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Compromise Music Modernization Act Will Bring Old Sound Recordings into The Public Domain, Tiptoe Towards Orphan Works Solution (Copyright)

by Mike Masnick

from the some-good-things dept on Wednesday, September 19th, 2018 @ 3:23AM

Earlier this year we wrote about the significant concerns we had with the CLASSICS Act, that sought to create a brand new performance right for pre-1972 sound recordings, requiring various internet platforms to pay for that additional right to stream such music. As we've discussed for years, pre-1972 sound recordings are kind of a mess in the copyright world. That's because they weren't covered by federal copyright law -- but rather a mess of state laws (some statutes, some common law). Historically, none of that included a performance right, but some courts have recently interpreted one to exist (while others have said it doesn't). On top of that, some of those state laws mean that certain works will remain covered by copyright for many decades after they would have gone into the public domain under federal copyright law.

Many people have advocated for "full federalization" of those pre-1972 works, taking them away from those state copyright laws, and putting them on an even playing field with all other copyright-covered works. There is an argument against this, which is that doing so also creates brand new rights for works that are decades old, which clearly goes against the purpose and intent of copyright law (incentivizing the creation of new works for the public), but given what a mess having two (very different) systems entailed, it seemed like full federalization was the most sensible way forward.

Of course, rather than pursue that path, the RIAA pushed through something much worse and totally one-sided. The CLASSICS Act created a new performance right for pre-1972 sound recordings, but left out the federalization part. In other words, the copyright holders would get all of the benefits of this new law, and the public would still be unable to have these recordings go into the public domain for many, many decades. Senator Wyden introduced an alternative bill, the ACCESS Act, which pushed for full federalization.

Over in the House, the CLASSICS Act was unfortunately merged with a separate bill, the Music Modernization Act (which is mostly uncontroversial) and voted through unanimously. However, it hit a stumbling block in the Senate -- leading to negotiations to create a compromise between Wyden's ACCESS Act and the original CLASSICS Act. That compromise has now been released and... it's actually fairly decent. To be clear, this is not how anyone would draw up copyright law from scratch, and there are still bits and pieces that concern me in the bill. But compared to where we were with the CLASSICS Act, this is a pretty big improvement. It does still create this brand new performance right for pre-1972 works, which seems to totally undermine the point of copyright law, but seeing as that was going to happen no matter what under the original CLASSICS Act, the compromise here seems much better -- as it makes sure that even as those works get this new right, they also will move into the public domain much faster than they otherwise would.

The key elements in this compromise bill include full federalization of pre-1972 sound recordings, putting all copyright works under the same system. There is a slightly weird tiered system for gradually moving pre-1972 sound recordings into the public domain where they belong. The new rules set a copyright term of 95 years after the date of publication -- bringing works into the public domain much sooner than they would have been if they remained under state law (where the term could have gone up to 190 years or so). And then there's a set of "transition" periods for works to get them into the public domain:

PRE-1923 RECORDINGS.β€”In the case of a sound recording first published before January 1, 1923, the transition period described in subparagraph (A)(i)(II) shall end on December 31 of the year that is 3 years after the date of enactment of this section.

1923 - 1946 RECORDINGS.--In the case of sound recordings first published during the period beginning on January 1, 1923, and ending on December 31, 1946, the transition period described in subparagraph (A)(i)(II) shall end on the date that is 5 years after the last day of the period described in paragraph (A)(i)(I).

1947-1956 RECORDINGS.--In the case of sound recordings first published during the period beginning on January 1, 1947, and ending December 31, 1956, the transition period described in subparagraph (A)(i)(II) shall end on the date that is 15 years after the last day of the period described in subparagraph (A)(i)(I).

The really key part here is that first batch. Those are works where they should already be in the public domain under US law, as pre-1923 works are deemed to be in the public domain under federal law. But, since state laws have gone on much longer, we've locked up tons of important early US sound recordings, especially a ton of early jazz recordings that almost no one can hear. Under this law, those works will come into the public domain three years after the law is in place. Some will argue (reasonably!) that this is already too long, and you'd be right (also, that it's weird to give those very old works a new right just for a three year period). But it's better than having to wait until 2067 for them to be freed up entirely.

Now there's a second important idea put into this new bill -- which is a very, very, very light touch "orphan works" proposal. For decades now, plenty of people in the copyright space have fretted over what to do with the orphan works issue. This is an issue created by our own stupid copyright policies, in which, because the law no longer requires registration, there are billions of works where it is unclear who holds the copyright on those works, or even if there's any copyright at all. It's been a problem for many years that can seriously impact our ability to preserve historical culture, among other things.

Of course, every time Congress (and the Copyright Office) suggested proposals to deal with this issue (even bad suggestions and really bad suggestions), some copyright holders (mainly photographers) would freak out, and misleadingly claim that orphan works laws were designed to strip them of their copyright.

