The Illusion of More

Contents 00:32 – Tim’s background. 03:07 – Political voiceovers. 04:31 – Voice acting is acting. 06:20 – About NAVA. 10:25 – Size of NAVA and the market. 12:35 – Experiences on the Hill. 17:04 – Economic value of the market. 18:53 – Resistance to the cause. 21:46 – The challenge does not end with licensing. 25:24 – What's resonating on the Hill.  28:55 – No FAKES Act. 33:29 – Reasons why this conversation matters. 40:15 – AI as a tool for creators. 44:50 – Is it too late to respond? 48:45 – The climate has changed for Big Tech. 55:30 – No FAKES reprise.

Episode Contents 02:37 - Why I fight for artists rights. 07:22 - The biggest threats facing artists. 11:52 - The American Music Fairness Act 16:27 - Dying of “exposure.” 18:40 - A middle-class face on the cause. 24:00 - Spotify’s “big payouts” to artists. 30:00 - Support for the TikTok legislation. 36:10 - Private equity investment in music catalogs. 45:00 - The VanGogh diversion. 46:10 - Advice to the next generation. 50:11 - The latest album Violent Delights.

Pride month is more than celebratory in a time when book bans are on the rise in the United States, and 26% of the titles banned “have LGBTQ+ characters or themes,” according to PEN America. With politicians like Ron DeSantis determined to make “anti-wokeness” part of the Republican brand, this neologism for hate-speech has taken the form of book and media censorship in school and public libraries around the country. One of these banned books, entitled Worm Loves Worm, was written by a close friend named J. J. Austrian, who joins me for this episode of the podcast. Illustrated by Mike Curato and published by Harper Collins in 2016, Worm Loves Worm is a story for young children about two earthworms getting married and trying to figure out which is the bride and which is the groom while navigating the not-so-helpful advice and opinions of the other bugs and critters in attendance.  Show Contents 01:22 - How does it feel to be among the banned? 03:42 -  The creation of Worm Loves Worm. 08:12 - What children get from Worm Loves Worm. 09:36 - It’s not about sex. Indoctrination to what? 12:23 – Attacks on the transgender community. 15:03 – Did you expect the backlash when the book first came out? 18:34 -Is it hard not to look at the negative comments? 20:19 – The “shotgun wedding.” 21:50 - Increase in attacks since it was first published. 24:10 - More worried about middle grade and young adult readers. 28:10 - Ever criticized for writing about a subject that’s not your subject? (outside your lane) 34:45 - Do you have Woke Mind Virus? 37:15 – A conversation about satire. 44:33 – How banning can affect the author. 47:44 - The victim’s narrative. 50:15 – Hope for the future? 52:44 – The Printing Press and the Internet 57:05 – Love is love.

This year’s World IP Day theme celebrates Women and IP: Accelerating Innovation and Creativity, and for that reason as well as the fact that artificial intelligence dominates all topics these days, my guest for this episode is the highly innovative Carla Diana, whom I first interviewed in 2014.  Carla is a tech designer, author, and educator. She runs the 4D design program at the Cranbrook Academy of Art in Michigan; she is the lead designer at Diligent Robotics in Austin, Texas; and she is the author of dozens of articles and essays about technology and design. Her most recent book, published in 2021 by Harvard Business Review Press, is My Robot Gets Me: How Social Design Can Make New Products More Human. And we’ll talk about what that means, plus generative AI, driverless cars, ethics in technology, and at least one product I had not imagined was a thing.   Show Contents 00:01:24 - Carla’s background. 00:05:57 - Why good design is social. 00:11:55 - Design modalities & thinking about consumers with disabilities. 00:20:27 - That tech should not mimic human behavior. 00:28:57 - On avoiding innovation for its own sake. 00:36:07 - On ethics in technology. 00:45:51 - Generative AI and the arts. 01:00:55 - Tech solutions for tech problems (e.g. Glaze for visual artists). 01:05:32 - Self-driving vehicles. 01:09:30 - Economic & social implications of a driverless world. 01:15:26 - Combining design and ethics.

