Weird Al Says Sony Ripped Him Off (Like a Surgeon?)

I'm sure the record companies have been fleecing the artists for decades, but this is just flat out theft if it's true. Somebody's accountant should end up in maximum security. That would stop the trend.

'Weird Al' Yankovic Sues Sony for $5M



And because I'm obligated to throw a kitchy Weird Al song title in here, I have to say that the record execs probably wish they could create an alternate Amish Paradise universe where there was no Internet to facilitate the end-around of their broken model.

Faceboook Acquires 750-Patent Porftolio

See my comments in E-Commerce Times (article by Rachelle Dragani).

Will Politicians Never Learn?!

Newt Gingrich just got hit with a copyright infringement suit by the members of the band Survivor for his use of the song "Eye of the Tiger" on the campaign trail. This happens every four years. I know politicians are known for forgetting promises, but can't they get a single lawyer on their team who can remember to protect them from getting sued? This is just silly that it keeps happening.

Original Story at CBS

Is the International Trade Commission the Next Big Arrow in the Quiver for Patent Enforcement?

Looking for a method, backed by the US government, to completely block your competition from entering the US market? A Section 337 Investigation before the US International Trade Commission might just be your silver bullet. At least that's the thinking of a growing number of US businesses that own potentially blocking patents.

What is this Section 337 of which You Speak?
19 U.S.C. §1337 - aka ITC Section 337 - permits the ITC to investigate alleged unfair competition resulting from the importation of goods into the United States where those goods would, among other possible harms - infringe a valid and enforceable US patent. (See 19 USC 1337(a)(1)(B)) Complaints before the ITC are adjudicated by an administrative law judge who issues an initial determination ("ID") on the merits. The full six-member committee of the ITC then reviews the ID and accepts or modifies it in order to issue a final determination ("FD"). The outcome of the FD is then enforceable through US Customs and Border Patrol.

Why Choose The ITC Forum?
Companies that are faced with immediate competition from the importation of allegedly infringing products certainly will view proceedings before the ITC as a much faster and cheaper way to stop those products from coming into the country.

First, the typical time to a hearing is about a year and time to a decision is about 18 months, whereas getting to a decision in a federal district court patent infringement suit will take closer to three years. The times to respond to discovery and to motions in the 337 proceeding is shorter as well. If you're in a multi-billion dollar market where every sale counts and maintaining market share is key, time is of the essence. Provided the complainant (the patent owner) prevails before the ITC, an exclusion order (preventing importation) or a cease and desist order (preventing the further sale or marketing of already imported goods) from the ITC may be had in approximately half the time it takes to get an injunction from a district court.

Next, it's likely to be far less expensive to proceed before the ITC rather than fully litigating the matter. Claim construction hearings - where a judge interprets what the language of a patent means - are almost always held in district court cases, but often are not held in ITC cases. While the parties will have to pay experts to figure out damages and technical issues in a typical lawsuit, the remedy before the ITC is limited to an exclusion order or a cease and desist order, so there's a large dollar savings there by not including economic experts and their fees. Showing proper jurisdiction is easier and therefore less expensive because the goods themselves confer in rem jurisdiction. There are numerous other ways (such as a vastly streamlined discovery process) that the costs are reduced versus a typical district court patent case. And we shouldn't forget that the parties will likely use the ITC ruling as a bargaining chip in settlement negotiations related to the district court patent infringement case that is likely operating in parallel with the 337 proceedings.

The ITC 337 investigation is an aggressive "offensive defense" to a market position. It puts the respondent (the alleged infringer) in an immediate position of having to quickly justify its position and fight for its right to even proceed with importing these goods into the country let alone focusing on marketing and selling them to grab any market share.

Read Part 2 - Apple v. Motorola Mobility in ITC Section 337 Proceedings for a real world view of this strategy.

Apple v. Motorola Mobility in ITC Section 337 Proceedings

In Part 1 of this two-part article we looked at an overview of International Trade Commission Section 337 Investigations as a weapon in preventing the importation of goods that allegedly infringe a US patent. This strategy is currently being played out by tech giants Apple and Motorola Mobility.

Apple v. Motorola Mobility
The strategy of coupling an ITC proceeding with an analogous patent infringement suit is precisely the tack taken by Apple, Inc. in trying to maintain its hefty US market share for the iPhone by precluding the importation of competing goods. Apple's proceedings before the ITC are part of a much larger battle between the parties, including patent infringement suits that Motorola brought against Apple in Germany and the Southern District of Florida, as well as another infringement filing by Apple against Motorola in the Northern District of Illinois.

