House Judiciary Hearing on Copyright Office Reviews Music Modernization Act, Black Box Royalty Concerns — On Wednesday, the House Judiciary Committee held a hearing on oversight of the Copyright Office, the first such hearing since 2015, and the first to feature Register of Copyrights Karyn Temple, who was named permanent Register this past March. The hearing touched on a laundry list of current copyright policy issues, including the MMA, satellite television compulsory licenses, copyright small claims, Section 512 safe harbors, and modernization of the Copyright Office itself.

Supreme Court to Rule on Copyright Protection of State Annotated Legal Codes — “On June 24, 2019, the U.S. Supreme Court granted certiorari to decide whether states can claim copyright protection in annotated codes. State of Georgia v. Public.Resource.Org, Inc., No. 18-1150. Annotated codes, in addition to the text of the statute, include summaries of judicial opinions, regulations, and attorney general opinions related to the statute. Georgia, like many states, offers a free version of the statute but charges a fee for the annotated version.”

Brief of the Software & Information Industry Association as Amicus Curiae Supporting Petitioners — “Going forward, the people of Georgia will thus be left without the benefit provided by the current arrangement between Lexis and the State: access to high-quality, reliable exposition of Georgia law at a reasonable price. See Pet. App. 7a (noting that the price of the complete set of the print OCGA is capped at $404, while a competing unofficial annotation of the Georgia Code costs $2,570—more than six times as much). If ‘a full understanding of the laws of Georgia necessarily includes an understanding of the contents of the annotations’, invalidating copyrights is hardly the solution, since to do so removes the incentive to produce those annotations in the first place.”

Brief for Matthew Bender & Co., Inc. as Amicus Curiae in Support of Petitioners — “In that world, States and U.S. Territories and their citizens either will move to the Colorado-style model and have to absorb significant employee and publishing costs to create annotations themselves; pay a publisher market rates to create annotations, which would be significant; or hope that independent publishers will choose to create their annotations, such as West does now, but which cost users ten times the cost currently charged by LexisNexis under its contractually capped Contract. The States and their citizens who have relied on the Georgia-style structure will now face higher taxes and costs, and the significant loss of their copyrights and meaningful access to their laws and the robust legal resources. In short, they would suffer precisely the types of harms resulting from the destruction of economic incentives that the copyright laws are designed to avoid.”

Gigi Hadid: I Can Use a Photographer’s Photo Because I Smiled — Michael Zhang of PetaPixel reports, “The 24-year-old model had posted a copyrighted photo of her on a New York City street to her Instagram account @gigihadid, which currently boasts over 48 million followers. The post led to a copyright infringement lawsuit by Xclusive-Lee, Inc., which owns the copyright. Hadid then filed a motion asking the court to toss the suit. Hadid’s argument is that she didn’t violate the photographer’s copyright ‘because [she] posed for the camera and thus herself contributed many of the elements that the copyright law seeks to protect.'”

Texas court says photographer has no recourse against university copyright infringement — “In a closely watched case in creative and publishing circles, Olive, who has made a career out of getting difficult and dangerous aerial shots from open helicopters, sued the University of Houston two years ago with a novel argument that using one of his photographs without compensation or permission was an unlawful ‘taking’ under the Texas Constitution, which prohibits government agencies from taking private property without adequate compensation. Olive tried the approach after the University of Houston rejected his claim that the public university should pay for a photo it used without permission in web and print publications, contending the university has sovereign immunity, a well-established legal principle that protects a state from getting sued.”

Impacts of Digital Piracy on the U.S. Economy — A report released this week from the US Chamber of Commerce’s Global Innovation Policy Center estimates that digital piracy costs the US economy at least $29.2 billion a year.

Hollywood Studios Awarded $62M in VidAngel Fight — The streaming service had argued that its unlicensed streaming service was permitted under a combination of copyright exceptions, but the court had earlier rejected those arguments. This week, a jury awarded damages for the infringement of over 800 films, and had found that infringement willful, meaning VidAngel will be unable to discharge the judgment in bankruptcy proceedings.

Italian court confirms that unauthorized use of Audrey Hepburn’s likeness infringes (post mortem) image rights — Eleonara Rosati reports, “Italian image rights protection is notoriously quite strong and is also available post mortem. In the latter case, consent to the use of one’s own likeness must be obtained, in the first place, from the person’s spouse and children.”

