Friday’s Endnotes – 09/23/22

By , September 23, 2022.

French Publishers Win Z-Library Piracy Blocking Order — Torrentfreak reports, “The National Publishing Union, an industry group representing more than 700 members in the publishing sector, says that legal action launched in the summer to prevent piracy has been successful. The expedited process at a Paris court targeted more than 200 domains related to Z-Library, all of which must now be blocked by French ISPs.”

ECtHR finds violation of right to property by State’s failure to enforce copyright — “First, the question whether copyright is exhausted by the physical publication of a book (distribution) with effect for its digital dissemination (communication to the public and reproduction) has now been settled in the EU. . . Second, the attempt of the national courts to rely on the apparent object and purpose of copyright exceptions without considering their substantive requirement demonstrates a commitment to legal certainty and foreseeability. It also demonstrates that the protection of copyright, and intellectual property in general, as determined by statutory rules cannot be shifted by creative (and possibly policy-driven) application of the law by courts.”

Getty Images bans AI-generated content over fears of legal challenges — “Getty Images CEO Craig Peters told The Verge that the ban was prompted by concerns about the legality of AI-generated content and a desire to protect the site’s customers. ‘There are real concerns with respect to the copyright of outputs from these models. . . There are real concerns with respect to the copyright of outputs from these models and unaddressed rights issues with respect to the imagery, the image metadata and those individuals contained within the imagery,’ said Peters. Given these concerns, he said, selling AI artwork or illustrations could potentially put Getty Images users at legal risk.”

Amazon Is Changing Its Ebook Return Policy in Major Breakthrough for Authors — The Authors Guild reports, “This process will create a strong deterrent against buying, reading, and returning ebooks within seven days, and readers who attempt to abuse the return policy will be penalized under Amazon’s policies. The Authors Guild and the Society of Authors, its counterpart organization in the U.K., had taken up this issue with Amazon’s senior executives earlier this year.”

Balganesh on Learned Hand & Copyright — Via the Legal Theory Blog, “Learned Hand is often described as the greatest copyright judge to have ever sat on the bench. By the 1950s, the most important parts of U.S. copyright law had been his creation, all from his time as a judge on the Second Circuit Court of Appeals. Despite all of this, there has been little systematic analysis of Hand’s approach to copyright and of the reasons why his jurisprudence in multiple areas of copyright law have survived the test of time.”

Friday’s Endnotes – 09/16/22

By , September 16, 2022.

The U.K. May Sacrifice Copyright Law to Attract AI Big Business — “A new proposed exception in the country’s copyright law would explicitly make it legal for AI to be fed any online content. It would allow machine learning programs to freely use all imagery published online, according to a scathing review of the proposed changes by the Association of Photographers (AOP).”

Anti-Hacking Copyright Law Scrutinized in Free Speech Challenge — Bloomberg Law’s Isaiah Poritz previews the oral arguments in Green v. DOJ, which took place Monday in the DC Circuit Court of Appeals. The EFF is appealing its unsuccessful challenge to Section 1201’s prohibition on circumventing technological measures used by copyright owners to protect their works. I attended the arguments in person, and note that the panel devoted far more time to several of the thorny procedural issues of the appeal rather than the substance of EFF’s claims.

Tedious Anti-Copyright Stance of EFF is Not About Protecting Anyone — “Streaming models have fostered a diverse range of projects that would never have been made, let alone been sustainable, in the narrower distribution paradigms pre-Netflix. But a reality of all this bounty is that more experimentation and risk-taking means that a higher volume of material will be canceled or redistributed more frequently as audiences respond to what gets made. That’s just the business of making entertainment media, and the EFF always acts as if the business is what makes efforts to mitigate piracy somehow dishonest or sinister.”

Possible copyright changes could mean more money for Inuit artists — “In December 2021, federal Innovation Minister François-Philippe Champagne received a mandate letter from Prime Minister Justin Trudeau that included a directive to amend Canada’s Copyright Act to allow for resale rights for artists. . . . Advocates hope the resale right will mean artists or their estates will get five per cent of resales, if their work is sold through an auction or gallery. For Theresie Tungilik, a Rankin Inlet artist who is part of the Canadian Artists Representation Le Front Des Artistes Canadiens (CARFAC), that would be a vital — and long overdue — change.”

