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 The caveat is that the decision is a nonprecedential summary order.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.
New Fees Proposed for U.S. Copyright Office Services — No one likes it when fees go up, but it’s often a necessity to ensure that services can continue to recover costs. The US Copyright Office this week published its new fee schedule, which, unless disapproved by Congress, goes into effect 120 days from now. The fee schedule is modified in a number of ways based on public comments received by the Office after it published a proposed fee schedule last year, and the Office should be commended for the tough task of finding ways to minimize the burden on individual creators—the fee increase on the standard and single applications, which many individual creators use, has been cut in half due to public comments, and the fee for group registration of photographs, which was initially set to increase, will now remain the same.
Advocacy group launches effort to fund freelance stories by laid-off journalists about Big Tech — “The Save Journalism Project, an advocacy group that works to expose how tech companies have harmed the journalism industry, on Tuesday told The Hill it is launching an effort to fund freelance stories about Big Tech’s effect on vulnerable communities.”
How The Music Modernization Act Has Already Benefited Legacy Artists — The Recording Academy writes, “One of the most talked-about benefits of the Music Modernization Act, which was signed into law on Oct. 11, 2018 and recently celebrated its one-year anniversary, has no doubt been the closure of the ‘pre-1972’ loophole. Put simply, this means that digital services are now paying legacy artists for sound recordings fixed before Feb. 15, 1972. Prior to the MMA being signed, the quirk in the law denied older artists from receiving compensation for their work and had to be eliminated to ensure level compensation regardless of when an artist first laid down a track.”
Monarch of All I Survey…Copyright Excepted (What are the Purposes and Limits of Government Copyright?) — Hugh Stephens discusses a recent Canadian Supreme Court decision, Keatley Surveying v. Teranet, Inc., which touched on the issue of Crown copyright. Stephens also considers some of the parallels with a pair of US Supreme Court cases currently pending which also deal with government ownership of copyrighted works (Georgia v. Public.Resource Org) and government infringement of copyrighted works (Allen v. Cooper).
The CASE Act: Your Questions Answered — The Authors Guild has a handy resource answering common questions regarding the CASE Act, which would establish a sorely needed small claims process within the Copyright Office.
Copyright in State Legal Materials – Looking Back to 1888 — Zvi Rosen takes a closer look at the three 19th century decisions that Public Resource is relying on in a case the Supreme Court will hear this term. The question involves the scope of the “edicts of law” doctrine, which excludes copyright protection for material that has the force of law. Public Resource filed its opening brief with the Supreme Court on Wednesday.
Two Photographers Sue NYC Parks for Publicizing ‘Unearthed’ 1978 Photos — The photographers are claiming the parks department picked a whole bouquet of oopsie-daisies when they ran a heavily publicized campaign with the photos without having permission from the copyright owners.
Court Denies Audible Request for Settlement Conference in ‘Captions’ Case — The latest in the lawsuit brought by publishers against ebook distributor Audible. ” In a letter to the court on Thursday, lawyers for Audible suggested a 30-day hold on the litigation over its Captions program, and a referral to a magistrate judge to oversee settlement talks during that period. But the plaintiff publishers threw cold water on that proposal, prompting federal judge Valerie Caproni to deny Audible’s request.”
Temple and Hayden Respond to Tillis on Copyright Modernization Efforts — IPWatchdog reports on a letter from Librarian of Congress Hayden and Register of Copyrights Temple to Senate IP Subcommittee Chairman Tillis in response to a series of questions regarding the ongoing modernization efforts in the US Copyright Office. And also, happy 20th anniversary to IPWatchdog.
The Future of What | Episode #165 : Unpacking The C.A.S.E. Act — The latest episode of the podcast from Music Business Association president Portia Sabin features Register of Copyrights Karyn Temple and Copyright Alliance CEO Keith Kupferschmid to talk about the copyright small claims bill and other recent developments of interest to independent creators.
At ‘Captions’ Hearing, Judge Hammers Audible’s Fair Use Argument — “When it was Audible’s turn, attorney Emily Reisbaum never really had a chance. ‘First, let me say the product is good,’ Reisbaum began, attempting to explain that the publishers’ portrayal of the product and its error rate was not accurate. Captions is designed to work alongside an audiobook, not ‘divorced’ from it, she argued, and it does not provide a reading experience. ‘What do you mean it’s not a reading experience?’ [Judge] Caproni interjected. ‘It’s words.'”
A Few Observations From the Ninth Circuit En Banc Argument in Skidmore v. Led Zeppelin — On Monday, the full Ninth Circuit heard arguments in the closely watched case concerning allegations Led Zeppelin copied another artist’s work when creating Stairway to Heaven. Attorney Lee Gesmer shares some thoughts on the issues.
Denmark Blocks Sci-Hub Plus Streaming, Torrent & YouTube-Ripping Sites — “Rights Alliance Director Maria Fredenslund informs TorrentFreak that this latest action represents ‘blocking wave 14’ in Denmark and more sites will be targeted in the future. ‘We file about 5-6 cases per year targeting the most popular infringing sites,’ Fredenslund concludes.” And the internet has not broken.
Steal this book? There’s a price — This op-ed from the New York Times details the costs of book piracy, not just in economic terms, but in cultural terms. “We have surrendered our lives to technocrat billionaires who once upon a time set out to do no harm & have instead ended up destroying the world as we knew it. Convenience & the lowest possible price, or no price at all, have become our defining values.”
Mechanical Licensing Collective Requests Over $37 Million for 2021 Launch — The Music Modernization Act called for the creation of a new entity to administer and distribute royalties for the mechanical reproduction of songs by digital services. In July, the US Copyright Office designated the entity to carry out those functions, and now the process of figuring out what everything costs (and who will pay for it) has begun.
Led Zeppelin’s ‘Stairway’ Copyright Battle, Explained — A thorough look (with links to the actual court filings!) at the copyright infringement case involving Stairway to Heaven. Oral arguments for an en banc rehearing in the Ninth Circuit are scheduled for Monday.
Deezer plans to experiment user-centric payment model — Emmanuel Legrand reports that the music streaming service may become the first to adopt a fairer royalty payout model.
The Constitution, Annotated: The Constitution Explained in Plain English — Finally, this week was National Constitution Day, so be sure to check out this wonderful online resource to see how the founding document’s various provisions have been interpreted by courts over the past two centuries. Maybe check out, oh I don’t know, Article I, Section 8, Clause 8.