Friday’s Endnotes – 07/23/21

By , July 23, 2021.

Copyright Office Announces Appointments of Copyright Claims Board Officers — Click to see which three individuals were named to preside over copyright small claims disputes in the new tribunal.

Podcast – IP & Social Justice with Professor Lateef Mtima — Illusion of More’s David Newhoff speaks with Howard University Law professor and director of the Institute for Intellectual Property and Social Justice Lateef Mtima on the intersections between IP and social justice.

#BlackTikTokStrike: How TikTok Dance Creators Can Begin to Protect Their Choreographic Works — CDAS attorney Kamilah Moore talks about how black creators and other creators of color can protect their choreographic works, protect their rights, and monetize their creativity in a TikTok world.

Biden to appoint Big Tech critic to DOJ antitrust role — The nomination is for one of the last remaining open slots among government positions leading in antitrust enforcement efforts, and the choice signals that the Administration will be vigorous in enforcing antitrust laws against Big Tech.

UEFA Wins Two-Year Extension to Streaming Piracy Blocking Order — “UEFA, the governing body of football in Europe, has obtained an extension to a High Court injunction that requires major ISPs to block consumer access to pirated streams in Ireland. The plan is to continue blocking measures so that pirating customers of Eir, Sky, Virgin Media, and Vodafone can less easily watch UEFA Champions League and Europa Conference League matches.”

Friday’s Endnotes – 07/16/21

By , July 16, 2021.

France fines Google $593 million for news copyright violations — “French competition regulators said Tuesday they are fining Google 500 million euros, or roughly $593 million, for failing to comply with copyright rules around negotiating payment terms for news publishers. . . . It’s the latest in a string of competition penalties and investigations Google has faced abroad and at home, several of which concern the way Google compensates news publishers for distributing their work.”

Advocat General dismisses Poland’s challenge to Copyright Directive — “Article 17 of the Copyright directive introduces the principle content sharing service providers might be liable if users upload content that breaches copyrights. Providers can be exempted from this liability if they take measures to prevent illegal uploads, which most commonly takes the form of automatic content recognition tools. Poland challenged the provisions before the Court of Justice, contending that Article 17 should be annulled because it violates freedom of expression.”

Copyright Office’s Busy Summer Includes a Full Slate of Studies and Rulemakings — The Copyright Alliance reviews the full slate of studies and rulemakings that the US Copyright Office is engaged in this summer, addressing everything from implementation of the new copyright small claims tribunal to state sovereign immunity and state compulsory e-book licensing bills.

US Copyright Office report: The MLC should hold unclaimed mechanical royalties for longer than the statutory minimum periods — “The US Copyright Office has issued a series of recommendations regarding the way the Mechanical Licensing Collective (MLC), created by the 2018 Orrin G. Hatch–Bob Goodlatte Music Modernisation Act (MMA) to license and administer mechanical royalties for the digital use of music in the United States, should deal with unclaimed royalties, in particular that they ‘should be held for longer than the statutory minimum periods where appropriate.'” 

Spotify Blocks Users For “Improperly Downloading” Tracks With Third-Party Software — “Spotify has reportedly blocked the accounts of several customers after they ‘improperly’ downloaded tracks from the service using a third-party software tool. Audials Music exploits Spotify to stream music to users at breakneck speed while recording tracks locally as MP3 files. This was noticed at Spotify and has resulted in users being suspended from the service for abuse.”

Friday’s Endnotes – 07/09/21

By , July 09, 2021.

Copyright Office Releases Report on Best Practice Recommendations for the Mechanical Licensing Collective — The report outlines how the newly established Mechanical Licensing Collective can ensure songwriters are getting the royalties they’ve earned under the new blanket license for digital streaming, focusing on on how the MLC can identify and locate songwriters of unclaimed accrued royalties, encourage songwriters to claim their royalties, and reduce the incidence of unclaimed royalties.