Friday’s Endnotes – 09/09/22

By , September 09, 2022.

Petitioner Pushes Back on Texas AG’s Arguments in Plea to High Court to Review Copyright Takings Case Against Texas A&M — The Supreme Court will consider whether to review a decision dismissing copyright infringement claims on sovereign immunity grounds at its first conference of its upcoming October 2022 term. IPWatchdog reviews petitioner Michael Bynum’s recently filed reply brief, which argues the Fifth Circuit “erred in failing to find constitutional violations of both the Fifth Amendment’s Takings Clause and due process under the Fourteenth Amendment.”

11th Circuit overturns $1.4 million award for rapper in copyright battle — The court vacated a default judgment after holding that the lower court erred when it concluded that the plaintiff did not have to serve an amended complaint on the defendant. One of the judges wrote a concurring opinion that directed the court on remand to consider whether the award of both a permanent injunction and a running royalty is appropriate.

Will Divergent Copyright Laws Between the US and UK Influence Where You Do Business as an Artificial Intelligence Company? — “While certain decisions suggest that copying of works for non-expressive automated processes, such as training an AI system, may constitute a fair use, the issue not fully settled in the US and requires a fact intensive inquiry under the four fair use factors. By contrast, the UK government recently issued its response to the UK Intellectual Property Office’s Consultation, proposing a new copyright and database right exception that allows text and data mining (TDM), i.e., automated computational techniques used to analyze large amounts of information, for any purpose.”

Book publishers, Internet Archive spar over fate of digital-book lending lawsuit — Blake Brittain reports for Reuters, “The publishers responded Friday that the Archive’s argument is a ‘study in blind denial that ignores established law.’ They said courts and Congress have rejected the Archive’s position that buying physical books allows it to create ‘millions of unauthorized ebooks.’ They also said the Archive ‘displays contempt for authors’ by usurping the market for their e-books, and challenged the Archive’s assertion that its project is not commercial. The brief cited the project’s ‘symbiotic’ relationship with the for-profit, socially conscious bookseller Better World Books, which is owned by an Archive-affiliated nonprofit.”

Oversight of the U.S. Copyright Office — On Wednesday, the Senate IP Subcommittee heard from Register of Copyrights Shira Perlmutter regarding the ongoing work of the Office. Perlmutter’s testimony covered the Office’s launch of the Copyright Claims Board in June, its new report examining women’s authorship rate in the U.S. copyright registration system, IT modernization efforts, and its usual rulemaking, legislative, and litigation activities.

Friday’s Endnotes – 08/19/22

By , August 19, 2022.

U.S. backs photographer at Supreme Court in Andy Warhol copyright battle — Briefs supporting the photographer in the fair use case were due this past Monday with the Court, and the US Solicitor General and US Copyright Office joined in. Reuters reporter Blake Brittain writes, “The brief focused on the foundation’s specific act of alleged infringement — a 2016 license to Conde Nast. The government said the license ‘served the same purpose — depicting Prince in an article about him published by a popular magazine — for which Goldsmith’s photographs have frequently been used.’ The government also said finding that Warhol’s supposed new meaning transformed Goldsmith’s photograph would ‘dramatically expand copyists’ ability to appropriate existing works.'”

Doc Filmmakers Brief in AWF v. Goldsmith is Misguided — Speaking of the Warhol case, David Newhoff takes a closer look at a brief filed earlier this summer arguing the opposing view. “If the filmmakers would have the Court believe that documentarians have thus far relied on the fair use rationale as applied by the district court in this case, history does not support this claim. On the contrary, if the Court were to agree with AWF’s reasoning as presented, it would create a novel presumption of certainty by broadening fair use to encompass almost any use that adds ‘something’ to the world.”

Amici Warn of Internet Archive’s Dangerous “Lending” Practice — Kevin Madigan discusses the latest in the copyright infringement case against Internet Archive’s unauthorized reproduction and distribution of books. “Most recently, briefs were filed by creator organizations, copyright scholars, international rightsholder groups, and the Copyright Alliance in support of the plaintiff publishers’ motion for summary judgement. And while the briefs vary in focus, they share an underlying message: the Internet Archive’s practices are clearly infringing, do not qualify as fair use, and would devastate creators and creative industries if sanctioned by the court.”

