Friday’s Endnotes – 10/15/21

By , October 15, 2021.

SCOTUS Grants Government’s Request to Participate in Case Interpreting PRO IP Act Language on Copyright Invalidation — From IPWatchdog: “The U.S. Supreme Court today granted a motion made by the Acting U.S. Solicitor General to participate in oral argument as an amicus in the case of Unicolors v. H&M. The case asks the Court to decide whether the Ninth Circuit properly construed the language of 17 U.S.C. § 411 relating to whether courts must have evidence of intent to defraud before referring copyright registration validity questions to the Copyright Office. Oral argument is set for November 7.”

Copyright Office Initiates Study on Ancillary Copyright Protections for Publishers and Requests Public Comments — The US Copyright Office study is in response to a May 3, 2021 request from Senators Leahy, Tillis, Cornyn, Hirono, Coons, and Klobuchar to the US Copyright Office, and it follows upon international developments aimed at shoring up press publisher protections on digital platforms, including Article 15 of the EU Directive on Copyright in the Single Digital Market and a 2021 Australian law requiring Google and Facebook to negotiate with press publishers over compensation for the value the publishers’ stories generate on the two companies’ platforms. In particular, the Office invites written comments on three issues: (i) the effectiveness of current protections for press publishers under U.S. law; (ii) whether additional protections for press publishers are desirable and, if so, what the scope of any such protections should be; and (iii) how any new protections for press publishers in the United States would relate to existing rights, exceptions and limitations, and international treaty obligations.

Sinclair, photographer resolve copyright dispute over polar bear video — “Sinclair had argued that under the 9th U.S. Circuit Court of Appeals’ so-called ‘server test,’ simply embedding the video from social media without storing a copy on its server and displaying it didn’t infringe Nicklen’s copyright. But Rakoff had said in his July ruling that the server test is ‘contrary to the text and legislative history of the Copyright Act,’ becoming the second judge in the Manhattan court to reject it.”

The New York Times Company Selects Pixsy to Monitor Image Copyright Globally — “The New York Times Company has selected Pixsy, the legal-tech service for online image protection and copyright enforcement, to monitor the use of New York Times staff-produced images across the internet, ensuring images are correctly used and licensed, that copyrights are protected and enforced, and rights holders are fairly compensated for use of their work.”

IU is America’s Dictionary Destination — “When America’s top dictionary editors and language scholars find themselves at a loss for words, where do they turn? For decades the illustrious Dame of Dictionaries, Madeline Kripke, answered the call. Her stockpile of more than 20,000 linguistic books and ephemera was often referred to as the world’s largest and finest dictionary collection. In fact, Michael Adams, Provost Professor and Chair of the English Department at Indiana University Bloomington, says Kripke spent the last decades of her life dedicated to building the collection and amassed ‘the most important collection of dictionary and related materials that has ever been curated by anyone.'”

Friday’s Endnotes – 10/08/21

By , October 08, 2021.

‘Star Trek,’ Dr. Seuss Mashup Dispute Ends After 5-Year Legal Journey — The legal dispute involving an unauthorized “mashup” that told a Star Trek story using Dr. Seuss imagery and literary style has settled, following a December 2020 ruling from the 9th Circuit that the defendant’s copying is not excused by fair use.

RIAA Secures ‘Victory’ Against YouTube Rippers and Seeks $82 Million in Damages — The result comes from the court ordering default judgment against the streamripping site operators as a sanction for repeatedly refusing to comply with discovery orders. The litigation previously took a trip to the Fourth Circuit, which reversed an earlier decision dismissing the case on personal jurisdiction grounds.

New Crowdsourcing Campaign Focuses on Early Copyright Records — “By the People, the Library of Congress’ crowdsourcing program, and the Rare Book and Special Collections Division, in consultation with the U.S. Copyright Office, have launched a new crowdsourcing transcription campaign, ‘American Creativity: Early Copyright Title Pages.’ We invite the public to help make the Library’s collections more accessible by transcribing over 95,000 title pages from the earliest printed works in the United States. From 1790 through 1870, authors registered copyright claims by completing a form at the local federal district court, paying a fee, and depositing of a printed title page with the court clerk. In 1870, with the passage of the second general revision to the Copyright Act, copyright registration was centralized in the Library of Congress, and the earlier records were ordered to be transferred to the Library. In 2020, the Library began digitizing the collection.”

