Friday’s Endnotes – 04/29/22

By , April 29, 2022.

Measuring Fair Use’s Market Effect — An intriguing forthcoming paper from a pair of researchers that “find[s] evidence that negative perceptions about an earlier work are created when sampled in a new work that itself is a failure.” This result, say the authors, has implications for fair use determinations, since it “points to a negative spillover effect that may harm perceptions of the underlying copyrighted work.”

Podcast: Copyright & Culture with Terrica Carrington — Illusion of More’s David Newhoff talks with Copyright Alliance’s Terrica Carrington about her work in public policy and artist advocacy, touching upon topics like #blacktiktokstrike and engaging young creators in copyright.

USTR Suspends Review of Ukraine, Remains Concerned with China in Latest Special 301 Report — IPWatchdog reports on the release this week of the US Trade Representative’s annual Special 301 Report, which examines the “adequacy and effectiveness of U.S. trading partners’ protection and enforcement of intellectual property (IP) rights”—including patent, trademark, copyright, and trade secret. Among the highlights not included in the headline, the Report raises concerns over the EU’s promotion of Geographical Indicators (GIs), which are source indicators for items from a certain geographical area possessing certain characteristics or reputation, like feta cheese, champagne, and Kalamata olives.

Article 17 of the DSM Directive is valid: an early take on today’s Grand Chamber ruling — Eleonora Rosati analyzes this week’s long awaited ruling involving a challenge to internet platform obligations in the EU’s Digital Single Market copyright directive brought by Poland. The topline outcome of the CJEU ruling is that Article 17’s obligations are “compatible with freedom of expression/information.”

Making the Case: The Economic Rationale for Intellectual Property Rights  — The US Chamber this week released a statistical annex to its International IP Index, which “examines 29 different correlations to illustrate the economic benefits of improving IP protection.” Among the findings: “economies with effective IP systems have . . . 2X the access to new music through legitimate platforms . . . [and] 46% more likely to attract venture capital and private equity.”

Friday’s Endnotes – 04/22/22

By , April 22, 2022.

34th Annual Horace M. Manges Lecture – Judge Margaret McKeown, April 4, 2022 — “Judge Margaret McKeown of the Ninth Circuit delivered the Kernochan Center’s 34th Annual Horace M. Manges Lecture, entitled ‘Art, Music, and Mash-ups — A View from the Bench on Creativity and Copyright’ at Columbia Law School on the evening of April 4, 2022.”

New York Public Library makes some banned books free to all — The move, which allows digital checkouts even without an NYPL library card through May, is the result of a partnership with publishers Hachette Book Group, Macmillan Publishers and Scholastic.

MPA Wins Piracy Battle, US Court Orders PrimeWire to Shut Down — Torrentfreak reports, “Several Hollywood studios and Netflix have prevailed in their battle to shut down pirate streaming site PrimeWire. Despite PrimeWire recently removing all links to pirated movies and TV shows and losing more than 60% of its traffic in a month, a US court found the streaming site liable for copyright infringement. PrimeWire’s domains will now be seized.”

Emily Ratajkowski Lawsuit Over Paparazzi Photo Settles — The settlement precludes any legal ruling in a case where the judge entertained Ratajkowski’s fair use defense, in part because the photo was posted on her Instagram Story, which is only available for 24 hours.

Photography Copyright Cases Photographers Should Know — From decisions establishing that photographs are copyrightable to when communicating photos online implicates the exclusive right of public display, the Copyright Alliance reviews the major cases involving photos and copyright law.

Friday’s Endnotes – 04/15/22

By , April 15, 2022.

Piracy Numbers Drop After Indonesia Blocks Over 3,500 Pirate Sites — Torrentfreak reports, “The Government of Indonesia continues to crack down on piracy. The country’s list of blocked sites and services has grown to more than 3,500 domain names. According to the Coalition Against Piracy, these actions resulted in a 75% decrease in pirate site traffic, while the use of legal alternatives has tripled.”