On Friday, January 13, the ITC issued an initial determination finding that Motorola's Droid phones do not infringe three asserted patents and therefore refusing to block importation of the Droid phones.

Will the decision stand?
The decision of the administrative law judge in each ITC case is subject to review by the full six-member panel. The ruling given by the ALJ - called an initial determination - is reviewed and either approved or modified by the panel to become a final determination. The full panel will only overturn the initial determination if there was a clearly erroneous application of law, clearly erroneous finding of fact or if it conflicts with an existing policy of the ITC. That's not a very good standard if you're laying bets on a reversal from the ID to the FD. Assuming the ID stands, the only recourse left is to appeal the FD to the Court of Appeals for the Federal Circuit. In this particular case, assuming the decision stands with the full panel, I can't imagine Apple will appeal it. I suspect they'll proceed with the district court case and focus their energies there. An appeal to the CAFC would be far more likely by a losing respondent who had their imports shut down by the ITC. That is, if Motorola had lost, they'd be more likely to appeal to the CAFC.

How big a blow is this to Apple?
The ramifications of this loss for Apple with respect to the Northern District of Illinois case are yet to be seen. Suffice it to say, however, it certainly doesn't help. It won't give Motorola any incentive to settle the district court case and will only strengthen their belief that they are operating not only within the law, but in a way that won't lead to a finding of infringement or damages against them in the district court case. Is that a sure thing? No. But it's definitely some momentum in their direction. On the other hand, I don't see this as a critical blow to Apple's case by any stretch. Bottom line is, the goods are going to keep coming into the country. Now Apple will have to argue that Motorola has to pay them for that privilege.

From a market perspective, Apple's ITC play was an aggressive attempt to keep Motorola's team from even stepping onto the playing field to compete. The ITC said Motorola can play. Now Apple will have to compete to win, both in terms of market share and in terms of a final determination on the infringement issue.

In the grand scheme of this epic battle between two tech titans, this was a small battle, with the victory going to Motorola. The battle will wage on with both sides still standing strong.

What? What?...Fair Use That's What!

A federal district court judge in Wisconsin has ordered Brownmark Films to pay Viacom and Comedy Central more than $30,000 in attorney's fees after finding that their case alleging copyright infringement was as worthwhile as their "hit" YouTube video, "What What (In the Butt)." If you haven't seen the video and need a good "what the hell is this crap?!" give it a watch here: But (not butt), the more interesting thing to my musical ear is the striking similarity to an old Eddie Murphy song called "Boogie in You Butt." If Samwell and Brownmark really believed in their case and it wasn't just your typical Hollywood extortion, maybe they should get ready to defend a copyright infringement suit coming the other direction. Turnabout is fair play when it comes to "in the butt" videos, right? And yes, I seriously posted this.

I Am a HAL 9000 Computer and Your Patents are Going...I Can Feel It

Samsung is seeking to invalidate Apple patents related to the iPad, claiming that Stanley Kubrick's mega-influential 1969 space flick 2001: A Space Odyssey anticipates the entire concept.

This one could get interesting. The cited YouTube clip of the film doesn't give much more than a view of a tablet with a video screen, but this move is potentially a big ball of wax for patent litigators. The undeniable influence of movies and TV shows like Star Trek, Star Wars, etc. is still driving innovation in everything from cell phones to watches (can anyone say Dick Tracy?).

Original coverage here:
http://www.abajournal.com/news/article/stanley_kubrick_thought_of_ipad_design_first_samsung_says_in_patent_spat

Google and Viacom Battle Continues...Good News for the Rest of Us!

Viacom Friday filed an appeal in its copyright case against YouTube (now owned by Google) in which a June opinion from the Southern District of New York held that YouTube was not liable for widespread infringement due to users' copious uploads of copyrighted material, including movies, music videos, etc. owned by Viacom properties. The continuation of this suit is great news for the Internet-going public and website operators as it will further clarify the safe harbor provisions of the Digital Millennium Copyright Act with respect to Web 2.0 content.

Section 512 of the DMCA - a frequent topic on this blog - provides a bar to the liability of "online service providers" for the acts of infringement of its users. This bar, or "safe harbor," requires, among other things, that the OSP act as a mere conduit of information (i.e. don't change or filter the content), provide processes for notification of alleged copyright infringement and promptly comply with its policies by removing or disabling access to the allegedly infringing content.

