By , December 17, 2021.

Note: because of the holidays, this will be the last Endnotes of 2021. A big thank you to all my readers for another year full of copyright excitement. See you all in 2022!

The Year in Copyright: From Google v. Oracle to the Takings Clause — Devlin Hartline looks back at some of the highlights in 2021, from the creation of a new copyright small claims court, to the Supreme Court’s first look at fair use in 27 years.

Michael Pietsch Looks at Publishing’s (Near) Future — A look ahead from the CEO of Hachette Book Group. Pietsch writes, “The clearest and most heartening lesson of this disruption is: Books are essential. Truly. In all times, and especially in difficult ones, a book is the best source of information, reassurance entertainment, education, escape, transformation. People reached out for connection—and a book remains the richest way ever created of connecting deeply with another mind.”

Maryland’s Unlawful Compulsory License for eBooks Should Have a Short Shelf Life — From Free State Foundation’s Seth Cooper: “Copyright protections secured by federal law preempt state laws that interfere with them. Yet the Maryland legislature apparently ignored or didn’t realize that when it enacted Maryland House Bill (HB) 518 in May of this year. The law, if it goes into effect in 2022, would grant Maryland public libraries a state-level compulsory license to access eBooks, audiobooks, and other digital literary works belonging to copyright owners at state-regulated rates. But a lawsuit filed in U.S. District Court on December 9 almost certainly means that the state’s law will have a short shelf life.”

It’s No Laughing Matter As Spotify Removes Comedy Tracks — Aaron Moss looks at an unexpected issue that has arisen in streaming music. Recorded music consists of two separate copyrights, the underlying song, and the recording of the song, and the music industry is built around a complex set of rules and institutions regarding compensation for each of these two copyrights, including on streaming music services. Technically, spoken word recordings like comedy albums, also consist of two separate copyrights. Moss notes, “ But historically, unlike the case with music, the use of the underlying words has not been separately compensated.” Should it?

How Music Created Silicon Valley — “Before the rise of Silicon Valley, hundreds of millions of records were sold each year in the US, and teens accounted for almost half of the purchases. Nowadays many teenagers refuse on principle to spend any money on music, because they believe it should be free. This attitude was created and validated by tech companies, especially those FAANG behemoths. These companies have made tons of money from music, but almost always have reinvested the funds into their other corporate initiatives. In the parlance of MBAs, music is now a cash cow. You milk it, and put as little money into it as possible. When the cow stops giving milk, you send it to the slaughterhouse.”

By , December 10, 2021.

AAP files against Maryland law forcing publishers to license library e-books — Mark Chandler of the Bookseller writes, “Pallante said: ‘Maryland does not have the constitutional authority to create a shadow copyright act or to manipulate the value of intellectual property interests. It is unambiguous that the US Copyright Act governs the disposition of literary works in commerce—and for that matter, all creative works of authorship. We take this encroachment very seriously, as the threat that it is to a viable, independent publishing industry in the United States and to a borderless copyright economy.'”

The CASE Act: Copyright Claims Board to Begin Hearing Cases in Spring 2022 — US Register of Copyrights Shira Perlmutter provides an update on the copyright small claims court her office is currently setting up. The body, which “will offer a cost-effective, streamlined, and voluntary alternative to litigation in federal court” is on track to be up and running by Spring.

What Happened to Amazon’s Bookstore? — There’s a lot of detail in this David Streitfeld article on the utter chaos of the globally dominant retailer’s bookstore, but this quote from Institute for Self-Reliance co-director Stacy Mitchell touches on one of the through lines: “‘“Best sellers and other books that you might find at a local bookstore are almost all sold by Amazon itself at prices that keep those competitors at bay,’ Ms. Mitchell said. ‘Then Amazon lets third-party sellers do the rest of the books, taking a huge cut of their sales.’ Amazon ‘doesn’t care if this third-party stuff is a chaotic free-for-all,’ she added. ‘In fact, it’s better for Amazon if legitimate businesses don’t stand a chance. In the same way Amazon wants to turn all work into gig jobs, it wants to turn running a business into a gig job. That way it can walk off with all the spoils.'”

