SCOTUS Resolves Court Split in Fourth Estate, but Registration Concerns Remain — I wrote about the Supreme Court’s decision in Fourth Estate Public Benefit v, which it issued on Monday, and its significance for Copyright Office modernization efforts.

‘Fortnite’ Legal Dance Battles Paused Following Supreme Court Ruling — Ashley Cullins of The Hollywood Reporter reports that the plaintiffs in a set of suits involving the alleged unauthorized reproduction of dance moves in the popular video game Fortnite have dismissed their claims following Monday’s Fourth Estate decision. They will likely be refiled once the Copyright Office has either registered or refused the pending applications, in line with the Supreme Court’s holding.

Supreme Court Will be Asked to Permit Resales of Digital Music Files — ReDigi is likely seeking to file a cert petition asking the Supreme Court to reverse the decision of the Second Circuit, which held that the service’s unauthorized reproduction of digital music files is not permitted under the first sale doctrine or fair use. ReDigi has until May 11 to file its petition.

Spotify, Google, Pandora & Amazon Plan to Appeal Copyright Royalty Board Rates — Colin Stutz of Billboard reports, “Spotify, Google, Pandora and Amazon have filed notices they intend to appeal the Copyright Royalty Board’s (CRB) rate determinations finalized last month that would boost record labels and digital services’ payments to music songwriters and publishers by 44 percent over a four-year term… This marks the first time that the Section 115 rate determinations for music publishing rates has been appealed.”

The Sharing Economy was Always a Scam — “Though its origin is vague, many credit the introduction of the term ‘sharing economy’ into the broader tech lexicon to Lawrence Lessig, who wrote about sharing in his 2008 book Remix: Making Art and Commerce Thrive in the Hybrid Economy.”

A philosopher argues that an AI can’t be an artist — “We can’t count the monkey at a typewriter who accidentally types out Othello as a great creative playwright. If there is greatness in the product, it is only an accident. We may be able to see a machine’s product as great, but if we know that the output is merely the result of some arbitrary act or algorithmic formalism, we cannot accept it as the expression of a vision for human good.”

Scribd Files Complaint Against DRM Circumvention Tool — Section 1201 prohibits on circumventing technological measures protecting access to copyrighted works. Actions for violations of Section 1201 may be brought by “any person injured.” So it was only a matter of time before we saw an entity besides a copyright owner file a 1201 lawsuit.

Books Digitization and Demand — Mark Seeley takes a look at a recent paper that examines demand for books in response to the Google Books Project. “[A]uthors and publishers were at the time the suit was initiated against Google heavily engaged in e-book production and creating an e-book market. It is possible that the Google project provided more incentive in this development, but the concern was not about print—it was about unauthorized use, print or online, without compensation.”

Fair Use Week Again. But Why? — Newhoff writes, “Perhaps future legal experts will find that the most important decision came in the ReDigi case, denying the fair use defense of this business, which sought to create and exploit a market for ‘used’ digital music files.  One reason this decision my be seen as a landmark is that Judge Leval himself wrote the opinion and added further nuance to his own ‘transformative’ doctrine, which has been the cause of considerable confusion in other cases.”

Kodak’s Kodakit Asks Photographers to Give Up the ‘Entire Copyright’ — Petapixel’s Michael Zhang highlights some of the extraordinary conditions that photographers must agree to before selling their photos through what has been dubbed here the “Uber of photography.”

An Empirical Study of Transformative Use in Copyright Law — How dominant has the transformative use inquiry become in fair use analysis since its introduction? And what effect has it had on shaping fair use outcomes? Law professor Jiariu Liu assembled a set of all reported transformative use decisions through 2017 to see what the data tell us.

The Investment Firm That Commissioned Wall Street’s ‘Fearless Girl’ Is Suing the Artist for Making Replicas — A teaching moment for artists who create works for others to understand what rights they retain for those works (and to determine in advance of any agreement what rights they may want to retain). Also another teaching moment for reading the actual complaint rather than relying on headlines. The complaint alleges only several breach of contract claims. That includes breach of both trademark and copyright agreements in the contract, but no allegations of trademark or copyright infringement per se. Of course, the question going forward is to what extent are any of the contract claims actually copyright infringement claims and/or preempted by the Copyright Act. A good law school exam hypo.

