practical perspective to compliment her public service and her scholarship.
As we celebrate the 150th anniversary of the Copyright Office, the Center for the Protection of Intellectual Property congratulates incoming Register Perlmutter on her appointment as Register of Copyrights and Director of the United States Copyright Office; thanks Librarian of Congress Dr. Hayden for conducting a thoughtful and thorough search; and thanks Acting Register Maria Strong for her dedicated service not only meeting the needs of users of the office, but also bringing to fruition numerous major initiatives, particularly during these challenging times.
The Richmond Journal of Law and Technology (JOLT) has just published a new article by Professor Stuart N. Brotman, the inaugural Howard Distinguished Endowed Professor of Media Management and Law and Beaman Professor of Journalism and Electronic Media at the University of Tennessee, Knoxville. The article, Intersecting Points in Parallel Lines: Toward Better Harmonization of Copyright Law and Communications Law Through Statutory and Institutional Reform, was supported by a Leonardo da Vinci Fellowship Research Grant from CPIP and the research assistance of recent Scalia Law graduate Samantha J. Levin. The article traverses the history and development of copyright and communications law, which have historically followed separate paths, and offers potential ways that they can be harmonized to match the current realities of the media marketplace.
A section of the article is copied below:
Approaches to Better Harmonization between Copyright Law and Communications Law
This Article highlights above the current reality, where copyright law and communications law remain in separate legislative and regulatory domains, yet with overlapping interests as media has increasingly combined content in a phenomenon known as convergence. Looking ahead, there are several approaches to consider that may be beneficial in creating better harmonization between copyright and communications law.
Statutory reform would be the most durable potential route, but also the most difficult to achieve at a political level. Neither the broadcasting nor cable industries have sought to upset the status quo by seeking new legislation, and without their joint support, it is highly unlikely that Congress would be motivated to act on its own. In theory, if Section 111 was deleted from the Copyright Act of 1976, broadcasters and cable operators would need to negotiate directly with each other for retransmitted broadcast programming content. Rates would be set in the marketplace rather than by the current government agency now in charge of statutory royalty rates for cable, the Copyright Royalty Board (CRB), which was created under the Copyright Royalty and Distribution Act of 2004. In turn, the CRB could be abolished outright.
In communications law, a modification to the Communications Act also would need to be made in order to create legislative symmetry. This would involve eliminating the must-carry option in the 1992 Cable Act, except for commercial independent and public television stations that could be guaranteed must-carry status under a grandfather clause. This would mean that the vast majority of the most-viewed stations nationwide would need to negotiate retransmission consent rights in the marketplace, as they already do. In order to phase this in, Congress may wish to enact a sunset provision in the existing Copyright Act that would bring this about on a certain date, while also giving industry players an opportunity to plan accordingly for a post-compulsory license environment.
Although some might argue that leaving both sets of negotiations to the marketplace might result in prohibitively high transaction costs for broadcasters and cable operators, there may be countervailing economies created since both parties could conduct one set of negotiations that covered both retransmission content and signal carriage rights. There also would be no regulatory compliance costs since the CRB would be abolished.
This possible solution is more elegant than realistic, since legislation typically occurs when the affected industries push for Congress to act. Here, the problem is apparent, but the likelihood of logical legislative reform is very low because comfort with the status quo has become the norm.
Consequently, it is useful to consider several incremental approaches that do not require any legislative changes. First, the Copyright Office of the Library of Congress and the FCC can and should begin to work more closely together given the converged and overlapping interests highlighted above. Such coordination is especially important as rapid technology shifts, such as the emergence of major Over-the-Top (OTT) services (e.g., Netflix, Hulu, Amazon Prime), challenge the established business models based on broadcasting and cable television.
Timely data and analysis regarding real-world activities in the brave new world of digital convergence would serve both agencies well. The recently-formed FCC Office of Economics and Analytics can serve as a resource for the Copyright Office as well as the FCC, especially since the Copyright Office does not have a comparable internal unit that it can draw upon for policy initiatives. Enhanced funding might be necessary to accomplish this expanded role.
