By , January 27, 2023.

How Easy Is It to Pirate Ebooks? — “The most recent addition to this ebook piracy drama is Internet Archive, which has been hosting digital copies of books for years. In 2020, some publishers filed a lawsuit against the nonprofit organization for alleged copyright infringement. Internet Archive, it seemed, scanned copies of books donated to them, put them up on their website, and lent them to users for up to 14 days. They want to function as a library, but real libraries pay publishers licensing fees and they don’t.”

How a Texas Baby-Clothing Company Took Target Down (a Peg) — Emily McCullar spins a gripping yarn about one independent clothing designer’s legal fight against the retail giant for copying one of her designs without permission.

Copyright and human rights in Europe: key decisions in 2022 — A discussion of four decisions from Finland, Italy, France, and Poland where courts mediated between copyright and human rights, including privacy, right to information, and free speech.

Meet Steezy, the Dance App Giving Choreographers Credit — and a Paycheck — “In addition to offering an additional revenue stream for dancers, Zhou and Lim feel a broader responsibility to highlight the way choreographers — who often aren’t properly credited for their work — contribute to the success of music at a time when some dancers are pushing for better compensation and even copyrighting their dances (U.S. copyright law allows choreography to be protected, so long as works are fixed in a tangible medium of expression from which the work can be performed).”

Copyright Office Pilot Public Records System Mistakenly Reflects Cancellation of Registration for AI Graphic Novel — Franklin Graves has the latest on a recent attempt to register the copyright in a work that at least in part is claimed to have been generated by an AI tool. Initial reports indicated that the registration was cancelled by the US Copyright Office, but those reports were the result of an error, and Graves reports the Office is still reviewing the registration application.

By , January 13, 2023.

New Copyright Venue Fields Hundreds of Claims, Evoking Optimism — The Copyright Claims Board, a new tribunal created to hear small copyright claims in the U.S., is a little over 6 months old as we start the new year. And so far it seems to be working… good? Riddhi Setty of Bloomberg Law speaks to U.S. Copyright Office leadership and several copyright experts and looks at statistics compiled by the Copyright Alliance to review the early performance of the novel tribunal.

Zara Sues “Responsible” Brand Thilikó for “Passing Off” Zara Wares, Photos as its Own — Typically, fast fashion brands are the ones accused of misappropriating fashion designs, so there’s a touch of irony to see fast fashion brand Zara as the plaintiff in a recently filed lawsuit alleging copyright infringement and other claims against a high-end retailer that it claims engaged in a “serial” scheme of acquiring Zara garments, replacing the tags with its own tags, and passing the goods off as its own, including with “exorbitant mark-ups.” Zara also alleges the retailer copied Zara’s photos for garments and used them on its own site.

Photo Agency Sues Twitter for $228.9 Million Over Copyright Infringement — From Pesala Bandara at PetaPixel: “Photo agency Backgrid and ten anonymous defendants have sued Twitter for allegedly failing to take down more than 1,500 photographs of celebrities owned by them and illegally posted to the platform by users. According to the lawsuit filed on December 30, 2022, Backgrid alleges it sent over 6,700 Digital Millennium Copyright Act (DMCA) notices to Twitter requesting the removal of its copyrighted photos, but Twitter failed to respond or take down a single image.”

Copyright Legislation in 2022: A Year in Review — A look back at the U.S. copyright bills that made progress in 2022 but did not pass, as well as the two relatively minor measures that did pass.

The Myth of the “Mickey Mouse Protection Act” Has Reached its “Sell By” Date — Stephen Carlisle writes, “It’s about time for the myth of the ‘Mickey Mouse Protection Act’ to take its final bow. Of course it was never true, but that did not stop people from ginning up publicity (about themselves or their organizations) by declaring that the Sonny Bono Copyright Term Extension Act, passed in 1998, was all about protecting the property of Disney and particularly Mickey Mouse.”

By , January 10, 2023.

Below is the full text of the Sixth Annual Donald C. Brace Memorial Lecture presented by former U.S. Register of Copyrights Barbara A. Ringer on March 26, 1976, titled “Copyright in the 1980’s.” Copyright in the lecture was expressly disclaimed by the author.

I wanted to make the lecture available here for two reasons.

First, I think Ringer’s remarks are both historically compelling and still relevant today. Less than a month before Ringer delivered her lecture, the Senate passed S. 22 by a vote of 97-0—a bill that would completely rewrite U.S. copyright law, both in form and in substance. But by this point, Congress was 15 years into the effort to revise copyright law (over 20 years if you start counting when Congress directed the Copyright Office to produce a series of copyright law revision studies that would serve as the foundations for the effort). Several times, this effort came close to being derailed over contentious issues. So it’s understandable that Ringer couches her remarks with uncertainty over the fate of the revision effort, even in the face of a unanimous Senate vote.

But Congress would finally succeed this time. Two weeks after Ringer’s remarks, given in front of the Copyright Society of New York, the House Judiciary Subcommittee on Courts, Civil Liberties, and the Administration of Justice would begin markup of S.22, leading to President Gerald Ford signing the bill into law October 19, 1976.

The difference between the new and old laws cannot be overstated. But the influence of Ringer on the revised act is often understated. Ringer served in the U.S. Copyright Office during the entire two decade revision effort, the last several years as Register of Copyrights (securing that role only after prevailing in federal court on sex and race discrimination claims after being passed over for a less-qualified man). Anecdotally, Ringer has been credited with drafting at least “75%” of the Act’s text, an enormous undertaking that involved balancing the equities of numerous, competing interests; rationalizing complex and technical language over a sprawling, comprehensive Act; and keeping a keen eye toward an unknown future to craft a law capable of maintaining its coherence during rapid technological changes.

So her observations about where copyright law will go in the decade following the new copyright act are especially instructive, born out of her experience shepherding the revision effort. Her lecture touches upon themes Ringer had spoken about previously (such as in her 1974 article, The Demonology of Copyright)—the fragile state of individual authors, the degrading effects of technological progress, and both the promise and shortcomings of the current revision effort for authors and society.

My second motivation for making the lecture available here is because, despite its public domain status, the only freely accessible version I could find online is a low-quality scan made available through ERIC, which is difficult to read in parts.1https://files.eric.ed.gov/fulltext/ED126906.pdf. I have done my best to transcribe the text accurately and apologize for any errors. I have also added footnotes (judiciously, I hope) to provide additional context where appropriate or helpful.