In March 2020, the Supreme Court delivered its opinion in the case Allen v. Cooper. The outcome was not surprising because the Court affirmed precedent ruling from the late 1990s which held that the 11th Amendment bars suing a state or state actors for damages stemming from intellectual property infringement.   Thus far, I’ve explored the murky waters of state sovereign immunity as it relates to Allen v. Cooper and other cases, including author Michael Bynum and photographer Jim Olive’s lawsuits filed in the State of Texas. So far, my focus in this area has been academic. But on February 8th, Rick Allen filed an amended complaint in North Carolina, and after I read that narrative, I wanted to invite Rick back to the podcast to talk more personally about his story, what it means to him, and what it should mean to anyone who hears it.   Show Contents 1:15 Becoming an Underwater Cameraman 11:06 Queen Anne’s Revenge Opportunity of Lifetime 15:06 Wreck Diving and Filming 27:19 Personal Investment 37:20 Rare Cooperation Between Treasure Hunters and Archeologists 43:00 A Near-Fatal Accident 48:00 State Infringements 59:00 Blackbeard’s Law 1:05:00 Suing the State of North Carolina 1:16:00 Implications for All Creators 1:29:00 Overlap with Censorship

Episode Contents 01:47 – Why copyright law? 04:40 – Working in public policy. 07:30 – Public policy and interest in social justice. 08:27 - #BlackTikTokStrike 12:07 – copyright in choreography 19:52 – copyright & cultural misappropriation 24:08 - #BlackTikTokStrike & the Elvis narrative 27:29 – Copyright Alliance BIPOC initiative. 33:46 – dialogue informing the law. 36:06 – responses to the TikTok strike. 38:39 – engaging young creators in copyright.

Neil Young pulls his music from Spotify to protest the content on Joe Rogan's podcast, and Joni Mitchell and Crosby, Stills, and Nash follow suit. It's a big story for a week, and some noise about "cancel culture" and Rogan himself lingers, but we've mostly moved on. Meanwhile, the economic model for music streaming is still broken. Songwriters make pennies for millions of streams, and the dynamics of the data-driven market are not quite conducive to the kind of experimentation and risk-taking that dominated the period when artists like Young and his contemporaries rose to fame. So, why don't legacy artists who can command so much attention use that power to advocate for fair compensation for the next generation of artists?  I don't know the answer, but the question prompted me to invite songwriter/columnist Helienne Lindvall to join me for this episode. 01:22 – Helienne’s background. 04:23 – Cyber-bullied for speaking out. 08:05 – Changing views about free music, etc. 08:52 – The Spotify Young/Rogan controversy. 14:48 – What about big artists using their power on behalf of small artists? 17:54 – Streaming is also changing the craft of songwriting. 25:23 – Are we losing diversity in the digital age? 30;20 – Placing value on the work. 34:47 –Data driven creation and what that means. 39:51 – Devaluing the music. 43:35 – Are we producing variety compared to the past? 48:30 – Looking at Billie Eilish. 51:36 – Songwriting as a job. 54:18 – Reprise hope for big artists to speak out.

01:04 - What the hell is an NFT? 04:42 - Neil on ripoffs of visual art at OpenSea et al. 08:55 - David on the HitPiece ripoff. 14:15 - is it all just fraud? 20:20 - environmental impact. 22:16 - reasons why NFTs might have come about. 26:09 - a solution for artists? 32:33 - any legitimacy at all? 35:57 - regulation by federal or state agencies. 39:11 - there is no there there. 44:13 - scope of investment already in NFTs. 50:50 - crypto as emergency currency. Read Neil Turkewitz's interview with artist bor, a member of the activist group @NFTTheft, and read his follow-up piece about the scope of fraud on the site OpenSea. Read David Lowery's post about the HitPiece NFT ripoff.  Read Aaron Moss's post about HitPiece at CopyrightLately. Check out Molly White's blog Web3 is going just great.

Episode Contents 00:00:55 - David Golumbia background. 00:03:24 - Facebook loves fascism. 00:08:24 - Defining "right" vs. proto-fascism. 00:11:36 - Paths to authoritarianism. 00:13:50 - mysticism and fascism. 00:18:56 - Facebook's astrology  TV spot. 00:23:48 - More subtle forces driving division. 00:32:02 - Facebook is too good for democracy. 00:36:32 - Better/more information is not a solution. 00:45:11 - "Educate yourself." 00:48:50 - Considering outcomes. 00:54:05 - Rapidly changing narratives. 00:56:25 - Latent extremism let out of the box. 01:00:35 - What do Facebook et al really want? 01:07:06 - The Big Tobacco analogy. Read David Golumbia's blog post here. See David Golumbia's university page here.

