[A]t least one game maker, the second largest by revenue in the United States, is publicly distancing itself from the gun industry, even as it finds ways to keep the branded guns in the games. Electronic Arts says it is severing its licensing ties to gun manufacturers - and simultaneously asserting that it has the right, and the intention, to continue to feature branded guns without a license.

"It gives publicity to the particular brand of gun being used in the video game," said Brad J. Bushman, a professor at Ohio State University who has studied video game violence. "On the other hand, it's linking that gun with violent and aggressive behavior."

"We're telling a story and we have a point of view," EA's President of Labels Frank Gibeau, who leads product development of EA's biggest franchises, said in an interview. "A book doesn't pay for saying the word 'Colt,' for example."

Put another way, EA is asserting a constitutional free speech right to use trademarks without permission in its ever-more-realistic games.

Aircraft maker Bell Helicopter, a unit of Textron Inc, has argued that Electronic Arts' depiction of its helicopters in "Battlefield" was beyond fair use and amounted to a trademark infringement. EA preemptively went to court, suing Bell Helicopter to settle the issue.

“We have analyzed over 1500 music licensing companies globally, allowing for an accurate assessment of the market place and providing valued insight for artists and the industry.” said Winston Giles, CEO & Founder of The Music Licensing Directory.

The new report highlights that whilst the Music Licensing Industry continues to grow as a multi-billion dollar segment of the global music industry, there remains some unhealthy practices, most notably the prolific practice of retitling. Retitling is where a music licensing company re-registers a song under a different title with a performing rights organization (PRO), allowing for the royalties to be separately tracked when that song is licensed for a specific third party use. This allows the music licensing company to control and earn a significant share of the royalties collected.

As economist Jeff Eisenach testified last year regarding Pandora royalties, "the ratio of Pandora's content costs to its revenues is within Pandora's control: To raise its revenues, it need only choose to sell additional advertising" or find other ways to cash in on its popular and successful product.

Pandora is choosing to limit revenues for now by keeping advertising low and attracting customers to its free service tier.... It's no reason to plead poverty in the face of massive audience growth and "better than expected" earnings reports.

It has been fifteen years since Congress acted expansively in the copyright space. During that period, Congress was able to leave a very visible and far-reaching imprint on the development of both law and commerce. It enacted the Digital Millennium Copyright Act (“DMCA”), which created rules of the road for online intermediaries (e.g., Internet service providers) and a general prohibition on the circumvention of technological protection measures (so-called “TPMs”) employed by copyright owners to protect their content. The DMCA also created a rulemaking mechanism by which proponents could make the case for temporary exemptions to the TPM provisions in order to facilitate fair use or other noninfringing uses (the “section 1201 rulemaking”).

Nonetheless, a major portion of the current copyright statute was enacted in 1976. It took over two decades to negotiate, and was drafted to address analog issues and to bring the United States into better harmony with international standards, namely the Berne Convention. Moreover, although the Act is rightly hailed by many as an accomplishment in balance and compromise, its long trajectory defeated any hope that it could be effective into the 21st century In fact, former Register of Copyrights Barbara Ringer, who had worked closely with Congress for much of the 1976 revision process, later called it a “good 1950 copyright law.”

I think it is time for Congress to think about the next great copyright act, which will need to be more forward thinking and flexible than before. Because the dissemination of content is so pervasive to life in the 21st century, the law also should be less technical and more helpful to those who need to navigate it. Certainly some guidance could be given through regulations and education. But my point is, if one needs an army of lawyers to understand the basic precepts of the law, then it is time for a new law.

A central equation for Congress to consider is what does and does not belong under a copyright owner’s control in the digital age. I do not believe that the control of copyright owners should be absolute, but it needs to be meaningful. People around the world increasingly are accessing content on mobile devices and fewer and fewer of them will need or desire the physical copies that were so central to the 19th and 20th century copyright laws.