How to Support Your Local Library — Paul Sweeting writes about the demise in court of a Maryland law effectively creating a compulsory license of ebooks to libraries for digital lending. Taking a look at data regarding library expenditures, he suggests the aim of the bill was misplaced. “Indeed, insofar as public libraries face growing financial challenges, those challenges are not coming from the cost of material in their collections; it is coming from higher operating and administrative costs. . . . If state legislators genuinely want to help public libraries, they would get more bang for the buck by increasing funding for operating and administrative costs, not by trying to rewrite federal copyright law for e-books.”

Empowered to negotiate or obliged to contract? Lessons from the Italian implementation of the press publishers’ right — A look at one European Union country’s experience with implementing article 15 of the EU’s Directive on Copyright in the Digital Single Market, which allows press publishers to authorize or prohibit the use of their content by information society service providers.

Goold & Simon on Luck & the Labor Theory of Intellectual Property — Via Lawrence Solum: “A person naturally owns the fruits of their intellectual labour; so goes the labour argument for intellectual property. But what should happen when a creator gets ‘lucky’ – such as the photographer who is in the right place at the right time or the scientist who accidentally discovers a new drug?” The authors of the paper argue that the presence of luck does not undermine the labor theory of IP law.

Brent Lutes Named First Chief Economist of the U.S. Copyright Office — “Register of Copyrights Shira Perlmutter has announced the appointment of Dr. Brent Lutes as the first Chief Economist of the U.S. Copyright Office, effective April 10, 2022. As Chief Economist, Lutes will evaluate the economic impacts of programs and policies relating to the U.S. and international copyright systems. He will advise the Register and other senior officials on how these impacts affect the Office, copyright stakeholders, and the general public.”

Friday’s Endnotes – 04/08/22

By , April 08, 2022.

What will the Implementation of the CASE Act mean for me? An Update on the Copyright Claims Board and Launch of ccb.gov — While the launch of a new, voluntary tribunal for copyright small claims is still a number of weeks away, the Copyright Office took a big step this week by unveiling the website for the Copyright Claims Board. Check out CCB.gov for more information, as well as some initial functionality that allows corporate entities to designate a service agent and libraries and archives to provide blanket opt-out of CCB proceedings.

Senate Approves Kathi Vidal for Patent and Trademark Office — Vidal takes the helm of the department after over a year without a permanent head. Among other functions, the USPTO advises the Executive Branch on matters of intellectual property policy (including copyright policy).

National Association Of Realtors Is Fighting A Copyright Ruling On Floor Plans — Forbes’ Brenda Richardson reports, “The National Association of Realtors is fighting a court ruling that says homeowners who post floor plans of their homes on Zillow, Redfin, Realtor.com and other websites could be open to copyright lawsuits. . . At the center of the issue is NAR’s claim that the ruling misrepresents federal law and would invalidate decades of legal precedent by allowing copyright infringement lawsuits to be filed against homeowners who make or display floor plans of their own homes.”

Mic’s Use of Screenshot of NY Post Article About the Woes of “Beautiful People” Qualifies for Fair Use — Analysis of a recent summary opinion from the Second Circuit affirming dismissal of a copyright infringement claim on fair use grounds.

Friday’s Endnotes – 04/01/22

By , April 01, 2022.

The U.S. Supreme Court Will Decide Whether Andy Warhol Violated a Photographer’s Copyright by Using Her Image of Prince Without Permission — This week, the Supreme Court announced a new copyright case on its docket, one that will wade squarely into the fair use doctrine. Eileen Kinsella at Artnet News discusses the lawsuit and what a Supreme Court decision could entail. One side note: this will (likely) be the first copyright decision decided without Justice Breyer.