Piracy of creative works like motion pictures, TV shows, music, and live sports is a vast and growing criminal enterprise. In its latest report, Digital Citizens Alliance estimates the combined advertising and subscription revenue generated by piracy is at least $2.34 billion annually. Meanwhile, in addition to its ill-effects on the creators whose works are pirated and the online advertising ecosystem, piracy plays a key role in fostering other forms of cyber crime. Read "Breaking Bad(s)" report here. Episode Contents 1:52 – Breaking Bad(s) Report Overview 4:05 – Ad and subscription supported piracy 6:49 – The online advertising ecosystem. 8:49 – Some successful mitigation since 2014. 11:14 – The downsides of piracy for brands. 15:10 – Major brands found were Amazon, Facebook, & Google. 18:01 – It is possible to do something. 19:24 – Advertiser pressure to get ad tech to clean up its act. 21:09 – Dangers to the consumer. 27:13 – Why aren’t the hazards deterrents? 30:30 – Drive-by malware. 32:07 – Piracy is a vertical for broader criminal enterprise. 33:26 – What about solutions. 37:33 – Even if you don’t care about copyright owners… 40:30 – Intersection with disinformation campaigns?

In this post, I wrote about some of the difficulties that U.S. formalities present to many independent creators, difficulties highlighted by the case Unicolors v. H&M. I cited a paper written by Steven Tepp for the Professional Photographers of America (PPA) and mentioned that I would follow up with a podcast to delve a little deeper into the subject of formalities--those pesky, administrative details that sometimes confound independent authors trying to protect their works under copyright. Steven Tepp is the president and founder of the IP consulting firm Sentinel Worldwide. In his career, he has  served as Chief Intellectual Property Counsel for the Global Intellectual Property Center (GIPC) of the U.S. Chamber of Commerce and as senior counsel for Policy and International Affairs at the U.S. Copyright Office.  See Steven's website here. Episode Contents 46:06 – Steven Tepp’s background 01:42 – What are  formalities in U.S. copyright? 06:06 – The relationship between formalities and the Library of Congress. 08:05 – Consolidation of deposit copies at the Library of Congress. 11:15 – U.S. partial breaks with formalities. 19:28 – A copyright notice is not required, but... 21:25 – The basics of complying with existing formalities. 33:58 – AWF v. Goldsmith and registration of an unpublished work. 37:22 – Unicolors v. H&M and mixing published and unpublished works. 40:41 – The meaning of "published" as a question of law. 45:45 – The difficulty of “publication” after preemption of common law copyright. 50:29 – The well-intended doctrine of “limited publication." 53:46 – Unicolors's challenge as a result of the "limited publication" doctrine. 57:34 – One solution to the “publication” problem. 01:06:00 – Formalities and the small-claim provision created by the CASE Act.

"Lateef Mtima is a Professor of Law at the Howard University School of Law. After graduating with honors from Amherst College, Professor Mtima received his J.D. degree from Harvard Law School, where he was the co-founder and later editor-in-chief of the Harvard BlackLetter Journal." Visit Professor Mtima's website. Show Contents 1:07 - Defining social justice in an IP context. 7:54 - Distinguishing between social justice and predatory practice 11:45 - How the conversation about race factors into the IPSJ discussion. 18:17 - The "Blurred Lines" case. 24:30 -  Was copyright a highly democratic statement at U.S. founding? 30:56 - But patent was  a different story. 34:05 - Cotton gin and further patent discussion. 36:46 - How can IPSJ be made accessible to laymen? 43:30 - Anti IP and the corporatist message. 47:49 - On trademarking offensive terms. 58:35 - Are contemporary politics, policy, caselaw moving toward IPSJ? 01:04:58 - Anti IP and progressive views. 01:10:28 - Idea/Expression dichotomy discussion.