A Years-Long Intellectual Property Battle Over a Painting of David Bowie Has Been Dismissed by a Berlin Court — “The court found that Moebius’s work differed from Evans’s in both form and message. ‘It radiates softness and tranquility, which is primarily caused by the altered eye area,’ the court said of Moebius’s image. ‘The drawing shows a world-famous artist performing an everyday, yet absurd gesture with great seriousness.’ By contrast, Evans’s photograph is defined by the strong contrast in its lighting and the vertical line formed by finger and nose. In it, Bowie ‘commands the viewer to remain calm,’ the court said.”

5th Circuit set to referee ‘egregious’ 12th Man copyright case — “Bynum sent the chapter to the Texas A&M Athletic Department’s media-relations team in 2010 to inquire about obtaining photographs to accompany it. The chapter listed Bynum as the book editor and copyright owner, and listed the commissioned writer as Whit Canning, a well-known Texas sportswriter. In 2014, media rep Brad Marquardt found the yellowed pages of Bynum’s 2010 manuscript, had his secretary ‘key them in,’ and posted it online as a special report that Canning had prepared for Texas A&M. . . . During the three days the story remained online, the department promoted it to ‘hundreds of thousands’ of social media followers and subscribers to its ‘TAMU Times’ e-newsletter – destroying the market for his book among its ‘core audience,’ Bynum alleged.”

RIAA and Rightscorp Defeat RCN’s Claims of “Fraudulent” Piracy Notices — “The RIAA and its anti-piracy partner Rightscorp have won a legal battle over allegedly ‘fraudulent’ piracy notices. A New Jersey federal court dismissed the complaint of Internet provider RCN, which failed to show that it was financially hurt as a direct result of any incorrect notices sent. The case is not completely over yet, however.”

French anti-trust decision on Google’s copyright talks with publishers due in coming days — “Antitrust investigators have accused Alphabet’s Google of failing to comply with the state competition authority’s orders on how to conduct negotiations with news publishers over copyright, sources who read the investigators’ report have said. Several publishers complained the talks weren’t made in ‘good faith’ and that Google didn’t provide access to some of its traffic data to determine a remuneration for news content online. Google has repeatedly said it held talks in good faith.”

Friday’s Endnotes – 06/25/21

By , June 25, 2021.

Congressmen Introduce American Music Fairness Act to Compel Radio to Pay Royalties on Recorded Music — “The United States is the only major country in the world where terrestrial radio pays no royalties to performers or recorded-music copyright owners of the songs they play, a situation that is largely due to the powerful radio lobby’s influence in Congress. While the more than 8,300 AM and FM stations across the country pay royalties to songwriters, they have never paid performers or copyright holders, although streaming services do. On Thursday, Reps. Ted Deutch (D-FL) and Darrell Issa (R-CA) introduced the bipartisan American Music Fairness Act, which aims to rectify that situation.”

CJEU rules on platform liability under copyright law, safe harbours, and injunctions — “The early reactions I have seen, likely supported by the rather misleading title of the press release, have been in the sense that the CJEU has ruled that platforms like YouTube and Uploaded do not communicate to the public under Article 3. In turn, this would mean that Article 17 of the DSM Directive is a novel regime that does not at all ‘clarify’ the law (recital 64 of the DSM Directive), but rather changes it. This interpretation is, in my view, incorrect.”

“Oh, the Places You’ll Boldly Go!” dispute won’t go to SCOTUS, justices say — “The high court won’t review the 9th Circuit’s December decision written by U.S. Circuit Judge Margaret McKeown that author David Jerrold and ComicMix LLC’s mashup of ‘Star Trek’ elements with Dr. Seuss’s ‘Oh, the Places You’ll Go!’ didn’t make fair use of Seuss’s work largely because it wasn’t transformative.”

Library of Congress Announces Copyright Public Modernization Committee — “. . . the CPMC is being established by the Library to expand and enhance communication with external stakeholders on IT modernization of Copyright Office systems. Committee members were selected from a pool of applicants for their ability to represent a broad cross section of the copyright community and other interested groups. CPMC members will provide valuable input into the development of the new Enterprise Copyright System (ECS), which includes the Office’s registration, recordation, public records, and licensing IT applications, and will be encouraged to help spread awareness of the Library’s development efforts more broadly.”

