This post continues the ongoing “From Nottingham and Beyond” series, with contributions from faculty and alumni of the University of Nottingham’s Department of Culture, Film and Media. This week’s contributor, Paul McDonald, was Professor of Cinema and Media Industries in our department from 2011-2015. 

A few weeks ago, the Get It Right from a Genuine Site anti-piracy campaign was launched in the UK. The campaign was run by Creative Content UK, a body formed the previous year to “boost consumer awareness of the wide array of legitimate online content services and help reduce online copyright infringement.” CCUK’s founding partners were the BPI (British Phonographic Industry), Hollywood’s trade body for international territories the Motion Picture Association (MPA), and the four main internet service providers in the UK: BT, Sky Broadband, TalkTalk and Virgin Media. Additional support for CCUK came from broadcasters (BBC and ITV), actors’ union Equity, the Film Distributors’ Association, the Independent Film and Television Alliance, the Musicians’ Union, Pact, the Premier League, the Publishers Association and UK Music.

CCUK is the newest arrival to the UK’s anti-piracy business and as such is representative of a trend now characterizing the modern media industries—the formation of inter- and intra-industry alliances to combat media piracy and protect copyrighted content. Over recent years, claims of escalating piracy have seemingly been accompanied by a concurrent escalation in the number of coalitions formed to combat it. Although not a new development, the formation of anti-piracy alliances has intensified over the last ten to fifteen years. As a way of grasping the implications of this trend, these developments might be described as the rise of Big Copyright, the emergence of new constellations of commercial-legal power in the media economy.

There are several reasons why this trend cannot simply be seen as a continuation of the oligopolistic tendencies of so-called Big Media by means of intellectual property. First, as a label for a concentrated cluster of private firms, Big Media has no formal collective identity other than perhaps memberships of trade associations for the film or music businesses. Big Copyright, on the other hand, materializes in a multitude of specific, named alliances that are the products of formalized agreements to collaborate. Second, Big Copyright brings together interests that spread far beyond the diversified holdings of even the largest, most diversified media and communication conglomerates. Big Media are part of Big Copyright, but the latter extends further, formed of unities among multiple copyright holders from across the business software, publishing, music, film, television and game industries, plus broadcasters, internet service providers, media retailers, marketing agencies, technology firms and in some cases police forces. These alliances have become power brokers in what Adrian Johns describes as the “intellectual property defence industry,” creating constellations of interests to aggregate social and political capital against piracy. While these groupings are led by the media industries, the raison d’être behind the creation of these alliances is to reach beyond the media sector by pressuring governments to act in the interests of rights holders, working with judicial and police authorities to enforce the protection of rights, and reaching out to the public by communicating lessons in good copyright citizenship. Finally, while Big Media largely means the major U.S. media firms, with the possible addition of Bertelsmann, Big Copyright is more internationally dispersed, comprising alliances formed around various national coalitions and including a few transnational members.

By way of illustration, I’ll briefly review here the alliances at the forefront of the content protection business in the UK. Formed in October 1982 through collaboration between the Motion Picture Export Association of America (MPEAA), the Society of Film Distributors, and the British Videogram Association (BVA), the Federation Against Copyright Theft (FACT) was established in the early years of the home-video boom, when Britain was regarded by Hollywood as a hotbed of video piracy due to the low fines imposed for first offenses and lenient sentences for subsequent convictions. FACT is part of the MPA’s international network of national non-profit “content protection organizations” (CPOs), which now extends to over 30 countries, predominantly in Western Europe but also in parts of Eastern Europe, the Asia-Pacific region, and North and South America. Through this network, FACT has equivalents in other major international markets for Hollywood film and television, including JIMCA (the Japan and International Motion Picture Copyright Association), Germany’s Gesellschaft zur Verfolgung von Urheberrechtsverletzungen (GVU, the Society for the Prosecution of Copyright Infringement), France’s Association de Lutte Contre la Piraterie Audiovisuelle (ALPA, the Association for the Fight Against Audiovisual Piracy) and the Asociación Protectora de Cine y Música México (APCM, the Mexican Association for the Protection of Movies and Music). CPOs localize the MPA’s global fight against piracy, providing on-the-ground points of contact for links with national governmental departments, law-enforcement agencies, and companies or trade bodies in the media sector. Although operating as a kind of outpost in Hollywood’s global fight against film and television piracy, FACT is now networked into the broader UK media economy. Alongside the MPA and the six major Hollywood corporations, FACT’s membership includes the main terrestrial broadcasters (BBC, ITV), satcaster (Sky) and cable provider (Virgin Media), plus film trade bodies (British Video Association, Film Distributors’ Association, and UK Cinema Association), and a leading sports rights holder (Premier League). As an industry body, FACT holds no statutory authority but instead functions primarily to aid anti-piracy efforts by collaborating with national law-enforcement and customs officials to investigate and prosecute alleged infringing activities. FACT operates partnerships with HM Revenue and Customs, Border Force, the National Crime Agency, Trading Standards offices, and fifteen regional police forces.

FACT therefore represents a point of mediation between the MPA CPOs and various national companies, bodies and agencies. For over three decades, FACT has remained at the forefront of anti-piracy efforts in the UK, but since the late 1990s, this network organization has seen developments with the formation of various new alliances. Operating as a kind of über-association, the Alliance for Intellectual Property exists to provide a single voice representing the collective interests of the copyright industries to the UK government. Formed in 1998, the Alliance aggregates the interests of two dozen “trade organisations, enforcement organisations and collecting societies from across the creative, branded and design industries.” Beyond its own business, the Alliance pays communications consultancy Luther Pendragon to provide administrative support to the All Party Parliamentary Intellectual Property Group (APPG), launched in 2003 as an interest group within UK government that, according to the Register of All-Party Parliamentary Groups, serves to “debate and highlight the value of intellectual property (IP) and the importance of its promotion and protection.”

