Intellectual Property & the Constitution
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The Music Modernization Act of 2018 and Its Burgeoning Impact Jeffrey G
The Music Modernization Act of 2018 and its Burgeoning Impact Jeffrey G. Knowles, Partner, Coblentz Patch Duffy & Bass LLP Lisa M. Schreihart, Attorney Abstract The Music Modernization Act of 2018 (“MMA”), enacted October 11, 2018, is the most significant reform of music copyright law in decades. As the first major legislation since the Copyright Act of 1976 to affect music royalties, the MMA has made major strides in improving compensation and to level the playing field for all music creators, including songwriters, legacy artists, and music producers. The MMA modernizes the musical works licensing scheme for today’s digital music environment, provides federal copyright protection for pre-1972 sound recordings, and ensures that music producers can get a piece of the royalty pie. The MMA may also have some shortcomings that allow room for legislative growth in the modern music era. This paper describes the key parts of the MMA and eXamines the benefits and criticisms of the Act that have surfaced in the Act’s first year as law. An Overview of the Music Modernization Act The Music Modernization Act (MMA), proposed as H.R. 1551 by Representatives Orrin G. Hatch and Bob Goodlatte, combined the Music Modernization Act of 2018 (S. 2334), the Classics Protection and Access Act (S. 2393), and the Allocation for Music Producers Act (S. 2625). The MMA, an amended version of S. 2823, passed unanimously both in the House as H.R. 5447 on April 25, 2018 and in the Senate on September 18, 2018. The MMA was enacted October 11, 2018. The MMA is intended to: 1) increase compensation to songwriters and streamline licensing of their music; 2) enable artists who recorded music before 1972 to be paid royalties when their music is played on digital services; and 3) enable music producers (e.g., record producers, sound engineers, and other studio professionals) to receive royalties for their creative contributions to recorded music. -
Music Modernization Act Updates and Related News
Information provided by the TUNED IN United States Copyright Oce Music Modernization Act Updates and Related News From the Copyright Office Issue 3 July 1, 2020 Dear Readers, These past few weeks and months have been hard for our country. While it is impossible for us to fully grasp the extent of that pain, they have been especially hard for members of the Black community. Writing a newsletter without acknowledging that is impossible. We all have a role to play in creating a fairer world, the Copyright Office and the music industry included. I hope we are all taking time to recharge and reflect. Why? Because, put simply, music has a powerful effect on us all. It is the soundtrack to social change, a call to action, and a source of solace and strength when we need it most. The industry has been, and continues to be, hit hard by COVID-19. But we need you more than ever. As we gear up for the license availability date in January, the Copyright Office is putting out a number of resources to educate the public about upcoming changes under the MMA. I’ve shared a few highlights with you below. With care, Regan Smith General Counsel and Associate Register of Copyrights U.S. Copyright Office Copyright Office Requests Public Comments on MLC Best Practices As directed by the Music Modernization Act (MMA), the U.S. Copyright Office is undertaking a public study and soliciting UNCLAIMED ROYALTIES STUDY public comments to recommend best practices that the Mechanical Licensing Collective (MLC) may implement to effectively identify and locate copyright owners with unclaimed royalties of musical works, encourage copyright owners to claim accrued royalties, and ultimately reduce the incidence of unclaimed royalties. -
01-618. Eldred V. Ashcroft