Both agencies already have the capability to develop Notices of Inquiry (NOIs) to seek information and perspectives from affected industries and the public at large. With greater coordination, they could share the compiled records of separate NOIs, or even develop joint NOIs for topics of mutual interest where a broader base of responses and perspectives could be solicited in a single proceeding.
There can also be a formal designation of the FCC Chairman as the principal liaison to the Copyright Office. This would provide for an institutional structure that could promote cooperative activities at the highest levels of both agencies.
Congress can take advantage of such cooperation through minor legislative amendments to both the Copyright Act and the Communications Act that are not likely to raise any political objections. Congress could require the Copyright Office and the FCC to issue a joint report to the respective committees in the House and Senate on a periodic basis (e.g., every two or four years) that discusses the state of copyright protection on digital media platforms, including broadcasting, cable, satellites and broadband. These reports should reflect affected industry input, and can be useful materials for Congress to consider in formulating any legislative initiatives that would require support by these industry players.
Greetings from CPIP Executive Director Sean O’Connor
August has seen the beginning of a highly unusual school year, but I hope everyone is continuing to stay safe. And, since even a pandemic can’t keep the world from having a busy back-to-school month, I’ll keep this month’s note short.
First, we’re gearing up for The Evolving Music Ecosystem conference on September 9-11, 2020. The conference will be held via Zoom and feature a keynote address by singer, songwriter, and author Rosanne Cash. Registration is still open, and we hope you’ll join us!
Second, I’d like to welcome University of Missouri-Kansas City School of Law Professor Chris Holman as CPIP’s new Senior Fellow for Life Sciences. He will be taking over the role from Professor Erika Lietzan of University of Missouri School of Law, who has been supporting CPIP in that capacity for the past year. (Clearly, we have an affinity for the Show-Me State!) We’re excited to have him join us, and by way of an introduction, we encourage you to check out his recent guest column for The Phoenix advocating for protection of new uses for old medicines.
Third, we are finalizing the schedule for our Eighth Annual Fall Conference, to be held via Zoom on October 7-8, 2020. This year’s theme is 5G at the Nexus of IP, Antitrust, and Technology Leadership.
In other news, CPIP Senior Fellow for Innovation Policy Jonathan Barnettis now blogging at Truth on the Market, a platform for academics and economists to discuss various aspects of business law. You can read his inaugural post here. CPIP Senior Scholar Erika Lietzan has been appointed a Public Member at the Administrative Conference of the United States (ACUS), which focuses on improving the administrative process. CPIP Director of Copyright Research and Policy Sandra Aistarsspoke this past month on a copyright licensing panel hosted by Artomatic with the goal of informing visual artists about essential aspects of copyright law. It has also been a busy month for CPIP Senior Scholars Kristen Osenga and Mark Schultz—I encourage you to keep reading below to keep up with their recent news!
Registration Closing Soon for Evolving Music Ecosystem Conference with Rosanne Cash on September 9-11
Please join us for The Evolving Music Ecosystem conference, which will be held online from Antonin Scalia Law School in Arlington, Virginia, on September 9-11, 2020. The event features three days of panel presentations by leading experts and a keynote address by Grammy-winning singer, songwriter, and author Rosanne Cash.
This unique conference continues a dialogue on the music ecosystem begun by CPIP Executive Director Sean O’Connor while at the University of Washington School of Law in Seattle. In its inaugural year in the D.C. area, the conference aims to bring together musicians, music fans, lawyers, artist advocates, business leaders, government policymakers, and anyone interested in supporting thriving music ecosystems in the U.S. and beyond.
CPIP Senior Scholar Kristen Osenga has published a new paper on patent-eligible subject matter at IDEA entitled Patent-Eligible Subject Matter… Still Wielding the Wrong Weapon–12 Years Later. The paper looks at changes to patent eligibility that have developed since Prof. Osenga published an article on the same subject in 2007. At the time, she concluded that the Patent Office was using the “elephant gun” of new guidelines on the “ants” of patent eligibility. In the new paper, Prof. Osenga traverses the Supreme Court’s subsequent Section 101 decisions that drove the courts and Patent Office to continue wielding an “outsized elephant gun” when it comes to patent eligibility. However, she does note that recent activities at the Patent Office and Congress offer some hope that things may be changing for the better.