Operating since 2004 with support from the UK film, TV and video industries, the Industry Trust for Intellectual Property Awareness describes itself as a “pro-copyright consumer education body.” Membership of the Trust extends to 44 entities, including all the major film/video distributors and cinema chains and their related trade bodies, plus marketing agencies (My Movies, Think Jam), pre-school entertainment company HIT, optical-disc manufacturer Sony DADC, digital-entertainment technology provider Rovi, home-entertainment metadata supplier West10, and leading online retailers (e.g. Amazon, eBay) and supermarkets (e.g. Asda, Sainsbury’s and Tesco). In addition, the Trust has 88 partners from across the UK’s film and television business, including FACT and the Alliance for IP. To promote awareness of the value of IP, the Industry Trust has run multiple campaigns, including the series of Moments Worth Paying For ads screened across cinemas, digital outdoor spaces and online media.

Following the model of the Center for Copyright Information in the US, CCUK was launched with two purposes. Get It Right from a Genuine Site is the first outcome of CCUK’s commitment to pro-copyright public awareness campaigning.

CCUK was also established to implement the Voluntary Copyright Alert Programme (VCAP), a system for rights owners to monitor transfers of infringing content over file-sharing networks, logging the IP addresses of infringers and notifying ISPs who send “escalating” warning letters to the relevant users. Issuing only a series of educative warnings means VCAP takes a lighter touch to deterrence than the enforcement of disconnections or financial penalties proposed by the 2010 Digital Economy Act. This has led to some questioning, however, particularly from the MPAA, over whether the program has any real teeth.

As the UK case shows, the landscape of anti-piracy alliance formation is confusing: not only has there been the proliferation of alliances, but many companies or organizations are also members of multiple alliances, and some alliances partner in other alliances. The formation of, but also the blurring between, alliances is particularly noticeable in how the presence of the Hollywood majors is unsurprisingly woven throughout these networks: the majors are individual members of FACT and the Industry Trust but are also collectively represented in these groupings and the Alliance for IP through the Film Distributors’ Association and the MPA.

As suggested earlier, Big Copyright grows out of nationally-configured coalitions of collective interests. So in the U.S., a similar array of alliances operates to those found in the UK. Representing trade associations across the copyright industries, the International Intellectual Property Alliance annually reports to the U.S. Trade Representative on the current state of IP regimes in foreign territories, with the aim of using the trading system to strengthen the international enforcement of rights. Copyright Alliance is a pan-media coalition that lobbies Congress for stronger copyright legislation, while CreativeFuture (originally Creative America) runs television, social-media and website campaigns on how piracy threatens jobs in film and television. Pulling back from the detail of these labyrinthine connections, at a level of abstract generalization we can see these coalitions serve a limited number of core functions in the fight against piracy: the political work of lobbying government for stronger legislative protections, the legal work of aiding statutory authorities to enforce rights, and the discursive work of public-awareness campaigning.

Frequently, analyses of the media industries focus on the organization of the conditions facilitating the production, dissemination and presentation of media content. Often this means concentrating on particular media firms. But the rise of Big Copyright demands we must now equally attend to how anti-piracy alliances are today very much part of the operational purposes of the modern media industries. By their very definition, these alliances are not companies but operate in the spaces between companies. For this reason, they may slip out of sight. This is not to say they are invisible or secretive, although knowledge of the precise workings is confined to industry stakeholders and is unavailable to the public. Rather they are just not an immediately noticeable component of the media business. With their proliferation, however, anti-piracy alliances have become a distinct category of player in the media industries. Thus, it is now vital we make these alliances visible for the roles they play in regulating the marketplace of rights and in shaping the cultural sphere.

Richard Prince, It’s All Over (2008)

Last year I wrote an essay for the book Media Authorship in which I traced the issues surrounding copyright’s fair use doctrine in the context of contemporary appropriation art. Specifically, I compared two of art’s most notorious copyright infringement lawsuits, Rogers v. Koons (1992) and Cariou v. Prince (2013). Artist Richard Prince’s appeal in the latter case was still pending by the time my words went to press; on April 25 of this year, the Second Circuit Court of Appeals overturned the lower court opinion. It found that, for the most part, Prince’s appropriations of photographer Patrick Cariou’s pictures constituted fair use. Many in the art world saw the ruling as a decisive victory for appropriation art—a type of practice seemingly doomed to perpetually teeter on the precipice of illegality.

Indeed high stakes were riding on the outcome of the case. Had the appeals court upheld district court Judge Deborah Batts’s opinion, the previous gains made for appropriators—exemplified in cases such as Campbell v. Acuff-Rose Music (1994) and Blanch v. Koons (2006)—would have been all but erased, and the fair use doctrine taken a giant step backwards. Importantly, the implications would very likely have reverberated beyond the confines of the art world. Judge Batts’s interpretation of fair use requiring secondary expressions to comment on or criticize their original sources (e.g., parody) could have had a chilling effect across experimental film, music sampling, Youtube remixes – any areas in which there is a culture of creatively copying, which is to say, everywhere. And this just at a time when legal scholars Patricia Aufderheide and Peter Jaszi call for renewed approaches to fair use policy and practice across today’s media landscape. Perhaps it comes as no surprise that, along with ten venerable arts institutions as well as the Andy Warhol Foundation, Google filed a brief in conjunction with Prince’s appeal. In it, the technology company stressed the importance of a copyright law flexible enough to allow for copies of cultural works to be created without a requirement that they expressively refer to their sources. From Google’s perspective, the gravity of the court’s ruling was plain; the company’s business model relies heavily on copy-reliant technologies employed towards non-expressive ends (e.g., indexing algorithms and book scanning). A finding of infringement premised upon lack of referential expression would have put Google’s enterprise in jeopardy.