Zillow Only Wants to Be Fined Once for 2,700 Photo Copyright Infringements — A good reminder that under the US Copyright Act, a copyright owner can only receive one award of statutory damages per work, and thus there’s a big difference between whether at issue is many individual works, or one compilation of those works. Here, the difference is dramatic.

‘Stripped Of Poetic License’: RIAA Pushes California Lawmakers to Pass Rap Lyrics Law — “‘Creative expression’s greatest capacity is to lift us out of the real world and to present us with the unexpected, the unlikely, and the unthinkable,’ Glazer said. ‘Hyperbole and fantastical imagery are customary, and often necessary, elements of that creative expression. [] Yet, when rap and hip hop artists adhere to this time-honored tradition of make-believe, their lyrics are too often – and unfairly – taken literally, stripped of the poetic license afforded other genres,’ he wrote. ‘While such mischaracterization may be uneventful in everyday music consumption, its application in criminal proceedings can skew the truth and destroy artists’ lives.'”

Friday’s Endnotes – 08/12/22

By , August 12, 2022.

Andy Warhol Foundation v Goldsmith, Brief for Respondents [PDF] — Goldsmith’s counsel this week filed its merits brief in the closely-watched Supreme Court copyright case. The brief argues, “AWF’s test would transform copyright law into all copying, no right. Altering a song’s key to convey different emotions: presumptive fair use. Switching book endings so the bad guys win: ditto. Airbrushing photographs so the subject conforms to ideals of beauty: same. That alternative universe would decimate creators’ livelihoods. Massive licensing markets would be for suckers, and fair use becomes a license to steal.”

Microsoft Sues Activation Key & Token Sellers For Enabling Customers’ Piracy — Torrentfreak reports on a lawsuit filed by the software giant this week. “Like software tokens, which enable downloads and automatic software activation, activation keys are anti-piracy tools, and exchanging money for them is not the same as buying a license. Indeed, Microsoft makes itself very clear – the activation of a piece of software means nothing in the absence of a license. Microsoft’s problem is that product activation keys can be ‘decoupled’ from the software they were meant to authorize and then reused to activate more copies of the software, in some cases more copies than the attached Microsoft license permits. As a result, there is a global black market for activation keys which are sold to often unsuspecting consumers who then download official software from Microsoft, without buying a license.”

Copyright Public Modernization Committee: Biannual Meeting — Video from the committee meeting held July 28 is now online. The US Copyright Office hosted the public forum in order to share information and answer questions regarding its five-year IT modernization efforts.

Lin-Manuel Miranda Calls Out ‘Illegal, Unauthorized’ Production of ‘Hamilton’ by Texas Church — “Miranda, who created the Tony-winning sensation ‘Hamilton’ and portrayed the title character on Broadway, also retweeted a statement from the Dramatist Guild — an organization representing playwrights, composers and lyricists — that reads, ‘The Dramatists Guild condemns the Door McAllen Church for its unauthorized production of Lin-Manuel Miranda’s groundbreaking musical ‘Hamilton,’ performed on August 5 and August 6, 2022, in McAllen, Texas. In addition to performing the show without a license, the Door McAllen Church changed lyrics and added text without permission.'”

Canada Moves to Alter Copyright Law to the Benefit of Artists — Artforum covers efforts in Canada to introduce a resale royalty right there. Such a right, currently established in over 90 countries (but not the US), would direct a percentage of the resale for certain visual art works to the original artist.

Friday’s Endnotes – 08/05/22

By , August 05, 2022.

Pirated books thrive on Amazon — and authors say web giant ignores fraud — NYPost: “The end result is that readers are getting stuck with illegible books that bleed ink or fall apart, while authors and publishers lose revenue to the publishing pirates. Amazon, however, takes a cut of third-party sales regardless of whether the books they ship are real or fake, giving the company no incentive to crack down on counterfeits, people in the publishing industry gripe. They say the site that’s typically known for speedy service is excessively slow to respond to their concerns about fakes.”

YouTube Lawyers Fail to Shut Down Copyright Infringement Lawsuit Brought By Grammy-Winning Jazz Composer Maria Schneider — Digital Music News: “Maria Schneider is seeking to turn her YouTube lawsuit into a potential class-action, where other creators can share their copyright woes. YouTube sought to have the lawsuit dismissed, but U.S. District Court Judge James Donato said YouTube failed to show why the lawsuit should be dismissed at this early stage.”