Copyright in the 1980’s

By Barbara Ringer*

*Register of Copyrights. The views of the author are personal and are not intended to reflect any official positions of the Copyright Office or of the Library of Congress. No copyright is claimed in this lecture.

When Paul Gitlin2Among other things, Gitlin, a pioneering literary agent, co-wrote a 1963 Practicing Law Institute monograph titled “Copyrights” with Ringer. called to invite me to deliver the Sixth Donald C. Brace Memorial Lecture, he did me more honor than he knew. Donald Clifford Brace was a truly outstanding publisher, who brought to the American public the works of some of the greatest English authors of the Twentieth Century. Among them is the single writer whose works and voice and life have spoken to me more directly than that of any other: George Orwell.

In 1946 Orwell wrote to his agent, Leonard Moore:

You mentioned in your last letter something about giving Harcourt Brace an option on future books. It’s a bit premature as I have no book in preparation yet, but I should think Harcourt Brace would be the people to tie up with, as they had the courage to publish Animal Farm. But of course they may well be put off the idea if the book flops in the USA, as it well may. I am not sure whether one can count on the American public grasping what it is about. You may remember that [a certain publisher] had been asking me for some years for a manuscript, but when I sent the MS of AF in 1944 they returned it, saying shortly that “it was impossible to sell animal stories in the USA.” . . . . So I suppose it might be worth indicating on the dust-jacket of the American edition what the book is about. However, Harcourt Brace would be the best judges of that.

Harcourt Brace did, in fact, go on to publish Orwell’s next work, one whose literary and historical significance, and whose ultimate social influence, cannot be exaggerated. The title of Orwell’s work, “1984” has become a symbol and, I fear, a political slogan of exactly the kind he was attacking in the book. The popularity of the title as a catch phrase has obscured and distorted the meaning of the work itself. Orwell, who was dying when the novel was published in 1949, cast his story in terms of the utmost pessimism, but his intention was the opposite of despair. “1984” is a kind of hymn to what Erich Fromm has called the very roots of Occidental culture: the spirit of humanism and dignity. Most of all it is a warning that the values on which our culture is based—of individualism, idealism, and free expression—are in the most immediate possible danger, not from any particular ideology or political system, but simply from the juggernaut of technology. Orwell was powerfully and desperately trying to warn us of the new barbarism just around the corner, of “the new form of managerial industrialism in which,” to quote Fromm’s trenchant essay, “man builds machines which act like men and develops men who act like machines”— of “an era of dehumanization and complete alienation, in which men are transformed into things and become appendices to the process of production and consumption.”

For publishing this book, and for publishing George Orwell at all, Donald Brace deserves to be thanked and honored. The message Orwell was seeking to convey affected the lives and actions of some members of my generation very profoundly. And yet today, less than eight years from the date Orwell chose as his particular doomsday—when everything he predicted is coming true, and not just in other countries—we accept these horrors as inevitable or even acceptable, and spend most of our time looking for personal anodynes.

When he first called to ask me about making this lecture, Paul Gitlin had just seen a piece I wrote for the Centennial Issue of the Library Journal titled “Copyright and the Future Condition of Authorship.” He said he found the tone of my essay pessimistic, and he rather implied that I might do well to make this lecture a little more up-beat. As I told him, my own feeling is not one of despair, and I certainly have no wish to plunge anyone into a blue funk over what is happening to copyright and the condition of authorship. But in copyright, which is the particular field I am called upon to plow, I do believe that people should be made to recognize the dangers and to realize that there is still a chance to do something toward averting them.

I am making these remarks at a time that may prove to be a major turning point in the history of American copyright law. In February the bill for general revision of the copyright law, which has been pending in Congress for nearly 12 years, passed the Senate unanimously by a vote of 97 to nothing. Progress in the House of Representatives has been slow, and I see enormous difficulties in the months ahead, but I still believe it is safe to predict enactment of the bill this year. If I am wrong, if the efforts to reform the present copyright statute of 1909 have to continue into the 1980’s in the face of on-rushing technological change, I am afraid the picture I am painting will be much darker and bleaker than I anticipate.

I prefer to look on the brighter side. I base my analysis of copyright in the 1980’s on the assumption that S. 22 of the 94th Congress will be in effect before the start of that decade, and that the impact of its changes will already have been felt. These changes will certainly lay the basis for the conditions of authorship and the dissemination of authors’ works during the last quarter of this century.

When I began to frame the outline of this lecture I first thought I would take the specific provisions of S. 22 and project them into the 1980’s, in an attempt to analyze how they should work out in practice. It did not take me long to realize that this approach would be both too difficult and too easy: too difficult because of the amount of complex detail and imponderabilia involved, and too easy because it is always simpler to analyze the trees and ignore the forest and the surrounding terrain. Instead, and with considerable misgivings, I will try to take the trends I see working upon and through the domestic revision bill—and in international copyright—and to project what may emerge from them in the next decade. I will try to deal with these trends under four general headings:

1) The nature of copyrightable works and the methods of their dissemination;

2) The nature of rights in copyrightable works;

3) The situation of individual authors; and

4) The role of the state in copyright and authorship.

The nature of copyrightable works and the methods of their dissemination

I believe, with Orwell, that mankind is changing the world through technology and that technology in its turn is changing mankind into technological beings. Where does this leave the creative individual and his ability to present his ideas and creations to others?

It seems almost superfluous to observe that the technological revolution in communications is a pivotal event in the history of mankind and that its full impact has not yet been felt. Among the plethora of electronic marvels now arrayed for our use, there are those that are merely transitory toys and gadgets, but there are others that seem to some people to have god-like qualities. It is certain that, amid all the electronics and advertising, the quality of human life is changing, and that the real impact of the change has not yet been felt.