Fortunately for Google and the art world, the circuit court concluded that Judge Batts had applied the incorrect standard in her fair use determination. The court’s majority opinion clarified that appropriating works are considered fair uses when, irrespective of commentary or criticism, they are transformative, “altering the first with new expression, meaning, or message.” We might understand the decision as affirmation of what Jaszi proposes is a “postmodern turn” in copyright jurisprudence, in which authorial rights as absolute property entitlements subordinate to the flux of meanings inherent in the works today’s consumers-turned-producers create.

Patrick Cariou, Untitled from Yes Rasta (2000)

But how are appropriating works determined to be “transformative”? In alignment with not only a postmodern turn in copyright but also “death of the author” rhetorics commonplace in poststructuralist-infused academia, the circuit court judges came to their conclusion based upon how art works “appear to the reasonable observer.” That is, transformativity is primarily determined not by deciphering authorial intention but with side-by-side analysis of the disputed works, which, as lawyer and artist Sérgio Muñoz Sarmiento cogently points out, amounts, ironically, to a kind of formalist analysis reminiscent of yesteryear’s modern art criticism. The district court judges did cite Prince’s testimony as evidence of his different (and presumably transformative) approach to art-making, but no doubt avoided wading further into the subjective territory of artistic intent given that courts have tended to abide by the century-old wisdom of Supreme Court Justice Oliver Wendell Holmes: “It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations.”

For artists, filmmakers, musicians and writers working with appropriated content, Cariou v. Prince may signal a more open horizon for fair use determinations. Yet when the thought processes behind the artistic production are de-emphasized, the very goal of copyright—the promotion of progress in the arts—is called into question. Increased freedoms should not necessarily be equated with artistic progress. The advancement of art occurs precisely when works enter into dialogue and debate with one another, and much of that rides on artistic intent and concept. Reshuffling the deck of our glutted mediascape and re-presenting a new, decontextualized permutation may now be legal, but it is not clear if it is ethical. Cariou v. Prince should not absolve cultural producers from their responsibility toward the images, texts and sounds they take, for maintaining a “semiotic integrity” in the name of progress in the arts.

1) This installment starts with news that that I’m sure no one missed. Iron Man 3 made its worldwide debut, but all eyes were on China, which put up a respectable $21.5 million on opening day. In North America, our $68.3 million opening day brought IR3 within striking distance of a half-billion dollar box office after less than two weeks of release. Keeping all of that in mind, can you really blame RDJ?  But life’s not all about the Benjamins, friends. Apparently, Tony Stark is doing good business (“business”?) among pirates, who elevated IR3 to #3 on TorrentFreak’s list of the most illegally downloaded films. Haven’t seen the movie yet? Here are some other ways to enjoy the atmosphere: becoming Iron Man, keeping up with Robert Downey, Jr., on Sina Weibo, or basking in RDJ’s charisma.

2) Speculation about NeXtBox – can we make this a thing? – is picking up ahead of a launch event set for May 21. Exact details about the release date, price, and specs are yet to be revealed, but as I get on in years, I find what matters most is that I be allowed — encouraged even — to play alone. What do we know about NeXtBox? Well, apparently it supports a projector system capable of making you wish that you didn’t have so much furniture. Don’t invest in a blank wall yet, however; Illumiroom may not be ready for Microsoft’s next-gen rollout. If you’re not on Team Microsoft, there’s always the PS4 to look forward to.

3) The future is arriving at the speed of time, and next-gen gaming systems are just the start. San Francisco played host last week to the first NeuroGaming Conference and Expo, where “ineluctable modality” was just a string of cool-sounding syllables. Commercial potential for games that track player heart rate, brain waves, pupil dilation, and a host of other physiological data is still slight, but Google Glass may help start-ups find a direction. We all saw Strange Days, right? Less pie-in-the-sky are developments in controller design. Thalmic Labs’ Myo promises “effortless interaction,” bringing us all one step closer to living out our childhood fantasies or five steps closer to saying, “Remember when…?” Also, this exists.

4) Let’s pretend this is a surprise. Google Glass is coming, presumably for people more interesting than myself, and some of the source code has been released, so developers have been put on notice. What are the possibilities? Where to start: wink-based photography, making Vine videos, making and uploading YouTube videos, ARG gaming (a covert valorization of early adoption?), Facebooking, and updating your software. But it’s not all sunshine and rainbows; get a head start on worrying about surveillance, privacy, basic social interactions, keeping expectations realistic, and not looking like a jerk. And you don’t have to be excited about the tech itself to enjoy the ad campaign. White Men Wearing Google Glass has made a game of tracking down the instrument’s target demographic. So far, though, I’m most concerned about a different set of would-be users. Finally, I’m going on record. Google Glass is still only playing second-fiddle. The Large Hadron Collider (or any particle accelerator) exists; for the rest of us, there’s Google Glass.

5) First, some context: The Syrian Electronic Army has been around the digital block a few times, becoming something of a nuisance for high-profile critics of the Assad regime. The group’s latest target was The Onion Twitter account, where it posted a number of pro-Assad and anti-Semitic tweets just because they couldn’t take a joke. The Onion responded as you’d expect: one news story poking humor at the hack and another announcing tighter security. (When connectivity is a weapon, I feel compelled to point out that feelings of levity should be brief. See the end of the WaPo story for evidence.)