Library of Congress to Celebrate the Return of Visitors to the Thomas Jefferson Building in July — “A limited number of free timed entry passes will be available on Thursdays, Fridays and Saturdays between 10 a.m. and 4 p.m., with last entry at 3 p.m. For information on reserving tickets, visit loc.gov/visit – visitors can review ‘Know Before You Go’ guidelines and reserve their free passes. Each visitor must have a printed paper pass or a digital copy of the pass available on a mobile device for entry. All visitors, regardless of age, must have a timed pass for entry, and each visitor will be able to reserve up to (6) passes. Passes will be released on a rolling, 30-day basis, so for visitors planning to visit within the next month, please visit the reservation site for availability.”

Friday’s Endnotes – 06/18/21

By , June 18, 2021.

First Circuit Rules Markham’s Development of ‘The Game of Life’ Was Work Made For Hire Not Subject to Termination Rights — Markham argued that the Supreme Court’s decision in CCNV v. Reid, which interpreted the work for hire provisions of the 1976 Copyright Act, was applicable to works protected under the 1909 act. The First Circuit disagreed, holding that the “instance and expense” test still applied to such works.

Unicolors v. H&M Raises Some Thorny Issues for Copyright Owners — David Newhoff looks at the first copyright case the Supreme Court has agreed to hear for its next term.

Just What Is the Case with the CASE Act? A Brief Overview — “The phrase ‘creators have rights, but no remedies’ is likely familiar to those aware of the current landscape of copyright protection for individual creators and small businesses. While the Copyright Act of 1976 grants a bundle of rights to Creators for the protection of their works, for years Creators have faced an uphill battle enforcing those rights against infringers. There are many who are optimistic, however, that things might soon change with the passage of ‘The Copyright Alternative in Small-Claims Enforcement Act of 2020’ (CASE Act).”

The Beijing Treaty: A step forward in the protection of related rights in audiovisual performances — “For the first time, an international instrument confers express protection to performing artists for fixations of their work on an audiovisual medium, acknowledging their right to decide the time and manner in which their audiovisual works are used abroad, while also receiving a share of the profits obtained from their exploitation, even in the digital environment. Up to now, only sound fixations enjoyed this protection (see the WIPO Performances and Phonograms Treaty – WPPT – approved in 1996 and in force since 2002).”

Friday’s Endnotes – 06/11/21

By , June 11, 2021.

Copyright controversy erupts as prominent scholars urge veto of ALI restatement — “In 2018, Balganesh, Menell and Nimmer asked ALI’s governing council to consider their objection to the restatement’s black letter departures from the language of the Copyright Act. The council, according to Balganesh, referred their concerns to a different ALI committee, but they were never apprised of that committee’s conclusions.” The ALI ignored the concerns and approved the sections of the draft on Tuesday.

How IP Rights Keep Markets Free — Law professor Jonathan Barnett writes in a new policy brief, “weak or nonexistent patents advantage larger integrated firms while disadvantaging smaller firms that have strong innovation but weak commercialization capacities. Rather than advancing the public interest in a robust innovation economy, IP-skeptical policies undertaken by courts, legislators, and regulators may have mostly promoted the private interests of large technology firms that advocated for those policies.”

Leading authors sound alarm over post-Brexit changes to copyright — “Mosse, author of the bestselling Labyrinth and founder of the Women’s prize, said: ‘If we don’t ensure writers remain respected for their work, then many will be forced to leave the industry and Britain’s cultural landscape will suffer hugely. . . . It will become less diverse, less innovative, less inspiring,’ said Mosse. ‘Copyright is the bedrock of authors’ earnings and ensures that everyone – whatever their background, their genre of writing – is properly remunerated for their talent.'”