SMART Copyright Act Would Broaden Definition of Copyright Protection Tools to Be Designated as Standard Technical Measures — “Although Section 512(i) was drafted with the intent that the open process for designating STMs would incentivize the development of new STMs, there have been no STMs designated for the Section 512(i) requirement since the DMCA was signed into law. . . . Tillis and Leahy’s new bill would amend Section 512(i) to broaden the definition of STMs beyond those designated under the current statutorily provided multi-industry consensus process.”

How Google and Amazon bankrolled a ‘grassroots’ activist group of small business owners to lobby against Big Tech oversight — Shenanigans! “Montgomery isn’t the only small business owner bewildered to find their names listed as a member of the Connected Commerce Council, which also goes by ‘3C.’ More than 20 other ‘members’ contacted by CNBC said they similarly had never heard of the council and did not know why they were on their membership list. The council, which pitches itself as a grassroots movement representing small business owners, is actually a well-financed advocacy group funded by tech heavy hitters Google and Amazon.”

Choreographer on Charlie Puth video reignites debate about dance copyright on Fortnite — “It’s by no means the first time Epic has faced a legal claim of this kind, with a flurry of lawsuits filed over Fortnite emotes a few years back when the gaming platform first became a global phenomenon. Though many of those legal claims stalled, partly because of complexities around registering the copyright in choreography in the US. However, lawyers working for LA-based choreographer Kyle Hanagami hope this case is stronger.”

New Copyright Challenges in the Publishing Industry — A bit of self-promotion here: this week I joined a panel with representatives from the Authors Guild and News Media Alliance to discuss “hot-button issues affecting the publishing industry today, including digital first sale, controlled digital lending, state compulsory licensing, and ancillary rights.” Video of the one-hour panel is available at the link.

Friday’s Endnotes – 03/25/22

By , March 25, 2022.

A SMART New Approach to Combatting Piracy — Copyright Alliance CEO Keith Kupferschmid examines new copyright legislation introduced by Senators Tillis and Leahy, which would create a process for the Library of Congress to designate technological measures for identifying or protecting copyrighted works that must be implemented by online service providers.

WIPO’s Pirate Site Blocklist Expands to 4,042 Active Domain Names — Torrentfreak reports, “WIPO, which is part of the United Nations, was founded more than 50 years ago with the aim of protecting intellectual property. This includes combating online piracy, something it hopes to facilitate with its “WIPO Alert” blocklist. The goal of the project is simple; allow stakeholders from member states to report problematic sites and share the resulting list with advertisers, so they can block bad apples. This should result in less money going to pirate sites, making it harder for them to generate profit.”

Social Justice Meets IP at Howard Law Clinics Tackling Diversity — Bloomberg Law visits Howard University School of Law to take a close look at the schools patent and trademark clinics, which “tackle[] diversity issues in intellectual property in two ways: encouraging more people of color to enter the traditionally white, male intellectual property field and providing legal assistance to people who are underrepresented in inventorship and trademark registration applications.”

State Laws Forcing Publishers to License Ebooks to Libraries Are Unlawful [PDF] — A new white paper from Free State Foundation explains, “As the District Court in AAP v. Frosh recognized, under Section 106 of the Copyright Act, copyright owners possess exclusive rights to decide who can distribute or make available their copyrighted works and on what terms and conditions. State laws that force publishers to license copyrighted works to libraries clearly conflict with federal law.”

Europe Takes Aim at Big Tech With Digital Markets Act — “The new law, set to take effect next year, sets out a list of dos and don’ts that outlaw many of what are currently core business practices among major tech companies. Apple, for example, will have to allow alternatives to its App Store for downloading apps and allow payment methods for the App Store other than Apple’s own. (Apple charges a 30 percent commission on all Apple App Store payments.) Google and Meta, the parent company of Facebook and Instagram, will no longer be able to offer targeted ads across multiple platforms — using data gathered as users move between services owned by the same company, YouTube and Google Search, for example, without receiving explicit consent. Amazon will be barred from using data collected from outside sellers on its services to offer competing products, a practice already the subject of a separate EU antitrust investigation.”