Moreover, while philosophical discussions have a place in policy debates, amending the law eventually comes down to the negotiation of complex and sometimes arcane provisions of the statute, requiring leadership from Congress and assistance from expert agencies like mine. The list of issues is long: clarifying the scope of exclusive rights, revising exceptions and limitations for libraries and archives, addressing orphan works, accommodating persons who have print disabilities, providing guidance to educational institutions, exempting incidental copies in appropriate instances, updating enforcement provisions, providing guidance on statutory damages, reviewing the efficacy of the DMCA, assisting with small copyright claims, reforming the music marketplace, updating the framework for cable and satellite transmissions, encouraging new licensing regimes, and improving the systems of copyright registration and recordation.

If Congress considers copyright revision, a primary challenge will be keeping the public interest at the forefront, including how to define the public interest and who may speak for it. Any number of organizations may feel justified in this role, and on many issues there may in fact be many voices, but there is no singular party or proxy. In revising the law, Congress should look to the equities of the statute as a whole, and strive for balance in the overall framework. It is both possible and necessary to have a copyright law that combinessafeguards for free expression, guarantees of due process, mechanisms for access, and respect for intellectual property.

To this end, I would like to state something that I hope is uncontroversial. The issues of authors are intertwined with the interests of the public. As the first beneficiaries of the copyright law, they are not a counterweight to the public interest but instead are at the very center of the equation. In the words of the Supreme Court, “[t]he immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.” Congress has a duty to keep authors in its mind’s eye, including songwriters, book authors, filmmakers, photographers, and visual artists. A law that does not provide for authors would be illogical —hardly a copyright law at all.

The next great copyright act must be forward thinking but flexible. It should not attempt to answer the entire universe of possible questions, but, no matter what, it must serve the public interest. Thus, it must confirm and rationalize certain fundamental aspects of the law, including the ability of authors and their licensees to control and exploit their creative works, whether content is distributed on the street or streamed from the cloud.
This control cannot be absolute, but it needs to be meaningful. After all, people around the world increasingly are accessing content on mobile devices and fewer and fewer of them will need or desire the physical copies that were so central to the 19th and 20th century copyright laws. Thus, Congress has a central equation to consider today: what does and does not belong under a copyright owner’s control. Congress also will want to consider the exceptions and limitations, enforcement tools, licensing schemes, and the registration system it wants for the 21st century.

The scope of the distribution right also is a central theme today, as courts work through whether and how it may be implicated and enforced in relation to use of works over the Internet.58 One key issue in the courts is the degree to which a claimed violation of the exclusive right to authorize distribution of a work requires a showing of actual dissemination of a work or whether the act of making the work available online is sufficient.

One critical issue is the ability of law enforcement to prosecute the rising tide of illegal streaming in the criminal context. Streaming implicates the copyright owner’s exclusive right of public performance: it is a major means by which copyright owners license their rights in sporting events, television programs, movies, and music to customers, who in turn access the content on their televisions, smart phones, tablets, or video consoles. Under current law there is a disparity that may have once been of little consequence but is today a major problem: prosecutors may pursue felony charges in the case of illegal reproductions or distributions, but are limited to misdemeanor charges when the work is streamed, even where such conduct is large scale, willful and undertaken for a profit motive. As a practical matter, prosecutors have little incentive to file charges at all, or to pursue only those cases where the rights of reproduction and distribution are also at issue. This lack of parity neither reflects nor serves the digital marketplace.

This brings me to statutory damages. Some would eliminate the precondition in section 412 of the Copyright Act that limits the availability of statutory damages to those who register with the Copyright Office in a timely manner.74 They believe that it places an undue burden on the people who need statutory damages the most but are least likely to be aware of the condition, namely authors. Cost is also an issue, particularly for prolific creators like photographers, who may be unable to register each and every work under a separate application and have for years enjoyed a reduced rate through a group registration option. This gives photographers the ability to claim statutory damages, but often without providing effective public disclosure of what the group registration covers. Section 412 also acts as a filter, reducing the number of claims from copyright owners and the level of exposure for infringers. Unfortunately, it does this for bad faith actors and good faith actors alike.

Section 412 was designed as a precaution and an incentive in 1976 — a time when the law was moving to automatic protection and many were worried about the ramifications for authors, the public record and the Library of Congress’ collection. Section 412 thus creates a bargain: the copyright owner preserves his ability to elect statutory damages in exchange for registering, thereby ensuring a more complete public record of copyright information and a better collection for the Library of Congress.