Anyone who sits down and thinks about what has happened to mass communications since 1909 can come up with quite a list. Silent and later sound motion pictures; radio and later television and still later cable and pay-television; computers and their ability to assimilate, generate, and manipulate limitless amounts of information; satellites and their potential for reaching and linking everyone on earth; sound recordings and later audio and video tape recordings; photocopying and microreprography; and automation in the composition and reproduction of printed matter. This certainly does not exhaust the list, and many of these developments combine and interact, providing nationwide and worldwide networks for quick or instantaneous dissemination of what passes for information and entertainment. And there is evidently no end to this process: a satellite is already making direct transmissions into individual receiving sets in India;3I believe this is a reference to the Satellite Instructional Television Experiment. holography is beginning to lose its mystery; and lasers are being used for all sorts of things: for data storage, for communications channels into homes, and as part of commercial video disk players soon to enter the consumer marketplace.

On the face of it, all this opens tremendous new channels for creative endeavor and new ways of reaching huge audiences of readers, and viewers, and listeners, and information seekers. Like the invention of movable type and of painting techniques and musical instruments during the Renaissance, technology is bringing a whole new breed of creators into the communications arts. It is also allowing traditional creators to fix their works permanently and literally to get them into the hands of anyone who wishes to see or hear them. The 90’s should see some startling developments in one-way, two-way, and unlimited wireless communications.

Despite the cynicism and alienation that we see everywhere today, most people still welcome each technological “advance” as some sort of miracle and rush to buy and use it for purposes that, if pressed, they might have trouble articulating. Yet, unless I misjudge the signs, there is a growing realization that all this machinery has done less than nothing to improve human life, and the more voracious our craving for technological advance, the more individual people suffer. Instead of fostering perfection in the arts and the creation of masterpieces, the communications revolution has already maimed a number of traditional forms of expression and is destroying our standards, our ability, and our desire to judge our own culture.

I remember someone predicting a few years ago that, if the present trends continue, by the end of the century we will have a great many more birds than we have now, but that they will almost all be either pigeons and starlings. I have the same feeling about the effect of technology on copyright: a great many more works are going to be copyrighted in 1986 than in 1976, but their intrinsic value will continue to decline.

I believe that the courts and the Congress will continue to expand the subject matter protected by copyright and to cover the new uses of copyrighted works made possible by the expanding technology. But if the effect of this limitless expansion is to destroy incentives to truly creative work, to substitute remuneration for inspiration, and to make great creative works compete unequally with vastly increased quantities of trash and propaganda, we will have lost much more than we have gained.

The nature of rights in copyrightable works

Throughout the whole range of national and international copyright regimes since 1950, a single concept insistently recurs: it is usually called compulsory licensing, although in its various guises it may be referred to as “obligatory,” “statutory,” “legal” or “agreed” licensing. Characteristically, it is offered as a compromise to copyright controversies in two situations: where technology has created new uses for which the author’s exclusive rights have not been clearly established, and where technology has made old licensing methods for established rights ponderous or inefficient.

Under a typical compulsory licensing scheme, the author loses the right to control the use of his work, and cannot grant anyone an exclusive license for a certain specified purpose. Instead, his work is lumped with thousands or millions of other works, and the author also becomes a unit in a large collective system under which blanket royalties are received and distributed. The government is involved in operating the system, and the individuality of both authors and works tends to be lost. Authors may be paid well for the use of their works, but their participation in the system is, by definition, compulsory rather than voluntary.

It may come as a shock to realize that S. 22, as it now stands, contains four full-fledged compulsory licenses involving rate-making by a Government tribunal. A separate piece of legislation, which will be pushed very hard in the House, raises the possibility of a fifth, and others may emerge before the bill is finally enacted. As we go into the 1980’s, copyright is becoming less the exclusive right of the author and more a system under which the author is insured some remuneration but is deprived of control over the use to which his words are put.

In 1908, Congress was confronted with a peculiar dilemma of either giving exclusive rights to musical copyright owners, and thereby allowing the creation of what they referred to as a giant music trust, or of withholding these rights and thereby causing a great injustice to creators. Congress devised what, to my knowledge—and I have never been challenged on this statement—is the first compulsory license in history, section 1(e) of the present law. There may well have been intellectual antecedents to this under specific court decisions or in private, blanket licensing arrangements; but, as far as statutory, across-the-board, arrangements are concerned, I believe that the copyright royalty for sound recordings was the first compulsory license in the world.

It was copied almost immediately in the copyright statutes of other countries, in the same context of mechanical royalties for recording music. The situation as it evolved in the statute meant that a two-cent limit was imposed on the amount of royalties a copyright owner could get for having a song recorded. Once the owner of the copyright in a musical composition licensed his work for recording, everyone else had a right to make a recording by paying two cents per song per record. This is still the law, all these years later, and it is getting on towards 70 years now.

It would seem, on the basis of a great deal of experience, that this compulsory license is as firmly rooted in our copyright law as anything can be. I suspect that, by the time S. 22 is enacted into law, the two-cent rate will have been raised somewhat, but it is probably too late to raise any philosophical questions about compulsory licensing in this context. Indeed, the trend is exactly the reverse: to expand the concept of compulsory licensing into every new form of use of copyrighted works created by changes in communications technology. This seems certain to be true in the case of jukebox performances and cable television transmissions.

The cable issue, in particular, has been the reef on which copyright law revision foundered for seven years. In 1967, the House Subcommittee, confronted by this new and highly controversial issue, tried as forthrightly as possible to solve the problem through a rather simple form of compulsory license, and without imposing the heavy hand of government regulation. This effort was doomed to failure. The reason was that no one knew what the liability of cable systems was under the law, as construed in 1967. They do now: the Supreme Court has twice held in favor of cable and against exclusive rights under the copyright statute.

Cable became a roaring issue in 1967 and, as a result, when the House passed the bill, the whole cable provision was simply wiped away and the problem was passed to the Senate.

The Senate, in turn, evolved a whole new concept of protection for cable uses of copyrighted works which rested upon a compulsory license and added a new and very significant institution, a copyright royalty tribunal. This new device, which was inevitable when the House approach of 1967 failed, would create a government-associated body empowered to make decisions with respect to the practical running of the compulsory licensing system. Rates would be subject to review by this tribunal and decisions would be made with respect to the distribution of fees.

All three of these compulsory licenses—the so-called mechanical royalty, the jukebox compulsory license, and the compulsory license for cable television—seem certain to be enacted in some form. All three are very deeply rooted in the bill, and they are all related, in one way or another, to a copyright royalty tribunal that would be involved in rate-making and in the distribution of fees.