Algorithms shouldn’t be protected by Section 230, Facebook whistleblower tells Senate — Ars Technica reports on Tuesday’s testimony by Frances Haugen before the Senate Subcommittee on Consumer Protection, Product Safety, and Data Security. During her testimony, the whistleblower and former Facebook product manager addressed the harms caused by the site, specifically the prevalence of algorithms and artificial intelligence deployed to increase engagement. Haugen recommended a suite of changes to address these harms, “including a Section 230 overhaul that would hold the social media giant responsible for its algorithms that promote content based on the engagement it receives in users’ news feeds.”

With the IATSE strike vote, film and TV crews are saying what is on a lot of other workers’ minds — “Why the IATSE strike vote is so important? Because most Americans are below-the-line workers. Film and television crews are giving voice to universal truths: People can love to work and still expect a lunch break. They can feel fortunate to be in their chosen industry and still demand to be fairly compensated. They can dedicate themselves to excellence on the job and still expect to have time to live their lives outside work. Not just on film and television sets, but everywhere.”

Friday’s Endnotes – 09/24/21

By , September 24, 2021.

Re-Recording Your Old Songs: How Taylor Swift is “Shaking Off” Her Old Record Company — Stephen Carlisle explains the copyright and contractual issues underlying T-Swift’s endeavor to release new recordings of her songs.

NJ, NY, CA Defendants Indicted for Nationwide Copyrighted IPTV Theft Scheme — “‘You can’t just go and monetize someone else’s copyrighted content with impunity,’ said Bradley S. Benavides, Acting Special Agent in Charge of the FBI’s Philadelphia Division. ‘That’s the whole point of securing a copyright. Theft is theft, and if you’re going to willfully steal another party’s intellectual property, the FBI stands ready to step in and shut you down.'”

Research Tools: New eCFR (Code of Federal Regulations) Website Goes Live with Several New Features — Anyone who has ever had to research current and historic federal regulations should welcome the updated eCFR site, which offers a new look and improved functionality.

Filtering and Site Blocking: Necessary Reforms for the Digital Marketplace — In a new policy memo, Steven Tepp writes, “Business models and technology have changed dramatically since the 1990s; nowhere more so than online. Those changes, alongside some key judicial decisions, have distorted the operation of the US copyright law provision specifically designed to address online copyright infringement. Today, even a platform that knows that 80 percent of what it hosts are unlicensed copyrighted works, it can be shielded from accountability by the safe harbors in the Copyright Act.”

Friday’s Endnotes – 09/17/21

By , September 17, 2021.

Fifth Circuit Delivers Maddening Opinions in Bynum Copyright Suit — “Bynum, who has been a sports historian for 44 years, formed a collaborative relationship with the Texas A&M Athletic Department while working on the story, which he described in an email to me as ‘the first and only serious effort to tell the full story of E. King Gill.’ In 2010, while seeking photographs for the project, Bynum sent a PDF ‘draft in progress’ of his manuscript to TAMU’s Associate Director of Media Relations, Brad Marquardt. The PDF included a notice of copyright and a first chapter, created as a work made for hire (WMFH) by a writer named Whit Canning, whom Bynum had paid to write a short bio about Gill. Then in 2014, in connection with a fundraising campaign, Marquardt not only directed his secretary to retype the Gill Biography and omit the copyright information, but also to edit the byline in order to make it appear as though TAMU, rather than Bynum, had contracted Canning to write that material.”

Locast’s free TV service ordered to shut down permanently after copyright loss — “Locast was ordered to shut down its online TV service forever in a permanent injunction issued yesterday by a federal judge. The order came two weeks after the judge gave major broadcast networks a big victory in their copyright case against Locast, a nonprofit organization that provided online access to broadcast TV stations. Locast will have to win on appeal in order to stream broadcast channels again. Locast already suspended operations after the September 1 ruling that said it does not qualify for a copyright-law exemption available to nonprofits, so the permanent injunction doesn’t change the status quo.”