[....] More globally, arguments abound on the subject of statutory damages, suggesting that they are either too high, too low, too easy, or too hard to pursue. Statutory damages have long been an important part of copyright law to ensure that copyright owners are compensated for infringement, at least where actual damages are unworkable. The Copyright Act of 1790 included a provision awarding the copyright owner fifty cents for every sheet of an unauthorized copy that was printed, published, or imported or exposed to sale.77 Statutory damages should remain squarely in the next great copyright act irrespective of section 412. However, there may be plenty to do on the edges, including providing guidance to the courts (e.g., in considering whether exponential awards against individuals for the infringement of large numbers of works should bear a relationship to the actual harm or profit involved), and finding new ways to improve the public record of copyright ownership.

The section 512 safe harbors in particular have generated more than their fair share of litigation on issues such as eligibility for the safe harbor, inducement, and monitoring. Some of these issues were imaginable at the time at the time of their enactment, and others were not. There are other concerns that go more generally to the question of whether the burdens of notice and takedown are fairly shared between copyright owners and intermediaries.

On the one hand, Congress may believe that in a digital marketplace, the copyright owner should control all copies of his work, particularly because digital copies are perfect copies (not dog-eared copies of lesser value) or because in online commerce the migration from the sale of copies to the proffering of licenses has negated the issue. On the other hand, Congress may find that the general principle of first sale has ongoing merit in the digital age and can be adequately policed through technology — for example, measures that would prevent or destroy duplicative copies. Or, more simply, Congress may not want a copyright law where everything is licensed and nothing is owned.

Perhaps the next great copyright act could take a new approach to term, not for the purpose of amending it downward, but for the purpose of injecting some balance into the equation. More specifically, perhaps the law could shift the burden of the last twenty years from the user to the copyright owner, so that at least in some instances, copyright owners would have to assert their continued interest in exploiting the work by registering with the Copyright Office in a timely manner. And if they did not, the works would enter the public domain.

Finally, as noted earlier, the copyright law has become progressively unreadable during the very time it has become increasingly pervasive.

When the Copyright Act was enacted, it contained seventy-three sections and the entire statute was fifty-seven pages long. Today, it contains 137 sections and is 280 pages long, nearly five times the size of the original. As former Register Marybeth Peters observed in 2007, the current “copyright law reads like the tax code, and there are sections that are incomprehensible to most people and difficult to me.”

This is not merely a paradox; it is damaging to the rule of law. The next great copyright act should be as accessible as possible.

But in order to have a robust knowledge economy, we need content that is both professional and informal; we need content that consists of information, commentary, and entertainment, or sometimes all of these combined into one; and we need content that is licensed, content that is free, or in some cases, content that is licensed for free.

Instead of planning for a broad reform that would break away with full-on repression of cultural practices based on sharing and remixing, the Commission is setting up a parody of a debate. 75% of the participants to the working-group concerning “users” are affiliated with the industry and the themes and objectives are defined so as to ensure that the industry has its way and that nothing will change. Through this initiative, the EU Commission shows its contempt of the many citizens who participated in defeating ACTA and are still mobilized against repressive policies.

La Quadrature du Net is registered to participate in a working-group of the new “Licences for Europe” initiative called “User-Generated Content”. Everything in its name, theme and mission is biased to fit the views of the entertainment industry – which represents more than 3/4 of the participants! – The working group is meant to focus on “User-Generated Content”, as if works created by Internet users were a different category from “real” cultural works; as if today, everyone was not on an equal footing to participate in culture. The Commission's framing of discussion is subservient to major industrial actors who keep attacking their users' cultural practices and ignore the urgent need to reform copyright.

The working group is supposed to work only on licensing – contracts by the industry in which it controls everything – rather than discuss new exceptions to copyright, which would represent the general interest by allowing not-for-profit sharing and remixing of digital works.

Attendee asks, who gives a licence for mining the Internet?

GEMA went on to sue YouTube in a 2010 test case for distributing copyrighted material without permission — holding it responsible for copyrighted material uploaded by its users. Then in April last year a German court ruled that YouTube must install software filters to prevent users uploading content whose rights GEMA holds.

Die Welt reports that GEMA wants the German Patent and Trademark Office to arbitrate on whether its proposed rate of 0.375 cents per stream is appropriate — but YouTube is arguing for a lower rate.