6) How are things at DreamWorks? Awesomeness abounds.  It’s overflowing even, so they’ve sent some to China. But is ‘awesome’ for DreamWorks ‘awesome’ for everyone? It may be for a selection of YouTube content providers. Subscription channels are coming. Big Bird may be involved, but WWE isn’t biting (for now?).  As much as things change, other things remain the same…unless this happens. That would be a fairly significant development.

7) Netflix’s streaming service lost almost 1,000 titles on May 1. Users and the media took to calling the event Streamageddon, but I was partial to Apocaflix. Netflix (see, it’s right there in the name!) has begun testing new layouts, which makes me wonder if Facebook has conditioned us to complain. Then again, Netflix has its competitors to think about, and they do seem to be cropping up. If the market gets tight, there’s always money in the banana stand.

8) A smattering of stories about trademarks and copyrights… Instagram has the dubious honor of having its name informally tacked to recent British copyright legislation. Do you think Warner Bros. performed a “diligent search” before being sued for its unauthorized use of Keyboard Cat and Nyan Cat? Barry Diller is calling broadcasters’ bluffs over Aereo, and Fox is doing its best Shredder impression, claiming the court battles are just beginning. For what it’s worth, Aereo is taking steps to keep that from being the case. Also, who has the heart to argue with Harper Lee? If Gregory Peck were still around, I bet he’d get involved.

9) What’s killing cinema? Steven Soderbergh has the answer. “[F]ive and a half hours of mayhem,” you say? It sounds so Shakespearean, but I expect it signifies more than nothing. Don’t worry about Soderbergh, though, he’s got a Plan B, available for your enjoyment here.

10) What else is there to talk about? Rest in peace, George Jones, Deanna Durbin, and Ray Harryhausen. In case you’re unfamiliar with any of them, here’s the greatest country song of all time (by some accounts), an appreciation and analysis of fan appreciation for Durbin, and a primer on Harryhausen’s work. (The pay wall won’t block the videos, so click on through!) Ender’s Game is on the way. To my father’s great shame, I’ve never read it. As for Mr. Card, he depresses me too much to make a joke. Star Wars day happened. Nielsen says welcome to the family. And get ready for some AIP remakes!

11) What?! That’s right. ELEVEN! One extra for the art and science that caught my eye. Here’s a stop-motion movie using atoms as pixels, meaning there’s at least one digital format with resolution superior to 35mm film. Roger probably would have stood his ground on this one. I know people who actively change the typeface of their handwriting every few years. Earth driving is easy. The mysteries of the cosmos are out there to be discovered, but don’t forget that people can be pretty gosh darn cool, too.

1) The Supreme Court has been busy (and not just with DOMA). The High Court handed down multiple rulings with major impact for the entertainment industries. First, the Court extended the “first sale” doctrine to content purchased overseas but resold in the US, in a case brought by Supap Kirtsaeng, a Thai-born student sued for copyright infringement by Wiley & Sons when he resold textbooks purchased in Taiwan. The ruling has already spurred some in Congress to call for revisions to copyright law, with testimony from the U.S. Register of Copyrights calling for the “next great copyright act” involving clarifications and revisions to the Digital Millenium Copyright Act enacted 15 years ago.

2) While the industry may have lost that case, they did come out ahead in another, as the Supreme Court ruled in favor of Comcast in an antitrust suit filed by Philadelphia-area subscribers claiming they were being overcharged. This could extend beyond the realm of television/cable providers, as the ruling impacts the ways cases can be pursued by a class group.

3) As regular WAYM readers might recall, last week News Corp and Disney were both considering buying the other out for control of Hulu. Now, reports show both sides are considering selling to a third party. Potential buyers being tossed around are investment firm Guggenheim Partners, Yahoo, and Amazon, tough no official comments have been made. So at this point, anything (or nothing) could happen.

4) In other streaming news, HBO GO, the online streaming service from HBO that is currently only available to those with a cable subscription (with the extra HBO fee), may ‘go’ broader, with HBO CEO Richard Plepler mentioning interest in teaming up directly through broadband providers. This would make HBO the “first premium cable network to bypass cable” and go directly to its Internet-based audience. This could be a big step, and a tacit admission of new competition in the form streaming sites like Netflix and Amazon.

5) This past week, the Federal Trade Commission (FTC) released a report detailing the results of an “undercover shopper survey” on the enforcement of entertainment industry ratings. In an age where video games are often singled out for their impact on children, the FTC found the ESRB’s rating system and video game retailers the best, noting an 87% success rate of underage children being denied buying M-rated games. All areas found marked success, however, as box office, DVD sales, and CDs all showed improvement over the past years (See graph/report for more details).

6) The Game Developers Conference (GDC), the “world’s largest and longest-running professionals-only game industry event,” took place this past week, featuring booths, panels, and demos of the latest and greatest out of the video game industry. Although events like PAX and E3 draw larger audiences and media coverage, GDC has become another site for industry outsiders, like Disney and Warner Bros., to become more involved. Highlights include Activision’s uncanny valley-crossing graphics demo and independent game Journey taking home several awards including being the first independent to win Game of the Year.

7) Upfront season is really heating up, starting with News Corps cable network FX announcing the launch of a new sister channel, FXX (The extra X is for… I don’t know). FXX (launching in September) will specifically target a younger demographic, 18-34, and will be bolstered by moving current FX comedies It’s Always Sunny in Philadelphia and The League, as well as new comedy programming and reruns of popular shows like Sports Night and Arrested Development. Back on the FX front, network president John Landgraf also announced the acquisition of a 10-episode adaptation of the Coen Brothers’ Fargo, a bid they hope puts them in competition with more premiere cable fare like HBO and AMC.