In 1969, the Senate Subcommittee added a fourth compulsory license for the performance of sound recordings. This turned out to be one of the most controversial provisions in the bill. It was knocked out in the Senate in September of 1974 and has not yet been reintroduced. Interestingly, for a generation or more the organized musicians turned their back on copyright protection and sought to protect their interests through collective bargaining and a controversial trust-fund device. Now, in a complete turnabout, the whole AFL-CIO has joined with the record industry in a concerted effort to enact a copyright law establishing a royalty for the performance of sound recordings in radio and other media. Of course, this is being fought vigorously by the broadcasting industry, and the fight will probably go right down to the House floor, promising a dramatic confrontation.

I am supporting this proposal in principle because I think it is unfair that individual performers have rarely received any of the benefits from the great technological developments that have, to a large extent, actually wiped out their profession. Fairness indicates that it is wrong that they not get paid for performances of their works, and I believe that sooner or later this right will be recognized under some form of compulsory licensing.4As of the time of publishing, performers in the US do not have a general public performance right for their sound recordings. A bill introduced in the 117th Congress, the American Music Fairness Act (H.R. 4130), would have created a right of performance publicly by means of an audio transmission and is the latest in a long line of legislative attempts to remedy the issue raised by Ringer above. Congress did grant an exclusive right for public performance by digital audio transmissions in 1995, and, in line with Ringer’s prediction, created a statutory license covering certain types of transmissions.

When this provision was in the bill the public broadcasters said, “Well, for heaven’s sake, if all these commercial interests are going to get something like this compulsory license, why shouldn’t we? We public broadcasters are not paying any copyright royalties now, but we recognize that we should. But, even if we have to pay something, we cannot put ourselves in the position of having to get individual clearances for all the music we play, all the graphic works that we show on the screen, and all of the literary works that we read over public radio and on the tube.”

They took their problems to Senator Mathias and apparently made a persuasive case, because we now have a new Section 118 in the bill as it passed the Senate. It would create a rather amorphous compulsory license for the public broadcasting of musical compositions, nondramatic literary works, and pictorial, graphic and sculptural works. It would leave to the proposed royalty tribunal the problem of setting the terms, rates, and the entire mechanism for running the compulsory license.

I am opposed to this provision, and particularly its impact on the whole range of nondramatic literary works.5The Copyright Office as a whole shared this view of the proposed amendment. The Office published a Public Broadcasting Report in May 1980 as provided by the 1976 Copyright Act that details the background and legislative history of the proposal along with voluntary licensing agreements for the use of nondramatic literary works by public broadcasters in the wake of the 76 Act. At the same time, I am aware of the vast political power of public broadcasters, and I think the chances of facing compulsory licensing in this area in the 1980’s are better than ever.

What we have seen demonstrated in the evolution of these five compulsory licensing schemes, and others that seem to be right around the corner, is a kind of inexorable historical process.

  • First you have a copyright law that was written at a particular point in the development of communications technology, and without much foresight.
  • Then you have technological developments, which create whole new areas for the creation and use of copyrighted works.
  • Business investments are made and industries begin to develop.
  • The law is ambiguous in allocating rights and liabilities, so no one pays any royalties.
  • A point is reached where the courts simply stop expanding the copyright law and say that only Congress can solve the problem by legislation.
  • You go to Congress, but you find that you have hundreds of special interests lobbying for or against the expansion of rights, and the legislative task is horrendous.
  • So Congress, looking for a compromise, turns to compulsory licensing. On its face, a compulsory licensing system looks fair to each side: the author and copyright owner get paid, but the user, who has made a strong argument that what he is doing represents the public interest, cannot be prevented from using the work.

We have reached the point where any new rights under the copyright law apparently cannot be exclusive rights. If a new technological development makes new forms of exploitation possible, compulsory licensing seems to offer the only solution. This is happening in the United States and it is happening just as much internationally. Compulsory licensing systems represent key provisions in the 1971 revisions of both the Berne and Universal Copyright Conventions, and in recent copyright laws in other countries.

Before the present program for general revision of the copyright law began in 1955, the United States had endeavored successfully to develop an international convention which would provide multilateral copyright relations between Western Hemisphere countries and the European countries members of the Berne Convention. The result was the Universal Copyright Convention, which was signed in Geneva in 1952 and came into effect in 1955.

In its origins the Universal Copyright Convention was considered a low-level transitional treaty which would dry up and blow away as more and more of its members accepted the principles of the Berne Convention. The confident assumption twenty-five years ago was not only that the level of protection reached at the Brussels revision of the Berne Convention in 1948 constituted the norm in international copyright, but that even its relatively high level of protection would continue to rise and expand.

These expectations, have proved false, for at least three interrelated reasons:

  • First, the technological revolution in communications and the compulsory licensing demands that it has spawned in practically all countries.
  • Second, the needs of developing countries. At crucial conferences in Stockholm in 1967 and Paris in 1971 the developing countries made a persuasive case for an international copyright system that gives them ready access to the materials they need to combat illiteracy, provide educational and scientific and technical information for their peoples at prices they can afford to pay. Whether the 1971 revisions of the two conventions have achieved this goal as a practical matter remains to be seen.
  • The concessions made in the Paris revisions of both the UCC and Berne Convention, in a general sense, are an attempt to preserve the principles of copyright in the face of the needs of states with limited resources, confronted with difficult and pressing development choices in allocating their expenditures. In this light, the Paris revisions looked towards greater interdependence and cooperative trading relationships within the world copyright community. Whether this approach is realistic in an increasingly inflationary world economy is far from certain.
  • Third, the impact of socialist legal thinking. The adherence by the USSR to the 1952 text of the UCC, effective on May 27, 1973, was a dramatic illustration of a trend already apparent in international copyright.

The situation of individual authors

All of these forces seem to be combining throughout the world to substitute compulsory licensing and various forms of state control for exclusive copyright control, and to substitute remuneration for voluntary licensing arrangements. Individual authors, standing alone, are helpless to protect themselves in a situation like this. Ironically, in order to preserve their own independence as authors, they will inevitably be forced to unite in collective bargaining organizations, and to allow their representatives to speak for them.