‘Fortnite’ Law Firm Reports Someone Tried to End Dance Lawsuits With Fake Emails — A bit of drama this week in the ongoing litigation involving claims the popular video game incorporated protectable dance moves without authorization. Variety reports that an email that appeared to originate from the plaintiffs’ law firm was sent to the US Copyright Office, asking it to reject its copyright claims.

Studios Sue Omniverse in TV Streaming Crackdown — On the heels of a successful settlement with streaming device maker Dragon Box, studios have sued Omniverse, alleging the company serves as a “hub” for feeding unauthorized content to other illegal streaming services.

Appeal from the victims of Controlled Digital Lending (CDL) — This week, a group of 38 organizations published the following appeal: “As working writers, translators, photographers, and graphic artists; as unions, organizations, and federations representing the creators of works included in published books; as book publishers; and as reproduction rights and public lending rights organizations; we oppose so-called ‘Controlled Digital Lending’ (CDL) as a flagrant violation of copyright and authors’ rights.” An accompanying FAQ explains the practice of CDL, why it falls beyond the bounds of copyright law, and why it harms authors and creators.

EU Copyright Directive: Breakthrough — Agreement on text for the new Directive was reached yesterday, after months of negotiations. See DSM Watch: Crunch Time for the Copyright Directive for more background, along with press releases about the text from both the European Commission and European Parliament. The text must now be translated into 23 other languages and passed by the EU Parliament.

The Copyright Directive: how the mob was told to save the dragon and slay the knight — The European Commission also published this fiery post on Medium following the agreement. “Of course, we know from recent elections and referendums that simple memorable slogans — however untrue or unobtainable — can go a long way to winning over hearts, minds and voters. And so it was, that the wholly inaccurate phrases ‘link taxes’ and ‘censorship machines’ started to be part of the campaign against the proposed Copyright Directive. Never let the truth get in the way of a catchy slogan.”

Copyright Office Refuses Registration for ‘Fresh Prince’ Star’s ‘Carlton Dance’ — Eriq Gardner reports, “In correspondence last month that was surfaced on Wednesday in California federal court, Saskia Florence, a supervisory registration specialist in the Office’s Performing Arts Division, told Ribeiro’s attorney that registration must be refused because his claimed ‘choreographic work’ was a ‘simple dance routine.'”

Stolen Artwork Is All Over Amazon — And Creators Want The Company To Do Something About ItBuzzFeedNews reports, quoting one creator as saying, “The laws are there. They should be benefiting people exactly like me — people who make their own work. … But instead, these companies don’t value what they’re selling and are making it impossible for small businesses, like mine, to stay in our lane.”

Music Modernization Act: Labels and Publishers Back NMPA’s Bid to Run New Mechanical Rights Society — “The NMPA, in tandem with the Nashville Songwriters Association International (NSAI) and the Songwriters of North America (SONA) says it is being supported in its bid by the ‘overwhelming majority of copyright holders who together represent the majority of musical works in the US’.”

Minot on the Role of Blackstone in the 18th Century — This well-researched student note suggests that the conventional wisdom about Blackstone’s role as “oracle of the law” during the Founding Era is not quite accurate.

GTA V Cheat Maker Has to Pay $150,000 in Copyright Damages — According to the complaint, the defendant infringed Take-Two’s copyright in two ways: by continuing to play the game after breaching a condition of the license requiring licensees not to cheat (among other conditions), and by preparing an unauthorized derivative work of the game.

Allen v. Cooper — The plaintiff in a case involving copyright and sovereign immunity has asked the Supreme Court to review a Fourth Circuit decision holding that Congress did not validly abrogate state sovereign immunity when it passed the Copyright Remedy Clarification Act in 1990. Yesterday, the petition found support from amici, including former Register of Copyrights Ralph Oman, the RIAA, and a group of authors and scholars which include David Nimmer.

Will the Supreme Court Review Oracle v. Google? Please? — Attorney Lee Gesmer takes a look at the two issues Google has asked the Supreme Court to review in its long-running lawsuit with Oracle over its copying of Java code.