A Hamburg court is already arbitrating another row between GEMA and YouTube over how the platform should be defined. GEMA claims that YouTube is a content provider whose business model is built on content that is subject to royalties. YouTube, on the other hand, says it is a hosting service which simply makes space available to its users.

GEMA is demanding that YouTube take down the on-screen notice blocking music videos in Germany that blames GEMA for the impasse. In November last year, GEMA head Harald Heker accused YouTube of deliberately misleading German users with the notice.

"The notice about GEMA is being posted wilfully, purely to stir opinion," he told WirtschaftsWoche magazine at the time. "YouTube is trying to awaken the false impression that the failure to license is GEMA's responsibility. That is simply wrong."

YouTube believes that rights holders and artists should benefit from their work. We have dozens of collection society deals in place across more than 45 countries because we provide an important source of income for musicians and a platform where new artists can be discovered and promoted. Music labels are generating hundreds of millions of dollars on YouTube every year. Artists, composers, authors, publishers, and record labels in Germany are missing this opportunity as a result of GEMA’s decisions. We remain committed to finding a solution with GEMA compatible with YouTube’s business model so that we can again provide a source of revenue for musicians and a vibrant platform for music lovers in Germany.

“We are pissed,” Edison Junior CEO Jamie Siminoff told me on the phone today. “I think they are being a bunch of assholes, and I think they’re hurting their customers.”

... the phoney war has turned into a real one, with the NLA chasing agents, threatening legal action and demanding not just license payments for future quotes but also retrospective payments for past ones.

The amounts are crazily excessive for the modest, shoestring operations that most classical music management and PR companies tend to be, with £7,000-£8,000 a typical demand.

The most outrageous example... concerns a small PR company called ElevenTenths, which is effectively one woman, Claire Willis, working form a spare bedroom.... Poor Ms. Willis was collared by the NLA a few months ago, required to fill in forms about her clients and activities, and then received a bill for £23,500.

Despite its position, Apple maintains that it is entitled to specific performance in the form of the court determining what a FRAND rate is for Motorola's patents. At the final pretrial conference, I asked Apple to explain why it believed the court should determine a FRAND rate even though the rate may not resolve the parties' licensing or infringement disputes. I questioned whether it was appropriate for a court to undertake the complex task of determining a FRAND rate if the end result would be simply a suggestion that could be used later as a bargaining chip between the parties. Apple responded that the rate would resolve the dispute in this particular case, namely, whether Motorola's license offer was FRAND and if not, what the rate should have been.

Apple's response was not satisfactory and did not assuage my concerns about determining a FRAND rate that may be used solely as a negotiating tool between the parties. After further consideration, I believe it would be inappropriate to grant Apple's clarified request for specific performance.

Apple's allegations of "irreparable harm" have at least two problems. The first problem is that Apple's request for specific performance in the form of court declaration of a FRAND rate without any obligation by Apple to accept the rate would not prevent Motorola from suing Apple for patent infringement and requesting injunctive relief. In other words, if Apple refuses to be bound by the rate determined by the court, Motorola could continue to sue Apple for patent infringement and request injunctive relief.

The second problem is that Apple has provided no reason why its injuries would not be remedied by an award of money damages.

The last major EU copyright instrument, the Copyright Directive, was adopted in 2001. The Commission proposals it was based on date back to 1998.

Let's remind ourselves what's happened since then.

In 1998, Mark Zuckerberg was 14. Today, almost one billion people around the world actively use Facebook, to share photos, videos, and ideas.

In 1998, YouTube didn't exist. Today, one hour of video is uploaded every second.

In 1998, most people listened to music on the radio, CD or tape. Now digital downloads often overtake conventional sales. New technologies allow downloading or streaming; easily, instantly, wherever you are. Not just to passively listen, but to interact and give feedback, to creators and friends.

But changes are not limited to the content business, they affect all sectors. Huge changes have taken place in the research area. Today, new scientific discoveries don't just come from new experiments, new drugs, new clinical trials: in fact, now, we can get new results by manipulating existing data. Data and text-mining techniques now lie behind a huge field of research, like human genome projects, potentially life-saving. They could hold the key to the next medical breakthrough, if only we freed them from their current legal tangle. Research activities are not clearly exempted from the copyright rules and there are many different rules in the 27 member states.