Pearson sues edtech rival Chegg for copyright infringement — “In a lawsuit filed in a New Jersey court, Pearson accused Chegg of ‘systematically’ continuing to publish answer sets from thousands of textbooks, replicating copyrighted material so students could ‘easily search for and find answers to the textbook questions they have been assigned’.  It alleged this violated Pearson’s exclusive copyright, undermined educational progression and could encourage university lecturers to reconsider using textbooks for their courses.”

SKorea to fine Google $177M for forcing software on devices — “Joh pointed out that Samsung, the maker of the globally popular Galaxy Android phones, suffered a huge setback in 2013 when Google forced it to abort its plans to use a customized version of Google software on its Galaxy Gear smartwatches. Samsung switched to a little-known operating system called Tizen but gave up on the software after struggling with a lack of applications. The company’s new smartwatches are now powered by Google’s Wear OS. LG was also thwarted from releasing smart speakers based on customized Google software.”

Cf. Google LLC v. Oracle Am., 141 S. Ct. 1183, 1218 (2021) (J. Thomas dissent). “Google controls the most widely used mobile operating system in the world. And if companies may now freely copy libraries of declaring code whenever it is more convenient than writing their own, others will likely hesitate to spend the resources Oracle did to create intuitive, well-organized libraries that attract programmers and could compete with Android. If the majority is worried about monopolization, it ought to consider whether Google is the greater threat.”

Friday’s Endnotes – 09/10/21

By , September 10, 2021.

Germany’s First Half of 2021: Ebook Dynamics, and Libraries — “In the past year, Skipis’ staff at the Börsenverein is reporting, the growth rate of the users of digital library services was six times as high as the growth rate of ebook sales. It’s becoming apparent, the association says, that the demand will remain high in 2021. And—in an observation that many in the library world might prefer not to hear—surveys show, according to the Börsenverein, that many users of of library ebook loans ‘have bought fewer or no books at all since they’ve borrowed ebooks from their library.'”

Texas A&M escapes copyright claims at 5th Circ. over 12th Man story — One of several cases navigating the state sovereign immunity waters post-Allen v. Cooper. In an unpublished opinion, the Fifth Circuit denied relief for Michael Bynum after employees of the school’s athletic department posted a copy of his unpublished manuscript on their public website.

TED Demands CC License from Photographers, Fails to Provide Credit — “A photographer has accused the popular American media organization TED of requesting that he list a photo as Creative Commons with attribution and then failing to abide by those copyright rules. TED — which stands for Technology, Entertainment, Design — hosts speaking engagements that are distributed online for free under the slogan ‘ideas worth spreading.’ According to photographer Paul Clarke, the organization forces photographers to list any photos of a TED event as creative commons, but fails to abide by those rules.”

The Publishers Association Ramps Up Site Blocking to Reduce Piracy — “The Publishers Association, a UK organization supporting members producing digital and print books, research journals, and educational resources, obtained its first pirate site blocking injunction in 2015. Six years later the group has now been granted an expansion in an effort to restrict access to domains that helped to circumvent the aims of the High Court order.” And the internet has yet to break.

YouTube outlines its approach to copyright as EU member states keep transposing the Copyright Directive into national law — Emmanuel Legrand writes, “YouTube has been adjusting its approach to copyright to take into account the implementation of the European Copyright Directive into national law by EU members states. The changes were made necessary by the incorporation into European and member states law of Article 15, which introduced a neighbouring right for news publishers, and Article 17, which introduced a set of new rules for certain content-sharing services like YouTube, in particular the need to make ‘best efforts’ to identify rights holders and ensure that unlicensed content is taken down, or licensed.”

Friday’s Endnotes – 09/03/21

By , September 03, 2021.