Stream ripping site Convert2MP3 shuts down following global settlement with recording industry — “Convert2MP3, one of the world’s most-used stream ripping sites, has ceased to operate globally, following action coordinated by IFPI and BVMI on behalf of their member record companies. The Germany-based site, which had 684 million visits from around the world over the past 12 months, has agreed to shut down, surrender its domains and not infringe the rights of record companies in the future.”

Supreme Court Agrees to Review Filmmaker’s Copyright Lawsuit Against North Carolina — The Supreme Court this week announced that it will be adding the word “abrogate” to copyright lawyers’ everyday vocabulary. The grant of cert in Allen v. Cooper adds a copyright case to the Court’s docket after several months without one, and it will give the chance for the Court to weigh in on the constitutionality of the Copyright Remedy Clarification Act, which was enacted in 1990 but long considered dead letter.

US Dept. of Justice Reviewing ASCAP & BMI Consent Decrees — Also this week, the DOJ announced it will be reviewing the antitrust consent decrees that govern the Performing Rights Organizations ASCAP & BMI. As Billboard reports, the announcement was welcomed by ASCAP and BMI, along with the National Music Publishers Association, the Recording Academy, and the Nashville Songwriters Association International, but drew concerns from the MIC Coalition and National Association of Broadcasters. The DOJ is taking public comments through July 10.

AAP Honors Jerry Nadler as House Judiciary Launches Tech Antitrust Probe — Rep. Nadler also said at the Association of American Publishers’ annual meeting Monday, “An effective copyright system enables a broad range of independent and diverse voices to emerge, secure in the knowledge that they will be rewarded for their efforts.”

Movie Studios Aim for Tens of Millions of Dollars at VidAngel Copyright Trial — Having previously found the service liable for copyright infringement, despite its everything-but-the-kitchen-sink defense, a jury will determine damages for VidAngel next week, including the question of whether the infringement was willful, which increases the maximum amount of damages that can be awarded and makes the judgment nondischargeable in bankruptcy.

Consolation Prize: Barcroft Media and the Case for a Copyright Small Claims Court — “Because the costs of bringing an infringement claim very often far exceed the likely damage award, such threats are frequently ignored. Sending a cease and desist letter can be effective in getting an infringer to stop the infringing use (by taking down a photo from a website, for example), but it is next to impossible to get an uncooperative infringer to voluntarily agree to compensate the copyright owner for that infringing use, much less reimburse the costs of enforcing the copyright owner’s rights. … One possible solution is to establish a “small claims” court to adjudicate low-value, uncomplicated copyright infringement claims in a more efficient and cost-effective manner. A copyright small claims court would help to level the playing field and correct the imbalance in negotiating power between copyright owners and users, making fair settlements more likely.”

Why Do Employers Lowball Creatives? A New Study Has Answers — Interesting research that could shed light on related discussions in the copyright realm regarding skepticism toward copyright’s incentives.

Time Inc. Settles with Photographer in Case of Tweeted Tom Brady Pic — And so the “server test” is put to (em)bed before the Second Circuit had the opportunity to be the first appellate court outside the Ninth to consider it.

‘Sample Clearance Queen’ Deborah Mannis-Gardner on Keeping Prices Low, Deals Fair — A thorough profile of Mannis-Gardner, who has been clearing samples since the early 90s. “‘For me, it’s all about the fairest deal, not the lowest, so everyone is taken care of,'” says Mannis-Gardner, who won a Guild of Music Supervisors Award in 2018 for her work on Grammy-winning HBO documentary The Defiant Ones.”

Google and Oracle’s $9 Billion ‘Copyright Case of the Decade’ Could be Headed for the Supreme Court — “Oracle claims that, if not for Android, Oracle’s own Java software could have become a major smartphone platform. (Although Java was written by Sun Microsystems, Oracle acquired Sun in 2010, shortly before bringing this suit.) Oracle’s lawyers mock the notion that the rulings in its favor will spawn any dire consequences. Despite Google’s ‘sky-is-falling’ arguments, they write, the software industry did not crash in the wake of May 2014 or March 2018, when the U.S. Court of Appeals for the Federal Circuit issued the two key rulings that Google seeks to reverse.”

Relist WatchSCOTUSblog notes of yesterday’s conference, “Now we really have to speed up, because we have six new relists this week. Allen v. Cooper, 18-877, involves whether Congress has the constitutional authority to abrogate state sovereign immunity for copyright infringement. That issue comes up more often than you’d think.” Orders from the conference will be published this Monday morning.

