Tag: Terry Hart

@terrencehart: SCOTUS Resolves Court Split in Fourth Estate, but Registration Concerns Remain

[Chris says:  SCOTUS just made process the punishment.  Legal analysis by Terry Hart, one of the great copyright policy thinkers of a generation who writes the Copyhype blog.]

Today, the Supreme Court released its decision in Fourth Estate Public Benefit Corp. v. Wall-Street.com, holding that a copyright owner of a U.S. work must wait for the Register of Copyrights to either issue a registration certificate or refuse a registration before being able to protect her rights in court (this has been referred to as the “registration approach”). The decision settles an issue that has long divided courts—some courts had held that a copyright owner did not have to wait for the Register to act and could file suit as soon as her registration application, deposit, and fee were delivered to the U.S. Copyright Office (called the “application approach”).

Read the post on the Copyright Alliance blog

Must read: @TerrenceHart: Does the ACCESS to Recordings Act violate the Constitution’s Takings Clause?

“I do believe that the intellectual property that you create is just that.  It’s property and you ought to be protected in the property that you create and that we all enjoy.”

Senator John Cornyn, U.S. Senate Committee on the Judiciary, May 15, 2018.

On May 23, without the benefit of any studies, hearings, or stakeholder input, Senator Wyden introduced the “Accessibility for Curators, Creators, Educators, Scholars, and Society to Recordings Act” (“ACCESS to Recordings Act”).1 The bill would preempt the state and common law protections that sound recordings fixed before February 15, 1972 have always enjoyed and make them subject to federal copyright protection. In doing so, it suffers fatal Constitutional flaws.

The Fifth Amendment of the Constitution establishes that the federal government cannot take private property “for public use without just compensation,” a principle stretching back at least 800 years to the Magna Carta.2The Takings Clause, as this provision is referred to, applies just as much to intellectual property, like copyright, as it does to other forms of private property….

Unlike the CLASSICS Act and the approach recommended by the Copyright Office, the ACCESS to Recordings Act falls far short of Constitutional requirements and would likely open the federal government up to liability for takings claims.

Read the post on Copyhype

No MMA Bait and Switch #irespectmusic: @terrencehart: No, the CLASSICS Act is not a “term extension”

[Editor Charlie sez:  As David Lowery has posted, it’s looking like the Senate version of the “Music Modernization Act” may not include the CLASSICS Act which would require royalty deadbeats at the Digital Media Association, SiriusXM and Pandora to pay their fair share of performance royalties for our legacy artists who recorded before 1972.  This loophole has been exploited and defended by the head of the Digital Media Association while he was formerly at SiriusXM and Pandora.  David caught him promoting a position from Google shills Public Knowledge and now Terry Hart has called out Professor Mark Lemley for trying to pull the bait and switch from the House bill to the Senate version of MMA (which means “Music Modernization Act” not “Make More Algorithms”).  Professor Lemley has plenty of entries in the “Google Academics” database, a handy tool for tracking Google’s influence.]

On April 25, the U.S. House of Representatives passed the Music Modernization Act, H.R. 5447, by a vote of 415-0. The comprehensive bill “updates music copyright laws by creating a new compulsory blanket licensing system for mechanical works, updating the rate standards applicable to music licensing, modifying the rate setting process in the Southern District of New York, providing copyright royalties to pre-1972 artists, and ensuring that producers, mixers, and sound engineers are able to receive compensation for their creativity.” 1 The unanimous vote is a reflection of the extraordinary consensus among all parts of the music industry, including digital service providers.

Following passage, Stanford professor and Durie Tangri partner Mark Lemley tweeted [Durie Tangri lawyers gleefully represented Google in its full frontal assault on authors rights in the garbage law Google Books case and also defended another case where tech ripped off dead guys for Goldiblox with the Beastie Boys]:2

He was referring to Title II of the bill, an amended version of the CLASSICS Act (H.R. 3301), which would mandate royalty payments for sound recordings fixed before February 15, 1972, for certain digital performances. His point was echoed by Krista Cox, director of public policy initiatives at the Association of Research Libraries, who wrote in Above the Law, “The biggest issue is that CLASSICS extends copyright term for sound recordings beyond what a sound recording today would be granted.”

These statements are strikingly incorrect.

Read the post on Copyhype

Here’s a screen cap of Lemley’s entries in Google Academics:

Lemley Google Transparency

And here’s Google acknowleging financial support for Public Knowledge in the famous Google Shill List

PK Google Shills