Any YouTube user who hasn't been living under a digital rock has run across the not-uncommon "This video is no longer available due to a copyright claim by XYZ Inc." notification. Clearly YouTube is responding to DMCA takedown notices from copyright holders. Is this enough? If YouTube knows that users are uploading in mass quantities copyrighted content of third parties, is YouTube required to filter content at the upload stage or otherwise do more to stop this activity? The further judicial review of the Viacom case will solidify the checklist of responsibilities for website owners displaying any third party content. The case will certainly continue to be costly for the media giants involved, but the clarity that may result from it for the rest of us will be the true benefit...and likely worth every penny to all involved. (The losing side when this case is done may not share my opinion.)

Copyright Cleanup Clarification and Corrections Act (S.3689) Heads to President

US Copyright law took a small step toward catching up with technology this month when Congress passed a bill aimed at refining and clarifying certain existing aspects of the Copyright Act. The Senate version of the bill (S.3689) passed on November 19 and is awaiting action by President Obama.

The bill addresses several technical loose ends and aims at modernization. A small step toward the latter is accomplished by removing language from Section 512(c) that required the Copyright Office to maintain both electronic and paper records of designated copyright agents for DMCA takedown notices. Under the new legislation, records will be maintained solely in electronic format; clearly an effort to cut costs associated with maintenance of the list.

Summarizing Other Provisions...

Substantial clarity is brought to Section 201(d)(2), by adding language expressly stating the right of a copyright licensee to transfer or further license that right, absent written, contractual proscriptions by the prior licensor.

The CCCC Act's provision most likely to garner attention down the road from the general public expands Section 303(b) to state that the exemption for publication of works on phonorecord prior to 1978 includes not only musical works, but any "any musical work, dramatic work, or literary work." This clarification will make clear the duration of copyrights associated with countless works approaching the end of their copyright term over the next several decades.

Amendments to Section 803 expressly subject determinations of the Copyright Royalty Judges to judicial review and approval of the Librarian of Congress. The Royalty Board, created in 2004, currently "may issue regulations to carry out their functions under [The Copyright Act]."

There is no indication that Obama will delay passage of the bill.

Is this the Period Before the (Legal) War for Lady Antebellum?

Here we go again. A YouTuber has altered the tempo and pitch of the Lady Antebellum hit "Need You Now" and the Alan Parsons Project's "Eye In The Sky" to create a mashup suggesting the former ripped off the latter. And the blogosphere masses are now on the case debating its merits.

This isn't new territory, of course. The last couple times we saw this involved Steve Vai and Radiohead. But this is Alan Parsons! The genius pushing the faders on Dark Side of the Moon and running tape for the Beatles. Will he (well, his legal folks) take up the investigation? Apparently Parsons' camp is aware of the online grumbling (Wendy Geller in Our Country).

We shall see. Take a look at the video mashup and you be the judge.

Majors Must Understand Before Consumers Will Try to Understand

I've said many times before that while downloading is not justifiable, the major labels need to get a better grip on their own changed business landscape before they can make their consumers understand the importance of their dollars to ensuring the music keeps coming. This very interesting - and frustrating - blog detailing one major label's inability to account for digital download royalties is an astounding case in point.

Read on: http://www.toomuchjoy.com/?p=1397

Designing a Downfall

On August 5, Senator Charles Schumer (D-NY) introduced Senate Bill S.3728, which would amend U.S. copyright law to allow limited, three-year protection for new and original fashion designs. The legislation would prohibit “deliberate copies” that are “substantially identical to protected designs.” The bill is clearly a corporate handout that will result in great windfalls to the large designers – if they can build fashion trends without mass quantities and ready availability of their styles – and will squeeze the “middle class” of United States clothing manufacturers into financial ruin.

The proposed Innovative Design Protection and Piracy Prevention Act will give designers essentially a 3-year monopoly on their styles. Contrary to the purported benefit to these major designers, the proposed law would serve only to diminish the market for their clothes and hurt the US economy because the clothes won't become widespread so as to start a major fashion trend without people having access to the lower-priced versions. With the lower priced versions of the particular styles out there, more people will wear them, more people will see them and more people will want (and be willing to pay the markup for) the original, simply because they must have the prestige of that particular label. The only possible solution to this problem is that the market will then be flooded with knockoffs manufactured in other countries, such as China, where the enforcement of the IDPPPA will be more difficult. The collateral result will be that lower-priced makers in this country will entirely miss any opportunity to capitalize on the newest trends for fear of mass financial liability under this new law.