And here's the most important change since 1998. Back then, creation and distribution were in the hands of the few. Now they are in the hands of everyone: democratising innovation, empowering people to generate and exchange ideas, supporting and stimulating huge creativity.

Well for one thing, you often find that online licensing restrictions make it impossible to buy music legally. Sometimes, for example, you can't buy an MP3 across an EU border.

We have already made a proposal on orphan works and recently one on collective rights management, to make multi-territorial licensing easier. The licensing proposal is a good step forward to make it easier to legally access the music you love, especially across borders. I hope legislators are able to agree it quickly. But this tackles only one aspect of the problem.

Because there are other problems too beyond licensing or orphan works. That's why the June 'Compact for Growth and Jobs' makes clear we need to focus also on substantive copyright reform.

And quite right too. For example, I ask myself, are current copyright rules favourable to potentially life-saving scientific research or do they stand in its way?

Do they make it easier or harder for people to upload and distribute their own, new creative content? And is that the best way to boost creativity and innovation?

Someone who owned 10,000 hardcover books and the same number of vinyl records could bequeath them to descendants, but legal experts say passing on iTunes and Kindle libraries would be much more complicated.

And one's heirs stand to lose huge sums of money. “I find it hard to imagine a situation where a family would be OK with losing a collection of 10,000 books and songs,” says Evan Carroll, co-author of “Your Digital Afterlife.” “Legally dividing one account among several heirs would also be extremely difficult.”

Apple (US:AAPL) and Amazon.com (US:AMZN) grant “nontransferable” rights to use content, so if you buy the complete works of the Beatles on iTunes, you cannot give the “White Album” to your son and “Abbey Road” to your daughter.

According to Amazon’s terms of use, “You do not acquire any ownership rights in the software or music content.” Apple limits the use of digital files to Apple devices used by the account holder.

“The lack of a performance royalty for terrestrial radio airplay is a significant inequity and grossly unfair. We can’t start a race to the bottom when it comes to royalty rates and compensation for artists," Nadler said in a statement. "The Interim FIRST Act would provide artists with fair compensation for the valuable creations they share with all of us."

What is your main goal for this use?

In your original enquiry you have noted that you intended to make a video for the song but have said "maybe" in your request form. Is this principally for release as an mp3 single?

To be honest, my main intention is to make the song for my own amusement.

If I play it to few people who agree with me that it's fun and good, then I'll think seriously about making a video as cheaply as possible and releasing it on YouTube. I have a few people who are interested in helping with that, though they wanna hear it first.

If it gets any traction on YouTube, then I'll think about releasing it as an MP3 and via iTunes, etc ... I just wanted to clear everything properly first.

I just want to clarify with you that we are the licensing department of EMI Publishing, so we are quoting you on the synchronisation rights if you intend on using the work in a video clip. If you want to request approval to record and release this song you will need to get in contact with our copyright department.

Will you be getting a mechanical license from AMCOS before putting this song on youtube or will you be putting it on youtube before you get a mechanical license?

That depends on whether I am allowed to use Sony's backing music or whether I have to completely re-record it myself ... still no word from Sony.

My instinct is to clear everything before I do anything. If I know what it's all gonna cost me I can do up budgets and set targets and so on. I just figured that securing permission was the first step ...

So does this mean that you do not intend to release the song with a mechanical license prior to putting a video on youtube?

If you intend on getting a mechanical license first you will need to get approval to record and release an adaption but if you do not intend on releasing the song first you will need a synchronisation license.

We can not give you permission to do anything with the song until you commit to a sync license (internet video) or a mechanical license (release) so please confirm if and when you are ready to proceed.

OK, so let me get this straight: EMI will not contact the writer and ask for permission for me to make a parody unless I fork out $1000 upfront and possibly also a mechanical license ... for a song I might not be given permission to make and that might turn out to be unreleasable ...

Alternatively, they won't ask for permission for me to record the parody until ... I've recorded it and know what I'm gonna do with it. No wonder people are just breaking the rules and doing what they want with recorded music!