Copyright Online Recordation System Opens for Public Use — It’s worth appreciating the significance of this milestone. When the US Copyright Office began its comprehensive modernization of its enterprise copyright system over two years ago, the recordation system was still a paper-based, manual system. Now, all members of the public can record transfers of copyright ownership and other documents pertaining to copyright online, quickly and easily.

Music labels settle copyright dispute with Bright House on eve of trial — “The labels have sued several internet service providers for allegedly turning a blind eye to user piracy, including Frontier Communications, RCN Corp and Cox Communications Inc. They have also separately sued Bright House’s parent company Charter Communications in Colorado. A jury in Virginia awarded the labels $1 billion against Cox in 2019, which Cox has since appealed.”

Mechanical Licensing Collective 2021 Annual Report [PDF] — “The Mechanical Licensing Collective (The MLC) is responsible for administering a new blanket compulsory license created by The Music Modernization Act of 2018 (MMA) that covers the use of musical works by U.S. interactive streaming and download services. As of January 2021, The MLC began collecting these digital audio mechanical royalties from the digital services operating under the blanket license and distributing those royalties on a monthly basis at no cost to its Members: music publishers and administrators; ex-U.S. collective management organizations (CMOs); and self-administered songwriters, composers and lyricists.”

Friday’s Endnotes – 07/29/22

By , July 29, 2022.

Hot Topics in Copyright Law & Policy [YouTube] — The Free State Foundation has video of a webinar it hosted this week on current issues in copyright law, including DMCA reform, ebook licensing, and sovereign immunity.

Purposeful Direction in a Forum Activates the Long Arm of the Law — Analysis of an important decision from the Ninth Circuit that allows copyright owners to pursue offshore infringers who purposefully direct their infringing activities to the United States.

Latest majors v ISP copyright case heading to trial next week — “One of the big old copyright infringement lawsuits being pursued by the music industry against an American internet service provider will get properly to court next week, with the music companies hoping that the recent trend of juries finding in their favour in disputes of this kind continues.”

Canada: Supreme Court Of Canada Recognizes ‘Making Available’ Right — “While copyright owners cannot claim double royalties, the Supreme Court’s recognition of a making available right creates a new mechanism to stop infringing copies from ever being made. By enforcing a making available right, copyright owners are in a better position to combat on-demand creation of infringing copies or streams.”

Copyright decision increases need for Congress to help save local news — “For smaller news outlets, getting paid by big corporate users will save jobs and keep lights on. Most can’t pay for an adequate newsroom and agonize over which cities and counties they can no longer cover, and how many voters they’re leaving in the dark. Everywhere this is happening, platforms use a similar playbook to resist or weaken the policies. They threaten to drop services and sow doubt, confusion and nitpicky criticism through allies and grant recipients in academia and nonprofits. They also say these approaches will break the internet, which is getting silly now that they’re paying up in several countries where this dire prediction proved false.”

Friday’s Endnotes – 07/22/22

By , July 22, 2022.

One Month Snapshot: How the CCB is Working So Far — It’s hard to believe it’s already been a month since the US Copyright Office launched a small copyright claims tribunal with the goal of making copyright enforcement more accessible and cost-effective for authors and creators. Copyright Alliance presents a look at the CCB’s activity in those first thirty days, including insights on the number of cases, types of claims, and processing times.

Picasso Copyright Case Reversed: The Complexity Of Fair Use — Forbes reviews a decision from the Ninth Circuit last week which examines the application of fair use in the context of recognition of foreign judgments.

Ninth Circuit boosts efforts to sue overseas copyright infringers — Also from the Ninth Circuit, good news for copyright owners. As Courthouse News reports, “In an unanimous decision the Ninth Circuit panel said the judge had jurisdiction over the Vietnamese company, VNG Corp., because it intentionally sought out the music of California producer Lang Van Inc. for its Zing MP3 app and it made the app available in the U.S., where it has been downloaded more than 320,000 times.”

