By , October 09, 2020.

Google’s Supreme Court faceoff with Oracle was a disaster for Google — Writing for Ars Technica, Timothy B. Lee recounts this week’s (virtual) oral arguments in Google v. Oracle, a closely-watched case where heady issues of software copyrightability and fair use are in play. Lee’s takeaway: “The Supreme Court’s eight justices on Wednesday seemed skeptical of Google’s argument that application programming interfaces (APIs) are not protected by copyright law.”

Unpublished Twilight Sequel Sparks Interest in Copyright Deposits — “Recently, Twilight series author Stephenie Meyer talked about her unpublished sequel to the original Twilight story, Forever Dawn. Shortly thereafter, the Library began receiving questions through the Ask a Librarian portal about how to view the unpublished manuscript registered with the Copyright Office (TXu001163060), which is only possible through an on-site visit in Washington, DC. Note: as of the publication date of this blog, the Library buildings are closed to the public due to the coronavirus. So, what does that all mean? What is an unpublished copyright registration deposit, and why is it at the Library of Congress?”

UK’s Pirate Party set to be scuttled after almost a decade at sea — “If the Pirate Party is to sink as a political entity it will do so having fallen well short of the shores of electoral success, and without leaving much of a ripple in the turbulent seas of Westminster. But its demise is a reminder that at some point over the past 10 years a particular era of the internet quietly passed away too. It’s hard to imagine today, but a decade ago the general sentiment regarding the internet was that it was a fundamentally democratising force. From the Arab Spring through to the open-source-software movement, there was an optimism that the self-propagating values of an open society would spread anywhere that information technology would allow them access to.” Postscript: the vote to dissolve was successful.

Publishers Escape Fee Award as GSU E-Reserves Case Finally Ends — Twelve years and three trips to the 11th Circuit later, a final order in Cambridge University Press v. Patton has been entered. Andrew Albanese of Publishers Weekly writes, “When it was first filed, AAP called the litigation a ‘test case’ designed to ‘inform the application of fair use in the academic setting.’ But after more than a decade of litigation, observers tell PW the case failed to deliver any useful guidance for educators seeking to determine where the fair use line should be drawn. Further, advances in technology and new business products and models have largely mooted the fears that prompted the suit back in 2008.”

The Evolving Music Ecosystem Conference: Day One Recap — IPOsgoode has recapped all three days of the Center for the Protection of Intellectual Property’s Evolving Music Ecosystem Conference, held last month on September 9-11. A stellar set of panelists discussed a broad set of legal, business, and cultural issues related to supporting thriving music ecosystems. Videos of all the panels are online and embedded in the recaps. See also day two and day three.

By , October 02, 2020.

WWE Headed to Trial for Copying Wrestler’s Tattoos for Video Game — “On Saturday, an Illinois federal judge handed her partial summary judgment by determining that WWE and Take-Two Interactive Software, the publisher of the WWE 2K series of video games, had indeed copied her work. Now the question for a jury is whether that rises to copyright infringement. The judge denies the defendants’ own motion for summary judgment by deciding that certain questions are triable ones. Those include whether Alexander impliedly licensed Orton to disseminate and display the six tattoos she inked for him.”

U.S. Copyright Office Launches Digital Millennium Copyright Act Webpage — “The U.S. Copyright Office today launched a new webpage dedicated to the Digital Millennium Copyright Act (DMCA). The new webpage consolidates information and resources about various aspects of the DMCA, including section 512’s safe harbors and notice-and-takedown system, section 1201’s anticircumvention provisions, and section 1202’s copyright management information protections.”

Introducing Soundtrack by Twitch: Rights-Cleared Music For All Twitch Creators — The livestreaming service this week announced the launch of a pre-cleared library of music for its users to incorporate into their own streams without having to worry about copyright issues.

This AI Generates Photos Using Only Text Captions as a Guide — “Researchers at the Allen Institute for Artificial Intelligence (AI2) have created a machine learning algorithm that can produce images using only text captions as its guide. The results are somewhat terrifying… but if you can look past the nightmare fuel, this creation represents an important step forward in the study of AI and imaging.”

By , September 25, 2020.

“It is so ordered” – A Look Back at Justice Ginsburg’s Copyright Legacy — Last Friday, Ruth Bader Ginsburg passed away after a lifetime of trailblazing legal service, including the last 27 years as Supreme Court Justice. Part of her tremendous legacy includes being one of the Court’s leading voices on copyright matters. Here is a look at some of her notable opinions in that area.