1 IN THE SUPREME COURT OF THE UNITED STATES 2 - - - - - - - - - - - - - - - -X 3 ERIC ELDRED, ET AL., : 4 Petitioners : 5 v. : No. 01-618 6 JOHN D. ASHCROFT, ATTORNEY : 7 GENERAL : 8 - - - - - - - - - - - - - - - -X 9 Washington, D.C. 10 Wednesday, October 9, 2002 11 The above-entitled matter came on for oral 12 argument before the Supreme Court of the United States at 13 10:03 a.m. 14 APPEARANCES: 15 LAWRENCE LESSIG, ESQ., Stanford, California; on behalf of 16 the Petitioners. 17 THEODORE B. OLSON, ESQ., Solicitor General, Department of 18 Justice, Washington, D.C.; on behalf of the 19 Respondent. 20 21 22 23 24 25 1 Alderson Reporting Company 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005 1 C O N T E N T S 2 ORAL ARGUMENT OF PAGE 3 LAWRENCE LESSIG, ESQ. 4 On behalf of the Petitioners 3 5 ORAL ARGUMENT OF 6 THEODORE B. OLSON, ESQ. 7 On behalf of the Respondent 25 8 REBUTTAL ARGUMENT OF 9 LAWRENCE LESSIG, ESQ. 10 On behalf of the Petitioners 48 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 Alderson Reporting Company 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005 1 P R O C E E D I N G S 2 (10:03 a.m.) 3 CHIEF JUSTICE REHNQUIST: We'll hear argument 4 now in Number 01-618, Eric Eldred v. John D. Ashcroft. 5 Mr. Lessig. 6 ORAL ARGUMENT OF LAWRENCE LESSIG 7 ON BEHALF OF THE PETITIONERS 8 MR. -
13-485 Comptroller of Treasury of MD. V. Wynne (05/18/2015)
(Slip Opinion) OCTOBER TERM, 2014 1 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus COMPTROLLER OF THE TREASURY OF MARYLAND v. WYNNE ET UX. CERTIORARI TO THE COURT OF APPEALS OF MARYLAND No. 13–485. Argued November 12, 2014—Decided May 18, 2015 Maryland’s personal income tax on state residents consists of a “state” income tax, Md. Tax-Gen. Code Ann. §10–105(a), and a “county” in- come tax, §§10–103, 10–106. Residents who pay income tax to anoth- er jurisdiction for income earned in that other jurisdiction are al- lowed a credit against the “state” tax but not the “county” tax. §10– 703. Nonresidents who earn income from sources within Maryland must pay the “state” income tax, §§10–105(d), 10–210, and nonresi- dents not subject to the county tax must pay a “special nonresident tax” in lieu of the “county” tax, §10–106.1. Respondents, Maryland residents, earned pass-through income from a Subchapter S corporation that earned income in several States. Respondents claimed an income tax credit on their 2006 Maryland income tax return for taxes paid to other States. The Mary- land State Comptroller of the Treasury, petitioner here, allowed re- spondents a credit against their “state” income tax but not against their “county” income tax and assessed a tax deficiency. -
An Unconventional Approach to Reviewing the Judicially Unreviewable: Applying the Dormant Commerce Clause to Copyright Donald P
Kentucky Law Journal Volume 104 | Issue 1 Article 5 2016 An Unconventional Approach to Reviewing the Judicially Unreviewable: Applying the Dormant Commerce Clause to Copyright Donald P. Harris Temple University Beasley School of Law Follow this and additional works at: https://uknowledge.uky.edu/klj Part of the Constitutional Law Commons, and the Intellectual Property Law Commons Right click to open a feedback form in a new tab to let us know how this document benefits you. Recommended Citation Harris, Donald P. (2016) "An Unconventional Approach to Reviewing the Judicially Unreviewable: Applying the Dormant Commerce Clause to Copyright," Kentucky Law Journal: Vol. 104 : Iss. 1 , Article 5. Available at: https://uknowledge.uky.edu/klj/vol104/iss1/5 This Article is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal by an authorized editor of UKnowledge. For more information, please contact [email protected]. An Unconventional Approach to Reviewing the Judicially Unreviewable: Applying the Dormant Commerce Clause to Copyright Donald P. Harris' "[B]y virtually ignoring the central purpose of the Copyright/Patent Clause ... the Court has quitclaimed to Congress its principal responsibility in this area of the law. Fairly read, the Court has stated that Congress' actions under the Copyright/Patent Clause are, for all intents and purposes, 2 judicially unreviewable." INTRODUCTION On July 15, 2014, the House Judiciary Committee, Subcommittee on Courts, Intellectual Property, and the Internet, held one of a number of hearings reviewing the Copyright Act.3 This particular hearing focused, among other things, on the copyright term (the length over which copyrights are protected).4 While it is not surprising that Congress is again considering the appropriate term for copyrights- Congress has reviewed and increased the copyright term many times since the first Copyright Act of 1791 5-it is troubling because Congress has unfettered discretion in doing so. -
