Welcome to the Era of Fake Products — “The rise of counterfeit goods and other phony products sold on the Internet has been swift—and it has largely gone unnoticed by many shoppers. But make no mistake: The problem is extensive. Most people don’t realize this, but the majority of listings on Amazon aren’t actually for items sold by Amazon—they’re run by third-party sellers. And even though many, many third-party sellers are upstanding merchants, an awful lot of them are peddling fakes.”
Plugging Another Analog Hole in Music Royalties — Bill Rosenblatt takes a look at one company’s efforts to automate setlist reporting for musicians to provide more accurate data to performing rights organizations like ASCAP and BMI.
Citation Data Gets Richer — The free, open source legal research platform CourtListener announced this week that it has introduced citation depth analysis to indicate how many times every opinion cites another. Pretty cool.
Singapore’s Daren Tang to Succeed Gurry as Next WIPO Director General — Tang prevailed over a number of other candidates, including one from China, to take the helm at the World Intellectual Property Organization. IPWatchdog has more.
Gold Value International Textile v. Sanctuary Clothing — The Supreme Court currently has three copyright cases on its docket this term. Will it add a fourth? The Court will consider the cert petition in Gold Value today, with orders from its conference published early next week. The case involves when a court can invalidate a copyright registration for containing inaccurate information. Cert petition available here, and analysis of the Ninth Circuit decision being appealed here.
Supreme Court’s case Oracle v. Google shows polarised views on copyright and fair use — Emmanuel Legrand surveys the over thirty amicus briefs filed in support of Oracle on the 19th. The Supreme Court will hear oral arguments in the case on March 24th to aid them in determining whether what Google copied was copyrightable, and if so, whether that copying is excused by fair use.
Peloton and NMPA Agree to Settle Copyright Infringement Lawsuit — This week, music publishers and the computer bike company announced they had reached an agreement in the lawsuit filed by music publishers alleging copyright infringement. In its statement, Peloton’s Head of Music said, “Music is an important part of the Peloton experience, and we are very proud to have pioneered a new revenue stream for recording artists and songwriters. We’re equally proud to partner with David and the NMPA to ensure that songwriters are, and continue to be, fairly compensated.”
Smithsonian Releases 2.8 Million Images Into Public Domain — The Institution this week announced the launch of a new open access platform that brings part of its vast collection—”data and material from all 19 Smithsonian museums, nine research centers, libraries, archives and the National Zoo”—online, and in high-resolution. In case you’re wondering, the FAQ states that the collection does not include works still protected by copyright.
DMCA Notices Took Down 14,320 Github Projects in 2019 — Torrentfreak reports that Github, an online repository for collaborative software development projects, released its annual transparency report, which revealed statistics on takedown requests for 2019. “The reasons for these claims are varied but most commonly on TF we cover copyright infringement issues. Recent examples can be found in a notice filed by the MPA which targeted the repository of ‘pirate’ app TeaTV or when Instagram requested code to be removed, ostensibly to protect its users’ copyrights.”
Oracle Backed by 32 Amicus Briefs in Google Copyright War — That’s a lot, and it includes a brief from the US government, who is also seeking to participate in oral arguments March 24. The Supreme Court’s decision will come out anytime after then and before the end of the Court’s term in late June.
A Stunning Legal Decision Just Upheld a $6.75 Million Victory for the Street Artists Whose Works Were Destroyed at the 5Pointz Graffiti Mecca — It’s not every day we get an appellate court decision on VARA, so this one was greatly anticipated by fans of the 1990 law granting moral rights to creators of certain works of visual art. The case here hinged primarily on how to define “work of recognized stature.” The full Second Circuit decision here.
Copyright Office Fee Schedule — New fees for many of the US Copyright Office’s services are going into effect March 20, so creators still have a few weeks to get their works registered and save a couple of bucks.
Can states pirate works without paying? The potential grounds for abrogation of state sovereign immunity in copyright — The Supreme Court gets back to work next week after its mid-winter break, and with that comes anticipation of when it will issue its decision in Allen v. Cooper. Thomas Key takes a look at the issue in great detail over at IPKat and offers some predictions.