Librarian of Congress Appoints Shira Perlmutter Register of Copyrights — On Monday, after an exhaustive search, the Librarian of Congress announced the appointment of the next Register of Copyrights, Shira Perlmutter, who presently serves as Chief Policy Officer and Director for International Affairs at the USPTO. Perlmutter will take the reins from Acting Register Maria Strong, who stepped into that role just a few short months before the beginning of the pandemic but who has steadily guided the Copyright Office through unprecedented challenges.

Video Post: View(s) From The Other Side — Zvi Rosen has uploaded a fantastic videotaped lecture series hosted by the Examining Division of the US Copyright Office from 1985 to 1993, entitled “A View From The Other Side.” You can watch them all here.

Macklemore & Ryan Lewis Win Sampling Fight With NOLA Jazz Musician — The Fifth Circuit affirmed this week a victory for recording artist Macklemore against allegations of unauthorized sampling. Primarily, the court held that the plaintiff was unable to establish actual copying, either through proof of access or striking similarity.

Facebook will let people claim ownership of images and issue takedown requests — The Verge‘s Ashley Carman reports on an update to Facebook’s rights management platform that would allow certain partners “to claim ownership over images and then moderate where those images show up across the Facebook platform, including on Instagram.”

By , September 18, 2020.

Promoting Progress: Celebrating the Constitution’s Intellectual Property Clause — “Copyright, to me, is a friend to all authors and users. It is here to enhance our lives and experiences and to promote the progress of our nation overall. This Constitution Day, I raise a glass to copyright and echo James Madison’s views that, regarding copyright, ‘[t]he public good fully coincides … with the claims of individuals,’ especially in light of the balanced system that exists today.”

Judge Rules in Favor of Nicki Minaj in Tracy Chapman Copyright DisputeVariety‘s Gene Maddaus reports, “The ruling protects the industry practice of developing a new song based on existing material, and then seeking a license from the original artist prior to release. U.S. District Judge Virginia A. Phillips ruled that Minaj’s experimentation with Chapman’s song constitutes ‘fair use’ and is not copyright infringement.”

U.S. Copyright Office Issues Two Interim Rules and One Notice of Proposed Rulemaking Related to the Music Modernization Act — On January 1, 2021, the blanket license created by the Music Modernization Act goes into effect. This week, the Copyright Office issued two rules governing many of the operational details of the license along with a proposed rule concerning the public database of musical works information and transparency of the mechanical licensing collective.

Copyright Fight Over ‘Life’ Game Derails at 1st Circuit — Termination rights, work made for hire doctrine, and the world’s most boring game.

MPA & ACE Team Up With Homeland Security to Dismantle Criminal Piracy Groups — “Late Wednesday, Homeland Security’s U.S. Immigration and Customs Enforcement (ICE) announced that its IPR Center, the MPA, ACE, the U.S. Chamber of Commerce’s Global Innovation Policy Center plus industry marketing group CTAM, had formed a broad coalition to pool their content protection efforts. . . . The stated aim of the new partnership is to use the combined resources of the groups to support Homeland Security Investigations and the IPR Center’s digital piracy investigations, including resource and information sharing with external anti-piracy groups.”

By , September 11, 2020.

How can we pay for creativity in the digital age? — “Every post on Twitter or TikTok is an easy, cost-free path to discovery for an upstart comedian, actor, or cinematographer. In ‘The Death of the Artist: How Creators Are Struggling to Survive in the Age of Billionaires and Big Tech’ (Holt), the critic William Deresiewicz considers how we arrived at a situation in which it’s easier than ever to share your creativity with the world, and harder than ever to make a living doing so. He interviewed roughly a hundred and forty writers, musicians, visual artists, and filmmakers about their experiences working in the so-called ‘creative economy.'”

In ‘Jersey Boys’ Ruling, Appeals Court Adopts New Standard for Nonfiction — “Typically, when a copyright claim is asserted over a work of nonfiction, the plaintiff will either try to convince the judge and jury that he or she made an original selection or arrangement or included something beyond facts within their work. Sound a little odd? Perhaps, but it happens. For example, three years ago, a music journalist admitted to having ’embellished’ his articles about Tupac Shakur to sue Lionsgate over All Eyez on Me. The Jersey Boys case became another instance of this phenomenon. The 9th Circuit is now putting its proverbial foot down by adopting what some have referred to as the doctrine of copyright estoppel and what this panel of judges prefer to call an ‘asserted truths’ doctrine.”