What We Don't See When We See Copyright As Property Jessica Litman University of Michigan Law School, [email protected]
University of Michigan Law School University of Michigan Law School Scholarship Repository Articles Faculty Scholarship 2018 What We Don't See When We See Copyright as Property Jessica Litman University of Michigan Law School, [email protected] Available at: https://repository.law.umich.edu/articles/2018 Follow this and additional works at: https://repository.law.umich.edu/articles Part of the Indian and Aboriginal Law Commons, Intellectual Property Law Commons, Law and Society Commons, and the Legislation Commons Recommended Citation Jessica D. Litman. "What We Don't See When We See Copyright as Property." Cambridge L. J. 77, no. 3 (2018): 536-58. This Article is brought to you for free and open access by the Faculty Scholarship at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. WHAT WE DON’T SEE WHEN WE SEE COPYRIGHT AS PROPERTY JESSICA LITMAN* ABSTRACT. For all of the rhetoric about the central place of authors in the copyright scheme, our copyright laws in fact give them little power and less money. Intermediaries own the copyrights, and are able to structure licenses so as to maximise their own revenue while shrinking their pay-outs to authors. Copyright scholars have tended to treat this point superficially, because – as lawyers – we take for granted that copyrights are property; property rights are freely alienable; and the grantee of a property right stands in the shoes of the original holder. -
Intellectual Property Review—Updates and Changes from 2018
Intellectual Property Review—Updates and Changes from 2018 Cosponsored by the Intellectual Property Section Friday, February 22, 2019 9 a.m.–1:30 p.m. 4 General CLE credits INTELLECTUAL PROPERTY REVIEW—UPDATES AND CHANGES FROM 2018 SECTION PLANNERS Ian Gates, Dascenzo Intellectual Property Law PC, Portland Parna Mehrbani, Tonkon Torp LLP, Portland Thomas Vesbit, Lorenz & Kopf LLP, Portland Mark Wilson, Klarquist Sparkman LLP, Portland OREGON STATE BAR INTELLECTUAL PROPERTY SECTION EXECUTIVE COMMITTEE Ian D. Gates, Chair Parna A. Mehrbani, Chair-Elect Thomas E. Vesbit, Past Chair Christopher D. Erickson, Treasurer Mark W. Wilson, Secretary Scott D. Eads Kimberly Nicole Fisher Tomas Gomez-Arostegui Andrew J. Harrington Andrea Hicks Jasinek Kelly R. Lusk Kristin M. Malone Cassandra L. Mercer Kevin S. Ross Sara Maurer Vanderhoff Marie A. Weiskopf The materials and forms in this manual are published by the Oregon State Bar exclusively for the use of attorneys. Neither the Oregon State Bar nor the contributors make either express or implied warranties in regard to the use of the materials and/or forms. Each attorney must depend on his or her own knowledge of the law and expertise in the use or modification of these materials. Copyright © 2019 OREGON STATE BAR 16037 SW Upper Boones Ferry Road P.O. Box 231935 Tigard, OR 97281-1935 Intellectual Property Review—Updates and Changes from 2018 ii TABLE OF CONTENTS Schedule. v Faculty. .vii 1. Presentation Slides: Trademark Law Review . .1–i — Alicia Bell, Miller Nash Graham & Dunn LLP, Portland, Oregon — Carla Todenhagen Quisenberry, Miller Nash Graham & Dunn LLP, Portland, Oregon 2. 2018 Patent Law Review . -
The Origins and Meaning of the Intellectual Property Clause
THE ORIGINS AND MEANING OF THE INTELLECTUAL PROPERTY CLAUSE Dotan Oliar* ABSTRACT In Eldred v. Ashcroft (2003) the Supreme Court reaffirmed the primacy of historical and textual considerations in delineating Congress’ power and limitations under the Intellectual Property Clause. Nevertheless, the Court overlooked what is perhaps the most important source of information regarding these considerations: The debates in the federal Constitutional Convention that led to the adoption of the Clause. To date, several unsettled questions stood in the way of identifying fully the legislative history behind the Clause. Thus, the Article goes through a combined historical and quantitative fact-finding process that culminates in identifying eight