The Digital Millennium Copyright Act at 22: What is it, why was it enacted, and where are we now — On Tuesday, the Senate Subcommittee on Intellectual Property launched the first of a year-long series of hearings focused on the Digital Millennium Copyright Act—specifically, the online service provider safe harbors in Section 512 and the anticircumvention provisions in Section 1201. It heard from two panels of witnesses: the first, individuals who were involved in the drafting of the DMCA, and the second, academics who could talk about how the DMCA operates today. Video of the hearing and links to each of the witnesses’ written statements available at the link.
Acting U.S. Copyright Register Maria Strong: All Eyes on Modernization — IP Watchdog interviews the Acting Register on her new role, along with current efforts at the U.S. Copyright Office.
Oracle Tells Justices Google Was ‘Too Desperate to Innovate’ — The Supreme Court will decide Google v. Oracle this term, weighing in on questions regarding the copyrightabillity of software and fair use. On Wednesday, Oracle filed its merits brief, and Law360 reviews what the company said. Amici briefs supporting Oracle are due next Wednesday, and oral arguments in the case have been scheduled for March 24.
‘Adventures of a Jazz Age Lawyer’ Review: The Man Who Fought Pirates — Wall Street Journal reviews a new book by Gary A. Rosen about Nathan Burkan, a pivotal figure who helped shape copyright law in the first half of the Twentieth Century. I haven’t read it yet, but it looks like something of interest for copyright history buffs.
Splice Payouts to Creators Top $25 Million as Company Prioritizes Female Producers — From Variety: “Splice, the popular platform for rights-cleared sounds and beats, has paid out more than $25 million to musicians in its artist-to-artist marketplace, the company has revealed. . . . ‘It’s about opening up the ecosystem,’ [CEO Steve] Martocci elaborates, pointing to his roots in programming and open source software. ‘And what’s cool about Splice Sounds is every time you’re using it, you’re putting money into the pockets of the musicians who made those sounds. And to get compensated like this actually can transform peoples’ lives.'”
Appeals Court Gives Drake a “Fair Use” Win in Sampling Case — The Second Circuit affirmed summary judgment in favor of Drake, finding fair use for a thirty-five second portion of a song incorporated into a new song. The caveat is that the decision is a nonprecedential summary order. It’s also not necessarily a “sampling” case, since the work Drake was alleged to have infringed was the musical composition embodied in the sound recording that was sampled—and Drake had properly licensed the sound recording itself.
AG Campos in Brompton Bicycle advises CJEU to rule that ‘exclusively’ functional shapes do not deserve copyright protection — Shades of Star Athletica. Eleonara Rosati explores the AG opinion here, explaining that “Whilst this conclusion appears reasonable and in line with existing CJEU case law. . . the Opinion appears to go a bit astray from that, at least in one notable respect.”
How SoundCloud CEO Kerry Trainor Plans to Stand Out In a Crowded Streaming Space: ‘We’re Built In a Totally Different Way’ — “What’s your take on the European Union’s copyright directive that requires content-hosting websites to take responsibility for copyrighted material hosted on their platforms? We follow that quite closely, and we’re a participant in the process. We have a creator-driven mission—respect for copyright goes hand in hand with that.”
Cox Asks Court to Overturn or Lower ‘Shockingly Excessive’ $1 Billion Piracy Verdict — ISP Cox is seeking both judgment as a matter of law and remittitur following a jury verdict that awarded damages of $1 billion against it for enabling massive copyright infringement by P2P users. We haven’t even gotten to the appeals court yet on this one.
The Digital Millennium Copyright Act at 22: What is it, why was it enacted, and where are we now — Next Tuesday at 2:30pmET, the Senate IP Subcommittee will hold its first hearing on the DMCA, which you should be able to livestream at this link when it gets underway. This is the first in a series of hearings that Senate IP Subcommittee Chairman Tillis has announced will take place over the course of the year, with the goal of “re-forg[ing] the consensus that originally powered the DMCA and craft[ing] new legislation to modernize the DMCA for today’s internet.”