Data Shows 90 Percent of Streams Go to the Top 1 Percent of Artists — “In its early days, streaming offered a glimmer of a utopian free-for-all: A music landscape where all artists had equal chances of making it big, where a $9.99-per-month endless buffet of music would drive listeners away from the mainstream and into the niche. Wired editor Chris Anderson was so optimistic in 2004 that he famously suggested that streaming would upend our notions of supply and demand, creating a ‘long tail’ where the non-hits would get a bigger share than they ever had before. But in the reality of 2020, things look largely the same. Sure, albums have given way to playlists, hip-hop is the new pop and digital downloads have all but vanished. But the enormous disparity, the who-has-what of it all — that part hasn’t really changed. In fact, streaming hasn’t just upheld the gap between music’s haves and have-nots; it’s widened it.”

Judge Sets Tentative Schedule for Internet Archive Copyright Case — “In an August 31 scheduling order, Judge John G. Koeltl mostly accepted the discovery schedule proposed by the parties late last week, and set a few key dates in the case schedule: * Dispositive motions are to be completed by October 8, 2021. * Pretrial Order/Motions in Limine must be submitted by October 29, 2021. * The parties, barring a motion that would moot the schedule, are to be ready for trial on 48 hours notice on or after November 12, 2021.”

Archivists Want Broader DMCA Exemption for ‘Abandoned’ Online Games — “A few weeks ago the Copyright Office started its latest review of the DMCA exemptions which will be updated next year. Since then, several submissions from archivists, digital rights, and consumer organizations have come in. Several of these ask the Office to renew the current exemptions for abandoned online games. The Software Preservation Network (SPN) and the Library Copyright Alliance (LCA) note that this new exemption ensures that classic games will be preserved. This allows nostalgic gamers and younger generations to play older games that are no longer officially supported. This has already led to some success stories.”

By , August 14, 2020.

Matt Herron, documentary photographer and adventurer, dies while flying glider — “Matt Herron never set out to be a photojournalist in the detached and objective tradition. What he set out to do was march 54 miles from Selma to Montgomery in support of Black voting rights in 1965. And he did it moving backward in order to photograph his fellow marchers.”

Post-Open Source — A critique of the free software and open source movements from an author who shares many of their goals. Well worth a read, and implicit in it is the important role copyright plays beyond simply commercializing creative works—as this piece reveals, authors also want some say in how their work is used (or not used) by others.

Google Beats Song Lyric Scraping LawsuitThe Hollywood Reporter‘s Eriq Gardner reports, “Google may have been caught ‘redhanded,’ but a federal judge rules that Genius hasn’t alleged any viable claims not be preempted by copyright law.”

Easier Copyright Registration Coming for Blogs and Social Media Posts — The National Law Review reports, “Starting this month, social media influencers and other authors of online content can take advantage of a new group copyright registration option for short online works such as blog entries, social media posts and web articles. Authors could even register their own comments to a social post as separate copyrightable works in certain situations.” Read the final rule here.

Mango v. Buzzfeed (2nd Circuit) [PDF] — This week, the Second Circuit, in an issue of first impression, held that liability for removing copyright management information under 17 USC § 1202(b) does not require “proof that a defendant knew, or had reasonable grounds to know, that its conduct would lead to future, third-party infringement.” It is sufficient to show that removal concealed infringement by the defendant itself.

By , August 07, 2020.

Keep Moving Forward: Performance of the Copyright Office during COVID-19 — Acting Register of Copyrights Maria Strong takes stock of the US Copyright Office’s work in the past twenty weeks since remote operations began.

U.S. Copyright Office Celebrates 150 Years of Fostering American Creativity and Innovation — Speaking of the US Copyright Office, it marked a notable anniversary this week. The U.S. Chamber’s Frank Cullen offers some celebratory remarks.

Loveland company Anatomy in Clay wins copyright ruling — A recent Tenth Circuit decision rejected defendant’s argument that plaintiff’s anatomical model was a “useful article” and thus excluded from copyright protection. In part, the court said, “The Maniken might be useful for teaching anatomy, but a fact finder could reasonably attribute this usefulness to the information that the Maniken conveys about human anatomy. If the Maniken’s usefulness lies solely in the information it conveys, the Maniken would not be a useful article.” Interestingly, the opinion does not cite once to the Supreme Court’s recent decision on useful articles, Star Athletica v. Varsity Brands.

