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.”

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.”

By , February 18, 2022.

Publishers Win Preliminary Injunction Against Maryland Law that Requires Licensing Digital Works to Libraries — “While the State argued that leaving the law in place would serve the public interest by expanding access to e-books, AAP claimed, and the court ultimately agreed, that ‘digital lending in public libraries, including Maryland public libraries, was alive and well before the Maryland Act took effect,’ with a reported 31% increase in customer access to digital materials in FY 2020. AAP also argued that it is only through the protection of copyright that such works can be created and distributed at all, and that the law would undermine the Copyright Act’s incentive in this regard.”

US Copyright Office refuses to register AI-generated work, finding that “human authorship is a prerequisite to copyright protection” — Eleonara Rosati discusses a recent decision from the US Copyright Review Board denying copyright registration of a work claimed to be “autonomously created by a computer algorithm running on a machine.” On a second request for reconsideration of the refusal, the Review Board reiterated that “human authorship is a prerequisite to copyright protection in the United States and that the Work therefore cannot be registered.”

US Govt Identifies Top Pirate Sites and Other ‘Notorious Markets’ — “The US Government has published its annual list of problematic piracy websites and other ‘notorious markets.’ This year’s overview includes usual suspects such as The Pirate Bay, FMovies, and Rapidgator, but hosting companies and an advertising service are mentioned as well. The USTR hopes that by highlighting the threats, platform operators or foreign authorities will take action.”

Apple defeats copyright lawsuit over racially diverse emoji — Reuters’ Blake Brittain reports, “Cub Club said Parrott discussed a potential partnership with Apple representatives in 2014, and that Apple created its own set of multiracial emoji after declining to work with her. It said Apple’s emoji infringed its copyrights and trademark rights, arguing they copied iDiversicons’ five skin tones and other features.”

The Great Gapsby? How modern editions of classics lost the plot — “Experts are warning that the freedom for anyone to reproduce or reimagine books once they are out of copyright is corrupting classic texts – all for the sake of making a quick buck. The Great Gatsby of 1925 is the quintessential novel of the hedonistic jazz age, the story of the mysteriously wealthy Jay Gatsby and his love for the beautiful Daisy Buchanan. It entered the public domain on 1 January 2021, after 95 years of copyright protection.”

By , February 11, 2022.

Copyright Historical Record Books Collection Available Online — “The first 500 record books in the digitized Copyright Historical Record Books Collection are now available online. This collection is a preview of digitized historical record books that the Copyright Office plans to add to its Copyright Public Record System. This first release is part of a multi-year digitization project and includes applications for books registered with the Office from 1969 to 1977. The collection is being digitized in reverse chronological order.”

Families of Robin Williams and George Carlin Say Pandora Needs To Pay Up for Streaming — “‘While it is commonplace in the music industry for companies like Pandora to enter into public performance licensing agreements with performance rights organizations like BMI and ASCAP for musical compositions, these entities do not license literary works. Therefore, it was the responsibility of Pandora to seek out the copyright owners and obtain valid public performance licenses,’ the lawsuits filed in federal court in Los Angeles state.”

Traders are selling themselves their own NFTs to drive up prices — “The NFT marketplace is rife with people buying their own NFTs in order to drive up prices, according to a report released this week by blockchain data firm Chainalysis. Known as ‘wash trading’, the act of buying and selling a security in order to fool the market was once commonplace on Wall Street, and has been illegal for nearly a century. But the vast, unregulated NFT marketplace has shown to be a golden opportunity for scammers.”

A Bored Russian Museum Guard Damaged a Prized Avant-Garde Painting by Doodling Cartoon Eyes Onto Two Faceless Figures — Moral rights protect against the defacement of copyrighted works, but what happens when a work is refaced?

Publishers Association launches new industry video — The new video from the UK based Publishers Association “aims to help communicate the publishing industry’s personal, social, economic and innovative value to a range of audiences including policymakers.”

By , February 04, 2022.

BeIN First to Use New Anti-Piracy Law to Block 18 Pirate Streaming Sites — Torrentfreak reports on the outcome of new French legislation that went into effect January 1, creating effective and proportionate remedies against illegal conduct. As noted, “Broadcaster beIN Sports has become the first company to obtain a pirate streaming site blocking order under new French legislation. The injunction requires local internet service providers to block access to 18 sites that offer live sporting events to the public without appropriate licensing. Any mirror sites that subsequently appear will be quickly blocked too.”