So, this new amended bill creates a very minor tiptoe towards an orphan works concept, just with sound recordings and only for "certain noncommercial uses of sound recordings that are not being commercially exploited." This is way, way, way too limited, but it's a start. Under the rules, someone engaged in non-commercial use (and boy, I can't wait to see the litigation fights over what counts as commercial v. non-commercial use...), has to make a "good faith, reasonable search" to see if a work is being commercially exploited. Following that, they have to file a notice with the Copyright Office announcing their intention to use the sound recording, allowing a 90 day period for someone to object. If there are no objections then, the work may be used in such non-commercial projects. This is extremely limited (way too much so), but hopefully will be useful to sites like the Internet Archive and various libraries. It would be nice if it went much further, but considering that no attempt to deal with orphan works has ever gone anywhere, this seems like at least a tiny step in the right direction. At the very least, hopefully it can be used to show that the world doesn't collapse when there is a way to make use of orphan works when the copyright holder cannot be found.

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For Some Reason, BMW Is Asking For More Time To Oppose The Latest Gwen Stacey Character Trademark (Trademark)

by Timothy Geigner

from the two-car-monty dept on Tuesday, September 18th, 2018 @ 7:47PM

If you feel like you're about to get a silly trademark story, your spidey-sense is working. We'll keep this short and sweet, but this whole thing centers around Gwen Stacy, otherwise known as Spider-Woman. But because this is Marvel we're talking about, there is also something of an alternate universe version of Gwen Stacy, in which she went by the name Spider-Gwen, but has more recently had that character rebooted as Ghost-Spider.

Confused yet? Well, it's about to get worse.

When Marvel applied for a trademark on the Ghost-Spider name, two different companies asked for more time to oppose the marks. One opposition likely makes some sense and might be rather limited to the sports equipment and apparel markets that Marvel asked for in addition to comic books. That one comes from golf club manufacturer Taylor Made, which happens to make a putter line called Ghost Spider, with the apparel to match it.

It's not an objection to the comic book trademark, but rather to the more wider ranging products that Marvel is claiming a trademark for. Maybe Marvel might agree to a change in category or working?

Basically, Marvel applied for the Ghost-Spider mark for every market under the sun and Taylor Made appears to only want to challenge the registration for the markets in which it operates. Makes a fair amount of sense.

So why is BMW also opposing the mark?

John G. Froemming and Jessica D. Bradley, lawyers at Washington DC legal firm Jonas Day represent Bayerische Motoren Werke Aktiengesellschaft – better known as BMW. And they have issued a request to the United States Patent and Trademark Office for an extension of time to oppose the trademark.

There's no real detail to go on, so we're left to speculate exactly what BMW's problem with the Ghost-Spider name would be. The folks at Bleeding Cool think they've figured it out. But if they're right, BMW doesn't have a valid opposition.

BMW has the Spyder models. And it owns Rolls-Royce, with the Ghost models.

Two different brands under two different makes of car does not customer confusion make. If that really is the story here, it would be much better if the folks at BMW didn't waste everyone's time, because that's the kind of opposition that will get tossed immediately.

Meanwhile, maybe the folks at Marvel can dream up a few more alternate realities, including one where trademark law wasn't so completely busted.


Congressional Research Service Reports Now Officially Publicly Available (Politics)

by Mike Masnick

from the huge-news dept on Tuesday, September 18th, 2018 @ 3:44PM

For many, many years we've been writing about the ridiculousness of the Congressional Research Service's reports being kept secret. If you don't know, CRS is a sort of in-house think tank for Congress, that does, careful, thoughtful, non-partisan research on a variety of topics (sometimes tasked by members of Congress, sometimes of its own volition). The reports are usually quite thorough and free of political nonsense. Since the reports are created by the federal government, they are technically in the public domain, but many in Congress (including many who work at CRS itself) have long resisted requests to make those works public. Instead, we were left with relying on members of Congress themselves to occasionally (and selectively) share reports with the public, rather than giving everyone access to the reports.

Every year or so, there were efforts made to make all of that research available to the public, and it kept getting rejected. Two years ago, two members of Congress agreed to share all of the reports they had access to with a private site put together by some activists and think tanks, creating, which was a useful step forward. At the very least, we've now had two years to show that, when these reports are made public, the world does not collapse (many people within CRS feared that making the reports public would lead to more political pressure).

Earlier this year, in the Consolidated Appropriations Act of 2018, there was a nice little line item to officially make CRS reports publicly available.

And, this week, it has come to pass. As announced by Librarian of Congress Carla Hayden, there is now an official site to find CRS reports at It appears that the available catalog is still limited, but they're hoping to expand backwards to add older reports to the system (a few quick test searches only shows fairly recent reports). But all new reports will be added to the database.