Understanding the negative impact of a shortage of the new styles and the unavailability of those styles to the mass market (i.e. those who will not spend designer prices for designer styles), the major designers will further capitalize. After all, who is at liberty to import overseas-manufactured knockoffs? The only people who can do it without running into piracy law problems...the major designers themselves.

The IDPPPA is a corporate-friendly proposal, which squeezes out legitimate domestic competition and benefits only two parties: big name designers and overseas manufacturing outfits. Chichi Designer will put out a new dress. For a time it will hit the runways, create a buzz in the high-end fashion sector and will adorn the racks at high-end retailers such as Neimann Marcus. After a short time, the designer will have tapped its initial market and will need to continue the spread of its trend to a wider market. In order to do so, Chichi Designer itself will commission cheaper versions to be made in China or elsewhere and attach a no-name label to it. This “knockoff” will now be suitably priced to fill the racks at more moderately priced retail outlets such as Kohl’s and TJ Maxx. The large designer double dips. China makes money. And every smaller clothing maker in America goes out of business.

This proposed law embraces the “world economy” in a wholly nonsensical way. More US money...straight overseas in exchange for re-imported goods that will be paid for from domestic pockets. The attack on the sustainability of the US middle class and mid-sized US domestic businesses gains an additional arrow in the quiver. And this time the supplier of the poison economic pill is the US itself by enactment of a shortsighted law.

The Discerning Downloader

Those who have read this blog before know that I strongly believe that the Big Content industries' major weakness in the fight against file sharing is that they lag behind consumers in their exploration and exploitation of new technologies. A recent survey from TorrentFreak seems to confirm that.

The survey shows that uTorrent has made massive gains in market share among file sharers (now enjoying over 60% share), primarily at the expense of Vuze, the second most popular Bit Torrent client (now with about 14%). So, what, you ask, does that have to do with the tech savvy-ness of file sharers? Well, one of the main draws of uTorrent is its extremely small footprint, consuming as little as 14 MB of RAM while downloading. Vuze, the former number one Bit Torrent client, by comparison, requires approximately 80 MB of RAM. The huge uptick in market share for uTorrent tells us that either: 1) the average Bit Torrent user now understands that minimal RAM consumption allows them to download files "in the background" while performing other tasks, without experiencing degradation in system performance; 2) the average Bit Torrent user is easily influenced by word of mouth and uses uTorrent because someone who understands #1 told them to; or 3) some combination of #1 and #2.

Whether by true understanding or by influence, the file sharing legions are coming to embrace not only free content, but also the most efficient means of obtaining that content. This growth of efficient client usage will permit more users to remain online while they perform other computer-based tasks, both allowing them to download more and, likely of more concern to the industries, make greater numbers of files available for download by others.

This is yet another sign that the real issue facing Big Content is the gap between their understanding and usage of technology and that of their (former) consumers. Until that gap is spanned, the downward slide of content sales will continue.

Japanese Court's Reversal in File-Sharing Case is a Clear Win for Software Innovators

A Japanese appeals court yesterday reversed a lower court ruling against file-sharing software developer Isamu Kaneko related to his "Winny" program. This ruling is a departure from recent rulings in both the US and Sweden, and clearly demonstrates that Japan's courts have an eye toward fostering innovation rather than protecting the status quo on behalf of content owners.

The criminal proceeding against Kaneko turned on the issue of whether the Winny program "encouraged" file-sharing and copyright infringement. This approach is directly analogous to the idea of contributory infringement here in the U.S. The doctrine of contributory infringement basically goes like this: If you know that your actions/products/etc. are used for infringing activity and you intentionally induce or encourage people to participate in the activity or use the product, you are also liable for any infringement that they commit. The case law in this area has been developing for over two decades, but was codified in 2005 by the Supreme Court in the landmark MGM v. Grokster case. However, it is the 1984 Sony Betamax case that provides an escape. In that case, the Supreme Court said that a product is not designed for contributory infringement as long as it has significant non-infringing uses. Yesterday's ruling from the Japanese high court clearly recognizes the goal of Sony, which is the continued encouragement of technological innovation.