State Compulsory eBook and Audiobook Licensing Is Wrong on Law and Policy — Devlin Hartline writes, “there is an alarming new trend of states pursuing laws that would force publishers, many of whom are also authors, to grant licenses to public libraries for access to their digital works, such as eBooks and audiobooks. . . . Proponents of state compulsory licensing complain that libraries are being unfairly discriminated against, but this gets it wrong on both law and policy. More fundamentally, these proponents ignore the other side of the equation—the rights of publishers that undergird the creative ecosystem and ensure that libraries have works worth lending.”

Gloria Estefan presses House Judiciary on radio royalties bill — “The ‘Rhythm is Gonna Get You’ singer appeared at a virtual House Judiciary Committee hearing on Wednesday to push lawmakers to pass the American Music Fairness Act, which would require radio stations to pay performers if they play their songs. ‘Each of the songs that are precious and meaningful to you was a labor of love for the songwriters, the artists, the musicians and producers that brought it to life. They poured their own hearts and souls into its creation. But when their music is played on the radio, artists don’t get paid, only the songwriters,’ Estefan, 64, said.”

Research Report Shows Negative Impact of Big Tech on Minority-Owned Media — “News Media Alliance Executive Vice President & General Counsel, Danielle Coffey, said, ‘We are currently facing a crisis in which our valued news publications are suffering from a dire lack of financial resources needed to survive. Two dominant tech companies – Google and Facebook – are forcing everyone to play by their rules, using news publishers’ content to fill their platforms without offering fair or adequate compensation. Without immediate intervention to correct this market imbalance, we run the risk of these publications – including minority-owned outlets – fading into history, their legacy forgotten, their future ability to provide critical, high-quality news to underrepresented communities going with them.”

HitPiece takes its NFT music platform down following artist outrage — “A website called HitPiece that has been selling music-related NFTs has temporarily closed after artists accused it of appropriating their work without permission, Rolling Stone has reported. Outraged social media posts were issued recently from artists including Jack Antonoff, Eve 6, and Sadie Dupuis. ‘Any [Bleachers] NFTs are fake,’ Tweeted Jack Antonoff. ‘I do not believe in NFTs so anything you see associated with me isn’t real.’ The HitPiece website is apparently built on top of Spotify’s API. Before shutting down, it appeared to be offering NFTs of songs and albums from the likes of John Lennon and BTS, including photos and album artwork, according to the Internet Archive.”

By , January 28, 2022.

Breyer’s Rulings Shaped By Wariness Of Intellectual Property — Law360’s Ryan Davis examines Justice Breyer’s legacy on copyright and IP issues during his 27 year tenure on the Supreme Court, following Breyer’s retirement announcement this week.

Former wrestling coach Jim Gibbons urges lawmakers to strip Iowa PBS copyright — “Gibbons is the primary proponent of House File 579, a bill that states all ‘records, videos, electronic storage, documents, tapes, and other information’ kept by the Iowa public broadcasting board would be considered public records. That would include everything from high school sports to broadcasts of the Des Moines Metro Opera — and the 1986 Cyclone-Hawkeye duel.” Takings Clause?

States Should Follow New York’s Rejection of Mandatory eBook Licensing — “Lastly (in one of the many eyebrow raising arguments), the State accuses publishers of exploiting ‘the rapid advancement of digital technology to discriminate against public libraries when licensing e-books and audiobooks,’ noting that the first sale doctrine has not kept pace with digital works to upset the balance between publishers and libraries. It seems strange to invoke a federal copyright law doctrine as a justification to enact an overreaching state law and to also claim that there is no preemption problem.”

Zillow ordered to pay $1.9 million in copyright case — “The case has wound its way through the courts since VHT sued in 2015. In 2017, a federal jury ordered Zillow to pay $8.3 million, but the court reversed a portion of that verdict and both sides appealed. The Ninth Circuit Court of Appeals later sided in part with Zillow and a portion of the case was returned to the lower court.”

By , January 21, 2022.

Crypto Bros Spent $3 Million Thinking They Bought the Rights to Dune — A quick read of 17 U.S.C. § 202 could have saved them some cash.

How Instagram Changed Its Embedding Feature—and What That Means for Photographers and Publishers — Alicia Calzada, Deputy General Counsel for the National Press Photographers Association, writes, “In mid-December of 2021, Instagram quietly let it be known that it had added a feature to its service that allows users to disable its commonly misused and misunderstood embedding feature.”