Instagram Might Not Care About Copyright Law and It Could Land Them in Trouble — Andy Day, writing for FStoppers, chronicles the frustrating efforts to deal with infringement on the social media site by photographer Martin McNeil. “McNeil wants to see the asymmetry of power brought about by the DMCA rebalanced. Artists create the content that makes these platforms money, and yet, the resources to ensure control of their work are massively outweighed by those available to the digital platforms seeking to exploit it.”

EFF Dealt Another Blow in Attempt to Strike Down Section 1201 of the Copyright Act — Devlin Hartline discusses the recent DC District Court decision denying a preliminary injunction to halt enforcement of the Copyright Act’s anti-circumvention provisions. Says Hartline, “Congress was prescient in granting copyright owners rights over the digital locks that they use to secure their copyrighted works on the internet. The scale of online piracy has proven to be enormous, and copyright owners need every tool Congress can give them to nip piracy in the bud.”

Broadcasters Score Big Legal Win Against Locast, a Popular App Streaming Network TV — “In an order favoring the broadcasters, U.S. District Court Judge Louis Stanton writes that under the law, fundraising can only be used to defray costs of operating the service, not of expanding it into new markets. ‘Since portions of its user payments fund Locast’s expansion, its charges exceed those ‘necessary to defray the actual and reasonable costs of maintaining and operating the secondary transmission service,’ which is the only exemption granted in Section 111 (a) (5).'” Locast has since announced it is shutting down.

State Sovereign Immunity Study — The U.S. Copyright Office this week published its study on copyright infringement by states and state entities. The study was requested by Congress in the wake of the Supreme Court’s 2020 Allen v. Cooper decision, which struck down a law allowing copyright owners to sue states for infringement. The study found that while “state infringement represents a legitimate concern for copyright owners,” the Office could not say with certainty that the “record would be found sufficient to meet the constitutional test for abrogation.” Nevertheless, the Office concluded that the issue is worthy of Congressional attention, and it would support alternatives to abrogation legislation.

Exclusive: Amazon to remove more content that violates rules from cloud service, sources say — “It could turn Amazon, the leading cloud service provider worldwide with 40% market share according to research firm Gartner, into one of the world’s most powerful arbiters of content allowed on the internet, experts say.”

Friday’s Endnotes – 08/27/21

By , August 27, 2021.

Ruling Warhol Art Infringed Prince Pic Stands, 2nd Cir. Says — The court was asked to revisit the decision denying fair use to the Andy Warhol Foundation in the wake of the Supreme Court’s Google v. Oracle decision. It held that application of Google leads to the same conclusion.

Ninth Circuit sides with Sirius XM in dispute over pre-1972 music royalties — “The Ninth Circuit Court of Appeals found Monday that satellite radio station Sirius XM does not have to pay royalties to the band The Turtles for playing their pre-1972 recordings. Unlike typical AM and FM radio stations, digital and satellite radio must pay royalties if they broadcast a song from after 1972 on their airwaves. Howard Kaylan and Mark Volman, the founding members of The Turtles, started Flo & Eddie to have control over their recordings and first sued Sirius XM Radio in 2013. They argued that their ‘exclusive ownership’ under California copyright law entitles them to royalties when their pre-1972 songs are played on-air. A federal judge in California agreed.”

The Federal Circuit Must Correct Texas Court’s Misapplication of Copyright Law in SAS Institute Appeal — Steven Tepp writes, “WPL did not try to compete with SAS by building a different or better product. Instead, it ordered copies of SAS’s products under the guise of an educational license, but with the true intent to reverse-engineer and copy key elements, including the selection and arrangement of its outputs, and even the manuals licensed users receive from SAS. The result is that WPL produced a clone, taking the exact same input and producing the exact same output that SAS does. Avoiding the years of investment and fine-tuning that SAS undertook to create its market-leading software, WPL undercut SAS’s price in the market and lured away SAS’s customers.”

NC Court Grants Motion in Allen v. Cooper to Reconsider Takings Claim — David Newhoff writes a briskly paced recap of state sovereign immunity and the latest development involving the district court in Allen v. Cooper reviving two of the plaintiff videographer’s claims against the state of North Carolina following remand from the Supreme Court, which held his copyright infringement claim barred by the Eleventh Amendment.