Authorship, by which I include all kinds of creative endeavor, is in an extraordinary state of flux. For some two hundred years, from the end of the patronage system in the late 17th Century to the emergence of the new technology in the beginning of the 20th Century, authors enjoyed something like a direct one-to-one relationship with their readers through their publishers. This relationship has ceased to exist entirely in some creative fields, and is fast disappearing in others. Authors are losing their ability to speak directly to readers, listeners and viewers, and must now deal with increasing hordes of middle-men who control the communications media or the access to them. In this situation it is quite possible to envision the mergence of societies in which there is little individual or independent authorship; most creative work would be done as part of collective endeavors, merged together anonymously, and whatever individual writing remains would be done under the patronage and control of the state.

Copyright is obviously caught up in a social tidal wave. In trying to preserve independent, free, authorship as a natural resource, one must be aware of the changes that are taking place and cautious about the methods adopted and deal with them. Some ideas that are put forward as solutions to practical problems of copyright clearance and access to information may turn out to be more destructive to our society than the problems they are supposed to solve.

I confess that at this point I come to the first of two dilemmas in my present thinking about the next 20 years—questions that I consider of immense importance but to which I can see no clear-cut answers. The first is what individual authors can do to protect themselves from this onslaught of technology. We have already reached a turning point in several areas, and are fast approaching it in others, where the individual creator simply cannot assure himself of fair remuneration for the use of his works unless he joins a collective organization of some sort. ASCAP and BMI are examples of one sort of collective organization in which authors pool their copyrights but maintain some degree of individual ownership and control over their use. The other most common type of organization is a trade union, which represents its members as employees and bargains for them on a collective basis.

There is, quite obviously, a loss of independence in both cases, and for some authors and for some types of work this may prove an intolerable sacrifice. But what are the alternatives? A continuing alliance with publishers or equivalent middle-men in which the individual author’s voice cannot be heard? Direct government control over licensing? Direct government patronage?

These are the questions that will inevitable have to be faced and answered in the 1980’s, and I find it astonishing that so far there is very little awareness or discussion of them. The discussion should be undertaken by the authors and creators themselves, not by lawyers or government types like me, and not by publishers or film producers or information industry representatives. But a movement toward clearinghouse arrangements and collective licensing has already started, and unless the implications and alternatives are carefully examined, patterns may become established that authors will soon find themselves powerless to change.

The role of the state in copyright and authorship

The most critical question arising from all of these trends involves the role that government will play in the operation of the copyright systems of the 1980’s. In the United States that role is clearly expanding. It seems inevitable that the government will shortly be involved in setting regulatory standards and royalty rates, in settling disputes over distribution of statutory royalties, and in establishing means by which individual authors organize for the payment of royalties. How far this process is allowed to go, and how irreversible it is allowed to become, will depend on decisions that must be taken in the immediate future.

My second dilemma thus involves the Copyright Office and what is to become of it. Recognizing what happens whenever bureaucratic nature is allowed to take its course, I feel that the office must resist the lure of embracing new regulatory powers over copyright licensing which could easily grow into government control over the conditions of authorship. Yet, I feel just as strongly that the Copyright Office cannot simply walk away from the problem, leaving it to other would-be government regulators or communicators or patrons to fill the vacuum. The decisions on this question, whatever they are, must be taken in full realization of the dangers facing independent authorship in the next decade, and in full determination to surmount them.

References

References
1 https://files.eric.ed.gov/fulltext/ED126906.pdf.
2 Among other things, Gitlin, a pioneering literary agent, co-wrote a 1963 Practicing Law Institute monograph titled “Copyrights” with Ringer.
3 I believe this is a reference to the Satellite Instructional Television Experiment.
4 As of the time of publishing, performers in the US do not have a general public performance right for their sound recordings. A bill introduced in the 117th Congress, the American Music Fairness Act (H.R. 4130), would have created a right of performance publicly by means of an audio transmission and is the latest in a long line of legislative attempts to remedy the issue raised by Ringer above. Congress did grant an exclusive right for public performance by digital audio transmissions in 1995, and, in line with Ringer’s prediction, created a statutory license covering certain types of transmissions.
5 The Copyright Office as a whole shared this view of the proposed amendment. The Office published a Public Broadcasting Report in May 1980 as provided by the 1976 Copyright Act that details the background and legislative history of the proposal along with voluntary licensing agreements for the use of nondramatic literary works by public broadcasters in the wake of the 76 Act.
By , January 06, 2023.

The Year in Copyright: 2022 Gives Creators Hope for the Future — Kicking things off in 2023, we start with this wrap-up of 2022 U.S. copyright developments from Devlin Hartline. Andy Warhol Foundation v. Goldsmith, copyright and artificial intelligence, and misguided attempts by states to encroach into Congress’s exclusive domain of copyright law.

Copyright Cases in 2022: A Year in Review — We also have Kevin Madigan taking a look at some of the U.S. case law highlights from 2022. Personal jurisdiction for foreign pirate sites, embedding and the server test, and the constitutionality of Section 1201 are just some of the interesting issues that U.S. courts confronted over the past year.

Parody under copyright and trade mark law: key guidance from Zorro .. and the Italian Supreme Court — Eleonora Rosati writes, “Last week, the Italian Supreme Court issued an important – if not truly seminal – judgment on the interplay between IP and freedom of expression. In delivering its new judgment in the long-running (15+ years and counting!) legal battle over the character of Zorro, the Supreme Court has provided important guidance on the requirements and limits of parody under both copyright and trade mark law.”

Judge rules in favor of Ford on AirPro contract, copyright, trademark violations — “As for siding with Ford on copyright infringement, Steeh wrote ‘each time AirPro installed Ford’s copyrighted software, it made a new copy.’ meaning ‘every installation of the Ford Diagnostic Software contrary to the terms of the EULA is an impermissible reproduction prohibited under the Copyright Act. . . . AirPro’s release-and-reuse tactic is a transfer of the software that violates Ford’s copyright by exceeding the scope of the EULA. 17 U.S.C. § 106(3). AirPro’s actions in purchasing short-term licenses in the names of their customers, loading the software on the scan tool, using the software to perform diagnostic services, and then blocking its customers from accessing the software is also a violation of § 106(3).'”