proposals for legislative power from which the Clause originated. Having clarified the legislative history, the Article proceeds to examine the process by which various elements of these proposals were combined to produce the Clause. This process of textual putting together reveals, among other things, that the text “promote the progress of science and useful arts” serves as a limitation on Congress’ power to grant intellectual property rights. The Article offers various implications for intellectual property doctrine and policy. It offers a model to describe the power and limitations set in the Clause. It examines the way in which Courts have enforced the limitations in the Clause. It reveals a common thread of non-deferential review running through Court decisions to date, for which it supplies normative justifications. It thus concludes that courts should examine in future and pending cases whether the Progress Clause’s limitation has been overreached. Since Eldred and other cases have not developed a concept of progress for the Clause yet, the Article explores several ways in which courts could do so. -
The Value of the Copyright Clause in Construction of Copyright Law, 2 Hastings Const
Hastings Constitutional Law Quarterly Volume 2 Article 9 Number 1 Winter 1975 1-1-1975 The alueV of the Copyright Clause in Construction of Copyright Law Thomas Boggs Richards Follow this and additional works at: https://repository.uchastings.edu/ hastings_constitutional_law_quaterly Part of the Constitutional Law Commons Recommended Citation Thomas Boggs Richards, The Value of the Copyright Clause in Construction of Copyright Law, 2 Hastings Const. L.Q. 221 (1975). Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol2/iss1/9 This Note is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Constitutional Law Quarterly by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. THE VALUE OF THE COPYRIGHT CLAUSE IN CONSTRUCTION OF COPYRIGHT LAW* By THoMAs BOGGS RICHARDS** The present law in the United States governing copyright is essen- tialy that enacted when Congress consolidated all federal copyright 2 statutes in 1909.1 Largely because of unanticipated developments, * This note was originally written as a paper for the 1974 Nathan Burkan Mem- orial Competition sponsored by the American Society of Composers, Authors, and Pub- lishers. ** Member, Third-Year Class, School of Law, University of California at Davis. 1. The 1909 Act provides: "Any person entitled thereto, upon complying with the provisions of this title, shall have the exclusive -
The Orrin Hatch – Bob Goodlatte Music Modernization Act
The Orrin Hatch – Bob Goodlatte Music Modernization Act A Guide for Sound Recordings Collectors This study was written by Eric Harbeson, on behalf of and commissioned by the National Recording Preservation Board. Members of the National Recording Preservation Board American Federation of Musicians National Academy of Recording Arts and Sciences Billy Linneman Maureen Droney Alternate: Daryl Friedman American Folklore Society Burt Feintuch (in memoriam) National Archives and Records Administration Alternate: Timothy Lloyd Daniel Rooney Alternate: Tom Nastick American Musicological Society Judy Tsou Recording Industry Association of America Alternate: Patrick Warfield David Hughes Alternate: Patrick Kraus American Society of Composers, Authors and Publishers SESAC Elizabeth Matthews John JosePhson Alternate: John Titta Alternate: Eric Lense Association for Recorded Sound Collections Society For Ethnomusicology David Seubert Jonathan Kertzer Alternate: Bill Klinger Alternate: Alan Burdette Audio Engineering Society Songwriters Hall of Fame George Massenburg Linda Moran Alternate: Elizabeth Cohen Alternate: Robbin Ahrold Broadcast Music, Incorporated At-Large Michael O'Neill Michael Feinstein Alternate: Michael Collins At-Large Country Music Foundation Brenda Nelson-Strauss Kyle Young Alternate: Eileen Hayes Alternate: Alan Stoker At-Large Digital Media Association Mickey Hart Garrett Levin Alternate: ChristoPher H. Sterling Alternate: Sally Rose Larson At-Large Music Business Association Bob Santelli Portia Sabin Alternate: Al Pryor Alternate: Paul JessoP At-Large Music Library Association Eric Schwartz James Farrington Alternate: John Simson Alternate: Maristella Feustle Abstract: The Music Modernization Act is reviewed in detail, with a Particular eye toward the implications for members of the community suPPorted by the National Recording Preservation Board, including librarians, archivists, and Private collectors. The guide attemPts an exhaustive treatment using Plain but legally precise language. -