O'Connell's photo recently won the Off the Clock 2021 Best in Show from American Photographic Artists (APA).  Read interview here. Visit Eric O'Connell's website. Contents 2:06 – How do you describe or think about your work? 4:37 – Visual anthropology 6:25 – German Cowboys Series 8:50 – Native Americans & Heavy Metal series 12:28 – Reactions to the German Cowboys 16:44 – Pandemic (parents) series 25:12 – How has commercial work changed? 30:06 – Conversations with students about rights to their work. 32:46 – Richard Prince Instagram Show 34:59 – What is a derivative work of a photograph? 38:07 – How much do you follow rights issues? 41:25 – Lars was right. 42:53 – Do your students intent to become professionals? 45:49 – The work that goes into photographs 53:02 – Authorship in photography

You wouldn’t think that a state entity would have the right to seize your intellectual property any more than it would have the right to seize other forms of property without due process. But it can. Rick Allen is the CEO of Nautilus Productions in North Carolina. He spent seventeen years documenting the research and recovery work done on Blackbeard’s flagship the Queen Anne’s Revenge, after it was discovered off the North Carolina coast in 1996. When the state made infringing uses of Allen’s material, he sued, and that case Allen v. Cooper went to the U.S. Supreme Court in 2020, which affirmed that immunity barred Allen’s claim. Kevin Madigan is Vice President, Legal Policy and Copyright Counsel at the advocacy organization Copyright Alliance in Washington D.C. He was previously Deputy Director at the Center for the Protection of Intellectual Property (CPIP) at George Mason University's Antonin Scalia Law School.  Contents 1:34 - Overview of state sovereign immunity. 5:53 - Rick Allen background & eventual conflict with North Carolina. 16:21 - Why Blackbeard's Law & what about breach of contract? 19:32 - Why SCOTUS took Allen v. Cooper & what did we get out of it? 22:38 - SCOTUS seemed disappointed in its own opinion. 26:45 - States own IP, but enjoy immunity from infringement. 28:08 - Results of survey & is state infringement increasing? 31:57 - Anecdotal observations about state infringement. 35:02 - Aberration of justice to have to show mass infringement. 38:37 - Can have a devastating effect on creators. 39:55 - Are we increasing state actors' awareness of their immunity? 42:04 - State remedies do not really exist. 50:20 - Allen's takings claim. 52:45 - Where do things stand? 54:47 - Funny coincidences. 56:30 - Understanding the impact on Allen and all creators. 59:04 - Substantial investment in works. 01:001:58 - Copyright doesn't protect labor. 01:03:13 - The myth that creators will create no matter what.  

As Facebook's oversight board is established, and we continue to grapple with the difficulties of social media platform moderation, I invited Dr. Katell onto the podcast to talk about the issues.  Dr. Michael Katell is a Postdoctoral Research Associate for Data Science and Ethics in the Criminal Justice System working within the Public Policy Programme. He is a technology policy scholar and a philosopher of technology whose general concentrations include equity and social justice in digital systems and platforms. Follow him on Twitter. Show Contents 00:59 - Dr. Katell’s areas of study and expertise. 05:34 - The Facebook oversight board. 10:44 - Neutrality is not an option. 18:38 - Social media aggravating flaws in human nature. 27:14 - Social media and human nature continued. 32:08 - Why don’t we quit social media? 35:53 - Will people be penalized for not using social media? 40:44 - Do social platforms have the power of governments? 45:39 - Toward a state of technological feudalism? 54:12 - Regulation without faith in democracy. 58:09 - Living in alternate realities.

In 2015, the American Law Institute announced that it would produce a Restatement of Law for U.S. Copyright. In response, many copyright advocates, as well as the Copyright Office and Congress, expressed some deep concerns with the project. Chief among these is the fact that the ALI has never in its hundred-year history issued a Restatement in any area of primarily statutory law.  See IOM blog post from January 2018. Link to Professor Balganesh. Link to Professor Menell. Link to paper, Restatements of Statutory Law: The Curious Case of the Restatement of Copyright, forthcoming in a special issue of the Columbia Journal of Law & the Arts. Episode Contents 58:12 - Overview of ALI and Restatements of Law 06:13 - Restatements have never addressed areas of primarily statutory law. 08:53 - Development of the 1976 Copyright Act 15:17 - "Why we are not opposed to the idea of a Restatement." 25:09 - Criticism of the project's lack of transparency. 31:28 - Criticism of the project's methodologies. 42:44 - The distribution right & shifting judicial philosophies. 51:50 - Rewriting copyright law without the legislature. 54:17 - Can the Restatement still have a good outcome? 01:01:43 - "the worst sausage factory" 01:05:24 - Hypocrisy