Friday’s Endnotes – 04/30/2021

By , April 30, 2021.

ABC, CBS, Fox and NBC Battle “Freemium” — “What’s Locast? It’s a digital app that streams over-the-air television stations. Meaning, if a cord-cutter wanted to watch last night’s Oscars on ABC and didn’t have an ol’ rabbit ears antenna handy, this individual could go to Locast.org and sign up to see the local affiliate retransmitted online. It’s free. Well, sorta. A wrinkle may soon play a major role in an important copyright case. Broadcasters are now preparing to ask a federal judge for a sweeping legal victory against Locast. In July 2019, ABC, CBS, Fox and NBC filed a lawsuit over Locast. Nodding to a big Supreme Court decision a few years earlier, the complaint stated, ‘Locast is simply Aereo 2.0, a business built on illegally using broadcaster content.'”

World Book Day: Publishers Call for Canada’s Copyright Law To Be Fixed — “In the flurry of international recognition days in April—Earth Day (Thursday, April 22); World Book and Copyright Day (Friday, April 23); World Intellectual Property Day (Monday, April 26)—Canada’s writing and publishing industries have issued a statement, ‘calling on the federal government in Ottawa to fix Canada’s copyright law to address the systemic exploitation of creators’ and publishers’ works by educational institutions.’”

YouTube TV removed from Roku channel store amid Google contract dispute — “These spats happen regularly between Pay-TV providers and linear TV networks. But in the digital era, this is one of the rare times in which consumers will have a major streaming network removed from their platform’s channel store due to a breakdown in negotiations.”

Instagram is working on creator shops and a ‘branded content marketplace’ for influencers — “Creator Shops would be an extension of the company’s existing shopping features, which allows businesses to sell products. ‘We see a lot of creators setting up shops too, and one part of being a content creator business model is you create great content, and then you can sell stuff, and so having creator shops is awesome,’ Zuckerberg said.”

The Second Circuit is teeing up what could be the first decision to consider the impact of the Supreme Court’s decision in Google v. Oracle on the application of the fair use doctrine. This week, it called for briefing “solely addressing the impact, if any” of the decision on the appropriate disposition of the appeal in Andy Warhol Foundation v. Goldsmith.

Friday’s Endnotes – 04/23/21

By , April 23, 2021.

The Authors’ Take – Comment on Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith — Professor Jane Ginsburg on last month’s Second Circuit decision reversing a finding of fair use by artist Andy Warhol. Writes Ginsburg, “Like other recent decisions, this judgment may signal a taming of ‘transformative use.'”

Recordation: The Vital Back Office of US Copyright — “As the Copyright Office is currently in the midst of a project to build a new and modernized recordation process, I thought it might be useful to write this post about the often-overlooked (and definitely unsexy) work of the Recordation Section and its role in keeping rightsholders, potential licensees, and the general public au courant on the current ownership status (including the issuance of many licenses) of US works registered under copyright.”

Have tech platforms captured the Supreme Court? — Professor Jonathan Barnett discusses the Supreme Court’s decision in Google v. Oracle, which held that Google’s copying of software owned by Oracle was permitted by fair use. Barnett says, “This conclusion relies on a familiar but often false tradeoff between enforcing IP rights on the one hand and preserving access for users and subsequent innovators on the other hand.”

IPA Statement on World Book and Copyright Day 2021 — The International Publishers Association marks today’s celebration of World Book and Copyright Day. “The global copyright framework provides the foundation that publishers depend on to invest in publishing books that educate, enlighten and entertain audiences around the world as well as new technologies to improve their widespread availability and accessibility.”

Chicago Will Turbocharge Its Public Art Budget by 15,000 Percent as Part of a New $60 Million Cultural Recovery Program — “Under the new plan, the city’s current public art budget of $100,000 will increase by $3 million for each of the next five years—marking a 15,000 percent increase in that time. The effort ‘will not only leverage capital improvements to spur local economic development and job creation, but also mark a major advancement in the standard of public asset maintenance, and, consequently, the quality of life and livability of all Chicago communities,’ according to the city’s announcement. “

Friday’s Endnotes – 04/16/21

By , April 16, 2021.