How the Iconic Photo ‘Migrant Mother’ Came to Be — A great video that looks at the creative process that went into Dorothea Lange’s 1936 photograph.

How Colorist Loren White Makes Footage Pop Off the Screen — “A relatively recent entrant in the field of Hollywood jobs, coloring – or ‘color grading’ – is a digital art that involves creating a ‘look’ for a project that remains consistent from start to finish. Achieving that look can entail matching a cloudy sky from one angle to the sunny sky of another, making onscreen objects ‘pop’ such as eyes or clothing, imbuing a period feel, or a combination of all those things.”

RIAA Appeals Dismissal of Major Labels’ Case Against Russian Stream-ripper — “Last week, a federal judge in the Eastern District of Virginia dismissed a copyright infringement case brought by Universal Music, Sony Music and 10 other labels against the operator of Russian stream-ripper, ruling that the court lacked jurisdiction over the foreign site. But the recording industry isn’t done fighting yet.”

Stream-ripping Site Acted Illegally, German Court Rules — Torrentfreak reports, “The Court found that while users had requested the tracks, it was ZeeZee that fetched and reproduced them, later making them available for download. The infringing copies, therefore, had to be attributed to ZeeZee, not the end users of its service, in line with the limits on private copying highlighted in a 2017 ruling by the Court of Justice of the European Union.”

Copyright Office Modernization Webinar Series Kicks Off — If you register copyrights and are interested in the US Copyright Office’s efforts to modernize its systems, you’ll want to check out the first in a series of webinars that the Office is planning on holding to provide updates on its ongoing efforts. The fun begins next Thursday, January 31, at 12pmET.

Digital Media is a Wasteland — Writer John DeVore pens this series of eminently quotable observations on the last two decades of online media. Example: “Opinion is easy to produce and goes stale quick, like a donut… There is nothing wrong with the opinion business, but I just don’t think its wise for America to transform into an opinion-based economy. Facts are fussy. It takes work to dig them up and crack them open. Skill. Journalism isn’t cheap. But a fact is valuable. For instance: ‘a hurricane is coming’ is an important fact to know. ‘There is tainted lettuce at the grocery store’ is another.”

TVEyes Will No Longer Carry Fox News in Negotiated End to Big Copyright Fight — At one time, there was concern that the news clipping service would prevail on its fair use defense, broadening the doctrine even further beyond its original purpose of complementing the goals of copyright, but last year the Second Circuit decisively concluded the 24/7 copying and commercial redistribution of Fox News’ copyrighted content was not fair use, and after an unsuccessful attempt at Supreme Court review, the two parties have reached a settlement.

Writer Associations Condemn Unauthorized Digital Scanning and Lending — The Writers’ Union of Canada has joined its counterparts in the US and UK in a campaign against the Internet Archive’s efforts to lend digital copies of books it has scanned regardless of copyright status. The legal basis for such controlled digital lending suffered a significant blow after last month’s Second Circuit decision in Capitol Records v ReDigi rejected applying fair use to permit the transfer of digital files of copyrighted works.

Netflix Joins the Motion Picture Association of America — It was announced this week that the streaming service will become a part of the 97-year-old trade association for film studios. As Variety reports here, the service also recently dropped ties with the Internet Association, a trade association “which represents many tech giants like Google, Amazon, Snap and Facebook.”

100% DIY: interview with cellist Zoë Keating — The composer and cellist discusses the challenges and rewards of taking the DIY route to get her music to audiences.

Effect of a “No-Deal” Brexit on IP in the UK — It has been a whirlwind week in the world of UK politics, but what happens to IP if the country leaves the EU without a deal in place? Terese Saplys, Deborah J. Kirk and Grace Erskine of Latham & Watkins breaks it down.

How is the USPTO Operating During the Federal Government Shutdown? — The agency, which, among other duties, provides copyright policy advice to the Executive Branch, is able to continue to operate during the shutdown using reserves from prior year fee collections, though, as Patentlyo points out here in more detail, those reserves will eventually run out.