NCAC Leads Coalition Statement on the Attack on Books in Schools — “Libraries offer students the opportunity to encounter books and other material that they might otherwise never see and the freedom to make their own choices about what to read. Denying young people this freedom to explore–often on the basis of a single controversial passage cited out of context–will limit not only what they can learn but who they can become.”

Google Features YTS and 123movies as “Best Movie Websites” — Ernesto Van der Sar at Torrentfreak reports, “Google’s algorithms have made life a lot more convenient for many people, but they sometimes lead to peculiar results. When searching for the best movie websites, the search engine features pirate sites including YTS and 123movies in related searches. These and other not-so-legal sites also appear in one of Google’s ‘best movie website’ lists.”

By , December 03, 2021.

Education Publishers Sue Shopify for Copyright, Trademark Infringement — According to the complaint, “Shopify not only provides its repeat-infringer subscribers with the tools they need to run their illegal businesses, but also provides them with anonymity, a false veneer of legitimacy, and a safe haven from which to break the law. When Shopify becomes aware that one of its subscribers is using its services to infringe, Shopify must do something about it. Blindly ignoring piracy in order to make more money, as Shopify does here, is not a lawful option.”

New Zealand Library Halts Donation to Internet Archive — “The National Library of New Zealand (NLNZ) is halting its donation of 600,000 books from its overseas collection to the Internet Archive in response to mounting pressure from author and publisher groups around the world, including the Authors Guild, which sent out an alert to its members last week encouraging them to opt out of the program by the stated deadline of December 1. On Monday, November 29, the NLNZ issued a statement announcing that it was ‘reconsidering’ plans ‘in light of concerns raised by interested parties, including issues associated with copyright.'”

US Copyright Office Update on Online Publication Study [PDF] — According to the letter, some copyright registration applicants have expressed uncertainty as to how the term “publication” applies in the online context, and there is a perceived lack of consensus among courts on the issue, which can have significant legal implications for copyright owners. Since launching its study, the Office says, “Commenters provided insightful, but sometimes conflicting, suggestions about whether and how Congress or the Office could provide further clarity. The Office has already taken action to provide additional guidance regarding what constitutes publication, and we will supplement those efforts going forward. The Office also continues to analyze the comments submitted regarding potential statutory and regulatory changes, and to consider the feasibility of commenters’ various proposals in light of our current and future technological infrastructure and systems.”

The accuracy and completeness of drug information in Google snippet blocks — On the perils of automating knowledge. According to a recent study, “In 2014, Google introduced the snippet block to programmatically search available websites to answer a question entered into the search engine without the need for the user to enter any websites. This study compared the accuracy and completeness of drug information found in Google snippet blocks to US Food and Drug Administration (FDA) medication guides. . . . Google snippets provide inaccurate and incomplete drug information when compared to FDA-approved drug medication guides. This aspect may cause patient harm; therefore, it is imperative for health care and health information professionals to provide reliable drug resources to patients and consumers if written information may be needed.”

Senate Committee Advances Jessica Rosenworcel Nomination — John Eggerton of NextTV reports, “Acting Federal Communications Commission chairperson Jessica Rosenworcel was approved by the Senate Commerce Committee Wednesday (Dec. 1) for a new, five-year term, meaning only likely, swift full-Senate confirmation before she becomes the regulator‘s first non-acting woman chair.”

By , November 19, 2021.

SCOTUS Hears Oral Arguments in Unicolors v. H&M Case that Could Redefine Copyright Registration Standards — On Monday, the Court considered the sole copyright case (so far) in front of it this term. Kevin Madigan provides a thorough overview of the issues that came out during oral arguments regarding the question of when a copyright owner’s mistake on a registration application is enough to result in invalidation of the registration.

Will the Supreme Court Finally Declare Copyright Infringement As “Theft”? — Photographer Jim Olive has filed a cert petition requesting the Supreme Court review a Texas Supreme Court decision that denied a takings claim brought against the University of Houston for posting one of his photos to its website without permission.

Google agrees 5-year deal to pay AFP for online content: executives — “Global tech giants — mostly American — have run into a wide range of disputes with Brussels and EU member states, over taxation, abuse of their dominant market power, privacy issues and of making money from journalistic content without sharing the revenue. To tackle this the EU directive created the form of copyright called neighbouring rights that would allow outlets to demand compensation for use of their content.”