Worldwide, the big content companies have seemed to fear this encouragement of technological innovation in the area of file-sharing. Rather, they have attempted to place civil and criminal liability upon file sharers, software developers and tracking site hosts in order to cut off the supply of unauthorized copies of music, movies, software, etc. Big Content has seemingly ignored the tack whereby they would become participants in the technological foot race and lead the next iteration of development in order to protect their own content without resort to legislation. The reversal of Kaneko's conviction demonstrates to Japanese content providers that the courts of that country are not going to be as cooperative as some other courts in policing file-sharing related copyright infringement if it means stifling innovation. This ruling is a clear win for software developers in that country and should be a strong signal to Big Content that - at least in Japan - their next move must come on the technological front rather than the legislative or judicial approaches employed to this point.

A Generation Lost: How the Music Industry Lost 30 Years or So of Income

A research study released today in Great Britain shows that, despite knowing that downloading music is illegal, young people 14-24 continue to download music by whatever technological means available (see original story below). These studies seem to pop up monthly, while the lobbyists and paid-for politicians on either side of the Atlantic try to legislatively put their fingers in the dike. The content industries need to realize that they have complacently fallen so far behind technologically that they simply cannot, and will not, recover their old business model for at least a generation.

For decades, consumers happily rushed to stores to buy the latest releases from their favorite bands. From Elvis to Bill Haley, Buddy Holly to the Rolling Stones to Nirvana to Blink-182, people wanted their tunes and they were willing to pay for them. The portable record player gave way to the car 8-track player. Enter the Walkman, and then the Discman. Then, in the late 1990's some inventive and intelligent folks outside the music industry realized a vast improvement in the solution to the music portability puzzle that had so clearly intrigued people over the previous generations. Along came MPEG Layer 3 technology - you know it as MP3 - and what was a stroll became a sprint en masse.

First players like the Rio took slow steps into market acceptance. Then the Yepp player did the same. More tech savvy citizens got into the mix and along came Napster. The sprint was now a rushing stream. Up went Internet bandwidth, along came Kazaa and the iPod...and then the stream became a torrent - Bit Torrent to be exact. Over the course of less than a decade, the content industries stood by, heads in the sand while technology created by individuals and corporations alike realized all of the ease-of-distribution dreams that the content industries had always dreamed of. Every person in the world could quickly receive a copy of what they had long been willing to pay for. They could take that copy with them anywhere they went - and they wanted to do so. And the content industries stood idly by, deer in headlights, heads in the clouds...the euphemisms go on and on.

Had the industry recognized the changing tide, they would have been able to harness the wave and ride it into an explosion of success and far greater distribution. But instead they turned their backs one year, fought with all their might the next, and shrugged their shoulders the next. What was left? An entire generation who was raised on free, easily distributed, easily duplicated music and movies. Music and movies that these consumers still want.

The content industries will not recover these consumers as paying customers. It simply won't happen. Well, unless they can come up with a technological methodology to put the genie back in the bottle. Suing customers has proven costly and ineffective. Occasional talk of "educational endeavors" to apprise young people of the copyright laws have gone nowhere. And legislation will only breed more cynicism, cost more money, and lead right back to suing or pushing for prosecution of customers.

The only answer is to use all of that money and might to develop new technologies that once again make the industries' products ones that the customer must buy if he or she wants to obtain it. Until then, customers - teens and twenty-somethings - who have grown up with free music and movies at their fingertips will have no reason to change their thinking. Try telling people that we're now going to drive on the left side of the road or that they will have to use coin-operated telephones at home. Simply put, it just doesn't compute. And for a whole generation who got loose from the gates while the industry snoozed, music will always be free and the old way simply won't make sense.

The content industries can regain their paying market. It just isn't going to happen in this generation unless they start being as smart as those who have slayed their previous model and develop another model that proves that paying for the music consumers love is a necessity, not an option.

Link: Original Times Online Story: Young people ignoring attempts to combat illegal music downloading

How Do I Register Copyrights For My Band's CD (Part 3 of 3)

Alright, so if you've gotten to this point, you've already read Parts 1 and Part 2 and you just need to register the copyright in an underlying song that was written by people different from those who played on the recording. If any of this is not the case for you, or you're confused. I STRONGLY suggest you go back and start at Part 1.

Let's jump right into registering the songs you wrote. Again, this is only necessary where the writers of the songs are different from the people who played on the recordings that we registered in Part 2.