AG Szpunar advises CJEU to rule that quotation exception is not limitless and that there is no fair use in the EU — Eleonora Rosati looks at the advisory opinion at IPKat. “The case is currently pending before Germany’s Federal Court of Justice, which has stayed the proceedings and asked the CJEU to clarify, among other things, how far the ‘quotation’ exception can go and what discretion EU Member States enjoy when transposing and applying relevant EU copyright directives.”

Vimeo to pay €8.5mln damages to Mediaset — The decision from an Italian court weighs in on the liability of an online video service.

Argument analysis: Justices wade deep into the copyright weeds — On Tuesday, the Supreme Court heard oral arguments in Fourth Estate Public Benefit Corp v, a case that will determine when a copyright owner has satisfied the registration prerequisite for filing an infringement lawsuit—can she go to court as soon as she has sent the registration materials to the US Copyright Office, or must she wait until the Copyright Office has either issued a registration certificate or refused the registration? Courts have split on the question, and University of Michigan law professor Jessica Litman recaps the Supreme Court’s discussion. A full transcript of the oral arguments is available here.

Argument preview: Justices to consider limits on awards of “costs” to prevailing parties in copyright cases — Two copyright cases at the Supreme Court in two weeks! On Monday, the Supreme Court will hear arguments in Rimini Street v Oracle to determine what types of court costs a court may award a prevailing party in copyright litigation under 17 USC § 505. Columbia law professor Ronald Mann previews the issue, which he considers “a textbook problem of statutory interpretation.”

Does it pay to be a writer? — From the New York Times, “’In the 20th century, a good literary writer could earn a middle-class living just writing,’ said Mary Rasenberger, executive director of the Authors Guild, citing William Faulkner, Ernest Hemingway and John Cheever. Now, most writers need to supplement their income with speaking engagements or teaching. Strictly book-related income — which is to say royalties and advances — are also down, almost 30 percent for full-time writers since 2009.”

It’s Still All About the Music… And Labels Remain at Its Heart — A new report from Musonomics highlights the transformation record labels have undertaken over the past two decades. “In today’s environment, it’s no wonder that artists seek to partner with label teams to achieve their dreams and succeed both creatively and commercially. This report shows why artists of all stripes seek to collaborate with a label instead of taking any of a multitude of other paths available, and why the most listened-to artists are backed by labels.”

Tech Expertise in Congress, Additional Thoughts — The question of whether policymakers can benefit from additional tech expertise is sometimes raised in the copyright sphere. William Rinehart cautions that the answer is not an unqualified yes: “Let’s assume for the moment that legislators do become more technically proficient by any number of means. If policymakers are normal people, and let me tell you, they are, the result will be overconfidence of one sort or another. In psychology research, overconfidence includes three distinct ways of thinking. Overestimation is thinking that you are better than you are. Overplacement is the belief that you are better than others. And overprecision is excessive faith that you know the truth.”

It’s a new year, and the world is split between those who call it “two thousand nineteen” and those who say “twenty nineteen.” What can we expect in U.S. copyright law and policy over the next twelve months?1Previous installments include 2018, 2017, 2016, and 2015. Let’s take a look.


The 116th Congress gaveled in on January 3, 2019, and the most significant change from the 115th Congress is the flip in party control of the majority. While copyright historically has been a nonpartisan issue, the change in majority control will affect what non-copyright issues will receive priority and thus what attention will remain for copyright issues.

The House Judiciary Committee has jurisdiction over intellectual property, but it also has jurisdiction over several other key political issues. It’s most likely that those issues will dominate the Committee’s attention for at least the first several months of the new Congressional session. But when it does turn toward copyright, it will do so under the eyes of two Representatives who have been very active on copyright issues. Both Chairman Jerrold Nadler (D-NY) and Ranking Member Doug Collins (R-GA) were critical to the drafting and passage of the Orrin G. Hatch-Bob Goodlatte Music Modernization Act (MMA), which was signed into law last October, and have introduced or co-sponsored many other copyright bills over the years.