Even the European Commission has noticed that this is a problem, and has proposed bringing in a new directive to tackle it:

New digital technologies are opening up great opportunities for creators, consumers and businesses alike. Increased demand for online access to cultural content (e.g. music, films, books) does not recognise borders or national restrictions. Neither do the online services used to access them. This is where collecting societies come into play, in particular in the music sector, where they collectively manage the licensing of copyright-protected music tracks for online use on behalf of composers and lyricists and collect and redistribute to them corresponding royalties.

However, some collecting societies struggle to adapt to the requirements of the management of rights for online use of musical works, in particular in a cross-border context. As a result of today’s proposal, those collecting societies willing to engage in the multi-territorial licensing of their repertoire would therefore have to comply with European standards. This would make it easier for service providers to obtain the necessary licences for music to be distributed online across the EU and to ensure that revenue is correctly collected and fairly distributed to composers and lyricists.

Neelie Kroes, Vice-President of the European Commission, and certainly one of the most rational/radical members there, has written an extremely interesting blog post about the new proposals. She begins:

Last week’s vote on ACTA -- although hardly a surprise for those who’ve been following – was a reminder about the big debate currently going on, about how to balance intellectual property rights with Internet freedoms

For me it’s about making it easier for artists to promote their work widely, and make a living from it: without constraining the immense innovation of the online world. And, for me, the current copyright system achieves all of those objectives poorly.

That’s why I’m convinced we need to reform copyright for the digital age. For me, merely making enforcement more and more heavy-handed is not the solution -- especially if it results in draconian measures like cutting off internet access.

But a good start – and I hope a principle on which everybody could agree – is that we should make it easier to legally access the content you love.

Unfortunately, it seems that Gallo will also be the rapporteur on this new music licensing proposal. Assuming she gets her way, that pretty much guarantees that any directive that emerges from the long process of political wrangling won't do much to address the deep underlying problems with music licensing. It may even make them worse, judging by what happened with the hostage works directive under her guidance.

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The mystery woman accompanied the young leader to a Pyongyang theater on Friday night to watch a performance of North Korea's Moranbong band. The display included a cast of Disney characters, attracting the attention of The Walt Disney Company which issued a statement Tuesday saying it had not authorized their use.

Among the studios with WikiLeaks movies in development are Time Warner Inc.'s HBO Films, DreamWorks Studios, Comcast Corp.'s Universal Pictures and Annapurna Pictures, the company run by Megan Ellison, daughter of Oracle Chief Executive Larry Ellison.

But there are signs that the IV magic is fading. Here, for example, is a report of Myhrvold's appearance at D: All Things Digital this year, under the headline "Nathan Myhrvold on Being the Most Unpopular Guy at D10":

Myhrvold made the case to the crowd, though probably unsuccessfully, that his company serves a purpose similar to that of venture capital or private equity in the process of aiding innovation.

Myhrvold also quoted his own past statement at an earlier D conference, saying, "If people don’t find what you are doing threatening, then it is probably not very important."

Instead, it really seems no different from your common-or-garden troll, hoping to hit the jackpot by picking up a patent that a successful company later finds it simply must license or risk going out of business. Leaving aside the morality of such an approach, it's inherently risky: IV has to hope that enough other companies come up with the actual valuable innovations that its patents can then parasitize.

The comments above could be the first straws in the wind that business opinion is starting to turn against Myhrvold. It will be interesting to see if IV starts suing companies more aggressively in an attempt to get the money rolling in -- and what it does if that fails to deliver the kind of returns investors are presumably hoping for. That could well happen if those being sued sense that IV is under pressure, and decide as a result to opt for a long, hard -- and expensive -- fight in the courts to exploit that fact.

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A 2010 study of the effects of this legislation on university patenting activity provides a concrete and detailed example of the positive effect the introduction of technology transfer mechanisms can have. The study examines patents granted to 174 Taiwanese universities during the period of 2004 to 2009 and compares this to the period preceding it. Strikingly, the study finds a sharp and sustained increase in university’s patenting activity: patenting increased from 446 patents in 2004 to 1,581 by 2009. This is an impressive increase of 354%. As importantly, apart from a slight drop in 2007, this growth has been progressive and sustained year after year.