8) More from the upfront front, Participant Media announced the creation of ‘pivot’ (stylized in lower-case), a new cable network formed from their purchase of the Documentary Channel. The new channel will mostly be filled with non-fiction programming aimed at Millenials, with shows from Joseph Gordon-Levitt and Meghan McCain already lined up. Participant Media is exploring options for offering the channel via broadband, trying to hook this young generation with both relevant technology and content.

9) A new report out this week from UCLA and the Writers Guild of America (WGA) revealed women and minorities are still underrepresented on television writing staffs as well as in producer roles. UCLA sociologist and the report’s author Darnell Hunt revealed that while some progress was made, it was at such a slow rate, the effects are marginal or nearly nonexistent.

10) Variety isn’t gone, but it won’t be the same. The 80-year-old Hollywood daily trade magazine published its last print edition on March 19. Variety will live on, both online in its revamped (paywall-free) website and in a new weekly magazine that debuted March 26.

And we return to The Silly Side, looking at the inherent weirdness that comes from entertainment industries:

• Montie, the cat understudy of the new Breakfast at Tiffany’s Broadway production, has been fired.
• Ashley Judd has officially announced (on Twitter) she will not be running for Senate. In related news, I, Andrew Zolides, will also not be running for Senate.
• In Jon Hamm’s penis news, Jon Hamm has spoken out (in a Rolling Stone interview) about the Internet’s obsession with his penis, calling out various blogs and tumblers devoted to… him. At any rate, Mad Men returns April 7.

1) Over 6 years after their last console release, Sony announced their latest gaming console, the PlayStation 4. While they did not reveal what it would look like, they did detail its functioning, new controller, hardware specs, and user interface. The system will include iOS and android apps to enhance the gaming experience.

2) The Academy Awards, or rather the Oscars, took place on February 24th. Six of the films nominated for Best Picture had earned over $100 million at the box office, making it the most commercially successful group of nominees to date. In the documentary short category, Inocente became the first Kickstarter-funded film to win an Oscar. The big news of the night became Seth MacFarlane’s hosting, which elicited a lot of criticism and sparked discussions about Hollywood’s potential sexism and racism. The Academy stood behind MacFarlane’s performance, and in fact this year’s Oscar ceremony showed increased viewership, especially in key younger audiences (which had been a concern for the producers). MacFarlane was not the only one in trouble on Oscar night, as The Onion faced an intense reaction towards a tweet, for which they offered a rare apology (And for anyone who is wondering how Ted came to life at the Oscars, here’s how!). The Independent Spirit Awards, which honor independent films, also took place last weekend.  Silver Linings Playbook came away the big winner, irking some people because the film’s $21-million budget technically put it outside of the classification for “indie film.”

3) Although they won an Oscar for visual effects for their work on Life of Pi, Rhythm & Hues filed for bankruptcy last week. They were cut off from discussing the plight of the industry in their acceptance speech, which upset many visual effects workers. Visual effects artists are protesting the layoffs and bankruptcies their industry is facing using any outlet they can, including social media and open letters (including a second one to Ang Lee).

4) New copyright alert system is launched by the film, TV, and music industries. The warning system gives people six strikes before they begin enforcing consequences. Sony has also developed a patent that would be able to distinguish between piracy activities and legal downloads. Internationally, France is also looking at increasing their (already very strict) anti-piracy laws. Thinking of piracy, how much does “free” music actually cost to artists involved?

5) For the first time in 12 years, music sales grow a small but symbolically important amount. In other music news, Billboard is beginning to include YouTube plays of a song in their formulation of their “Hot 100 List.” This change will allow YouTube hits like “Harlem Shake” to boost their stats. Most of YouTube’s top channels are music-based, suggesting the importance of this connection. Google is considering getting into the streaming music business. Pandora has put a limit on free listening, citing increased royalty fees as the reason, and Spotify is meeting with the record industry to ask for price breaks on royalties.

6) The 2013 box office totals are off to a slow start, 13% behind last year, and Jack the Giant Slayer opened to a disappointing $20-30 million. After taking a big loss on Rise of the Guardians, DreamWorks is forced to lay off 350 employees. The news is not all bad though, as Oz the Great and Powerful debuted with $75 million and The Hobbit closes in on $1 billion worldwide. In other movie news, Hollywood plans to cut back on sex and violence? And Regal Entertainment gets even bigger by buying Hollywood theaters.

7) In the publishing world, New York Times plans to sell Boston Globe. Variety announced they are making big changes–dropping their daily print editions, eliminating their paywall, and adding three new editors in chief.  Tim O’Brien, The Huffington Post‘s executive editor, has decided to leave.  Reader’s Digest files for Chapter 11 bankruptcy. And are digital book signings the way of the future?

8) Numerous companies are reporting hackers entering their systems, including Twitter, Tumblr, Pinterest, NBC.com, Apple, Microsoft, and Facebook (no user data was taken; but if it is compromised in the future, how would Facebook recover?).

9) In TV news, it’s pilot season! ABC is developing a miniseries How to Survive a Plague, based on the Academy Award-nominated documentary about the continuing AIDS crisis. A&E hit a record number of viewers for their reality series Duck Dynasty. Nielsen ratings are changing to reflect the new ways that people access television. Kaley Cuoco of CBS’s The Big Bang Theory tweets positively about Dish Network’s Hopper, though CBS is in the process of suing them. AMC fought with Dish about licensing fees, and AMC’s fourth quarter profits took a hit as a result. The FCC is being pushed to modify the current standards of TV product disclosure to create more transparency with regard to show sponsorship. Cablevision, with the support of Time Warner Cable and DirecTV, filed an antitrust lawsuit against Viacom, claiming that they practice illegal block booking of stations (an accusation that Viacom leveled at John Malone 20 years ago).  The lawsuit could lead to people being able to more selectively sign up for channels, only paying for the ones they want.