Venture capitalists pouring money into a small startup has become a sort of new American Dream for many innovators. The success stories of big American companies starting with nothing more than an idea have pervaded their way into pop culture, inspiring TV shows, movies, and the like. However, CPIP Senior Scholar Mark Schultz has released a new report for USIJ entitled The Importance of an Effective and Reliable Patent System to Investment in Critical Technologies showing that this dream may be harder to attain today due to recent shifts that have weakened the patent system and driven away venture capital investment. Our blog post summarizing the report is available here, and you can read the summary at IPWatchdog here.
Activities, News, & Events
On August 5, 2020, CPIP Director of Copyright Research and Policy Sandra Aistars joined Jaylen Johnson, Attorney Advisor at the U.S. Copyright Office, and Kim Tignor, Executive Director at the Institute for Intellectual Property & Social Justice (IIPSJ), for a virtual panel presentation on copyright protection for visual artists that was hosted by Artomatic. The panel focused on explaining key concepts of copyright law pertinent to visual artists and sharing resources that they can use to learn more about the basics of copyright protection. It also touched on common pitfalls among visual artists when it comes to protecting their creative works, including those that befall joint authors, and common misconceptions about fair use. Our blog post summarizing the event is available here.
On August 25, 2020, CPIP Senior Fellow for Innovation Policy Jonathan Barnett published a new essay at Truth on the Market entitled Will Montesquieu Rescue Antitrust? In the post, Prof. Barnett examines recent pressure on state and federal regulators to use antitrust laws against firms that have established market dominance, and he praises the genius of the eighteenth-century philosopher Montesquieu for developing the theory of separation of powers that allows the judiciary to police overly zealous antitrust prosecutors today. Traversing recent—and failed—antitrust enforcement actions, including AT&T’s acquisition of Time-Warner, Sabre’s acquisition of Farelogix, and FTC v. Qualcomm, Prof. Barnett explains how the judicial branch has become an important counterbalance to prosecutorial antitrust overreach that betrays the fundamental objective of promoting the public interest in deterring anticompetitive business practices.
On August 25, 2020, CPIP Senior Scholar Kristen Osenga published an op-ed in the Washington Times entitled If We Want Innovation, Companies Must Be Able To Rely on Patent Law To Protect Their Investments. The op-ed explains the importance of effective patent protection for innovative companies to develop and commercialize their new technologies. In particular, Prof. Osenga praises the recent antitrust victory of Qualcomm over the FTC in the Ninth Circuit, noting that a “race that results in innovation that other companies, and the public, dearly desires is exactly the point of competition.” Prof. Osenga also authored a recent op-ed for the Richmond Times-Dispatch, With Biomedical Research, Taxpayers Are Getting a Great Deal, explaining how the critics are wrong to argue that the government should take control of important biomedical inventions like remdesivir. She was also quoted in a recent article at Bloomberg Law entitled Court Split Over Driveshaft Patent Muddies Eligibility Question about the Federal Circuit’s recent 6-6 split on whether to review an important patent-eligibility case en banc.
By Nicola Searle
You might think that a copyright battle waged between tech behemoths Google LLC and Oracle America Inc. about computer code has little to do with the concerns of songwriters, authors, photographers, graphic artists, photo journalists and filmmakers. You would be wrong. These groups all filed amicus briefs with the U.S. Supreme Court in Google v. Oracle, argued on Wednesday Oct. 7.
By Bradfield Biggers
By Liz Velander
As America mourns the passing of one of its great civil rights icons and judicial pathmakers — Justice Ruth Bader Ginsburg — stakeholders and other observers must not only contemplate what her absence means for the upcoming election but also next month’s start of oral arguments at the U.S. Supreme Court.
On September 21, 2020, Librarian of Congress Dr. Carla Hayden 
The Richmond Journal of Law and Technology (JOLT) has just published a new article by Professor 