Mother of ‘Success Kid’ Demands Steve King Stop Using His Meme — The New York Times reports on the cease and desist sent to the Iowa Representative over his unauthorized use of the popular photo. “Though the ‘meme era’ of copyright cases has only recently begun, so far the courts have held that ‘there’s nothing special about memes,’ said Louis Tompros, a lawyer who represented Matt Furie, the creator of Pepe the Frog, in a case against the conspiracy website Infowars. ‘The fact that an image becomes popular does not mean that it loses copyright,’ he said. ‘If the parent of the kid in the meme took the photo, she owns the copyright and does have a copyright infringement claim.'”
The United Kingdom will not transpose the DSM Directive — In approximately nine hours from the time this is posted, the UK will officially withdraw from the European Union. It was announced last week that as a result, the country will not be transposing the EU’s recently adopted Digital Single Market Directive, a sweeping set of changes to copyright law. The Directive is perhaps best known for its Articles 15 and 17, which clarify rules of liability for user-generated content and create a press publishers right, respectively.
Supreme Court Can’t Get Enough Copyright And Trademark — The Court is set to issue decisions in three copyright cases before the end of its term in June—Allen v. Cooper, Georgia v. Public.Resource.Org, and Google v. Oracle America—making its busiest year in terms of copyright since 1985. Law360 takes a look at those cases, along with upcoming trademark cases, which have also seen a notable spike.
Music Publishers Knock Out Peloton’s Antitrust Countersuit — The exercise bike company saw its antitrust counterclaims against fifteen music publishers dismissed this week. The counterclaims were made after the publishers sued Peloton for widespread infringement, alleging that the company had not secured licenses for thousands of songs that it has used in its service.
Barbara Ringer: Beyond the © — Tuesday marked the anniversary of the appointment of Barbara Ringer as the first female US Register of Copyrights. The Copyright Office notes the occasion with some anecdotes about the remarkable Ringer.
2 Copyright Profs’ SCOTUS Wishlists for ‘Oracle v. Google’ — Last Friday, the Supreme Court granted cert in Oracle v. Google, a blockbuster of a copyright case that will be closely watched. Read reactions from professors Peter Menell and Sandra Aistars.
Site blocking orders come to Canada: GoldTV.biz — Canadian attorney Barry Sookman analyzes the recent decision in Bell Media v GoldTV.biz, which is “the first Canadian site blocking order against sites that predominantly facilitate copyright infringement.” As Sookman notes, with this decision “Canada now joins the many countries around the world which use judicial and/or administrative site blocking against sites that predominantly facilitate copyright infringement.”
Cox Knew About Pirating Subscribers, Court Concludes — Torrentfreak reports, “Internet provider Cox Communications can’t argue that it had ‘no knowledge’ of the hundreds of thousands of piracy notices it received, a Virginia federal court ruled. The ruling is important for the upcoming trial between the Internet provider and dozens of music companies, as “knowledge” is a critical element of the rightsholders’ liability claim.”
Redbox Agrees to Never Again Sell Disney’s Movie Download Codes — The two year lawsuit, which began after the purveyor of DVD rentals began selling the digital download codes offered in DVD combo packs, has settled.
MLC, Digital Services Strike Deal to Fund Music Modernization Act-Mandated Database — The MLC, which must begin offering and administering blanket licenses under Section 115 of the Copyright Act, would get $33.5m in startup costs and $28.5m in annual operating costs from the digital music services if the settlement is approved by the Copyright Royalty Judges.
Google News Shutdown in Spain Was Not as Bad as Google Would Have You Believe — From the News Media Alliance: “For years, critics have attempted to make the case for why the EU should not adopt a similar law, arguing that the Spanish law and resulting Google News closure were disastrous for Spanish news publishers, with some publishers experiencing double-digit drops in web traffic… What we found was that much of the data contradict the narrative pushed by Google and other opponents of the Publishers’ Right.”