Assuming you are at the shopping cart and just registered the Sound Recordings, click "Add More Services."

This process is almost identical to what you did in Part 2.
1) Click "Register a New Claim."
2) Click "Start Registration."
3) Select "Work of the Performing Arts" and click "Next."
4) Enter the album title as "Title of Work Being Registered" and each of the song titles as "Contents Title." Click "Next."
5) Just as we did before, specify whether you have published the songs already.

6) You are now on the Authors page. Here you want to enter only the people who wrote the song - not other bandmates or studio musicians or anyone else. Only people who wrote the songs. When you hit "Save" for each person, it will ask you to specify their contribution (e.g., music, lyrics, etc.). Select the appropriate things for each person and hit save. Repeat this until you've listed all the writers, then click "Next."

7) Specify the Claimants. It should match the writers unless there was a written agreement otherwise, or if someone's contribution was a work for hire.

8) Specify if there are any parts of your song that were pre-existing. Did you quote someone extensively? Did you specify the use of a clip or sample? Most likely you're going to skip this by clicking "Next."

9) Fill in the Rights & Permissions contact.
10) Fill in the Correspondent in case the Copyright Office needs to contact you.
11) Fill in the name and address for the certificate.
12) Special handling - you most likely want to skip this. If you think any of them applies to you, you should probably be chatting with a lawyer at this point.
13) Certify your submission.
14) Review it and add it to the cart.

Now you've got your Sound Recording and you Work of the Performing Arts applications filled out and added to your shopping cart. Hit "Checkout," pay your money, and voila! You should be hearing from the Copyright Office.



Disclaimer: It's very important that you do this right. While I've attempted to help you through the copyright registration process, this is not legal advice. If you have ANY questions, you need to contact a lawyer and get them to help you complete the process properly.

How Do I Register Copyrights for my Band's CD (Part 2)

In Part 1 of this article, I explained a whole bunch of preliminary matters related to copyright registration for your band's songs or albums. Those preliminary matters are pretty important stuff. If you haven't read Part 1, you definitely should start there and then come back here to get started.

Now let's jump right into registering our copyrights.

Online Registration
You should take advantage of online registration for several reasons. First, it's convenient. You don't have to mail anything and you can simply upload your music, type in your info, pay by credit card and be done. Second, there is a reduced filing fee, which right now is $35.

1) Go to the Copyright Office's website at www.copyright.gov/eco/.

2) You'll see a brief description of the "eCO Online System." Below that, there's a link that says "Login to eCo." Click the "Electronic Copyright Office" icon next to that.

3) Click the "Continue to eCO" button.

4) At this point you're asked for login information. If you haven't registered...well, register. If you already have an account, log on.

5) You now arrive at your Open Cases screen.


Open a New Case
1) On the left side menu, under the heading "Copyright Services" click "Register a New Claim." On the next screen, click the gray box that says "Start Registration."

2) Let's start by registering the Sound Recording. So, in the "Type of Work" dropdown list, select Sound Recording. At the top, click the "Next" button.

3) Now, here's where we need to start being smart so we save ourselves all that money I talked about. Because we're registering a whole album, we can register all of the songs on that album at once rather than doing each song individually.


4) You see an empty list of works. Let's start by adding the album itself. So, click the "New" button. In the "Title Type" dropdown list, select "Title of Work Being Registered." In the box below it, type the album title. If it's a demo, an EP, whatever...give it a title. Even if it's "Demo EP." Now click the gray "Save" button above. You are returned to the list of works and you should see the album title.

5) Now we need to list the songs on the album. Click the gray "New" button again. The songs on the album are the contents of the album, right? So, in the "Title Type" dropdown list, select "Contents Title." In the box below it, type the name of the first song on the album. Click "Save." You are now returned to the works list and you should have the album title and the first song.

6) Repeat step 5 for each song on the album. When you've finished, click the "Next" button on the works screen.

7) The next screen asks if the work has been published. If you've sold the CD, posted the songs on Myspace, Sonicbids, or otherwise made the recordings public (I mean THESE recordings. Not another recording of the same song.) you MUST say yes. Answering incorrectly is not going to help you. Tell the truth. If you select yes, you will be asked for some extra information. "Year of Completion" means when the recording was finished. "Date of First Publication" means when you sold it, put it online, etc. (It does not mean when you first played it at a gig.) If you sold a CD at a gig, put down the date you did that. "Nation of First Publication" is where you published it. If you're reading this, my guess is you're going to select United States. You most likely want to ignore the other boxes, so click "Next."