Among the first set of issues that the Committee might take up this year is copyright small claims. Last session, Reps. Hakeem Jeffries (D-NY) and Tom Marino (R-PA) introduced the Copyright Alternatives in Small Claims Enforcement (CASE) Act, which would have created a streamlined tribunal for hearing small copyright claims based off recommendations made by the US Copyright Office in its 2013 report on small copyright claims. The Committee held a hearing on the bill just this past September, with a number of members indicating support for moving the bill forward.

We may also see a bill addressing resale royalty rights. A resale royalty provides visual and fine artists—who often rely primarily on income from the sale of their individual works rather than licensing their exclusive rights provided through copyright—with the opportunity to capture a percentage of the proceeds when their works are resold through art auctions.2See U.S. Copyright Office, Resale Royalties: An Updated Analysis (2013). Although there have been a number of resale royalty right bills introduced in previous Congressional sessions that never advanced, there are at least two indications of greater momentum this session: first, the issue’s biggest supporter, Chairman Nadler, is now in charge of the Committee, and second, the most recent bill, the American Royalties Too Act of 2018, was introduced in both the House and Senate by Judiciary Committee leaders, giving it a higher stature than previous versions of the bill.3See, e.g., American Royalties Too Act of 2014, H.R. 4103, S. 2045, 113th Cong. (2014); American Royalties Too Act of 2015, H.R. 1881, S.977, 114th Cong. (2015).

The Committee may also continue its work on modernizing the Copyright Office. In 2016, it identified modernization as the first issue it would address following its three-year review of copyright law. Part of that proposal—elevating the Register of Copyrights to a Presidential appointment with the advice and consent of the Senate—was introduced as a separate bill, the Register of Copyrights Selection and Accountability Act, in March 2017, given the current lack of a permanent Register. The bill easily passed the House with a vote of 378-48 in April 2017 but stalled in the Senate Rules Committee. Momentum resumed several months ago, with the Committee holding a hearing on the bill in September, but the bill was unable to make it to the Senate floor before the end of the legislative session.

The copyright compulsory licenses for satellite retransmission of distant broadcast signals (along with related Communications Act provisions) are due to expire at the end of 2019. The compulsory license, found in 17 USC §119, was originally created by Congress in 1988, when the satellite television industry was still in its infancy, and set to expire in 1994.4A separate, permanent compulsory license for satellite retransmission of local broadcast signals, found in 17 USC § 122, was created in 1999. But Congress reauthorized the compulsory license for an additional five years, and continued to do so (along with other changes), most recently with the STELA Reauthorization Act of 2014.5Reauthorization of the Satellite Television Extension and Localism Act (STELA), Congressional Research Service, R43490 (2014). Will it reauthorize again before the provisions expire on December 31, 2019 or let them sunset? We can already see positions being staked out: for example, the National Association of Broadcasters is supporting the law’s expiration, while the Satellite Broadcasting & Communications Association is looking to make the provisions permanent.

What other issues may advance over the next twelve months? One possibility is a terrestrial performance right for sound recordings, the subject of perennial legislative efforts since the 1950s.6See U.S. Copyright Office report on Performance Rights in Sound Recordings (1978). When Congress extended federal copyright protection to sound recordings in 1971, it did not extend the right of public performance to them. In 1995, Congress extended to sound recording owners the exclusive right to perform the work publicly by means of a digital audio transmission, but legislative efforts for a full public performance right since then have been unsuccessful.7See, e.g., Performance Rights Act, H.R. 848, S. 379, 111th Cong. (2009); Performance Rights Act, H.R. 4789, S. 2500, 110th Cong. (2010); Free Market Royalty Act, H.R. 3219, 113th Cong. (2013); Fair Play Fair Pay Act of 2015, H.R. 1733, 114th Cong. (2015); Fair Play Fair Pay Act of 2017, H.R. 1836 (2017). A terrestrial performance right for sound recordings was not included in the Music Modernization Act, but now that that bill has passed, some in the music industry are returning their attention to the issue, hoping to build on the momentum of the MMA.