United States Copyright Office Annual Report 2020 [PDF] — The Office published its annual report this week, covering a year marked by a global pandemic and leadership changes within the Office itself. Despite these significant challenges, the Office managed to continue its registration, recordation, and statutory licensing operations apace while also marking substantial accomplishments in its legal and policy work.

The One Saving Grace of Google v. Oracle Might be Its Limited Applicability — More analysis of last week’s Supreme Court decision addressing fair use and programming code. Kevin Madigan writes, “The decision presents a troubling misapplication of the fair use factors and a greater misunderstanding of the goals of the copyright system, but some relief comes in the Court’s explanation that its determination is limited in scope to the specific code at issue in the case and does not ‘overturn or modify its earlier cases involving fair use.'”

The Dawn of a New Era for Copyright Online — Abigail Slater and Brad Watts discuss the Protecting Lawful Streaming Act of 2020, passed at the end of 2020. The law aligns the criminal penalties for unauthorized commercial scale streaming of copyrighted with those of unlawful reproduction and addresses the shift away from downloads toward streaming for enjoying music, movies, and other copyrighted works.

Salt Bae Faces Allegations of Copyright Infringement in Latest Legal Battle — An artist alleges the meme-ified celebrity restaurateur commissioned artwork for murals in his restaurants but then, without permission, reproduced the artwork further on branding and merchandise. Kudos to the Eater for including a copy of the complaint with this article.

Friday’s Endnotes – 04/09/21

By , April 09, 2021.

Google Copyright Case Appears to Have Little Hollywood Impact — “Some of this can be chalked up to spin — either playing up the harms before the ruling, or playing them down after, or both. But it is also true that Justice Stephen Breyer went out of his way to say that he was only concerned with computer code, and that he was not trying to expand the general definition of ‘fair use’ in copyright law.”

Professors Balganesh and Menell on “The Curious Case of the Restatement of Copyright” — “While Profs. Balganesh and Menell support a Restatement of Copyright, they argue against ALI’s application of the traditional Restatement format to an area of law dominated by a detailed federal statute. They argue that such an application ignores the analytical mismatch between the traditional Restatement format and statutory domains that will create more confusion than clarity.”

The Met Wins a Case Against a Photographer Who Claims It Posted His Image of Eddie Van Halen Online Without Permission — “A panel of judges has ruled in favor of the Metropolitan Museum of Art in a copyright case over the institution’s use of a photograph of Eddie Van Halen. A 1982 concert image of Van Halen shot by Florida-based photographer Lawrence Marano was used by the museum in an online catalogue for the 2019 exhibition ‘Play It Loud: Instruments of Rock and Roll,’ which featured the late musician’s famous ‘Frankenstein’ guitar.”

U.S. Copyright Office Guide on Common Copyright Issues for Librarians — To commemorate National Library Week, the Library of Congress published an updated research guide from the US Copyright Office directed at libraries.

France’s New Strategy For Tackling Online Piracy Presented in New Bill — “A new bill presented to the Council of Ministers this week has several key goals including a pirate site ‘blacklist’, mechanisms to deal with mirror sites, and a new system to tackle live sports piracy. A new regulatory body will also be formed by merging Hadopi and the Higher Audiovisual Council.”

Friday’s Endnotes – 04/02/21

By , April 02, 2021.

Fair Use Decision Clarifies Transformative Use Analysis — The Second Circuit this week published a significant fair use decision in Andy Warhol Foundation v. Goldsmith. As Copyright Alliance’s Kevin Madigan explains here, “the court seeks to mitigate an overreliance on broad notions of transformativeness in fair use jurisprudence by proposing a more rational dividing line when evaluating whether a work is sufficiently transformative or simply derivative.”