Instagram is offering huge bonuses for posting on Reels, its TikTok clone — It turns out maybe online platforms can pay creators?

By , November 12, 2021.

World Copyright Highlights in Late 2021: Michael Healy’s Overview — “In Canada, South Africa, Singapore, India, and the United Kingdom, says Copyright Clearance Center’s Michael Healy, copyright concerns are pending.”

No, Crediting the Artist Is Not ‘Enough’: The Case of Hallie Bateman Reveals How Online Exposure Can Be Tough for Artists — Sarah Cascone writes at Artnet News, “It’s a miracle we ever met (2016) is a simple line drawing in crayon of people walking across a blank white page, colored pathways trailing behind them, illustrating the unlikelihood of two people’s lives ever intersecting. Stichting Ijsberg had contacted Bateman in March, asking to use the piece in a July show about the arbitrary nature of human connection. She initially declined, and did not respond further when the organizers followed up to see if they could agree on a fee for the use of the work.”

Cloudflare Tests Limits of Contributory Copyright Infringement — From Devlin Hartline and IPWatchdog: “While it is certainly disappointing to see Cloudflare score a victory here against Mon Cheri in the district court, its position ultimately is wrong: There is no Ninth Circuit loophole that allows service providers to knowingly host and distribute infringing content without incurring contributory liability.”

American middle-class musicians are worth fighting for — Musician Blake Morgan makes the case for terrestrial broadcasters compensating the recording artists who create the music they play all day.

How to Trouble Isaac Newton — “[I]f hard problems are hard to think about, they are even harder to write about. And if you can’t write about them in a convincing way, your ideas are unlikely to gain much traction. Compelling writing is no less important in the scientific realm than it is in works of literature, say, or young adult fiction. In the sciences, I would argue, books (or, to use a more scholarly descriptor, monographs) provide the ideal setting for the careful laying out of a complex argument.”

By , November 05, 2021.

Who Is the Bad Copyright Friend? (Guest Column) — “Are you #TeamDawn or #TeamSonya? The internet was divided into warring camps in light of the viral New York Times Magazine article “Who Is the Bad Art Friend?” by Robert Kolker. It’s a tale as old as time: two writers locked in a bitter legal dispute over a short story inspired by Facebook posts about kidney donation.”

Should Copyright Exceptions Apply to AI Mined Data? And Other Questions Raised Under the UKIPO Consultation on Artificial Intelligence and Copyright and Patents — “Last Friday, the UK’s Intellectual Property Office launched a consultation entitled ‘Artificial Intelligence and IP: copyright and patents’, which closes 11:45pm on 7 January 2022 (London Time). The consultation forms part of the UK government’s ‘National Artificial Intelligence (AI) Strategy’, which followed the government’s 2017 Industrial Strategy publication. The aim of the consultation is to determine the right incentives for Artificial Intelligence development and innovation, while continuing to promote human creativity and innovation.”

Apple Class Action Suit Reprises the “Digital First Sale” Conversation — “Perzanowski and others argue that a ‘digital first sale’ doctrine would be a way of, ‘Restoring genuine ownership,’ and allege that the copyright owners ‘don’t like it because it creates pressure and competition.’ Neither statement is quite true. In answer to the second statement, as the courts held in the ReDigi case, allowing a trade at internet scale in ‘used’ digital works would not create a secondary competitive market but rather an alternative primary market in which used-goods prices are exchanged for material that is ‘used’ in name only.”

Spain adopts EU copyright law, paving way for Google News to return — “The EU legislation, which must be adopted by all member states, requires platforms such as Google, Facebook and others to share revenue with publishers but it also removes the collective fee and allows them to reach individual or group agreements with publishers. Google said it wanted to bring its news services back to Spain but would closely analyse the law before making any firm commitment.”

Apple to pay US$1.9 million to online Chinese publisher for copyright infringement in App Store — “That ruling in favour of the Tianjin subsidiary of COL Digital Publishing Group, which has been locked in a legal battle with Apple for a decade, found that several unnamed apps on the US firm’s online App Store in mainland China published unlicensed content, including popular novels, that can only be distributed by the online publisher, according to a report by national newspaper the China Securities Journal.”

By , October 29, 2021.