Why Internet Archive is in Legal Trouble and Deserves to Be — “As for Section 109, the IA and its amici will try to argue that because the original, legal purchase of a physical copy extinguishes the rightsholder’s interest in that copy under the “first sale” doctrine, this somehow extinguishes the copyright rights prohibiting the reproduction and distribution of a digital book made from the same physical copy. This is fantasy. Pull a book off your shelf, scan it, and make it available to the public, and you will violate the reproduction right, the derivative works right, and the distribution right of the copyright owner. That IA is engaged in precisely this activity at scale is normally described as enterprise piracy, not library lending.”

Intellectual Property and the Historic Kinship Between Patents and Copyrights — Interesting article from law professors Dennis Crouch and Homayoon Rafatijo, who examine historical evidence that they say undermines the Supreme Court decision in Allen v. Cooper, which held that sovereign immunity barred Congress’s attempt to hold states accountable for copyright infringement.

Friday’s Endnotes – 07/15/22

By , July 15, 2022.

New CREATe Copyright History Resources: Two Working Papers and Further Vatican Sources by Jane Ginsburg for ‘Primary Sources on Copyright 1450-1900’ — Some fantastic new resources for copyright history buffs.

Ninth Circuit Reverses Opinion on Picasso Copyright Case That Said French Law Was Not Enforceable in U.S. Under ‘Fair Use’ — Interesting decision involving enforcement of foreign judgments arising out of copyright law. Here, the Ninth Circuit held that enforcement of a French judgment would not be repugnant to US law, reversing the district court’s holding that the infringement at issue would be permitted by fair use in the US. The Ninth Circuit instead found the use commercial and non-transformative.

Standing Up for Copyright — “Publishers deeply value libraries and recognize the important role they play in promoting both literacy and authors. Importantly, libraries pay authors and publishers when they purchase e-books for digital lending. So Internet Archive is not filling some void in the library system; it is directly competing with the library system to the detriment of the publishers and authors who created the very content that is so critical for the public to access.”

New Copyright Office Report Correctly Concludes News Publishers Enjoy Copyright Protections Similar to the EU, Acknowledges Bargaining Power Disparities as Major Obstacle for Publishers in Protecting News Content Online — From the News Media Alliance: “While the report recognizes that problems in the digital marketplace are largely competition-based, and therefore outside the Copyright Office’s remit, it highlights the [Journalism Competition & Preservation Act] as a potential non-copyright solution to the problem. The report also includes an extended fair use discussion, balancing both sides of the argument, and acknowledging that not all uses of news content by aggregators are likely to be fair use.”

Looking for Copyright Records in Old Florida — If you thought, like Zvi Rosen, that there were zero copyrights registered in Florida prior to 1870, then this post from Zvi about his search to corroborate that suspicion will delight and surprise you.

Friday’s Endnotes – 07/01/22

By , July 01, 2022.

Study on Ancillary Copyright Protections for Publishers — The US Copyright Office this week issued its policy study on the “viability of establishing ‘ancillary copyright’ protections for press publishers, similar to protections now being implemented in Europe, that would require online news aggregators to pay publishers for excerpts of content they provide for others to view.” The Office ultimately concluded “that adopting an EU-like right is unnecessary inasmuch as U.S. law already confers many of the same rights on press publishers, including via the work-made-for-hire doctrine.”

Virtual Event | What the New Copyright Claims Board Means for Creators — You can catch video of the event here, with Hudson Institute’s Devlin Hartline speaking with Maya Burchette of the Copyright Claims Board, Terrica Carrington of the Copyright Alliance, and attorney Michael Klipper about the recently launched copyright small claims court.

Pirate Site Blocking Expands to Kenya with Landmark Court Order — Kenya becomes the first African nation to join a growing group of jurisdictions that have found site-blocking to be a legitimate and effective remedy for addressing certain types of online piracy.

MapLab: The Legacy of Copyright Traps — The first part of this Bloomberg newsletter delves into efforts by mapmakers and dictionary publishers (among others) to detect misappropriation of their highly factual and functional works: the insertion of phony entries that would reveal when a competitor copied from them rather than primary sources.

Pyrotechnics Management v. FireTek [PDF] — Just in time for the Fourth of July weekend, the Third Circuit issued a decision involving copyrightability of software interfaces used to control firework displays. It is of some note to see a post-Google v. Oracle Circuit Court decision on software interface copyrightability that does not cite to Google v. Oracle.

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