Congress can protect creative artists from piracy. Why won’t the Senate pass the bill? — Author Douglas Preston pens this op-ed in favor of the CASE Act, which passed the House 410-6 and is currently just a few steps short of a Senate vote.
‘Oh the Places You’ll Boldly Go!’ to Test the Bounds of Fair Use — Briefing is complete in the Ninth Circuit appeal concerning an unauthorized mashup of Dr. Seuss and Star Trek. Kyle Jahner of Bloomberg Law reviews the arguments on both sides.
Does a plaintiff claiming unlawful removal of copyright management information have to own a registered copyright? — No, says a district court in Texas. Attorney Evan Brown takes a look at the decision.
Creative community mourns the passing of entertainment lawyer Jay Rosenthal — Rosenthal was most recently a partner at the law firm Mitchell Silberberg & Knupp and previously served as general counsel at the National Music Publishers Association. More remembrances here.
Argument analysis: Justices pillage state arguments for sovereign immunity for copyright infringement — This week, the Supreme Court heard oral arguments in Allen v. Cooper, to determine whether Congress validly allowed states to be sued for copyright infringement. SCOTUSBlog takes a look at how they went. And check out Adam Mossoff’s op-ed in the Wall Street Journal on the case, Stop the States’ Copyright Plunder.
Purged: How a failed economic theory still rules the digital music marketplace — Remember “the long tail”? It didn’t hold up. “There wasn’t any volume in the ‘Long Tail’ and nothing had really changed – except for the worst. The actual sales data showed an even greater concentration of sales in the ‘Fat Head.'”
‘Appropriation Art’ or ‘Revenge Porn’? The Subject of a Richard Prince Instagram Portrait Slams the Artist’s Use of Her Image — Perennial copyright defendant Prince is back in the news. Naomi Rea of Artnet News reports, “An exhibition of Richard Prince’s portraits at Detroit’s Museum of Contemporary Art has renewed controversy over the artist’s use of appropriation after the subject of one of his latest Instagram works spoke out against the appearance of her image in the show without her consent.”
House Judiciary Committee Report on H.R. 2426, the Copyright Alternatives in Small Claims Enforcement Act of 2019 — The Committee report for the CASE Act, which overwhelmingly passed the House last month 410-6, is a great resource for understanding the bill. Along with a summary and section-by-section analysis of the bill, it provides general background, constitutional considerations (including the Copyright Clause, the Appointments Clause, Article III and Seventh Amendment rights, and procedural due process), and intended operation of the Act.
CASE Act passed the House of Representatives Tuesday 410-6. Congressional Record. Roll call vote.
Small Claims Copyright ‘CASE Act’ Passes US House of Representatives — “Advocacy organizations for publishers, authors, and copyright applaud the 410-to-6 vote in the House for the long-promoted CASE Act.”
For Marginalized Communities, the CASE Act Bridges Copyright’s Equity Gap — The morning of the vote, Morning Consult published this powerful piece from Lateef Mtima, summarizing what the bill is about. “The CASE Act is about access to justice, both for copyright owners and users who presently cannot afford the price of admission to the system. Access to justice should not be theoretical and mythical when the struggles that marginalized copyright owners and users face are real. For the creative community, the CASE Act means that true protection under the law will finally be within reach.”
Mini-Post: A Brief and Notes of the Argument in Wheaton v. Peters via Justice Baldwin — Zvi Rosen points to a number of documents he has recently made online, including an “abstract of the argument” from plaintiff in Wheaton v. Peters, the first Supreme Court copyright decision. Essentially a brief at a time when briefing was not common, the document touches on arguments that are still relevant today.
A European perspective on paparazzi photographs of celebrities and lawsuits against celebrities over the posting of photographs of themselves — Copyright disputes between celebrities and photographers seem to be increasingly common these days. Eleonora Rosati takes a look at the copyright issues under European law.