Recap Post — Too Much Going On!

Here’s an overview of stories to watch, including some I’ll be posting about soon:

Senator Wyden Pitching ACCESS to Recordings Act

In a post on Medium this week, Senator Ron Wyden (D-OR) presented his proposed ACCESS bill as an alternative to the CLASSICS Act that is, as he puts it, “a better way to protect recording artists.” Notably, the Senator is not able to name any recording artists who seem to agree with him, but he does name endorsements by libraries and archives, who never recorded any hit songs before or after 1972. “Artists deserve to be compensated for their work, but at the same time, we shouldn’t lock up ideas for decades after the creator has passed away,” writes Wyden.

Neil Turkewitz very quickly seized on that theme and countered that the Senator is emphasizing a false narrative that copyright inherently makes works unavailable. Indeed, even in the arcane theoretical areas in which this criticism might warrant discussion, it has no relevance to the sound recordings at issue in this story because they are widely available. In fact they’re played all the time, which is why the artists feel they should be compensated. As I’ve stated, ACCESS cannot be a good-faith proposal at this stage in the legislative process because it’s too fraught with problems to be adequately debated between now and the mid-terms. Thus, whatever Wyden is up to, it isn’t proposing an “alternative” bill.

SCOTUS Rules on Masterpiece Cakeshop Case

It’s not a copyright case, but it is a story I commented on last December when the Supreme Court heard oral arguments because it involved a claim of artistic expression. This week, the Court ruled 7-2 that the Colorado Civil Rights Commission did not reflect reasoning that was neutral to baker Jack Phillips’s claim of religious exercise in his refusal to make a cake for a same-sex wedding celebration. Apropos my first post on this subject, the holding by the Supreme Court did not actually turn on the issue of creative expression in a wedding cake, but the various opinions do allude to the subject. A post in the works to follow.

Vienna Court Says YouTube Liable for Third-Party Copyright Infringement

Yesterday, it has was reported that the Vienna Commercial Court held that YouTube can be held liable for hosting copyright infringing content uploaded by its users. If this ruling stands, it would have huge implications for both the internet industry and copyright owners. To the “digital-rights” groups, the implication would of course be the death of the internet itself, whereas my colleagues and I tend to think it would be more like the death of the internet “as we know it.” And maybe that’s okay since I remain unconvinced that the internet we know is the internet we should try to preserve. Meanwhile, I will try to find the actual court opinion from the Austrian court.

The State of the Techlash?

On the subject of preserving the internet we know, the techlash is still lashing away. Granted, there’s so much staggeringly crazy news breaking all day long, it’s hard to notice, but Facebook’s woes continue unabated, with user data still springing leaks and the FTC pressing forward with its investigation into possible violation of 2011 consent decrees. And this week, we read reports that Congress is now investigating the likelihood that the social media giant may have shared user information with a Chinese company that U.S. intelligence agencies consider a national security threat. And that’s just Facebook.  See also Will Buckley on Silicon Valley’s Collateral Damage.

New York Proposes New Right of Privacy & Publicity Law

In March, a New York Court of Appeals ruled that a digital avatar of a real person can be considered a portrait. Take-Two Interactive prevailed in the case in which Lindsay Lohan sued for use of her likeness in one of their games, but judgment was based on the fact that the likeness apparently did not resemble Lohan. Still, the precedent decision that an avatar can be considered a “portrait” is significant, and this week the New York State Assembly introduced a bill designed to protect the publicity and privacy interests of individuals with “digital replicas.” This proposal primarily affects recognizable figures like models, actors, and professional athletes, but it has some interesting implications I’ll try to explore in a future post.

© 2018, David Newhoff. All rights reserved.

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