Midjourney founder basically admits to copyright breaching and artists are angry — “In an interview with Forbes back in September, David Holz, the founder of Midjourney – a powerful generator that uses the platform Discord and its chat servers to deliver images – admitted that open and published data sets are used to train the platforms AI generators and contains work from artists at all levels without their approval or consent, and with no way of opting-out of having it used. “

By , December 16, 2022.

Shelby Estate Wins ‘Eleanor’ Ford Mustang Copyright Lawsuit — The Shelby Trust has a clear path to building custom Mustang autos that resemble the one appearing in the 2000 Nic Cage film Gone in 60 Seconds after prevailing in court over the estate of the filmmaker. “According to a press release from the Shelby Trust, Halicki’s case was based around the concept that ‘Eleanor’ was a character in its own right, one with defined traits reflected across multiple movies that would make any build inspired by the car a commercial copy of the character.”

High Court Asks Solicitor General for Views on Genius-Google Copyright Preemption Case — Eileen McDermott of IPWatchDog reports, “The U.S. Supreme Court today invited the Solicitor General’s views in a copyright case that asks the High Court to grant a petition on the question of whether the Copyright Act’s preemption clause allows a business ‘to invoke traditional state-law contract remedies to enforce a promise not to copy and use its content?'” The case involves Google’s copying of lyrics from famous lyrics site Genius, which does not own the copyright in any of the lyrics but which prohibits reproduction, distribution, and commercial use of the lyrics accessible on its site through its terms of service.

HSI Baltimore seizes 55 websites that violated copyrights by illegally live streaming World Cup matches — A press release from US Immigration and Customs Enforcement this week states, “HSI Baltimore reviewed numerous examples of infringing content accessible from each of the subject domain names. Each domain was associated with a website offering free access to copyrighted digital media content – specifically, live streamed sessions of World Cup soccer games. . . . Based on the pervasive use of advertising on each site, the investigation alleges that the purpose for distributing the infringing content is the private financial gain to these websites’ operators. By seizing the subject domain names, the government prevents third parties from acquiring the name and using it to commit additional crimes, or from continuing to access the websites in their present forms.”

Google’s Permanent Deindexing of Pirate Sites Spreads Across Europe — Andy Maxwell reports at TorrentFreak, “Google’s decision to completely deindex pirate sites from search results is spreading across Europe. Earlier this year the MPA admitted that around 10,000 domains had already been removed but today’s figure is likely to be much higher. Takedown notices on the Lumen Database and a report published in Lithuania cast additional light on a stealthy but massive piracy deindexing program.”

Inside the Copyright Office’s honors program for young lawyers — A recent episode of the Federal Drive with Tom Temlin podcast featured an interview with Keyana Pusey, currently a Barbara Ringer fellow at the US Copyright Office, who discussed her experience working for the Office as part of the two year honors program. Listen to the episode or read a transcript at the link above. And as a reminder, the Copyright Office is currently accepting applications for the September 2023 Fellowship until December 31; interested attorneys in the initial stages of their career can find more information and application instructions here.

By , December 09, 2022.

With End-User License Agreements, Which Will Prevail: Copyright Rights or Contract Rights? — The Supreme Court is considering a cert petition in Genius v. Google in its conference today on the issue discussed in this article. We’ll find out Monday if they have decided to take the case.

Photographer Loses Plagiarism Case Against Artist Who ‘Ripped Off’ Her Work — “United States-based photographer Jinga Zhang brought the case to judges at a court in Luxembourg who found that Zhang’s original photo did not meet the criteria to fall under Luxembourgish or European copyright law. Fine art painter Jeff Dieschburg, who is from Luxembourg, was accused of copying one of Zhang’s photos, a situation which came to light after Dieschburg won the 11th Biennale of Contemporary Art award received 1,500 euros ($1,576). Zhang shot the original photo for Harper’s Bazaar Vietnam in 2017. The side-by-side comparison of the two images is striking, and Dieschburg admits that as a figurative painter, he needs reference materials.”

Benefits of the Copyright Office’s New Online Recordation System — “Earlier this year, the U.S. Copyright Office and the Library of Congress successfully launched the Copyright Office’s new online Recordation System, an important piece of the Office’s Enterprise Copyright System (ECS) modernization effort. Its launch marks the first part of the ECS that is now widely available to the public and the first time in the Office’s history that users are able to electronically record documents about transfers of copyright ownership.”

PRH Announces a Last Extension to Its Pandemic-Era Open-License Program — As Publishing Perspectives reports, Penguin Random House is making one additional extension to its open-license program for online story-time and classroom read-aloud videos and live events. The company also announced that it will replace the program when it ends with a new effort “to better serve students, educators, and librarians, keeping many of the elements and ease of requesting permission to record and share read-aloud and story time events.”

Advanced Pirate IPTV Blocks Proposed By Football Club-Owning Politician — “From an administration perspective, Italy’s site-blocking mechanisms are well developed. Domains are blocked every week and each process is officially recorded along with explanatory notes.”

By , December 02, 2022.

Find Architecture in Copyright — The US Copyright Office is currently running an exhibit titled “Find Yourself in Copyright.” In this blog post, learn more about the types of architectural works copyright protects by taking a closer look at architect I. M. Pei and his sketch for the National Gallery of Art’s East Building.

Canada’s Federal Court Grants NHL Pirate Streaming Blockade for 22/23 Season — “Bell, Rogers, and other copyright holders have obtained a new piracy-blocking order at Canada’s Federal Court. The ‘dynamic’ injunction requires Internet providers to block access to unauthorized IPTV streams during the current NHL season. It’s the second order of its kind and, if effective, it won’t be the last either.”

Africa Is Waiting for What You Promised, Mark Zuckerberg and Jack Dorsey — In this NYT Opinion piece, Dr. Ifeoma Ajunwa writes, “The Silicon Valley mantra of ‘move fast and break things’ forcefully asserts that technological innovation does not have to play by the rules. It is a rhetoric of regulatory dodge, aimed at excusing tech companies from following laws meant to protect consumers. The export of Silicon Valley disrupter ideas may bode ill for developing nations where the rule of law is not yet strong enough to provide consumer protections.”