Pirate Streaming Site Revenue Down, Despite Audience Growth & Innovation — Andy Maxwell at Torrentfreak reports on an interesting new report from Singapore cybersecurity firm Group-IB which has found that in recent years, audiences and revenues for legal streaming services have grown (spurred perhaps by the frequent entrance of new services) while piracy streaming sites have seen revenues fall, a result of coordinated enforcement efforts.

Judge Denies ROSS’s Motion to Dismiss Thomson Reuters’ Copyright Lawsuit — Thomson Reuters, which operates legal research platform Westlaw, alleges that ROSS’s AI-powered legal search product infringed on its copyrights when it engaged in bulk download of Westlaw materials to develop its product. This week, a judge found the pleadings sufficient for the lawsuit to proceed.

Mountain Project Replies to Open Beta Copyright Issues — Climbing magazine Gripped reports on the latest development in an interesting dispute between user-generated content climbing database Mountain Project and an app developer using Mountain Project data to create public APIs for others to use. Among questions raised by the dispute is when, as Mountain Project is doing here, the operator of a UGC site can enforce the rights of its users as a licensee.

Obituary: Beverly Cleary — “Beloved, award-winning children’s author Beverly Cleary, the self-described ‘Girl from Yamhill,’ whose stories featuring such endearing and enduring characters as Ramona Quimby and Henry Huggins facing real-life issues with humor and aplomb elevated her to iconic status, died March 25 in Carmel, Calif. She was 104.”

Friday’s Endnotes – 03/26/21

By , March 26, 2021.

A Collective Made NFTs of Masterpieces Without Telling the Museums That Owned the Originals. Was It a Digital Art Heist or Fair Game? — “By minting versions of historic works of art [in the public domain] on the blockchain, Global Art Museum was ostensibly creating a new way to own masterpieces housed in some of the world’s most famous institutions. On OpenSea, the company listed digital files of artworks from the Rijksmuseum, the Art Institute of Chicago, the UK’s Birmingham Museums, and the Cleveland Museum of Art. The gems of each museum’s collection appeared: Woman in Blue Reading a Letter by Johannes Vermeer, A Sunday Afternoon on the Island of La Grande Jatte by Georges Seurat, George Washington at the Battle of Princeton by Charles. The backlash was immediate.”

Houdini and the Magic of Copyright — “Magicians do not always reveal their tricks, even when they register their copyright claims. The legendary Hungarian immigrant Harry Houdini registered three of his famous illusions as “playlets,” or short plays, with the U.S. Copyright Office between 1911 and 1914. The playlets were registered as dramatic compositions, which have been eligible for copyright protection since 1856. Houdini’s deposited playlet scripts are now held within the Reader’s Collection, Library of Congress Copyright Office Drama Deposits.”

Court Hears Arguments in Canadian Pirate Site Blocking Appeal — “[Internet Service Provider] TekSavvy went up against major media companies including Bell and Rogers in Canada’s Federal Court of Appeal this week. The Court, which has to decide whether the country’s first pirate site blocking order can stay in place, heard arguments from both sides and intervening parties including the Canadian domain name registry.”

Throwing Good Money After Bad: How Canadian Universities Wasted Millions by Not Securing a Copyright Licence — “Beginning May 21, the Supreme Court of Canada (SCC) will hold initial hearings in the cross appeal by York University and The Canadian Copyright Licensing Agency (Access Copyright) of a recent decision by the Federal Court of Appeal (FCA) in this long-running case. York is contesting the Appeal Court’s decision upholding the 2017 ruling of the Federal Court that York’s fair dealing guidelines failed to prevent—indeed tolerated if not encouraged—infringement of copyright. For its part, Access Copyright is appealing the FCA’s ruling that the ‘mandatory tariffs’ certified by the Copyright Board of Canada for the use of any material in its repertoire by unlicensed users are not, in fact, mandatory, allowing York to opt-out and not pay the certified tariff despite making widespread unlicensed copies of published works.”