Record Labels Sue Frontier For Failing to Terminate Persistent Pirates — Torrentfreak’s Andy Maxwell reports, “Holding Frontier liable for contributing to the direct infringements of its customers, the labels say that the ISP was motivated to keep infringing subscribers on board for financial benefit, adding that terminating subscribers would deprive it of revenue and make its service less attractive to existing and prospective customers. Since P2P use consumes lots of data usage, infringing customers were particularly lucrative, the plaintiffs add. Pirates are likely to pay more money for faster connections with greater usage limits, leading Frontier to turn a blind eye to repeat infringement by known specific subscribers.”

Roblox Hit With $200 Million-Plus Lawsuit by Music Publishers Alleging Unauthorized Song Use — Variety’s Todd Spangler reports, “NMPA president/CEO David Israelite announced the lawsuit against Roblox at the trade group’s 2021 annual meeting. He cited Roblox’s massive user base of more than 42 million active daily players and alleged that Roblox has gone to great lengths to avoid paying music creators.”

Friday’s Endnotes – 06/04/21

By , June 04, 2021.

Supreme Court Grants Cert in Unicolors v. H&M to Consider Whether Section 411 Includes Intent-to-Defraud Requirement — The first copyright case to land on the Supreme Court’s 2022 docket arrived this week, with the Court agreeing to decide when copyright registrations with inaccurate information can be invalidated by courts.

Street Artist Kaves Slaps the NYPD With a Lawsuit, Saying It Illegally Whitewashed a New York Mural He Painted With Full Permission — According to Artnet News, “The artist is asking the court to decide whether the NYPD’s policy and practices violate the Visual Artists Rights Act (VARA), which gives artists certain protections for public art projects.”

AAP Vows to Protect Copyright from All Challengers — “In his opening remarks, Napack praised the publishing community for ‘keeping the river of ideas flowing’ during the pandemic, especially as the industry faced threats and challenges from different quarters. He promised that AAP would continue to fight against forces that ‘chip away’ against freedom of expression as well as those who seek to erode copyright protection.”

New EU copyright rules that will benefit creators, businesses and consumers start to apply — From the EU Commission: “This Monday 7 June marks the deadline for Member States to transpose the new EU copyright rules into national law. The new Copyright Directive protects creativity in the digital age, bringing concrete benefits to citizens, the creative sectors, the press, researchers, educators and cultural heritage institutions across the EU. At the same time, the new Directive on television and radio programmes will make it easier for European broadcasters to make certain programmes on their online services available across borders. Furthermore, today, the Commission has published its guidance on Article 17 of the new Copyright Directive, which provides for new rules on content-sharing platforms.”

The American Law Institute Proceeds with its Misstatement of Copyright Project — “Next week, sections of the American Law Institute’s (ALI) Copyright Restatement will be offered for approval for the first time at the ALI’s annual membership meeting. If approved by the full membership, these sections will be made publicly available and may then be cited by attorneys in briefs and used by judges to help decide copyright cases. The problem is that the Restatement project has been plagued from the start with a myriad of substantive and procedural deficiencies that remain unaddressed.”

Breyer’s Flawed Fourth Fair Use Factor in Google v. Oracle

By , June 01, 2021.

In April, the Supreme Court capped a long running and closely watched lawsuit between Google and Oracle stemming over Google’s copying of elements of Java code owned by Oracle into its Android software platform. Justice Breyer penned the 6-2 opinion, which left intact the Federal Circuit’s 2014 decision holding that the aspects of Java code copied by Google are copyrightable but found that Google’s copying was excused by fair use.

Justice Breyer’s opinion in Google v. Oracle is unusual in a number of respects, but I find one aspect in particular troubling from both a legal and a principled standpoint and worth highlighting. In his discussion of market effects (i.e., the fourth fair use factor), Breyer says, “we must take into account the public benefits the copying will likely produce.”1Slip op. at 31.