Friday’s Endnotes – 03/18/22

By , March 18, 2022.

Latest USPTO report finds industries that intensively use intellectual property protection account for over 41% of U.S. gross domestic product, employ one-third of total workforce — “The report found a substantial wage premium for workers in IP-intensive industries, with average weekly earnings 60% higher than that received by workers in other industries.”

Copyright Office Issues Final Rules for CASE Act Copyright Claims Board Proceedings — The Copyright Office is in the final stages of fleshing out the details of the copyright small claims tribunal that is set to launch this summer. IPWatchdog reports, “the rules establish procedures for designating service agents for receiving notices of initiated proceedings at the CCB, as well as opt-out procedures for libraries, archives and any claimants who are notified of class action litigation filed in U.S. district court covering their own copyright claim.”

US appeals court sides with Google in Genius lyrics theft case — The Second Circuit rejected Genius’s arguments that contract and unfair competition claims are categorically exempt from federal preemption of copyright law.

Game Developers Go Quiet On NFTs As Trading Volume Plummets — “The backlash has also been accompanied by a wider downturn in the overall NFT market, which you can chalk up to crypto’s recent turmoil in the wake of global instability, or what I would argue is just a general fading away of interest in the concept of NFTs. OpenSea, the world’s largest NFT platform, has seen daily trading volume drop by 80% and the average price of NFTs fall 48% since its peak in November, right before all these game companies launched these project ideas.”

Friday’s Endnotes – 03/11/22

By , March 11, 2022.

Katy Perry Wins in ‘Dark Horse’ Copyright Appeal — The Ninth Circuit lays down a speed bump in front of music infringement cases, affirming a trial court judge’s decision that elements of a song popstar Katy Perry allegedly copied in her hit Dark Horse were not protectable expression under copyright law. In what may become a frequently cited phrase by copyright lawyers, the Circuit called the combination of elements that plaintiffs identified as copied a “manifestly conventional arrangement of musical building blocks” that lacks the requisite originality to be protected by copyright.

Cox Moves to Overturn $1 Billion Music Suit — “A Virginia federal court awarded 53 music publishers, including Sony Entertainment, Universal Music Group, Warner Music and others, $1 billion in December 2019, agreeing with claims that despite complaints and warnings from the music publishers, Cox continued to allow its broadband subscribers to illegally download music. All in all the publishers found 10,017 instances of infringement by Cox customers, and a jury assigned a value of $99,830.29 to each one, for a total of $1 billion.”

ResearchGate dealt a blow in copyright lawsuit — “A landmark court case in which two major academic publishers sued the popular website ResearchGate for hosting 50 of their copyrighted papers has come to a close — although both sides say that they will appeal. The court in Munich, Germany, has not only prohibited ResearchGate from hosting the papers, but also ruled that it is responsible for copyright-infringing content uploaded on its platform. The decision has the potential to set a precedent for further restrictions on the site, which has 20 million users worldwide.”

Here’s the difference between Jeff Bezos and me — “Amazon’s retreat from the physical bookstore business underscores what those of us in it know all too well: It isn’t easy. It requires superb customer service, dedicated staff who provide knowledgeable advice about what to read, an inviting environment in which to browse and shop, and literary activities that connect patrons directly to authors through book talks and other programming. Most of all, it demands a deep commitment to the local communities that sustain us.”

Friday’s Endnotes – 03/04/22

By , March 04, 2022.

Delete Your Account, Internet Archive – No One is Burning Digital Books — Writing at the Centre for Free Expression, John Degen takes aim at a recent op-ed by Internet Archive’s Chris Freeland: “Because a demand for someone else’s property is an unjustifiably selfish act, the champions of ‘gimme’ like to disguise their motivations by styling themselves as freedom fighters. Their rhetoric is silly and disingenuous, self-aggrandizing and laughable. Occasionally though, it wanders into the realm of the truly bizarre and dangerous.”