Round Hill Music Files $32M Copyright Infringement Lawsuit Against TuneCoreBillboard reports on a recently filed lawsuit against indie distributor TuneCore, which alleges (complaint here) the company failed to license mechanical reproductions of musical compositions embodied in the sound recordings it distributed to download and streaming services.

YouTuber Wins Attorneys’ Fees in Clinton Party Copyright Case — “YouTube personality Carl Benjamin—known on the platform as Sargon of Akkad—won attorneys’ fees in Manhattan federal court on Wednesday after successfully defending a copyright suit over his mocking of a video taken at Hillary Clinton’s election night party. Comedian Akilah Hughes’ lawsuit was objectively unreasonable and meant to ‘inflict financial harm on Benjamin and to raise her own profile in the process,’ the U.S. District Court for the Southern District of New York said.”

By , July 31, 2020.

Internet Archive Answers Publishers’ Copyright Lawsuit — The nonprofit filed its response to a complaint alleging that its reproduction and distribution of copyrighted books is not infringing. Andrew Albanese of Publishers Weekly reports, “‘The Internet Archive does what libraries have always done: buy, collect, preserve, and share our common culture,’ reads the IA’s preliminary statement to its answer, contending that its collection of roughly 1.3 million scans of mostly 20th century books, many of which are out of print, is a good faith and legal effort to ‘mirror traditional library lending online’ via a process called Controlled Digital Lending (CDL).”

What’s Fair? Senate IP Subcommittee Contemplates Problems with Copyright Fair Use Regime — This week, the US Senate IP Subcommittee held a hearing to explore the intersection of the DMCA safe harbors and notice-and-takedown system with fair use. IPWatchdog recaps the discussion.

The AG Opinion in YouTube/Cyando: a regressive interpretation of the right of communication to the public — Eleonara Rosati analyzes the recent Advocate General opinion in a case involving copyright and user-uploaded content currently in front of the Court of Justice of the European Union.

Music Consent Decrees Give Unfair Boost to Tech Giants, DOJ Told — “The DOJ’s antitrust division Tuesday brought together Rimes and the heads of the nation’s top music publishing rights organizations to discuss whether the government should consider undoing nearly 80-year-old consent decrees with the American Society of Composers, Authors, and Publishers (ASCAP) and Broadcast Music Inc. (BMI). The decrees require them to license music to public venues on equal terms, set by a federal court.”

Blocking Piracy Websites — Analysis of a recent Canadian decision where “the Federal Court granted an injunction, demanding various ISPs (Internet Service Providers) in Canada block access to pirate subscription sites that stream the content of the plaintiffs – Bell Media Inc, Group TVA Inc and Rogers Media Inc.”

By , July 10, 2020.

Grammy Winner Maria Schneider Files Class Action Copyright Piracy Lawsuit Against YouTube, LLC Over Content IDJustia reports, “The lawsuit concerns copyright piracy on YouTube and alleges that YouTube’s copyright management tool, Content ID, ‘actually insulates the vast majority of known and repeated copyright infringers from YouTube’s repeat infringer policy’ and leaves plaintiffs in the class with ‘no meaningful ability to police the extensive infringement of their copyrighted work.'”

Authors Guild, Amazon, PRH File Suit Against E-book Pirate Site — It’s notable to see Authors Guild and Amazon on the same side in a copyright infringement case, but their interests happen to align in this lawsuit against what Authors Guild Executive Director Mary Rasenberger calls a “particularly egregious criminal enterprise” that “sells highly commercial books and passes itself off as a legitimate site.”

Tuned in: Music Modernization Act Updates and Related News — The US Copyright Office has a newsletter that provides updates on implementation of the MMA’s blanket license. Subscribe at the link or check out the archive of past issues, including the latest issue.

The MLC Announces Tools to Help Self-Administered Songwriters and Publishers “Play Their Part” — Speaking of the MMA, The MLC, which is charged with administering the blanket license, announced this week a set of tools for self-administered songwriters and publishers to help them get ready for the new license and make sure they are getting the royalties they are entitled to.

U.S. Copyright Office: Disconnecting Persistent Pirates is Not Always Preferred — Ernesto Van der Sar of Torrentfreak reports on a US Copyright Office response to a Senate IP Subcommittee letter asking follow-up questions about the Office’s recent Section 512 report, noting in particular, “The Copyright Office is clearly mindful of individual user rights.”