10) In other miscellaneous news: Clive Davis comes out as bisexual. Girls Gone Wild files for bankruptcy. And future technologies–the iWatch? Transparent Smartphones? A computer that never crashes? Or what about touchscreen T-shirts?

1. As mobile devices spread ever more widely across the globe, the White House wants federal agencies to make information more readily accessible online and especially through mobile apps. (Anyone up for a game of Angry Senators?) Right now, President Obama dominates challenger Mitt Romney on Twitter, though Romney does well in swing state followers.

2. Bad news continues to emerge about Google+, but Google seems to be ignoring all that, or missing the point, and perhaps missed the boat in not buying Twitter. Google did buy Motorola, which puts it in the hardware business, and the company is experimenting with everything from mobile photography glasses to cars that drive themselves.

3. It was also a challenging fortnight for Facebook, what with the worst IPO of the decade, a $15 billion class action lawsuit over user tracking, and GM blowing off its advertising value. Facebook is now stuck in a tough place between users and revenue needs, and its whole base could be built on a fallacy.

4. The Cannes Palme d’Or is awarded tonight. Such accolades don’t necessarily translate into box office success, but based on buzz, you can at least expect to hear more in the coming months about The Paperboy, Killing Them Softly, Cosmopolis, Amour, and The Hunt. There’s also buzz for films that premiered promos at Cannes, including PT Anderson’s The Master and Tarantino’s Django Unchained. Overall, though, word is that the festival was a subdued affair in the end.

5. It’s yet to be seen what Chinese ownership of the AMC theater chain might bring, but the man leading the purchase is making a big bet that there’s still value in American theaters, even as he really has the global market in mind. And this could be a sign of more buyouts to come.

6. The latest symbols of the newspaper business in crisis are the vulnerability of the New York Times, the New Orleans Times-Picayune making major cutbacks in print and talking vaguely about the digital future, three Alabama papers from the same owner cutting back to only three days a week, and the Denver Post showing that maybe copy-editors really are needed. Rich folks are still investing in papers, though, and some think fundamental ideological change is needed to save the form.

7. Not all magazine publishers are excited about the web, and one wonders where the concept of the controversial magazine cover goes after the death of print. Erotic books are enjoying a renaissance due to the privacy afforded by e-readers, which also have some DRM issues to work out.

8. A long-running illegal music downloading case will carry on for a bit longer after the Supreme Court declined to hear the defendant’s case. Meanwhile, in California, two men were sentenced to a year in jail for selling counterfeit CDs, while a case about pirated adult movies was dismissed due to uncertainty over IP address accuracy. And right-minded folk everywhere breathed a sigh of relief after Rick Astley’s “Never Gonna Give You Up” was restored to its proper place after a brief copyright takedown.

9. Spotify has added Aussies and New Zealanders to its roster of 20 million active users, and estimates of its value have reached $4 billion. Some think it’s Pandora that will truly change the music industry, though, and the increase in youth turning to internet radio bodes well for that.

10. Some of the finer News for TV Majors posts from the past few weeks: 10pm Drama Problem, Eurovision Host Issues, Girls Without TV, Auto Hop Lawsuits, Complete Season Ratings, Idol’s Drop, Simon’s Commencement Address, Season Winners, Women Writers & Pilots, Milch-Weiner-Gilligan Interview, Aereo Wins One, Dan Harmon Out, Upfronts Catchup.

Lesson 2: Teachers need to be aware that they may be personally liable for their use of copyrighted materials through digital interfaces.[1]

There are a host of factors to consider when reading about this case. First, the plaintiff publishers named the following figures as defendants: the university President, Provost, Dean of Libraries, and the Board of Regents. Individual teachers, though cited by name in the decision and asked to testify at trial about their pedagogical use of publisher-owned materials, were not in this instance directly sued by the publishers. This seems an important item for further discussion. When I asked an attorney whether I may myself be personally liable in the future, I was told by said attorney that I was not named in this case. That is the sole comfort I received as I was seemingly legally bound to participate in this process.  Certainly one presumes a member of the Board of Regents may have deeper pockets than an early-career academic, but the fact that the elite of our university were named in this case does not mean that they are exclusively vulnerable to this type of claim.  The lessons of the individuals sued over Napster remain significant when considering copyright protection.[2]

Every time any attorney addressed me in an email or at the start of a meeting, they called me professor, and every single time I reminded them of my status as a graduate student. I don’t think the lawyers necessarily understood the full implications of my insistence on this distinction, but I felt uniquely vulnerable as a graduate student. While other non-tenured faculty called to testify bore the burden of different professional stakes than tenured faculty members, my status as a graduate student identifies unique risks for a young teacher. In addition to my relative inexperience compared to other GSU teachers asked to testify about our classroom use of E-Reserves, I also question my relationship with the university. Am I an employee with the same protections as faculty? Would the university defend my role in the classroom on an equal level?  Are there deeper dangers in my testimony as someone building a CV and entering the job market? More broadly, to what extent are graduate student teachers being prepared for education in the digital age? Should universities and departments be even more active in mentoring and overseeing graduate student teaching, including advice about the use of digital course sites (from E-Reserves to uLearn to a personal website) and instruction about the requirements for a claim of Fair Use? I voluntarily attended sessions offered through our Center for Teaching and Learning that allowed me to chat with a University attorney and to learn more about copyright issues.  But this is not necessarily typical behavior for extremely busy graduate student teachers. Given the current institutional context in which we live, departments and universities should require more education about copyright law and fair use exemptions for both undergraduates and graduates.

Lesson 3: This case highlights the limits of the symbiotic relationship between academic scholar and the academic publisher.