Michael Bynum Names New Defendants in Proposed Amended Complaint to 12th Man Copyright Lawsuit — “Bynum first filed suit in 2017 against Texas A&M and school officials, including Brad Marquardt, currently the Associate Director of Media Relations for Texas A&M’s Athletics Department. In September 2021, the U.S. Court of Appeals for the Fifth Circuit affirmed the district court’s dismissal of Bynum’s claims under the U.S. Supreme Court’s 2020 decision in Allen v. Cooper, which found that the Copyright Remedy Clarification Act was an unconstitutional abrogation of state sovereignty for the purposes of holding state entities liable for copyright infringement…”

By , November 30, 2022.

Below are brief remarks I gave at a panel during the Center for Intellectual Property x Innovation Policy at George Mason University’s 2022 Annual Fall Conference. The panel was titled, “Copyright Under Pressure – What Phase Are We In?” I’ve edited the remarks for style to improve readability and added references in footnotes where helpful.

I want to start with what I think is an unremarkable proposition, but which in some circles might sound a bit shocking. Simply put, the goal of business is to maximize profits.1In his 1838 work, Researches into the Mathematical Principles of the Theory of Wealth, Augustin Cournot invoked a single theorem for the foundations of economics: “that each one seeks to derive the greatest possible value from his goods or his labor.” This view has remained relatively stable through the development of modern economics.

As businesses, copyright industries are no different. In fact, their ability to do so is directly tied to the ultimate goal of “promot[ing] the progress of Science and the useful Arts.”2Accord Eldred v. Ashcroft, 537 U.S. 186, 212 n.18 (2003). Toward that end, the ability to differentiate markets, products, and consumers is critical.

So it’s important for copyright owners to have the exclusive right to determine a number of things during the term of copyright: for example, the formats that they make works available in, whether to license or to sell their works, marketing and distribution strategies, pricing, and any other terms and conditions that they might place on access or copies of their works.

The good news is that, for the most part, the legal framework both in the United States and internationally recognizes these principles. Copyright owners have a suite of exclusive rights, every one of them is divisible, these rights apply to converting or making available works in different formats, and they apply just as much to digital works in the online environment.

Importantly, to that last point, the legal framework includes a properly calibrated exhaustion principle, or first sale doctrine. Since the rise of the digital economy, the U.S government—both Congress and the Copyright Office and other agencies—has repeatedly looked at the question of whether it should expand the first sale doctrine to cover digital transmissions, notwithstanding the fact that digital transmissions result in the creation of new copies. And each time they’ve looked at this question, they’ve concluded that expansion would not serve the goals of copyright.3In the mid-1990s, Congress rejected a bill that would create a “digital first sale” exception, H.R. 3048, 105th Cong. (1997), and in its more recent years-long, comprehensive review of the Copyright Act, declined to advance any similar proposals, see Copyright, House Judiciary Committee. In 2001, the Register of Copyrights and the Assistant Secretary for Communication and Information of the Department of Commerce prepared a report in compliance with § 104 of the Digital Millennium Copyright Act of 1998, which recommended against expanding the first sale doctrine to digital transmissions. In 2016, the Department of Commerce’s Internet Policy Task Force prepared a “White Paper on Remixes, First Sale, and Statutory Damages,” which likewise recommended against expansion of the first sale doctrine to digital transmissions. Quite simply, digital commerce would not work with a digital first sale doctrine. Digital copies are completely indistinguishable from the originals and so would compete directly with the copyright owner’s primary markets. Add to that the fact that you have an ability to effortlessly and instantly make perfect copies from digital works that could be distributed immediately around the world, which exponentially amplifies these potential harms.

That’s the good news. The bad news is we’re seeing increasing threats to this framework. To be clear, threats to the ability of copyright owners to pursue rational choices about how they market and distribute their works can be just as harmful as straight up piracy. I’m going to talk today about two examples within the library ebook market that I think constitute these threats.

By way of background, for over a decade now, ebooks have been very popular. They’ve been widely available, and publishers typically work with third-party aggregators such as Overdrive to enable public libraries to digitally lend ebooks to their patrons. If you have a library card, chances are you’re able to go online, see your library’s ebook offerings, and check them out much like you would check out a physical book. You’re then able to read it on any device you want, and after two or three weeks, whatever the checkout term is, the book is “returned” to the library.

To accomplish this, publishers employ a variety of licensing models that have evolved over the decades and that continue to evolve to meet both the needs of publishers and libraries. Today, all the Big Five publishers make their entire ebook catalogs available for digital library lending, and the evidence shows that this is a well-functioning market. Library patrons have access to more ebook titles than at any other point in history. Readership is flourishing—Overdrive, which is the largest ebook aggregator, reported that in 2021 there was over half a billion checkouts of library ebooks worldwide. And the pricing is fair and sustainable—Overdrive also reported in 2021 that the average cost per title for libraries declined in 2021.4Overdrive, Over 120 library systems reach 1 million digital checkouts in 2021, January 12, 2022. Libraries have been able to significantly grow their ebook collections over the decades with collection budgets that, when adjusted for inflation, have essentially been flat.5According to statistics collected by the Institute of Museum and Library Services through its annual Public Libraries Survey, public libraries in the US spent $1.39 billion on total collection materials (physical and digital) in 2020 (the most recent year statistics were available). In 2000, when adjusted for inflation, that number was $1.68 billion. Between 2011-2020, the total number of ebooks in library holdings skyrocketed by over 2,100%. They’ve been able to get more for their buck.

That said, I want to talk about the specific threats in this market. The first is what’s been called “controlled digital lending”, or “CDL.” CDL is a theory that was created by academics—it doesn’t appear in the Copyright Act, and it doesn’t arise from case law. Advocates argue that this theory allows them to make and distribute digital scans of physical books online without the permission of the copyright owner needed. The “controlled” part of this theory refers to a set of requirements that these academics have also come up with (again, not derived from case law or statute) that they argue makes the digital lending of these unauthorized scans of physical books replicate physical lending of books. They believe that is sufficient to make the process lawful.

Under the guise of CDL, one entity in particular, Internet Archive, has been systematically digitizing and providing public access to complete copies of millions of copyrighted books through its Open Library program. In response, in June 2020, a group of publishers sued Internet Archive for copyright infringement claiming direct harm to both their print and ebook markets in all market segments because Internet Archive is providing competing substitutes.6Elizabeth A. Harris, “Publishers Sue Internet Archive Over Free E-Books,” NYTimes, June 1, 2020.

