Opinion analysis: Congress cannot subject states to suit for pirating and plundering copyrighted material — Writing at SCOTUSBlog, Howard Wasserman breaks down Monday’s decision in Allen v. Cooper, which considered whether states (and state entities) could be sued for copyright infringement. In a unanimous decision (though only a majority opinion), the Court held they could not. Opinion here.
Real-life ‘Glee’ choir wins song-stealing lawsuit — The Ninth Circuit published a decision in Tresona Multimedia, LLC, v. Burbank High School Vocal Music Association holding that, contrary to decades of industry expectations, there is no market for licensing music to be used as part of medleys.
National Recording Registry Class Produces Ultimate ‘Stay at Home’ Playlist — “Librarian of Congress Carla Hayden today named these and 20 other recordings as aural treasures worthy of preservation because of their cultural, historical and aesthetic importance to the nation’s recorded sound heritage. ‘The National Recording Registry is the evolving playlist of the American soundscape. It reflects moments in history captured through the voices and sounds of the time,’ said Hayden.”
Copyright Office Updated Fee Schedule Takes Effect Today — On March 20, new fees for Copyright Office services, including registration, went into effect. Check out the link for the new fee schedule to make sure you’re submitting the proper fee and avoid delays in processing.
Update on Friday’s Campaign to Support Artists During the Covid-19 Pandemic — Last week, I noted that indie music platform Bandcamp was waiving its cut of artist sales for 24 hours as a way to provide aid during this pandemic. Here, Bandcamp reports on the results of that waiver: over fifteen times in daily sales, for a total of $4.3 million in music and merch sold.
The world is a lot different than it was a week ago, and that won’t change anytime soon. I hope everyone stays healthy, safe, and secure.
Resources for artists and creators — Media, organizations, and individuals have been compiling lists of resources for the creative community, who along with the general challenges a pandemic brings, face their own set of specific challenges. Just a few: COVID-19 & Freelance Artists is a comprehensive collection that started as a crowd-sourced Google Doc. Billboard compiled a State-by-state Resource Guide for Music Professionals Who Need Help During Coronavirus Crisis. Recording Academy regional chapters have compiled lists of resources for musicians by region: East (Chicago, NY, Philly, DC), South (Memphis, Nashville, Florida, Atlanta), and West (LA, San Francisco, Pacific Northwest, and Texas). The British Journal of Photography has a similar list for photographers. The National Endowment of the Arts has a compilation of compilations of Resources for Artists and Artist Organizations.
The mail must go through — Government can’t stop during a pandemic, though it must adapt to the challenges social distancing brings just as any other organization must. The Copyright Office has a dedicated page for Operations Updates During the COVID-19 Pandemic. The US Patent and Trademark Office also set up a page collecting USPTO Notices Regarding COVID-19. Federal Courts make individual decisions regarding modification of their operations, the Administrative Office of the U.S. Courts has a page dedicated to collecting links to all Court Orders and Updates During COVID-19 Pandemic. For general information, visit the Center for Disease Control’s dedicated page at Coronavirus.gov. For other federal government initiatives, see USA.gov/coronavirus (and Spanish language version). For general state and local government updates, your best bet is to start with your local Congressional representative website, many of which have compiled lists of updates and links as a constituent service.
Led Zeppelin Wins “Stairway to Heaven” Copyright Fight Upon Appellate Replay — On Monday, an en banc Ninth Circuit panel excised the “inverse ratio” rule from copyright analysis, affirmed that the scope of copyright claims for works registered under the 1909 Copyright Act is limited to what is in the deposit copy, and provided plenty else to chew on for the copyright world.
Senate IP Subcommittee Examines Foreign Approaches to Digital Piracy in Second Hearing on U.S. Copyright Reform — On Tuesday, the Subcommittee continued its work looking at the Digital Millennium Copyright Act and how it is working after two years in place. This hearing examined approaches to online piracy outside the U.S., with particular emphasis on the recent EU copyright directive.
SCOTUS rejects pair of copyright and design patent suits — The Supreme Court will not be reviewing Gold Value v. Sanctuary Clothing, a Ninth Circuit decision that invalidated a copyright registration due to inaccurate information on the application.
Inside the Strange, Insular World of Cheerleading Music — Vice profiles the thriving but niche industry providing the soundtrack to cheerleading competitions, along with the copyright and licensing issues that arise.
Library of Congress Announces Limited Access to Facilities until April 1 — The Library of Congress buildings and facilities will be closed to the public for the rest of the month of March due to the coronavirus pandemic. That includes the U.S. Copyright Office. “If you are a user of the U.S. Copyright Office’s services, submit your applications online, browse FAQs, and submit emails with questions through copyright.gov. You may also reach the Copyright Office by phone at (202) 707-3000.”
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.