U.S. Copyright Office

The U.S. Copyright Office will continue to work at a brisk pace through 2019 (and unaffected by the government shutdown).8A bill providing appropriations for the Legislative Branch, which covers Copyright Office funding, was passed in September 2018. A lot of that work will focus on modernizing the Office itself. As Congress looks at broader structural changes and other modernization issues that require legislative attention, the Office, in coordination with the Library of Congress, has been focused on those areas that don’t require legislative attention, such as IT, operations, and regulations—in its own words, its modernization efforts seek to “(1) build a new enterprise copyright system featuring a user-centered and flexible design, (2) streamline processes and policies, (3) improve access [to its public records], and (4) reimagine the entire Office.”

Currently the Office is seeking public comments on modernizing its registration system. It will incorporate these public comments into the development of the technological infrastructure for a new registration system, though we likely won’t see any public-facing results this year. It is possible, however, that we may see an initial version, toward the end of this year, of the Office’s updated recordation system,9The recordation system indexes documents filed with the Copyright Office pursuant to 17 USC § 205, along with sundry other provisions scattered throughout Title 17. For a complete list, see Transforming Document Recordation at the United States Copyright Office, pp. 13-14 (2014). which is less complex than the registration system and which the Office began working on earlier.

As part of its modernization efforts, the Office has been working on updating its rules and regulations to streamline Office practices and anticipate updated systems. Currently, it is collecting public comments on a number of proposed rules it issued toward the end of 2018, including a proposed new group registration option for blogs and other collections of short, online literary works, and simplifying copyright registration for architectural works. We can likely expect final rules for those sometime in 2019, along with any number of additional rulemakings.

Finally, the Copyright Office last year proposed an updated fee schedule for its services, as it periodically does. The proposal generated a healthy number of public comments in response, most voicing concerns about proposed fee increases for copyright registration. We will likely see a follow up to the proposal, perhaps in the earlier part of 2019.

On the policy front, 2018 came and went without the release of the Office’s long-awaited report on Section 512, which establishes safe harbors for online service providers and provides a notice-and-takedown system for addressing online infringement. The Office launched the study December 31, 2015 to evaluate the impact and effectiveness of the law, which was enacted in 1998. Through February 2017, it solicited two rounds of public comments and held a series of public roundtables to gather input. I predicted that we should see the release of the final report last year. Oof.

The Copyright Office doesn’t have any formal timeline for releasing the study, and it’s not surprising that it hasn’t been released yet, considering the scope and complexity of the issues it has solicited feedback on. At this point, given the amount of time since it has collected public input, the Office may, as it did for its study on the Making Available right, solicit an additional round of public comment to address any new developments in case law, technology, business practices, or developments in foreign countries that are relevant to assessing the impact and effectiveness of Section 512.

The Copyright Office has also previously initiated public studies on moral rights and copyright issues for visual works. It’s possible we may see developments—whether in the form of a written report or further inquiries—on either of these some time in the coming year.

Music Modernization Act

The MMA was signed into law October 11, 2018, the most significant copyright legislation in at least a decade, if not two, and we should expect the law to begin being implemented throughout 2019, with the Copyright Office charged with many of those duties.

The largest and most complex component of the MMA is the establishment of a Mechanical Licensing Collective to collect, administer, and distribute royalties under the blanket license created by the law for mechanical reproductions of musical compositions. Although the blanket license will not be available until January 1, 2021, much work will be done before then in preparation. The Copyright Office has already issued a notice regarding designation of the Collective and is accepting initial comments through March 21 and reply comments through April 22. It will use those comments to identify the entity that will act as the Mechanical Licensing Collective, something it is required by law to do within 270 days of the MMA’s enactment (sometime in mid-July of this year). The same process is being used to identify the Digital Licensee Coordinator, an entity created by the MMA to act as a sort of representative for the digital music providers. The Copyright Office has initiated a number of other rulemakings related to the implementation of the MMA and may release others in the upcoming months.

Also within 270 days of the enactment date, the Copyright Royalty Judges will commence proceedings to determine the initial administrative assessment for the Mechanical Licensing Collective—i.e., the fee that licensees must pay to cover the costs of operating the Collective. That proceeding must be concluded within one year of commencement.

Title II of the MMA provides federal protection for pre-1972 sound recordings and creates a new exception that would allow the noncommercial use of pre-1972 sound recordings that are not being commercially exploited. The Copyright Office solicited comments regarding requirements for this exception in October, and we can reasonably expect to see the final rules and guidance issued sometime this year.

