Friday’s Endnotes – 11/19/21

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?

Friday’s Endnotes – 11/12/21

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.”

Friday’s Endnotes – 11/05/21

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.”

Friday’s Endnotes – 10/29/21

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.'”

Friday’s Endnotes – 10/22/21

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.

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.”

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