Friday’s Endnotes – 03/19/21

By , March 19, 2021.

ALI Restatement of Copyright – A Conversation with Professors Balganesh and Menell — David Newhoff sits down with the two scholars to discuss their criticism of the American Law Institute’s ongoing Restatement of Copyright project, which, in their views, fails to fully grasp the pitfalls of applying an approach designed for areas of law governed by common law to one governed by a comprehensive federal statute.

Will Posting Memes Or Pro Wedding Pics Land You In Copyright Small Claims Court? — “The alleged infringer can opt out by going online and checking a box, says Keith Kupferschmid, likening the process to getting a warning for a speeding ticket — raising awareness, maybe putting a little fear of God into copyright violators. ‘It’s not about hauling people into court and getting them to pay these fines,’ he says. ‘It’s about negotiating the settlement so the person actually licenses the work the way they should’ve.'”

YouTube can now warn creators about copyright issues before videos are posted — “Prior to Checks, creators uploaded their videos to YouTube and hoped everything went off without a hitch. The new feature screens uploads for copyrighted content, which could lead to takedowns or copyright holders claiming ad revenue, and whether the video runs afoul of advertising guideline issues. YouTube’s goal is to effectively cut down on the amount of ‘yellow icons’ creators see next to their video, referring to the yellow dollar signs that suggest ad revenue is being held because of copyright or guideline problems.”

Study on Dynamic Blocking Injunctions in the EU — A new report from the EU Intellectual Property Office catalogs the availability of site blocking remedies for copyright owners in the EU and its member states, along with their scope, technical implementation, and their effectiveness in reducing infringement.

“Framing” the right of communication to the public: the CJEU’s decision on the VG Kunst case — An analysis of the recent CJEU decision that further fleshes out the infringement analysis when it comes to different types of linking and embedding of copyrighted works.

Friday’s Endnotes – 03/12/21

By , March 12, 2021.

CJEU rules that linking can be restricted by contract, though only by using effective technological measures — The question of whether and when embedding copyright protected works can constitute infringement continues to be posed to courts. But this week, the highest court of the EU provided additional guidance by deciding that where a rights owner implements technological measures restricting access to or use of the work, then embedding the work by circumventing those measures can constitute a new communication to the public.

The $1.9 Trillion Stimulus Bill Congress Just Passed Includes $470 Million for America’s Arts and Culture Sector — The bill, signed into law yesterday afternoon, “includes $470 million earmarked for cultural organizations, with $135 million each for the National Endowment for the Arts and the National Endowment for the Humanities, and $200 million for the Institute of Museum and Library Services (IMLS).”

The Constitutional Protection of Intellectual Property — Legal scholar Adam Mossoff explores “how intellectual property rights have long been secured as property rights under the Constitution” from the Founding era through the centuries that followed.

ISPs and Rightsholders Unite to Block Pirate Sites in Germany — Torrentfreak’s Ernesto Van der Sal reports, “Several of the largest Internet providers and copyright holders in Germany have joined forces to tackle online piracy. With the new ‘Clearing Body for Copyright on the Internet,’ they have agreed to block structurally infringing sites without going to court. The first target is streaming portal S.to and other prominent sites including Kinox and The Pirate Bay are being considered.”

U.S. Copyright Office Announces Webinar on New Group Registration for Works on an Album of Music (GRAM) — The US Copyright Office recently created a new registration process for registering both the musical composition and sound recording copyrights on an album together, along with any artwork, liner notes, or other copyrighted works included in the album. The Office is hosting a webinar March 31 to explain the new process and answer questions from registrants.

Friday’s Endnotes – 03/05/21

By , March 05, 2021.

“Grumpy Cat” is Long Gone But Her Copyright Lives On in Court — Ernesto Van der Sar reports at Torrentfreak, “Grumpy Cat is no longer with us. Tardar Sauce passed away in 2019 but the humans she shared a house with are keeping her memory alive. They do this in the form of merchandise, but also in court where they have filed over a dozen lawsuits against sellers of counterfeit and copyright-infringing products.”