My use of ‘symbiotic’ implies that we each offer the other something, sharing a mutual dependency. Publishers need content, and scholars need an outlet for their work. Yet is symbiotic too generous a term for a system in which our work is commodified with little or no remuneration for our individual effort? Also consider this next example which is not hyperbole or hysteria—one of the professors called to testify in this case was asked about her classroom use of an essay she herself wrote.  This professor did not hold the rights to her work, though, so the publisher alleged that her provision of that essay for her students through the library’s E-Reserve was a violation of the publisher’s ownership of the content she produced.[3]

At a minimum, I’d like this post to remind any readers entering into a contract with an academic publisher to consider the details of the contract. Do you maintain any ownership rights to your work? Has the contract accounted for digital reproduction and classroom use? Does the publisher have an official policy on what qualifies as Fair Use? Sage, Cambridge and Oxford were the plaintiffs in the GSU case, but academics should demand more equitable terms with any publisher with which we partner.[4]

Some of you may have heard that this week a Georgia judge issued a long-awaited legal decision in a case entitled Cambridge University Press v Mark P. Becker. If you haven’t paid attention to it before, it is important to read up on it now, as the ruling impacts each and every academic and student.

In case you haven’t been following the suit, here’s a quick summary: In 2008, three academic publishers (Oxford, Cambridge, and Sage) filed suit against Georgia State University [GSU] for copyright infringement. At issue was how instructors were using the library’s E-Reserve system—a password-protected site that offered for students scanned copies of chapters from books and journal articles from reading lists for individual courses. After a three-week trial in May 2011 and one year of deliberation, Judge Orinda Evans found GSU guilty of five cases of copyright infringement. That may sound like a loss but in fact GSU was not considered liable or viewed as acting within the bounds of Fair Use for 94 other alleged infringements.[1] You can read the decision here and there are already a few legal interpretations of the decision offered online here and here. There is certain to be more legal analyses of this decision because its implications for broader academic and pedagogical practices may be significant.

In general, there seems to be reason for GSU and other universities to pop the cork on some champagne—the limited “wins” for the plaintiff have likely made future cases of this type more trouble than they are worth. The wider implications of the case, however, are more concerning.

I should note up front that I am not a law student. I’m a media studies doctoral candidate with an interest in policy. Nothing I write here carries with it the authority of a legal degree. Instead, I offer an experiential discourse because I provided a deposition for this trial. I’d really love this post to be a detailed discussion of the deposition process, because I found it fascinating, but as this case will likely continue on appeal, I don’t want to implicate myself further. This concern—my worry of implicating myself—is what I’d like to focus on for the rest of this piece, offered in two parts, sharing a few lessons learned.

Lesson 1: Universities and departments have a responsibility to educate faculty and student teachers about Fair Use and official policy regarding copyright.

Even as we worry that libraries are losing their role as community centers of learning and gathering, Fair Use has infused many of these sites with a new mission. The GSU legal team advanced an argument that our use of digital materials on E-Reserve equaled the placing of hard copies of a book chapter owned by the library on a tangible reserve list. This argument seems persuasive to me, but it demonstrates the thorny issues involved in digitally reproducing materials for instructional purposes. The fact that faculty use of library resources formed the heart of this case should not be read as a validation of similar use of uLearn (formerly Blackboard) and personal faculty websites. Any time teachers upload copyrighted material to a website without adequate attention to Fair Use, they are potentially liable for copyright infringement.[2]

My favorite tidbit about this case is that one dispute between the plaintiff and the defendant centered on the question of what qualifies as a book or work in a Fair Use claim. The plaintiff argued that any numerical interpretation of Fair Use should not include in the page count the table of contents, figures, index, or footnotes. For example, a common perception of Fair Use posits that use of 10% of a book, when that 10% does not constitute the “heart of the work,” may be Fair Use. The 10% here must be calculated against the page total of the chapters only. This struggle over semantics indicates the intricacies involved in understanding the constantly evolving case law of copyright and Fair Use, underscoring the urgent need for a common set of practices across academia, or at least within disciplines.[3] As the GSU case documents, many professors do not share a common understanding of how our university defines Fair Use. Education of our educators is essential.

In the comments, please feel free to offer ideas for how universities can better address the challenges of copyright and Fair Use. Did your pedagogy course address these topics? Does your university host mandatory continuing learning sessions about Fair Use and university policy? Do you partner with an organization that advocates for Fair Use?

In part two of this post, I will address lessons for individual scholars and teachers.

So what’s the big deal? What makes this bill so much worse than all of Congress’s other “anti-piracy” measures? Well, it would put in place an entire system of internet censorship that would empower the US government and corporations to block any website. The Department of Justice would have a blacklist of foreign “rogue sites” which fit a vague definition of enabling intellectual property infringement and would block American users from accessing these sites, in addition to cutting off the sites’ revenues from US-based advertising services and payment processors. All of this would happen within five days of the accusation of infringement, without any judge, any two-sided hearing, or any due process for the accused site. In fact, it further encourages pre-emptive “voluntary action” by offering immunity for internet service providers, browser producers, and search engines that block sites without even any infringement claims.

SOPA’s corporate backers in the recording and film industries focus on overseas sites that they refer to as “dedicated to intellectual property theft,” despite the fact that, for instance, targeted one-click file-hosting services like Rapidshare have been found legal in both American and European courts. In addition to plowing over such “rogue sites” that actually have substantial non-infringing uses, SOPA would also ensnare domestic sites that link to any infringing material or any “rogue site”— and would block the entire domain for even one link on one page. This means that any social media platform that hosts user-generated content— everything from Facebook, Twitter, and YouTube to Reddit, Tumblr, and Wikipedia— would become liable for everything their users post. SOPA, then, would overturn over a decade of precedent for internet law in the “safe harbor” provisions of the Digital Millennium Copyright Act that protect internet intermediaries from liability for what users do (an example of how prior copyright expansion legislation at least included some reasonable limitations).