8) We're now at the point where you need to name the authors of the work. "Authors" is a legal term in the copyright field. In this case, it means who wrote the song. If you and your 3 bandmates sat in a room and jammed, mixing and matching and tweaking until you came up with a song, you're all authors. And in our example, since we're talking about who played on the recording, all of the players are "authors." Click "Add Me" to add yourself and "New" to add the other people. For each one, put in name, year of birth, citizenship, domicile (what country you permanently live in). You should also select "no" for the "work made for hire" question. The only way this is "yes" is if you commissioned someone to write with you, or paid a studio musician. If you did pay a studio musician and they signed a release, put them as an author and choose "yes." Click "Save."

9) Now specify the person's contribution. For someone who played on the recording, check "Sound Recording" and "Performance." Click "Save." Repeat steps 8 and 9 until you have all of the people who played on the recording listed. Then click "Next" to move on.

10) You're now asked for the "Claimants." The Claimant is the person (or people) who will get ownership of the registered copyright. If you did not specify anyone as contributing a "work for hire" in the previous step, you should add all of the people from steps 8 & 9 to this list. The only scenarios where this list will differ from the authors list is if a) someone's contribution was a work for hire (in which case you leave him off) or b) the authors have already completed a copyright assignment where someone gave away or sold their rights. In those cases, the claimants would be the ones who were not contributing works for hire, or in the case of (b) the ones who received the assignment. If none of this sounds familiar, your claimants will almost certainly match your authors. Once you have all these entered, click "Next."

11) This step is about limiting your claim. You only need to fill this out if you sampled from an earlier work, took something from the public domain like "When The Saints Go Marching In" or based your song on a song that has otherwise already been registered. Most likely you will want to skip this step by clicking "Next." But again, make sure you answer this question truthfully (as with all portions). If you don't you could end up with a worthless registration.

12) The next three steps are easy (FINALLY!!!). In "Rights & Permissions" put in the name of the person that should be contacted if people want to use the song in a movie, want to cover the song, etc. Then enter the person you want the Copyright Office to contact about this registration. That's the correspondent. Finally, put in the name and address you want the official copyright certificate sent to. If you're doing the legwork here, it's very likely that all 3 steps will be you. Easy, huh?

13) Next is the screen asking about special handling. You almost certainly will not want to check any of those boxes. If any of them sound like they might apply, you probably have a lawyer involved already and you should get their opinion. Otherwise, skip this step and click "Next."

14) Now you've reached the Certification page. This is where you state that you've provided truthful information. It's important that you have done so. Assuming you have, type your name, check the box and hit "Next."

15) DISABLE YOUR POP-UP BLOCKER BEFORE YOU DO THIS STEP - You've now finished entering all the info you need. Review it, make any necessary corrections and click "Add to Cart." (This part seems to be slow, so just wait til it goes to the next screen.) If you read the parts above and you don't need to fill out a separate Work of Performing Arts registration, checkout and pay your money.

16) Once you submit your payment, a pop-up window will appear asking you to upload your songs. Choose your MP3 files from your hard drive, submit them, and that's it!

Congratulations! You'll be hearing from the Copyright Office.

If you do need to do a separate Work of Performing Arts registration, go on to Part 3.


Disclaimer: It's very important that you do this right. While I've attempted to help you through the copyright registration process, this is not legal advice. If you have ANY questions, you need to contact a lawyer and get them to help you complete the process properly.

How Do I Register Copyrights for My Band's CD? (Part 1)

How the heck do I copyright my band's songs or my band's CD?

This is a very common question, and the online registration process from the Copyright Office's website is not the most intuitive thing in the world. So, I'm going to try to walk you through it in as simple a manner as possible. After I explain a bunch of stuff, there's a list of steps at the bottom that you can print out and use as a guide.

Preliminary Matters
Let's quickly clear up a couple things first.

0) "Disclaimer" - This is important stuff and you need to get it right to protect your rights properly. I intend to give you an overview in this 3-part series, but I cannot, and do not, provide legal advice over the Internet. If anything you read here, or encounter while registering is not clear, you should STOP AND CONTACT AN ATTORNEY.