That case is ongoing; parties recently completed briefing on cross motions for summary judgment—and, somewhat unusually at the District Court stage, there’s been a number of amicus briefs that have been filed. One in particular from an organization called the Copyright Alliance, which represents a broad spectrum of both individual creators and industries within the creative industries, noted that while Internet Archive’s infringing activity is already harming existing markets for books, if the practice expands to other copyrighted works (which it very much could) such as music, film, television, video games, and the visual arts, it would cause widespread harm to all creative professionals and undermine the very purpose of copyright.7Amicus Brief of Copyright Alliance, Hachette Book Group v. Internet Archive (Aug. 12, 2022). Indeed, I think CDL is just a few steps away from a full-blown digital first sale doctrine—and all the harms that would bring to the creative economy.

The second threat is in the states. Beginning in 2021, states across the United States introduced or enacted legislation that would essentially create a compulsory license for the library lending of ebooks and, in some cases, audio books.8Terrica Carrington, “Preempted Copyright Legislation on the Move in Several States“, Copyright Alliance (June 1, 2021). In addition to mandating that book publishers license ebooks to libraries, these laws, which are largely similar across states, would have done a number of additional things, including outlawing windowing (which is a common practice in many copyright industries) outlawing any limitations on the number of licenses offered to libraries, and requiring that licenses be made on otherwise undefined reasonable terms, which would effectively authorize any given state to dictate the terms and pricing of ebook licenses.

The advocates of these state ebook bills essentially define “reasonable terms” as meaning that ebooks should have what they see as “print equivalent” pricing and terms.9See, e.g., Maryland Library Association Statement on Maryland’s Digital Content Law (July 27, 2021). This view is flawed because ultimately what they’re saying is that it’s unreasonable for copyright owners to differentiate formats and markets—in this case, the very different formats of physical books and ebooks in the very distinct markets of physical books and ebook lending. In other words, the mere exercise of a copyright owner’s exclusive rights is unfair.

These state laws would have been harmful to authors and publishers if they were passed. Fortunately, none of them have survived—one passed in New York was vetoed10Senate Bill S2890B Status Page, New York State Senate. and one passed in Maryland was struck down by a federal court this past summer.11Memorandum Opinion, Association of American Publishers v. Frosh, 1:21-CV-03133-DLB, D.Md (June 13, 2022). But I think it also creates a harmful precedent for other ill-advised encroachments into the framework that copyright owners rely on that encourages vibrant and sustainable creative industries which promote the progress of science and useful arts.

References

References
1 In his 1838 work, Researches into the Mathematical Principles of the Theory of Wealth, Augustin Cournot invoked a single theorem for the foundations of economics: “that each one seeks to derive the greatest possible value from his goods or his labor.” This view has remained relatively stable through the development of modern economics.
2 Accord Eldred v. Ashcroft, 537 U.S. 186, 212 n.18 (2003).
3 In the mid-1990s, Congress rejected a bill that would create a “digital first sale” exception, H.R. 3048, 105th Cong. (1997), and in its more recent years-long, comprehensive review of the Copyright Act, declined to advance any similar proposals, see Copyright, House Judiciary Committee. In 2001, the Register of Copyrights and the Assistant Secretary for Communication and Information of the Department of Commerce prepared a report in compliance with § 104 of the Digital Millennium Copyright Act of 1998, which recommended against expanding the first sale doctrine to digital transmissions. In 2016, the Department of Commerce’s Internet Policy Task Force prepared a “White Paper on Remixes, First Sale, and Statutory Damages,” which likewise recommended against expansion of the first sale doctrine to digital transmissions.
4 Overdrive, Over 120 library systems reach 1 million digital checkouts in 2021, January 12, 2022.
5 According to statistics collected by the Institute of Museum and Library Services through its annual Public Libraries Survey, public libraries in the US spent $1.39 billion on total collection materials (physical and digital) in 2020 (the most recent year statistics were available). In 2000, when adjusted for inflation, that number was $1.68 billion. Between 2011-2020, the total number of ebooks in library holdings skyrocketed by over 2,100%.
6 Elizabeth A. Harris, “Publishers Sue Internet Archive Over Free E-Books,” NYTimes, June 1, 2020.
7 Amicus Brief of Copyright Alliance, Hachette Book Group v. Internet Archive (Aug. 12, 2022).
8 Terrica Carrington, “Preempted Copyright Legislation on the Move in Several States“, Copyright Alliance (June 1, 2021).
9 See, e.g., Maryland Library Association Statement on Maryland’s Digital Content Law (July 27, 2021).
10 Senate Bill S2890B Status Page, New York State Senate.
11 Memorandum Opinion, Association of American Publishers v. Frosh, 1:21-CV-03133-DLB, D.Md (June 13, 2022).
By , November 18, 2022.

Authors Guild Applauds Arrest, Indictment of Major E-Book Pirates — “According to court filings, the U.S. Department of Justice is charging Anton Napolsky and Valeriia Ermakova with criminal copyright infringement, wire fraud, and money laundering for operating the popular Z-Library pirate site. The pair was arrested on November 3 in Cordoba, Argentina at the request of U.S. authorities, just days after site’s highly trafficked domains were seized by the DOJ and blocked.”

US—Copyright Round-Up — Copyright expert Paul Goldstein highlights several recent US appellate decisions touching upon personal jurisdiction for online infringement, fair use, and copyright and AI.

Ninth Circuit Affirms Validity of Unicolors’ Copyright Registration on Remand, But H&M Scores Big on Remittitur Calculations — “On November 10, the U.S. Court of Appeals for the Ninth Circuit ruled in Unicolors, Inc. v. H&M Hennes & Mauritz, L.P. following remand from the U.S. Supreme Court, which earlier this year clarified the knowledge standard required for invalidating copyright registrations based on inaccuracies in the registration application.”

‘Wild West’ of Generative AI Raises Novel Copyright Questions — “The rapid rise of artificial intelligence applications has left the burgeoning industry reckoning with how the powerful new technology interacts with copyright laws that govern everything from source code to art prints. The legal landscape is far from clear, with both the creators of AI tools and the artists who use them confronting copyright questions that haven’t yet been answered.”