CJEU in C-597/19 Mircom: users of P2P networks might be infringing the making available right if duly informed — “After the C-610/15 Ziggo ruling on the operation of an online sharing platform indexing torrent files, it was only a matter of time until the CJEU had to rule on whether users of P2P networks make works available to the public, even if they do not possess a complete file. In the line of previous development, the judgment allows a finding of infringement of copyright where users of P2P networks automatically upload pieces of files containing a protected work. However, it must be established that that user actively chose to use sharing software by giving consent after being duly informed of its characteristics, so they ought to be informed in some way about the automatic upload of already downloaded pieces.”

Friday’s Endnotes – 08/20/21

By , August 20, 2021.

Filmmaker Overcomes Supreme Court Setback to Pursue North Carolina for Stealing Footage — Eriq Gardner has the full story about the somewhat remarkable development in Allen v. Cooper, which involves a long running dispute between videographer Frederick Allen and the state of North Carolina over video and images of the shipwreck of one of Blackbeard’s pirate ships. After last year’s Supreme Court decision holding that Congress could not prophylactically abrogate state sovereign immunity using the Copyright Remedy Clarification Act, the district court has granted a motion for reconsideration, allowing Allen to revive his claims against the state on alternative grounds.

Embed Copyright Cases Could Multiply as Server Test Faces Siege — Bloomberg Law’s Kyle Jahner discusses the growing split in courts regarding the “server test”, a 9th Circuit doctrine that limits implication of the public display right online to circumstances where a copy of the work resides on the defendant’s own server. As Jahner notes, an increasing number of courts outside the 9th Circuit have rejected the server test as inconsistent with the Copyright Act.

Pirated-Entertainment Sites Are Making Billions From Ads — “Websites and apps featuring pirated movies and TV shows make about $1.3 billion from advertising each year, including from major companies like Amazon.com Inc., according to a study. The piracy operations are also a key source of malware, and some ads placed on the sites contain links that hackers use to steal personal information or conduct ransomware attacks, according to the online safety nonprofit Digital Citizens Alliance and the anti-piracy firm White Bullet Solutions Ltd. While law enforcement officials have sought to stop some of the online criminality, the groups identified at least 84,000 illicit entertainment sites.”

8th Circuit revives copyright dispute over house floor plans — Blake Brittain writes, “The 8th U.S. Circuit Court of Appeals on Monday reinstated copyright claims brought by home designer Charles James against real estate companies that allegedly made floor plans based on one of his designs without permission. A copyright law that protects pictures or ‘pictorial representations’ of architectural works from infringement claims doesn’t apply to floor plans, U.S. Circuit Judge Morris Arnold said.”

Apple Files Appeal After Partly Settling Corellium Copyright Dispute — “A string of docket entries filed this week reveal that Apple Inc. and defendant Corellium LLC have partly ended their dispute over whether Corellium illegally copied Apple’s technology by creating a ‘virtual’ version of Apple devices and unlawfully trafficking a product used to circumvent security measures. Though the parties reached a settlement concerning Apple’s Digital Millennium Copyright Act (DMCA) claim and Corellium’s counterclaims, the terms of which were not made public, Apple has appealed three copyright infringement claims as to injunctive relief only.”

Friday’s Endnotes – 08/13/21

By , August 13, 2021.

Is an MLB Mascot About to Change Hollywood’s Future? — “Many years later, after the Phanatic became very popular, both sides would dispute the amount of creative direction that the team had given Erickson, but what became important was how Harrison/Erickson obtained a registration from the Copyright Office by calling the Phanatic costume an ‘artistic sculpture.’ Then, attempting to leverage the termination provisions of the Copyright Act, which allows authors to reclaim newer works after 35 years, Harrison/Erickson attempted to grab back rights. In a suit, the team raised all sorts of theories why copyright termination was invalid, and before the termination became effective, the Phillies made some alterations to the Phanatic to the confusion and ire of its fan base.”