My concern is not that we shouldn’t take into account public benefits from copying as part of a fair use analysis, it’s that we already do—and if courts tread too far down the path Breyer lays out here, it could actually undermine the balance that fair use attempts to strike and lead to a result that is contrary to the public interest.

From a legal standpoint, I think Breyer is wrong to suggest that courts should consider the public benefits of copying as part of the fourth factor analysis. This type of consideration is already a part of the fair use analysis, which is designed overall to determine when certain publicly beneficial, but otherwise infringing, uses of works should be permitted.2Report of the Register of Copyrights on the General Revision of the US Copyright Law at 24 (1961) (“[B]roadly speaking, [fair use] means that a reasonable portion of a copyrighted work may be reproduced without permission when necessary for a legitimate purpose which is not competitive with the copyright owner’s market for his work.”). The consideration of publicly beneficial copying is addressed specifically through the first fair use factor—and Congress has even provided an illustrative list the types of copying considered publicly beneficial to aid courts: “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research”. Incorporating an additional, independent consideration of the public benefits of copying within the fourth fair use factor undermines that factor, which the Supreme Court has said “is undoubtedly the single most important element of fair use.”3Harper & Row v. Nation Enterprises, 471 US 539, 566 (1985). Breyer’s approach is inconsistent with the statutory scheme crafted by Congress and upsets the holistic balancing exercise that section 107 directs courts to engage in.

In making his statement, Justice Breyer cites to MCA, Inc. v. Wilson4677 F.2d 180, 183 (2d Cir. 1981). for the proposition that courts should balance “public benefits and losses to copyright owner under this factor,” but a closer look at the case reveals that Breyer is—perhaps inadvertently—engaged in judicial sleight of hand. The passage cited in MCA does indeed discuss the fourth fair use factor, but the balance it is referring to is not a balance within the factor, but a balance between this factor and the others. In other words, the court is discussing the relative weight that should be placed on this factor, which is clear from context. In discussing the first fair use factor, the court says, “While commercial motivation and fair use can exist side by side, the court may consider whether the alleged infringing use was primarily for public benefit or for private commercial gain.”5Id. at 182. Later, it concludes, “The less adverse effect that an alleged infringing use has on the copyright owner’s expectation of gain, the less public benefit need be shown to justify the use.”6Id. at 183. This point is reinforced when we look at the cases MCA itself cites: consideration of public benefit is accomplished through the fair use inquiry as a whole, not separately in the fourth factor.7See, e.g., Meeropol v. Louis Nizer, Doubleday & Co., 560 F.2d 1061, 1069-70 (2d Cir. 1977) (“the purpose and character of the use of the copyrighted material, the nature of the copyrighted work, and amount and substantiality of the work used, and its effect upon the potential market for the copyrighted material are factors which must be evaluated in concert. If the effect on the market by an infringing work is minimal, for example, far greater use may be privileged than where the market value of the copyrighted material is substantially decreased.”).

From a principled standpoint, Breyer’s departure from settled fair use analysis raises concerns. The danger Breyer invites with his freewheeling consideration of the public benefit in the fourth factor, untethered from the illustrative purposes of the first factor, is that it may cause courts to overlook the public benefit advanced through copyright protection itself. The public interest is served by creating marketable rights in works of creative expression, which enables the pursuit of private ends through the creation and dissemination of such works.8It bears emphasizing here the Court’s previous statements regarding copyright’s advancement of the public interest. In Eldred v. Ashcroft, the majority admonished Justice Breyer’s assertion that “copyright statutes must serve public, not private, ends,” saying “The two ends are not mutually exclusive, copyright law services public ends by providing individuals with an incentive to pursue private ones.” 537 US 186, 212 n.18 (2003). More directly, in Harper and Row, the Court agreed with the Second Circuit “that copyright is intended to increase and not to impede the harvest of knowledge” but believed that the Circuit Court, in finding fair use, “gave insufficient deference to the scheme established by the Copyright Act for fostering the original works that provide the seed and substance of this harvest.” 471 US at 545-46. It’s challenging to see this public interest in action—it’s not like we can compare a world with copyright to a world without copyright to see the differences. And it is difficult, if not impossible, to identify and measure the results of any changes—they are prospective, occur over a long period of time, and are subtle and diffuse.