U.S. Patent and Trademark Office

The USPTO, despite its name, provides advice to the Administration and other federal agencies and analysis on all types of intellectual property issues, including copyright.1035 USC § 2. It is currently operating during the shutdown by using prior-year fee collections but may cease operations if those funds are exhausted before the shutdown ends.

At the end of this month, the USPTO has scheduled a conference on the intellectual property considerations of artificial intelligence. The topics to be discussed include “the copyright implications when AI is used to create new works or when copyrighted works are used to ‘train’ artificial intelligence systems.” This event was originally scheduled for December 2018 but postponed following the passing of former President George H.W. Bush.

Other Agencies

The Federal Trade Commission is currently not operating during the shutdown, but when that ends, the FTC will resume a series of hearings it has been holding since September on “Competition and Consumer Protection in the 21st Century.” The purpose of the hearings is to consider whether “broad-based changes in the economy, evolving business practices, new technologies, or international developments might require adjustments to competition and consumer protection enforcement law, enforcement priorities, and policy.” The FTC held a hearing focusing on the role of intellectual property and competition policy in promoting innovation last October and collected public comments on that issue through late December. While the hearing and comments touched upon general copyright issues relating to competition, including piracy and enforcement, much of the focus was on software copyright issues. The FTC will provide an additional opportunity for public comment at the conclusion of all hearings, which were originally scheduled to end in January. The FTC has modeled these hearings after its 1995 “Pitofsky hearings” on global competition and innovation.11Named after then-Chairman Robert Pitofsky, who through unfortunate coincidence, passed away in October, a month after the current round of hearings began. The 1995 hearings cumulated in a report published in 1996, though the FTC has not indicated any explicit outcomes for the current series of hearings.

The Intellectual Property Enforcement Coordinator will likely release its Joint Strategic Plan for 2019-2021 in the coming weeks. The IPEC, which is charged with coordinating and developing U.S. intellectual property policy and strategy across the numerous agencies involved with IP issues, is directed by Congress to develop a joint strategic plan on intellectual property enforcement every three years. The IPEC solicited public comment to help prepare its latest plan last October.


Much activity on the trade front can be expected in 2019, though it is unlikely copyright issues will be in the forefront.

The United States, Canada, and Mexico signed a renegotiated trilateral agreement on November 30, 2018, which has been renamed the USMCA (at least in the US) and replaces NAFTA. As with prior free trade agreements (including the original NAFTA), the agreement includes a chapter on minimum standards for intellectual property protection. The chapter is generally consistent with US law, but may require some changes to Canadian and Mexican law, and while some specific provisions have raised concern among the copyright community, the overall response to the chapter has been positive.12See generally, Report of the Industry Trade Advisory Committee on Intellectual Property Rights (ITAC-13) on A Trade Agreement with Mexico and potentially Canada (Sept. 27, 2018) and United States-Mexico-Canada Trade Agreement Addendum to the Report of the Industry Trade Advisory Committee on Intellectual Property Rights (ITAC-13) dated September 27, 2018 on a Trade Agreement with Mexico and Potentially Canada (Oct. 25, 2018).

The agreement must now be ratified and implemented in each of the three countries before going into effect. To qualify for fast-track consideration in Congress under Trade Promotion Authority, the U.S. International Trade Commission has until mid-March of this year to issue a report on the likely economic impacts of the new agreement.13See Congressional Research Service, In Focus: Proposed U.S.-Mexico-Canada (USMCA) Trade Agreement (Nov. 30, 2018). The Administration is also required to submit a list of required changes to U.S. law under the agreement to Congress by the end of January.

From there, the timeline for implementation remains indeterminate—there is no deadline for introducing implementing legislation in Congress. But the Administration is required to submit a final draft of the agreement and a Statement of Administration Action, which provides a proposal for implementing the agreement, to Congress 30 days prior to submitting its draft of implementing legislation to Congress. And once that occurs, it triggers a series of deadlines for Congress to bring implementing legislation to the floor for expedited consideration.