Unicolors Case Presents the Supreme Court With an Opportunity to Reinforce the Foundations of the Copyright Registration System — “Months into the litigation, after you’ve spent a considerable amount on legal fees and a tremendous amount of time preparing for litigation—time you could have spent creating new works and taking care of other business responsibilities—the infringer challenges the validity of your registration based on an error that appears in the registration. The error was an honest mistake on your part as to the legal interpretation of the date of publication. Even though the defendant clearly infringed your work, they found a loophole and they were able to invalidate your registration on a technicality. The scenario may sound far-fetched and unfair, but it’s what the Supreme Court could open the door to if it rules in favor of a similarly opportunistic defendant in Unicolors v. H&M.”

Apple Drops iPhone Copyright Lawsuit Against Cyber Startup Corellium — “Back in August 2019, Apple accused Corellium of both violating its copyright and breaching the Digital Millennium Copyright Act (DMCA) by creating ‘virtualized’ versions of the iPhone. Corellium had caused a stir in the security community in 2018 when Forbes revealed its plans to allow researchers to spin up iPhones on their laptops to start probing iOS for security weaknesses or usability flaws.”

‘WHYYYYYY?’: Police Upset Idiot Colleague Played Taylor Swift to Trigger YouTube Filter — “In at least four instances, this move has backfired by drawing massive attention to the offending cop, leading all of us to wonder what the hell they were thinking. Now, we know that the officers’ colleagues are thinking the same. New emails and documents obtained by Motherboard through a Freedom of Information Act request show that Shelby’s superiors and colleagues in the Alameda County Police Department were pissed and embarrassed by his attempt at censoring the public—and it was such a debacle, they revised rules for officers about they can use cell phones on duty. “

Friday’s Endnotes – 08/06/21

By , August 06, 2021.

Manhattan judge rejects ‘server test’ for internet copyright infringement — “In Friday’s opinion, Rakoff said the server rule is ‘contrary to the text and legislative history of the Copyright Act,’ which ‘defines “to display” as “to show a copy of” a work, not “to make and then show a copy of the copyrighted work.”‘ Rakoff said that under the test, ‘a photographer who promotes his work on Instagram or a filmmaker who posts her short film on YouTube surrenders control over how, when, and by whom their work is subsequently shown — reducing the display right, effectively, to the limited right of first publication that the [Act] rejects.'” Read the opinion here.

YouTube Rippers Shut Down in US & UK After Giving Up Legal Fight — “YouTube rippers FLVTO.biz and 2conv.com have closed their doors to visitors from the US and UK. The services are ‘permanently unavailable’ according to a message posted on the sites. This drastic decision follows shortly after their operator backed out of the legal battle against several record labels, which now hope to get a default judgment in US court.”

[Podcast] Formalities in U.S. Copyright with Steven Tepp — A delighfully wonky look at copyright formalities—notice, registration, and deposit—with copyright expert Tepp. The only downside with this podcast is that it was recorded just days before the D.C. District Court issued a decision in Valancourt Books v. Perlmutter, rejecting a Constitutional challenge to the Copyright Act’s mandatory deposit requirement, so we missed out on a discussion of that case.

In Copyright Case, Judge Evaluates Use of 9/11 Footage in 16 Films — Eriq Gardner breaks down a hefty Southern District of New York decision concerning the fair use of copyrighted clips by multiple film producers. Gardner notes, “What makes this 88-page summary judgment opinion especially fascinating is how the judge, when evaluating both famous films and obscure ones, comes to differing conclusions.”

British authors warn of a potential devastating impact on the publishing sector if the UK changes its exhaustion regime — Emmanuel Legrand reports, “The letter was signed by such authors as Kazuo Ishiguro, Carol Ann Duffy, Hilary Mantel, Sara Sheridan, and Philip Pullman, among others. The letter reads: ‘UK currently has strong copyright laws which enable creators to be fairly compensated for their work and the UK to export more books than any other country in the world. Weakening the UK’s copyright laws would impair our ability to earn an income which would have a devastating impact on this country’s vibrant, world-renowned book industry. If writing becomes a profession only accessible to the wealthy, important stories will not be told.'”

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