Why Creators Like Me are Lining up in Support of the CASE Act — Photographer Jenna Close writes, “For more than a decade, I have been making my living as a commercial photographer and filmmaker. During that time I have witnessed my works infringed online—an exceedingly easy thing to do in the digital age—but also in print… But the extraordinary costs of pursuing a copyright infringement suit in federal court prohibit me from seeking recourse this way without taking on the additional risk of bankruptcy.”

Fifty-Five Years of Software Copyright — Zvi Rosen marks the anniversary of the first time the US Copyright Office began to accept copyright registrations for software programs.

Amazing! Canada just came up with a brilliant new digital copyright regime — finally — Re: last week’s Shifting Paradigms report from the Standing Committee on Canadian Heritage, which makes a set of recommendations for revising the Canadian Copyright Act, “Finally the voices of Canadian artists and producers are being heard over the sterile and impractical theorizing of the copyright ‘elite’ and the loud voices of big tech, such as Google, which makes so much money from under-rewarding artists.”

Illicit streaming devices are more popular than ever, and hackers are taking note — “Malware-laden apps on Kodi boxes allow hackers to infiltrate home networks, gaining access to computers, tablets, phones, smart TVs, thermostats, security systems, smart appliances — anything connected to the network. Even worse, these devices often download malware to other devices in a user’s network, meaning that hackers may be able to infiltrate adjacent systems long after the illicit device is removed from the network.”

The Chinese Instagram Village — “Here, so-called adult amusement parks promise, in exchange for a small admission fee, the opportunity to create the perfect selfie. Standing on top of a derelict bus with a mountain range in the background? No problem! Posing with an alpaca in a rented white dress? Done.”

The CASE Act: You Have Questions. We Have the Answers. — Everything you want to know (and more) about the copyright small claims process that would be created by H.R. 2426 and S. 1273.

Shifting Paradigms: the Heritage Committee study on copyright — Canadian attorney Barry Sookman takes a look at a report published this week by the Standing Committee on Canadian Heritage that summarized the conclusions made after examining the current state of copyright law in Canada and made a number of recommendations to improve protection and remuneration for creators and the creative industries.

Embedding Content or Interring Copyright: Does the Internet Need the “Server” Rule? — The Columbia Journal of Law & the Arts published this article from professors Jane Ginsburg and Luke Ali Budiardjo, which looks at the Ninth Circuit’s “server” rule, which concerns when the exclusive right of public display is infringed online. They conclude that “the principal difference between copyright law with and without the server rule comes down to the author’s ability to obtain the removal of links to infringing content, and to authorize embedding of content from a source to which the public had lawful access.”

State University’s Copyright Infringement Violates Takings Clause and First Amendment — A group of visual arts organizations, led by the National Press Photographers Association and the American Society of Media Photographers, filed a brief in support of a photographer who has made Takings Clause claims in Texas state court against a state university related to the unauthorized use of his photograph.

Sustainable Text and Data Mining: A Look at the Recent EU Copyright Directive — “While issues of the publisher’s right and the enhanced duty of platforms to ensure use of licensed materials (for most of the debate, Articles 11 & 13) consumed much of the oxygen and nearly all of the spotlight in the process leading to the adoption of the Copyright Directive, there were a variety of other important elements contained in the Directive, including the adoption of a specific exception to copyright for data and text mining.”

CASE Act Promises Long-Overdue Access to Justice for Individuals and Small Businesses in the Arts — “For countless individual artists and small businesses, combating the unauthorized use of their creative works online is a source of enduring frustration. The frequency and ease with which photographs, sound recordings, videos, and other works of authorship are shared on the Internet leaves those without significant time and resources little recourse when they encounter infringement. But now, after years of advocacy by creators like Jenna, new legislation promises long-overdue support for these marginalized groups in the ongoing fight against overwhelming infringement in the digital age.”

Malware from illegal video streaming apps: What to know — The Federal Trade Commission warns, “Purveyors of pirated content are now spreading apps and add-ons that work with popular streaming devices. If you download one of these illegal pirate apps or add-ons, the chances are good that you’ll also download malware.”

Public Knowledge wants to solve the misinformation problem? That’s adorable. — The claim is that allowing institutions to digitize and distribute copyrighted works without the permission of the copyright owner will lead to a more enlightened populace. David Newhoff doesn’t buy it.