Final Rule Published in Eighth Triennial Section 1201 Proceeding — Every three years, the US Copyright Office is charged with recommending temporary exemptions to anticircumvention provisions that protect copyrighted works in the digital environment. This week, the latest round of exemptions was published, which include renewal of all previously granted exemptions and grant of 14 out of 17 new or expanded exemptions proposed.

Autonomy, Copyright, and Structures of Creative Production — Interesting draft article from UC Davis Law professor Peter Lee that focuses attention on an underappreciated mechanism by which copyright promotes creative expression: by conferring a low-cost, easily obtained property right on creators, copyright lowers transaction costs in the value chain, which increases the viability of vertical disintegration—”mak[ing] it easier for creators to work as freelancers, independent agents, and in small groups rather than being vertically integrated into large bureaucracies.” Lee calls for a reinterpretation of the role copyright plays in promoting creative expression—it is less about direct financial incentives and more about “helping creators shape the organizational contexts in which they work.” What’s more, Lee draws upon psychological and sociological research to show that this autonomy is greatly valued by creators and “leads to more robust creative output.”

Locast to Pay $32M to Broadcasters to Settle Copyright Lawsuit — “A case that began with hype that someone had finally cracked the code for delivering free and legal broadcast streaming is ending with a $32 million payment of copyright damages to ABC, CBS, Fox and NBC. After suspending its service following a devastating court loss, Locast has also now agreed to a permanent injunction, according to court papers filed on Thursday.”

Virtual Event | IP Infringement and State Sovereign Immunity — If you missed it, video of the virtual event is available here. An expert panel discusses state sovereign immunity for copyright and patent infringement claims, recent developments in the area, and “whether Congress now has enough evidence to abrogate state sovereign immunity for intellectual property infringements.”

Music’s Whac-A-Mole Menace: How the Moldy, Lopsided DMCA is Hurting Artists — Rolling Stone’s Jon Blistein writes, “User-based YouTube pays artists significantly less than Spotify and Apple Music. That’s certainly a product of its vast market power, but also, some argue, a consequence of the DMCA, which treats the site as a totally different beast. The disparity between the popularity of music on YouTube, the revenue it rakes in from ads, and the money artists make, even has a name in the music business: the ‘value gap.'”

By , October 22, 2021.

45 Years Ago Today, a New US Copyright Act Became the Law of the Land — On October 19, 1976, US President Gerald Ford signed into law a general revision of the copyright laws which remain in effect today. Catie Rowland writes, “The new Copyright Act was the fourth general revision of copyright law since the original Act of 1790. It expanded the scope of the existing statute to start to address the (then) modern age, building upon and revising the immediately preceding Copyright Act of 1909, which had been adopted after the invention of the phonograph and other 19th century developments but before the spread of radio and the accelerated invention of copyright-sensitive tools in the 20th century (including broadcast and cable television, software and the like).”

Facebook agrees to compensate French newspapers for content — “Facebook said the deal with Alliance de la presse d’Information générale, which represents papers across France, will allow users to ‘continue to freely share news within their communities, while ensuring the protections of neighboring rights of our publishing partners.’ The company said it had been working with the Alliance since October 2019, when France introduced a copyright law known as ‘neighbouring rights’ that aimed to allow publishers to be compensated for use of their content by tech giants.”

Amazon copied products and rigged search results to promote its own brands, documents show — According to a new investigative report from Reuters, “A trove of internal Amazon documents reveals how the e-commerce giant ran a systematic campaign of creating knockoff goods and manipulating search results to boost its own product lines in India – practices it has denied engaging in. And at least two top Amazon executives reviewed the strategy.”

How the Kodak Brownie Changed Privacy Rights Forever — Writing for Petapixel, Matt Williams takes a look at the technology at the heart of a dispute which eventually led to the state of New York passing the nation’s first law recognizing a right to control the use of one’s name and likeness in 1903.

YouTube Rippers Oppose RIAA’s Worldwide ‘Blocking’ Injunction & Massive Damages — Torrentfreak’s Ernesto Van der Sal reports on the latest in a lawsuit brought by record labels against the operator of streamripping sites. Previously, the judge in the case issued a default judgment order against the operator; the operator is now challenging the remedies sought by the labels.

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.'”

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.”