Two Years After Allen, SCOTUS Poised to Revisit Copyright Infringement by State Entities — At IPWatchdog, Steve Brachmann looks at recent developments regarding copyright and sovereign immunity. The primary focus is on the cert petition in Jim Olive Photography, which the Supreme Court is set to consider March 18. The plaintiff there is asking the Court “to grant the petition, vacate the Texas Supreme Court’s decision and remand the case for further consideration under Cedar Point Nursery v. Hassid (2021).”

Kenya is changing its copyright law. Why this is bad for sports — “Piracy has many effects. Firstly, the local licence holder will lose revenue, and therefore motivation to buy a licence next time. If this happens in many countries, the international sports organiser will lose out eventually. In turn, national sports bodies will not get any money from international bodies. In the long run, sports development can be hampered.”

IBPA Position Statement on Maryland eBook Law and Its Impact on Small Publishers and Authors — IBPA, the Independent Book Publishers Association, released a position statement this week supporting the preliminary injunction against Maryland’s recently enacted law mandating ebook licensing to libraries. Says IBPA, “The importance of the issues raised by the Maryland eBook Law cannot be overemphasized. If not successfully challenged in the courts, this law, and laws like it, will directly affect the primarily small and mid-sized publishers in IBPA membership.”

Pro-Codes bill filed to preserve safety code copyright — “NFPA alone develops more than 300 safety standards through an open, consensus-based process, and that’s just our organization. If SDOs were no longer able to carry out our work, there would be a disjointed and expensive patchwork of safety standards in the U.S. and around the world. Standards would probably be updated less frequently, if they were created at all. It’s no exaggeration to say that lives and property would be lost.”

Friday’s Endnotes – 02/25/22

By , February 25, 2022.

Justices require actual knowledge that application was erroneous to invalidate copyright filing — Writing at ScotusBlog, Ronald Mann takes a look at Thursday’s decision in Unicolors v. H&M, so far the only copyright case taken up by the US Supreme Court this term, and likely Justice Breyer’s last copyright opinion. The result is a good one: copyright owners don’t lose their ability to defend legitimate infringement claims because of inadvertent mistakes made on their registration application.

Appeals Court Revives Copyright Lawsuit Over ‘Servant’ — “The decision in favor of Gregorini is at least the third from the federal appeals court since 2020 reversing a federal judge’s decision to toss a copyright lawsuit. In each of the cases, the 9th Circuit cautioned lower courts against imposing their views on what are supposed to be subjective inquiries requiring further arguments and expert testimony.”

Authors Guild Statement on AAP’s Win in Maryland E-book Licensing Case —  “‘Public libraries deserve and require more public funding to meet the growing needs of library patrons, including the ability to purchase an adequate number of e-book licenses,’ [Authors Guild CEO Mary] Rasenberger added. ‘Mandatory e-book licensing laws don’t address this issue, and unfairly target authors and publishers. Moreover, the publishing industry depends on a system of stable, consistent rules, including federal control over copyright law. ‘If we let all 50 states make up their own copyright laws, authors and publishers would need to comply with different requirements in each state.'”

Sorry, Your NFT Is Worthless: The Copyright and Generative Art Problem for NFT Collections — Franklin Graves writes at IPWatchdog, “If software is used to autonomously create 10,000 musical compositions based on a set of four cords, should those compositions be eligible for copyright protection? Does it make a difference if an AI or machine learning model was used? What if the model was trained using the top songs from the Billboard charts to mimic popular music styles?”

Why you can’t rebuild Wikipedia with crypto — An engaging interview with crypto skeptic Molly White. “Towards the end of 2021 I started to see so much web3 hype, everywhere: on social media, in conversations with friends, in technical spaces, in the news. When I went to look up what ‘web3’ even was, I found no end of articles talking about how one company or another was doing something with web3, or how some venture capital firm was setting up a web3 fund, or how all the problems with the current web were going to be solved by web3… but very few that would actually succinctly describe what the term even meant.”

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