LISTEN: Artists call for review of Copyright Amendment Bill — “Celebrated South African artists have come together to create a song that implores President Ramaphosa to send the flawed Copyright Amendment Bill back to parliament for critical review.”

CASE Act Bills Introduced in Congress to Create Copyright Small Claims — Big news for small claims this week, as both the House and Senate introduced the CASE Act, which would create an inexpensive, streamlined process within the US Copyright Office to adjudicate low-value infringement claims and help individual creators and small businesses who can’t otherwise afford to protect their rights in federal court. The text of H.R. 2426 is available here; the identical Senate bill, S. 1273, is here.

Ensuring Only Good Claims Come in Small Packages: A Response to Scholarly Concerns About a Proposed Small Copyright Claims Tribunal — I’m rerunning this article from Sandra Aistars which, though it was written last year, addresses many of the claims that critics of the CASE Act are making about the bill. A good read; it’s also worth noting that the bills introduced this week have some additional tweaks to ensure the fairness of the process.

50 States of Music — This week, a number of music associations—A2IM, ASCAP, BMI, RIAA, and SoundExchange—unveiled a useful tool that shows the value of the music business in each of the 50 states.

“Fair Use is Not Designed to Protect Lazy Appropriators” Rules Court of Appeals — Stephen Carlisle takes a look at last Friday’s Fourth Circuit decision in Brammer v Violent Hues Productions. The court reversed a troubling district court decision finding fair use.

Google Appeal in Oracle Copyright Suit Gets Supreme Court Inquiry — On Monday, we learned that the Supreme Court has called for the views of the Solicitor General in Google v Oracle. Google is appealing two Federal Circuit decisions arising out of Oracle’s lawsuit against it for copying Java software code and using it in its Android operating system. The SG weighed in after the first Federal Circuit decision, saying it was decided correctly and recommending against cert.

Europe is right. Social media titans should pay up to use creative content. — Loyola Law School professor Justin Hughes discusses the recently passed EU copyright directive. “For California’s titan industries — entertainment and high tech — markets are global and what happens in Europe matters. But just as the U.S. digital copyright law inspired Europe to adopt safe harbors for online companies in the earliest days of the internet, Europe’s new copyright law may inspire Washington to rethink how and how much creative professionals are paid in a vastly different and richer digital economy.”

Copyright Office Proposes Federal Right of Publicity Law — This week, the US Copyright Office issued its long-anticipated report on moral rights in US law. Among the potential legislative recommendations the Office offers is a federal right of publicity law.

‘It’s not play if you’re making money’: how Instagram and YouTube disrupted child labor laws — “Those laws, which were designed to protect child stars from exploitation by both their parents and their employers, are not being regularly applied to today’s pint-sized celebrities, despite the fact that the major platforms, YouTube and Instagram, are based in California. The situation is a bit like ‘Uber but for … child labor’, with a disruptive technology upending markets by, among other things, side-stepping regulation.”

Pirated streaming devices are filled with malware, researchers find — CNet reports on new research from Digital Citizens Alliance, which has found a high prevalance of malware in popular streaming devices and apps, meaning users are not only undermining the ability of creators to continue to create the types of shows and films they enjoy, but are exposing themselves and their personal information to acute risks.

On the Road to a Modern Copyright System — Josh Simmons provides a thorough look at the history of copyright registration in the U.S., chock-full of interesting trivia and tidbits.

European Copyright Reforms Clear Final Hurdle at EU Before Heading Back to Member States — The sweeping set of reforms, which aim to modernize copyright rules within the EU as part of its Digital Single Market strategy, now head to the member states, which have two years to transpose the directive into their national laws. And then come the court cases.

In US, No Remedies for Growing IP Infringements — Sovereign immunity largely shields states and state entities from being liable for copyright infringement. But petitioners in Allen v Cooper are hoping the Supreme Court changes that.

Debunking the Capitalist Cowboy — A critical look at the lionization of “disruptive innovation”, which often plays a role in justifying weaker copyright protections.

Instagram Memers are Unionizing — “‘We as content creators want to have worker protections,’ Praindo said. ‘Even if you’re producing funny pictures of Shrek, that should not determine whether you’re taken seriously as a creator or your livelihood is imperiled at the drop of a hat … We are a meme union; the whole point of it is to work for protections for other content creators.'”