Thus, it may be too easy for a court, confronted with a potential use “impeded” by copyright to fixate on the benefit of permitting the use in front of it while ignoring the more diffuse public benefit advanced by copyright protection. Judges can’t be blamed for this; it’s human nature. We are wired to make decisions based on what affects us more deeply rather than through a rational cost-benefit analysis, and immediately perceivable outcomes are far more affective than delayed, diffused outcomes.9See Paul Slovic et al., Risk as Analysis and Risk as Feelings: Some Thoughts About Affect, Reason, Risk, and Rationality, 24 Risk Analysis 311 (2004). That’s not to say judges are ruled by their emotions. But it it does illustrate the benefits of constraining judicial decision-making through, for example, standards—like the four factors that Congress directs courts to consider when determining fair use. Judicial tools such as presumptions and burdens of proof might also play an important rule here. Instead, Breyer’s opinion leads courts down a path that compounds the inherent difficulties of assessing relative benefits and pushes fair use in the wrong direction.

References

References
↑1 Slip op. at 31.
↑2 Report of the Register of Copyrights on the General Revision of the US Copyright Law at 24 (1961) (“[B]roadly speaking, [fair use] means that a reasonable portion of a copyrighted work may be reproduced without permission when necessary for a legitimate purpose which is not competitive with the copyright owner’s market for his work.”).
↑3 Harper & Row v. Nation Enterprises, 471 US 539, 566 (1985).
↑4 677 F.2d 180, 183 (2d Cir. 1981).
↑5 Id. at 182.
↑6 Id. at 183.
↑7 See, e.g., Meeropol v. Louis Nizer, Doubleday & Co., 560 F.2d 1061, 1069-70 (2d Cir. 1977) (“the purpose and character of the use of the copyrighted material, the nature of the copyrighted work, and amount and substantiality of the work used, and its effect upon the potential market for the copyrighted material are factors which must be evaluated in concert. If the effect on the market by an infringing work is minimal, for example, far greater use may be privileged than where the market value of the copyrighted material is substantially decreased.”).
↑8 It bears emphasizing here the Court’s previous statements regarding copyright’s advancement of the public interest. In Eldred v. Ashcroft, the majority admonished Justice Breyer’s assertion that “copyright statutes must serve public, not private, ends,” saying “The two ends are not mutually exclusive, copyright law services public ends by providing individuals with an incentive to pursue private ones.” 537 US 186, 212 n.18 (2003). More directly, in Harper and Row, the Court agreed with the Second Circuit “that copyright is intended to increase and not to impede the harvest of knowledge” but believed that the Circuit Court, in finding fair use, “gave insufficient deference to the scheme established by the Copyright Act for fostering the original works that provide the seed and substance of this harvest.” 471 US at 545-46.
↑9 See Paul Slovic et al., Risk as Analysis and Risk as Feelings: Some Thoughts About Affect, Reason, Risk, and Rationality, 24 Risk Analysis 311 (2004).

Friday’s Endnotes – 05/28/21

By , May 28, 2021.

Instagram Embed Feature Sparks Copyright Suit From Users — “Two users on Wednesday sued Instagram, claiming its embed feature is designed to flout copyright laws to make money for its parent, Facebook. ‘Instagram misled the public to believe that anyone was free to get on Instagram and embed copyrighted works from any Instagram account, like eating for free at a buffet table of photos by virtue of simply using the Instagram embedding tool,’ writes attorney Solomon Cera in the complaint,” which is included in the article.

A voice gone viral: Canadian voice actor sues TikTok for using her voice without permission for text-to-speech feature — “Standing first became aware of her voice in TikTok videos in late 2020. Her friend sent a video to her, noticing her voice in the background. In early May, Standing filed a copyright violation claim against ByteDance for using her voice recordings without obtaining permission.”