SOPA would have a huge impact on freedom of expression, creativity, and innovation online. Doing away with safe harbor protections would place a massive burden on online services to police their users and more actively censor what they do online. This would have chilling effects on the free expression and creativity of users by encouraging self-censorship and would stifle innovative new start-ups with limited resources. Further, if whole platforms disappear from US access, the free expression of all other users becomes collateral damage. Of course, these very powerful tools for shutting down online activities hold great potential for abuse— especially when held by industries with a long history of using the law to expand their control and protect them from disruptive innovators.

Further, SOPA flies in the face of the principles of net neutrality and internet freedom that the US government evangelizes everywhere else around the world. While the US extols the virtues of free and open internet connectivity globally, SOPA would institute the same technical censorship system as China, Iran, Syria, and similarly repressive regimes. The only difference is that the American censorship system would instead be used to protect corporate profits— intellectual property now trumps all other rights. In addition to undermining American credibility in calling out authoritarian states’ internet censorship, SOPA would also set a precedent for other liberal democracies to further filter and block internet content. On top of all this, SOPA involves mucking around with the fundamental technical workings of the internet, with serious consequences for the stability and security of critical internet resources like the Domain Name System. By interfering with the connections between site addresses and the servers they are designed to connect to, SOPA’s blocking system would undermine the next-generation DNSSEC system being developed by the US government’s own internet security experts and all other internet protocols that depend on it working universally consistent.

SOPA is now in markup in the House Judiciary Committee, where the hearings have been laughably lopsided and the representatives have openly admitted their ignorance of the constitutional, economic, and technical implications of what they’re proposing. The bill’s sponsors were rushing for a vote before the holidays, but, after some last-minute jerking around with on-again-off-again sessions this week, it has now been delayed until some time in the new year. (PIPA has already made it out of committee and will be coming to the Senate floor in the new year.) This is a positive development: they weren’t able to ram it through committee around the holidays while fewer people are paying attention. However, SOPA’s supporters are surely counting on the large opposition effort losing momentum. If you find any of the above scary— if you don’t want to see your Facebook feed blacked out for real soon— you should help keep the pressure on Congress to stand up for freedom online.

2. Lionsgate will test out a new low-budget release strategy, and a pair of theater chains plan independent releases of their own, which David Poland hopes is the good news for indie film it seems. Ted Hope and Cole Abaius are optimistic about the future of modest-budget indies, while Paul Thomas Anderson is just going straight to billionaires, who will be especially handy once all the state tax breaks dry up.

3. Blockbuster is seeking a buyer, which could put Carl Icahn back in the regular WAYM rotation. In related news, studio DVD money is plunging, online movie downloads are outpacing TV sales, Apple is still dominant in those downloads (though Walmart is inching closer), and Netflix users are #1 in loyalty.

4. At a time when nearly a quarter of global internet traffic involves illegal downloads, the White House is working up new digital copyright laws. I hope Obama’s better at this than the MPAA. Of course, a notable number of users say they don’t want to pirate, but the nonsense just drives them to it. One study found that it’s not music being pirated the most or even Hollywood movies. Of course, it’s porn, which has prompted porn industry lawsuits against sites like RedTube, but RedTube thus far has finished on top (no pun regretted).

5. Google caught Microsoft stealing its search results for Bing’s use by launching a sting operation that would make Henry Gondorff proud (if you don’t know who that is, you should google it, or you can bing it and probably get the same results). But some see Microsoft’s theft as smart, even as Google turned it into a PR coup. Flickr had a potential PR disaster with news it had accidentally deleted a user’s 3,400 photos, but it managed to recover all of them. The BBC had to be embarrassed when, after it scheduled 172 websites for deletion claiming it was necessary due to budget cuts, a clever netizen archived them all for only $3.99.

6. Many are using iPads to timeshift reading of online content throughout the day. Many fewer are reading the new iPad newspaper The Daily, which is most notable thus far for being buggy and not Flipboard. Magazines for iPad have mostly been a bust, though there’s hope for the new Sports Illustrated approach, which Apple could still screw up by getting all Appley and proprietary, as it has with e-book sales.

7. Twitter’s been busy lately, what with the Super Bowl and Egypt, plus there are rumors about charging users and a possible multi-billion dollar takeover. Facebook is one of Twitter’s potential suitors, and while Facebook has also been busy with Egypt, it has still managed to trademark “Face” in Europe and pick up the prostitute slack from Craigslist, despite only just turning seven years old.

8. Activision has made major cutbacks, the most publicly notable result being that Guitar Hero is dead (long live Guitar Hero!). Analysts are trying to make sense of Guitar Hero’s demise, blaming greed and the transitory nature of novelty, but the upside is we now have an awesome infographic about the life and death of Guitar Hero. In light of Guitar Hero’s fade, Rus McLaughlin fears for the future of Call of Duty.

9. Citigroup has taken over EMI, which Bobbie Johnson sees as just more music industry cluelessness; Ticketmaster has some new competition but also a new European acquisition; Spotify’s coming to the US, no really, it is, any time now, really soon; Pandora is going public; Warner and Sony Music are skidding; and the car cassette deck is dead (long live the car cassette deck!).

10. Some good News for TV Majors links from the past two weeks: Support CPB, Pilots Chart, FNL Reviews, Ad Ratings, Olbermann to Current & Olbermann Impact, CBS News Moves, Super Bowl Coverage, Ryan v. Eastin, Top Gear Trouble, Sky & Piracy, Mad Men Takedown, Money for Online, UK Sitcoms, Sheen’s Value.