The result is a new public website for CRS reports based on the same search functionality that Congress uses – designed to be as user friendly as possible – that allows reports to be found by common keywords. We believe the site will be intuitive for the public to use and will also be easily updated with enhancements made to the congressional site in the future.

Moving forward, all new or updated reports will be added to the website as they are made available to Congress. The Library is also working to make available the back catalog of previously published reports as expeditiously as possible.

This is a big deal. The public pays over $100 million every year to have this research done, and all of it is in the public domain. Starting now, we can actually read most of it, and don't need to rely on leaks to find this useful, credible research.


Techdirt Podcast Episode 183: No Easy Answers For Content Moderation ((Mis)Uses of Technology)

by Leigh Beadon

from the aint-so-simple dept on Tuesday, September 18th, 2018 @ 1:30PM

We've done it — we've solved the challenge of content moderation! (Checks notes). No, wait, sorry: we haven't. But what we have done is invited Kate Klonick, law professor and author of the excellent paper The New Governors: The People, Rules, and Processes Governing Online Speech, to join us for an in-depth discussion about how we got here and why there are no easy or simple answers for content moderation.

Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.


State Legislator Says 11-Year-Old Tased By Cop Deserved It And Her Parents Probably Suck (Say That Again)

by Tim Cushing

from the christ-what-an-asshole dept on Tuesday, September 18th, 2018 @ 12:04PM


Cincinnati police officer Kevin Brown’s decision to fire a Taser at an 11-year-old girl suspected of shoplifting from a grocery store in August immediately drew criticism from city officials and advocates.

But Ohio state Representative John Becker had a different take. Had it been his daughter, he announced in an August newsletter, “I’d be ashamed and embarrassed that she did something stupid enough to get herself tased.”

This is even worse than the police union's take on the incident, which referred to the completely expected backlash as "kneejerk." But, hey, I guess deciding to tase an 11-year-old in the back -- one who reportedly was all of 4'11'' and 90 pounds -- couldn't possibly be portrayed as a kneejerk reaction by a law enforcement officer. When force isn't truly needed, we can be sure some cops will deploy it anyway.

But Rep. John Becker's take is the hottest take of all. Anyone tased by a cop -- even an 11-year-old -- is a person who brought that crackling, barbed punishment down on themselves. There's no reason to question the wisdom or necessity of the Taser deployment. Rather, we should question ourselves. And perhaps society. But mostly ourselves.

Becker also addressed police shootings in his newsletter. If his child were shot by police, he wrote, “rather than blaming the cop, I’d be blaming myself and endlessly soul searching to figure out how I failed as a parent and why my kid grew up to be a punk.” He added, “Based on the evidence of what I see on television, it often times appears to me that justice was delivered to the dead punk.”

"Based on the evidence of what I see on television…" Holy shit. This is an elected representative. And he thinks the TV is giving him the "evidence" he needs to make snap judgments on tased kids. Blame the victim. And blame the victim's parents.

The police chief -- in a surprisingly reasonable statement -- said the Taser deployment was "unnecessary."

Back to Becker:

Becker also told The Appeal that if police tase a child, “it could be an indication of a parenting problem.” He added, “If I were to do research, I would expect to find that kids that come from two parent in-tact [sic] supportive families are less likely to get in trouble with the authorities than kids that came from tougher environments.”

"If I were to do the research…" Would this be research beyond the television watching that's given Becker such keen insight into officer-involved shootings? Who knows? Becker's certainly not going to do the research. He's just going to stick by his electro-guns and blame victims of cop violence for being raised badly or otherwise being harmed by the disintegration of the nuclear family unit -- the 2.5 children born to married heterosexuals who have managed to weather an escalating divorce rate, porn, video games, movies, television, the internet, social media, Satanism, multiple pagan-based holidays, postal rate hikes, alternate sexual orientations, public school indoctrination, Daylight Savings Time, mandatory vaccinations, HAARP projects (known and unknown), President Obama, Brown v. Board of Education, morning-after pills, weird Twitter, the removal of prayer from schools, the Simpsons, artistic expression in general, and whatever else has reduced the American way of life to a hideous nightmare where punk kids manage to live their whole lives without being deservedly tased by blameless, saintly police officers.

Becker is an idiot, but let's pretend the research he didn't do actually says what he thinks it will say. Even if a majority of kids tased/killed by cops are raised by single and/or inattentive parents, that doesn't justify force deployments that far exceed the danger presented by the developing situation. This 11-year-old was tased in the back by an officer who was taller, weighed more, and had the ability to summon any number of additional officers if it appeared this preteen was going to, I don't know, grow a foot, add 100 pounds of weight, and produce an arsenal of weapons before the officer got the mild shoplifting situation under control.

If you agree with John Becker, you're probably John Becker. Or a cop who hates using force reasonably or responsibly. But you're definitely not the sort of person who can be trusted with government power.


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