1) "Copyrighting" - When you file a copyright application, you're not "copyrighting" your songs. The copyright in your songs comes into existence the moment you "fix it in a tangible medium." What the heck does that mean? Well, it just means that once you make a recording of the song, the copyright exists and belongs to you. You're simply registering that copyright with the Copyright Office.

2) Why Register? The long and short of it is that you want to be able to protect yourself if somebody rips you off. Registering the copyright(s) makes it possible for you to stop an infringer from continuing to profit from a song they "stole" from you. Without a registration, you may be able to stop them from selling any more copies, but you won't get any compensation. Having the registration allows you to receive money damages if somebody rips off your copyrighted song. It's also important, for legal reasons, to register within 3 months of releasing the material. If that 3 months has expired, you should still register. But you're in better shape if you register right away.

3) Save Yourself A LOT of Money The registration fee for online filing at the time I'm writing this is $35. If you're not too savvy with copyright registration (which is not something you should expect yourself to be savvy in) you could end up paying $35 per song to register the recordings, and maybe another $35 per song to register the work itself if the writers are not the performers. That's a ton of money. You could end up spending $840 to register a 12-song album. Do it right and you can register that same 12-song album for $35 total ($70 if the writers and performers are different). A savings of $770 is a nice American Standard Strat, a used SG or a set of bass bottoms for your PA. Follow the instructions below and save yourself a lot of money.

4) Before You Start
Collect the following information: Legal name, address, year of birth and country of citizenship for all of your bandmates/co-writers. If you don't have this, you're going to end up having to save your application in the middle and come back later to finish it.

5) !!!VERY IMPORTANT POINT!!! - What Kind of Work Am I Registering? Read this section a couple times, because it's not necessarily intuitive, but it's important. If the people who wrote the song are not the same as the people who played on the recording, you need to fill out two different forms.

Let's say I'm in a band with 3 other guys. I play drums, there's a bassist, a guitarist and a guitarist/singer. If all four of us collaborate to write a song and all four of us go into the studio and record the song (or in our basement, or wherever), we only fill out one application. In that case, we only need to register the work as a Sound Recording.

Let's say the same band is involved, but the singer and bassist write the song (think Iron Maiden or the Beatles) and all four of the band members play on the recording. In this situation you need to fill out two applications. One is to register the song that the singer and bassist wrote (that's a Work of the Performing Arts). The second application is to register the actual recording that all four band members laid down. As above, that's a Sound Recording. This means that if someone wants to use the actual recording we made, all four band members get paid. If someone wants to cover the song by making their own recording, only the writers get paid.

As I said, re-read that section if you're confused, but the bottom line is, if the list of writers is not identical to the list of performers, fill out two forms (SR and PA). If the writers and performers are the same, just fill out one (SR).

Who Owns What?
When you register a work created by multiple people, each person is presumed to own an equal share. Two writers? That's 50-50 in the PA work. Four performers? That's 25-25-25-25 in the SR. If you want the ownership to be different, you need to fill out an agreement between you afterward. That agreement is known as a copyright assignment and it lets you assign rights however you want. This is a simple agreement and you may be able to find good examples online. Note that this is not a function of the Copyright Office. This is something you do on your own (hopefully with the help of a lawyer to make sure everything looks good).

OK, let's move onto Part 2 and get started.

Disclaimer: It's very important that you do this right. While I've attempted to help you through the copyright registration process, this is not legal advice. If you have ANY questions, you need to contact a lawyer and get them to help you complete the process properly.

Are Statutory Copyright Damages Unconstitutional?

It was only a matter of time before someone raised the constitutionality of copyright damages as a defense in the context of RIAA file sharing lawsuits. As I had suggested in my comments regarding the Jammie Thomas case, the awards of thousands or hundreds of thousands of dollars in statutory damages for offenses that create actual damages of perhaps $3.50 is fertile ground for accused infringers interested in fighting the RIAA.

Denise Barker, a defendant in an RIAA file sharing case, settled with the group yesterday for $6,050. This, after raising the constitutionality of the Copyright Act's damages provisions, though admitting to sharing major label, copyrighted files over KaZaA. Clearly the RIAA wanted no part of this fight or its sure-to-be-exorbitant legal costs.

I expect this constitutionality question and criminal copyright penalties to be the next battlegrounds for the RIAA and its defendants.

Article Published

My most recent article on the PRO-IP Act has been published in the April issue of Intellectual Property Today. It is available online at http://www.iptoday.com/articles/2008-4-panzer.asp