How Black people in the 19th century used photography as a tool for social change — Artist and educator Samantha Hill examines a number of ways that “Black Americans from the 19th century used photography as a tool for self-empowerment and social change.”

‘Deep Nostalgia’ Can Turn Old Photos of Your Relatives Into Moving Videos — You may have seen those animated versions of historic images recently. Andrew Liszewski takes a look at the AI technology behind them over at Gizmodo.

Keith Kupferschmid (Copyright Alliance): ‘Copyright will help the economy get back on its feet’ — Emmanuel Legrand talks with Copyright Alliance CEO Keith Kupferschmid about the CASE Act and Protecting Lawful Streaming Act, both of which were enacted recently, along with what the future holds for US copyright policy.

U.S. Music Groups Unveil “50 States of Music” Website Showcasing New Data on the Economic Impact of the Music Industry in Every State — The music groups have compiled a wealth of data about the financial and cultural contributions of the US music industry, broken down by state.

Friday’s Endnotes – 02/26/21

By , February 26, 2021.

Texas Justices Weigh Novel ‘Takings’ Copyright Fight — “The Texas Supreme Court questioned during oral arguments on Thursday whether a photographer can proceed with allegations that the University of Houston unconstitutionally ‘took’ his copyrighted image without permission. Photographer Jim Olive claims that because the university is part of the public University of Houston system, it’s a governmental entity that effectively took his private property by using his photos of the Houston skyline on its website. Olive filed the takings claim because he was barred from filing a more straightforward infringement lawsuit against the university by the Eleventh Amendment’s guarantee of state sovereign immunity.”

The Marrakesh Treaty in Action: Exciting Progress in Access to Published Works for the Blind and Print-Disabled Communities — U.S. Register of Copyrights Shira Perlmutter takes stock of the Marrakesh Treaty two years after the US formally joined. Perlmutter writes, “The Marrakesh Treaty has already been a tremendous achievement for the blind and visually impaired communities in the United States. Since it entered into force in May 2019, much has been done, including here at the Library of Congress, to start reaping its benefits.”

High Court Orders UK ISPs to Block Stream-Ripping & Cyberlocker Sites — Torrentfreak’s Andy Maxwell reports, “Under the umbrella of the BPI, major and independent recording labels in the UK have announced a key victory in their fight against so-called ‘stream-ripping’ sites and tools. Following a two-year process, this morning a judge at London’s High Court ordered major ISPs to block access to several platforms, including two of the most popular – Flvto and 2Conv.”

Stronger Protections for Content Will Keep Streaming Pirates At Bay — Zvi Rosen discusses the Protecting Lawful Streaming Act, which Congress passed at the end of its last session. Says Rosen, “As more resources and jobs go into producing content for streaming, it is more important than ever to make sure that these industries are secure in their knowledge that their hard work — and livelihoods — aren’t being put in jeopardy by criminal enterprises who aim to appropriate the hard work of these creative professionals. People can keep making Baby Yoda memes without fear of this new law, but those seeking to rebroadcast shows like the Mandalorian without compensating the people who brought those characters to life, may find that the law has more powerful tools for protecting creators from online theft by illicit streaming services.”

Kast-ing A Wide Net: Statutory Damages Under The Copyright Act — Scott Alan Burroughs discusses a recent 9th Circuit decision in Erickson Productions v. Kast which considered the issue of willfulness in statutory damages. Burroughs notes more broadly, “Crucially, and regrettably, in order to seek statutory damages under Section 504 and attorneys’ fees under Section 505, an artist must comply with the seemingly simple but actually quite baroque requirements of the Copyright Office registration process and must do so before an infringer copies their work. If she fails to satisfy either of those steps, she is barred from seeking statutory damages or attorneys fees in any case for which the infringement predates her registration. But, in contrast, the defendant is still able to seek attorneys’ fees against the plaintiff.”

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