New Report Examines Changes to Copyright Law for Sound Recordings — The Library of Congress National Recording Preservation Board has published a report that analyzes the Music Modernization Act and its implementation, with a focus on how the law impacts sound recording preservationists. The report includes a number of guides and resources for libraries and archives.

Cox Appeals $1B Piracy Liability Verdict to ‘Save the Internet’ — ISP Cox submitted its opening appellate brief to the Fourth Circuit this week, along with a healthy dose of hyperbole. Cox is appealing the lower court’s holdings on vicarious liability, contributory infringement, and statutory damages. A copy of the brief is included in the article.

Federal Court of Appeal Court Upholds Canadian Pirate Site Blocking Order — Torrentfreak’s Ernesto Van der Sar reports, “Canada’s Federal Court of Appeal concluded today that the country’s first pirate site blocking order can stay in place. The Court dismissed the appeal from Internet provider TekSavvy. According to the Court, site-blocking injunctions don’t violate the Copyright Act, freedom of speech, or net neutrality. While it’s not a perfect remedy, it trumps other available options.”

Friday’s Endnotes – 05/21/21

By , May 21, 2021.

Stages of Grief: What the Pandemic Has Done to the Arts — A compelling and devestating read from William Deresiewicz. “What has been happening across the arts is not a recession. It is not even a depression. It is a catastrophe. There is another thing the rest of us, the audience, do not fully appreciate: the crisis is rooted in the destruction that was visited upon the arts even before the pandemic—that is, in the scandal of free content, which has been going on for more than twenty years and which implicates us all.”

A Bounty of Fair Use: ‘Google v. Oracle’ and ‘Warhol Foundation v. Goldsmith’ — Copyright attorneys Robert Bernstein and Bob Clarida discuss what impact the Supreme Court’s recent decision in Google v. Oracle may have on Warhol Foundation v. Goldsmith, where the Andy Warhol Foundation is currently seeking for rehearing of the Second Circuit’s earlier decision rejecting a fair use defense. And this just in: the Warhol Foundation reply in support of its petition for rehearing, filed yesterday.

German musicians criticize planned copyright reform — “The German federal government is planning its most extensive reform of copyright law within the last two decades, as it faces a June 7 deadline to implement European copyright directives into its national law. The proposed bill has, however, drawn criticism; a recent open letter to the German Bundestag protesting against the reform was signed by 1,145 musicians, bands and singers, including Peter Maffay, Helene Fischer, Herbert Grönemeyer, H.P. Baxxter, Campino and Marteria.”

South Africa’s Parliament starts the process for a new Copyright Amendment Bill — “South Africa’s Trade and Industry Committee at the National Assembly met on 12 May to discuss a new draft of the Copyright Amendment Bill (CAB), which was sent back to the Parliament in June 2020 by President Cyril Ramaphosa due to constitutional concern about the law. . . . The creative community was critical of the scope of exceptions to copyright in the original law through the introduction of a wide-ranging fair use provision. Consumers groups and organisations representing blind people were supportive of the bill.”

The Myth of Internet Exceptionalism: Bringing Section 230 into the Real World — “Offering perhaps the most concrete legal embodiment of Barlow’s internet exceptionalism, Section 230(c)(1) as applied by the courts has exempted platforms from the common law duty of taking reasonable steps to prevent users of their services from causing harm. Ironically—and in many cases tragically—this reduces the likeli­hood platforms will moderate content, the opposite of what Congress intended. Free from potential liability, platforms have a financial interest in minimizing spending on proactive measures to prevent unlawful activity, and even on reactive measures to mitigate further harm when unlawful activity has already occurred. As a result, instead of creating an incentive to moderate content, Section 230 creates a misincentive. Platforms can conserve resources and invest more reck­lessly in growth, giving them a competitive edge over their brick-and-mortar rivals and allowing them to shift onto society the costs of combating (or failing to combat) harm”

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