The U.S. last October announced its intention to enter into trade negotiations with Japan, the European Union, and the U.K. The US Trade Representative’s intellectual property negotiating objectives for the Japan agreement are virtually identical to those it published for the NAFTA renegotiations, so we likely won’t expect any copyright-related surprises there. We can likely see even less copyright-related news in the European Union negotiations, since those talks are expected to have a limited focus.

The wild card here is the U.S.-U.K. negotiations. Those cannot begin until after the U.K. has exited the European Union on March 29, 2019—though how (and if) that happens remains uncertain. The U.S. and U.K. obviously share a long historical kinship on copyright law, and both provide high standards of protection. The USTR is accepting public comments on negotiating objectives for the potential agreement until January 15 and will hold a public hearing on January 29. Both will provide some indication of what copyright stakeholders would like to see in any trade agreement.

Supreme Court

The Supreme Court begins the year with two copyright cases on its docket, both of which will be argued over the next two weeks. In Fourth Estate Public Benefit Corp. v., the Court will settle the Circuit split over when a copyright owner has satisfied the registration requirement and can file a lawsuit. That case will be argued tomorrow, January 8. In Rimini Street v Oracle, the Court will determine what costs a court may award a prevailing party under 17 USC § 505. Oral arguments are scheduled for January 14. Decisions for both cases should come out before the end of the Court’s term in June, and likely sooner than that.

Parties in a number of interesting copyright cases have or are expected to file cert petitions in early 2019. Those cases include: Rentmeester v Nike (scope of copyright protection for photographs), Stevens v Corelogic (§1202 mental state requirement, cert filed January 3), Allen v Cooper (state sovereign immunity for copyright infringement, cert due today), Google v Oracle (copyrightability and fair use of Java software code, cert due January 25), and Georgia v Public Resource (scope of government edicts doctrine, cert due March 4).

References   [ + ]

1. Previous installments include 2018, 2017, 2016, and 2015.
2. See U.S. Copyright Office, Resale Royalties: An Updated Analysis (2013).
3. See, e.g., American Royalties Too Act of 2014, H.R. 4103, S. 2045, 113th Cong. (2014); American Royalties Too Act of 2015, H.R. 1881, S.977, 114th Cong. (2015).
4. A separate, permanent compulsory license for satellite retransmission of local broadcast signals, found in 17 USC § 122, was created in 1999.
5. Reauthorization of the Satellite Television Extension and Localism Act (STELA), Congressional Research Service, R43490 (2014).
6. See U.S. Copyright Office report on Performance Rights in Sound Recordings (1978).
7. See, e.g., Performance Rights Act, H.R. 848, S. 379, 111th Cong. (2009); Performance Rights Act, H.R. 4789, S. 2500, 110th Cong. (2010); Free Market Royalty Act, H.R. 3219, 113th Cong. (2013); Fair Play Fair Pay Act of 2015, H.R. 1733, 114th Cong. (2015); Fair Play Fair Pay Act of 2017, H.R. 1836 (2017).
8. A bill providing appropriations for the Legislative Branch, which covers Copyright Office funding, was passed in September 2018.
9. The recordation system indexes documents filed with the Copyright Office pursuant to 17 USC § 205, along with sundry other provisions scattered throughout Title 17. For a complete list, see Transforming Document Recordation at the United States Copyright Office, pp. 13-14 (2014).
10. 35 USC § 2.
11. Named after then-Chairman Robert Pitofsky, who through unfortunate coincidence, passed away in October, a month after the current round of hearings began.
12. See generally, Report of the Industry Trade Advisory Committee on Intellectual Property Rights (ITAC-13) on A Trade Agreement with Mexico and potentially Canada (Sept. 27, 2018) and United States-Mexico-Canada Trade Agreement Addendum to the Report of the Industry Trade Advisory Committee on Intellectual Property Rights (ITAC-13) dated September 27, 2018 on a Trade Agreement with Mexico and Potentially Canada (Oct. 25, 2018).
13. See Congressional Research Service, In Focus: Proposed U.S.-Mexico-Canada (USMCA) Trade Agreement (Nov. 30, 2018).