MMA”)1 Was Signed Into Law on October 11, 2018, a Major Accomplishment for a Mostly United Music Industry
The Music Modernization Act: An Oral History The Orrin G. Hatch-Bob Goodlatte Music Modernization Act (“MMA”)1 was signed into law on October 11, 2018, a major accomplishment for a mostly united music industry. The MMA has many changes in store, including a new royalty collective for the reproduction of songs on digital music services, changes in the treatment of pre-72 sound recordings, and compensation for record producers.2 Stakeholders and observers from across the music industry, including recorded music, publishing and the Copyright Office, will discuss some of the topics and controversies the new law addresses3, how so many were able to come together to get to this historic point and what lies ahead. I. Problems, Solutions and Compromises4 a. Section 115 Reform i. Problems Prior to the MMA, digital music providers such as Amazon, Spotify and others obtained “mechanical licenses” – licenses to reproduce and distribute copyrighted musical compositions (songs) in various physical and digital media – directly from the owners of the compositions or via a statutory license in Section 115 of the Copyright Act.5 That statutory license, available since 1909, provided a mechanism by which users of songs could license their mechanical reproductions by providing notice to the copyright owner and paying fees in accordance with the relevant regulations.6 In the 21st century, there was an advent of digital music providers making millions of songs available to the public via download or on- demand streaming .7 These uses (called “digital phonorecord deliveries”) required mechanical licenses; however, there was not an efficient way to obtain all the required licenses for the vast libraries of songs made available to consumers, as the available statutory license was not a blanket license. -
Money for Something: Music Licensing in the 21St Century
Money for Something: Music Licensing in the 21st Century Updated February 23, 2021 Congressional Research Service https://crsreports.congress.gov R43984 SUMMARY R43984 Money for Something: Music Licensing in the February 23, 2021 21st Century Dana A. Scherer Songwriters and recording artists are generally entitled to receive compensation for Specialist in (1) reproductions, distributions, and public performances of the notes and lyrics they create (the Telecommunications musical works), as well as (2) reproductions, distributions, and certain digital public Policy performances of the recorded sound of their voices combined with instruments (the sound recordings). The amount they receive, as well as their control over their music, depends on market forces, contracts between a variety of private-sector entities, and laws governing copyright and competition policy. Who pays whom, as well as who can sue whom for copyright infringement, depends in part on the mode of listening to music. Congress enacted several major updates to copyright laws in 2018 in the Orrin G. Hatch-Bob Goodlatte Music Modernization Act (MMA; P.L. 115-264). The MMA modified copyright laws related to the process of granting and receiving statutory licenses for the reproduction and distribution of musical works (known as “mechanical licenses”). The law set forth terms for the creation of a nonprofit “mechanical licensing collective” through which owners of copyrights in musical works could collect royalties from online music services. The law also changed the standards used by a group of federal administrative law judges, the Copyright Royalty Board, to set royalty rates for some statutory copyright licenses, as well as the standards used by a federal court to set rates for licenses to publicly perform musical works offered by two organizations representing publishers and composers, ASCAP and BMI.