2022–2026 Strategic Plan: Fostering Creativity and Enriching Culture — The U.S. Copyright Office this week published its Strategic Plan for the next five years. Among its priorities, the Copyright Office says, “A key focus will be ensuring that the copyright system is accessible to all, welcoming diversity and ultimately enriching the cultural landscape.”

Adblocking Does Not Constitute Copyright Infringement, Court Rules — Torrentfreak’s Andy Maxwell reports on this week’s decision from the Hamburg District Court in Germany, in litigation brought by publishing house Axel Springer against adblocking company Eyeo, and the reasoning the court used to reach its result.

Trade relieved but cautious as government delays decision on UK copyright changes — “The Intellectual Property Office (IPO) launched a consultation last summer which considered a weakening of copyright rules used for exporting books around the world. Changing the way these rules, known as copyright exhaustion, work would present ‘serious dangers for the health of the books industry’, according to groups including the Publishers Association (PA) which set up a Save Our Books campaign to fight the changes.”

By , January 14, 2022.

Copyright Office Activities in 2021: A Year In Review — “Last year was one the busiest years in recent history for the U.S. Copyright Office. In addition to numerous personnel changes—including a new Register of Copyrights in late 2020 and transitions in the Office of the General Counsel and the Office of Public Information and Education—Copyright Office staff have been working tirelessly on a number of policy studies and rulemakings. Here’s a look back at Copyright Office activities throughout 2021.”

Here Are The Legal Issues Affecting Content Creators In 2022 — Nashville attorney Franklin Graves takes a look at some of the major copyright and other legal issues—from copyright small claims, to fair use, to embedding, and more—that may impact internet content creators in the upcoming year.

Increasing Access to Justice: The New Copyright Claims Board — “An important change in the U.S. government’s attitude toward copyright is greater attention to access to justice issues. There has been growing concern that enforcing copyrights is too expensive for ordinary Americans. Until recently, the only way to bring a claim for copyright infringement was in federal court. Federal court proceedings are typically very expensive.”

Copyright of Software API — Patently-O’s Dennis Crouch previews arguments made this week in SAS Institute v. WPL, a case in front of the Federal Circuit that raises issues concerning copyrightability of software interfaces, leading many to view the case as a follow-on to Google v. Oracle.

PrimeWire: Hollywood & Netflix Win Court Injunction to Disable Site Domains — Finally, Torrentfreak reports that a court last Friday ordered a preliminary injunction blocking a foreign website materially contributing to copyright infringement.

By , January 07, 2022.

Copyright Cases in 2021: A Year In Review — A look back at some of the highlights from the courts in 2021, from the “confusing but limited decision in Google v. Oracle,” to questions about the copyright registration system and state sovereign immunity.

Suzanne Wilson Named General Counsel of U.S. Copyright Office — Register of Copyrights Shira Perlmutter notes Wilson’s “deep knowledge and expertise in copyright law, litigation, and technology.” Wilson will head the Copyright Office’s Office of the General Counsel, which “assists the Register in carrying out critical work of the U.S. Copyright Office regarding the legal interpretation of the copyright law”; works with “the Department of Justice, other federal departments, and the legal community on a wide range of copyright matters, including litigation and the administration of Title 17”; and has “primary responsibility for the formulation and promulgation of regulations and the adoption of legal positions governing policy matters and the practices of the U.S. Copyright Office.”

IPA and European Publishers Back AAP’s Maryland Copyright Lawsuit — Porter Anderson writes at Publishing Perspectives, “The Association of American Publishers finds international backing for its lawsuit of Maryland’s new library digital book licensing law.”

U.S. District Court Grants Win to Plaintiffs in Kiss Library eBook Piracy Suit — “The U.S. Court for the Western District of Washington awarded $7.8 million in statutory damages to 12 Authors Guild members, Amazon Publishing, and Penguin Random House for 52 acts of copyright infringement in a default judgment against Kiss Library, permanently shutting down the Ukraine-based ebook piracy ring. In a decisive opinion on December 20, 2021, Judge Marsha Pechman, senior district judge for the Western District, decided all claims for the plaintiffs and awarded $150,000 per infringed book, the maximum penalty allowed under U.S. law.”

Public Libraries and Schools Surpass Half a Billion Digital Book Loans in 2021 — Overdrive reports, “As the pandemic persisted in 2021, librarians and educators enabled readers worldwide to borrow 506 million ebooks, audiobooks and digital magazines, a 16% increase over 2020. With a focus on equity of access to books for all, libraries achieved all-time records for circulation while lowering the average cost-per-title borrowed.”

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.”