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ASCAP and the Terrible, Horrible, No Good, Very Bad DOJ Decision That’s Going to Create Chaos in the Music Industry

We finally have the written statement from the U.S. Department of Justice mandating that ASCAP and BMI must engage in 100% licensing, and it’s a doozy. Start with the fact that no DOJ lawyer was brave enough to actually sign their name to this statement, but add in the fact that the statement contradicts the plain meaning of the consent decrees, takes quotes out of context from court opinions, and recommends that songwriters breach their own contracts. Plus, the DOJ acknowledges that because of their statement, some songs will become unavailable for public performance, making it clear this is a disaster that will cause chaos. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., takes apart the statement argument by argument to show the flaws in this terrible, horrible, no good, very bad decision.

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You Can’t Make This Stuff Up! The Department of Justice v. ASCAP

They’re at it again. A few weeks ago, it was the 2nd Circuit Court of Appeals that pulled out of thin air a ruling that Section 301 didn’t really say what it plainly said, despite no authority to the contrary. Now, it’s the U.S. Department of Justice’s turn. They have informed songwriter representatives that from now on, each performing rights organization will have the obligation to license 100% of musical compositions rights, even though that PRO did not own 100% of the rights. Or 50%. Or 5%. How did the DOJ come to this conclusion? They made it up. Nova Southeastern University's Copyright Officer, Stephen Carlisle J.D., examines the ins and outs of musical performance licensing and goes into the actual current consent decree and finds out that not only is 100% licensing not in the consent decree, the decree says the opposite of what the DOJ says it states.

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Forget What Congress Wrote, Forget What the Copyright Office Wrote; Court Of Appeals Re-Writes the Copyright Act

One of the bedrock principles of the current Copyright Act was that it did not apply in any way to sound recordings made before February 15, 1972. But now, in a horrific decision, the Second Circuit Court of Appeals ruled that the notice and takedown provisions of the Copyright Act do apply to pre-1972 sounds recordings, disregarding the clear directives of the Copyright Act and the clear opinion of the Copyright Office. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., analyzes the serious logical flaws in the Court’s ruling and highlights the dangers of what happens when a Court puts its opinion of “good policy” ahead of the “plain meaning” of a statute.

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Everything Old is New Again! Are We On the Road to Perpetual Copyright in Sound Recordings?

On May 30, 2016, a District Court in California dropped a bombshell. It ruled that the act of re-mastering a sound recording created a new sound recording copyright. This paves the way for a host of unintended consequences, including the elimination of termination rights and the possibility that sound recordings could in effect receive “perpetual” copyright. Nova Southeastern University's Copyright Officer, Stephen Carlisle J.D., analyzes the decision from legal, musical and practical standpoints, and finds that when the Court decided that “everything old is new again” a host of problems was created.

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If You Make it “Porn,” Does that Make it a Parody?

For years, it’s been apparent that the internet proved two things: we’re all a bunch of thieves and we’re all a bunch of perverts. I just didn’t know how right this was, or that these two phenomena had merged, until I heard about Rule 34. Apparently, it’s internet shorthand for the proposition that “If it exists, there is porn of it – no exceptions.” And as it turns out, there are literally, no exceptions. If anything has ever been a popular form of entertainment, somewhere on the internet, there is a porn version. How is this legal? The porn producers claim it’s a “parody.” But what do the Courts say? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines the long line of cases involving “porn parodies,” and once again, just because you say it, doesn’t make it so.

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Remixing is Not a Right

Two events popped up this week where persons argued that somehow copyright law is preventing them from being creative. The first was a reversal by the German Constitutional Court of a lower Court’s determination prohibiting the distribution of the 1997 song called "Nur mir" ("Only to me") because it included a sample of the 1977 song "Metall auf Metall" by the German electronic pioneers Kraftwerk. Next, a post on MTV’s website titled “Steal This Riff: How To Fix Copyright Law And Set Musicians Free,” called again for the passage of legislation forcing musicians to give up their rights to control derivative works. Both of these events suffer from the same illogical mindset: that musicians cannot be creative unless they can make note for note copies of something another composer has already done. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., takes a look at the arguments advanced in both instances, points out what the U.S. Courts have already taken on issue, and determined, once again, that copying is not creativity.

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Respecting the Rights of Others Is Not a Burden

A recent post to the website of “The Chronicle of Higher Education," titled “Colleges Shouldn’t Have to Deal With Copyright Monitoring” bemoaned the requests of book publishers for an injunction in the long running suit against Georgia State University. The post called the requests “onerous” and “costly.” Never mind the fact that injunction has not been issued yet, but a lot of what is being requested is what colleges and universities already do as a matter of policy, including Nova Southeastern University. NSU Copyright Officer, Stephen Carlisle, J.D., explains the process by which NSU examines fair use claims and shows how it’s not only good policy but the right thing to do.

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Suit Alleging Google’s Claim That It Does Not Censor Search Results Is “False, Deceptive and Misleading” Moves Forward

On May 12, 2016, a Federal Court in Florida refused to dismiss a lawsuit alleging that Google’s various statements about its search results, including that “[i]t is Google’s policy not to censor search results,” are false, deceptive and misleading. The chief complaint is that Google, contrary to its public pronouncements, made all of the Plaintiff company’s’ websites disappear from all possible Google search results. Since Google controls 70% of the U.S. search market and 90% of the European search market, this is equivalent to making the websites virtually disappear from the internet. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., takes a look at the allegations and the Court’s decision and finds it’s mostly a case of Google stating “we don’t do this…except when we do.”

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A View to a Shill? On the Frontlines of the Copyright Office Roundtables

May 2nd and 3rd of 2016 saw the U.S. Copyright Office holding live “roundtable” discussions in New York City about the continuing problems associated with the “notice and takedown” system of section 512 of the Copyright Act. If you were a heavy hitter, either on the copyright side (like Disney) or the tech side (like Verizon), this was your chance to have your voice heard by the Copyright Office. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., was not only present for the roundtables, but was an invited participant on two panels, and presents a frontline recap of what went down.

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Is a “Mirror Copy” a Transformative Fair Use? This Court Says Yes…These Courts Say No…and the Supreme Court Says Nothing

Monday, April 18, 2016 saw the Supreme Court of the United States deny the Author’s Guild petition for writ of certiorari in the long running lawsuit against Google and their mass digitization of library books. Google had scanned complete copies of books provided to them by participating libraries and made them searchable, and when asked, displayed verbatim portions of the text. The Second Circuit had pronounced this “transformative” even though the copies were “mirror images” of the original texts. The Eleventh Circuit, by contrast, has ruled that mirror image copies are not “transformative” as has the Sixth Circuit. What’s going on here? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., looks at the cases and the reasoning, and suggests that maybe it’s just as well the Supreme Court passed this one up.

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