Friday’s Endnotes – 09/18/20

By , September 18, 2020.

Promoting Progress: Celebrating the Constitution’s Intellectual Property Clause — “Copyright, to me, is a friend to all authors and users. It is here to enhance our lives and experiences and to promote the progress of our nation overall. This Constitution Day, I raise a glass to copyright and echo James Madison’s views that, regarding copyright, ‘[t]he public good fully coincides … with the claims of individuals,’ especially in light of the balanced system that exists today.”

Judge Rules in Favor of Nicki Minaj in Tracy Chapman Copyright Dispute — Variety‘s Gene Maddaus reports, “The ruling protects the industry practice of developing a new song based on existing material, and then seeking a license from the original artist prior to release. U.S. District Judge Virginia A. Phillips ruled that Minaj’s experimentation with Chapman’s song constitutes ‘fair use’ and is not copyright infringement.”

U.S. Copyright Office Issues Two Interim Rules and One Notice of Proposed Rulemaking Related to the Music Modernization Act — On January 1, 2021, the blanket license created by the Music Modernization Act goes into effect. This week, the Copyright Office issued two rules governing many of the operational details of the license along with a proposed rule concerning the public database of musical works information and transparency of the mechanical licensing collective.

Copyright Fight Over ‘Life’ Game Derails at 1st Circuit — Termination rights, work made for hire doctrine, and the world’s most boring game.

MPA & ACE Team Up With Homeland Security to Dismantle Criminal Piracy Groups — “Late Wednesday, Homeland Security’s U.S. Immigration and Customs Enforcement (ICE) announced that its IPR Center, the MPA, ACE, the U.S. Chamber of Commerce’s Global Innovation Policy Center plus industry marketing group CTAM, had formed a broad coalition to pool their content protection efforts. . . . The stated aim of the new partnership is to use the combined resources of the groups to support Homeland Security Investigations and the IPR Center’s digital piracy investigations, including resource and information sharing with external anti-piracy groups.”

Friday’s Endnotes – 09/11/20

By , September 11, 2020.

How can we pay for creativity in the digital age? — “Every post on Twitter or TikTok is an easy, cost-free path to discovery for an upstart comedian, actor, or cinematographer. In ‘The Death of the Artist: How Creators Are Struggling to Survive in the Age of Billionaires and Big Tech’ (Holt), the critic William Deresiewicz considers how we arrived at a situation in which it’s easier than ever to share your creativity with the world, and harder than ever to make a living doing so. He interviewed roughly a hundred and forty writers, musicians, visual artists, and filmmakers about their experiences working in the so-called ‘creative economy.'”

In ‘Jersey Boys’ Ruling, Appeals Court Adopts New Standard for Nonfiction — “Typically, when a copyright claim is asserted over a work of nonfiction, the plaintiff will either try to convince the judge and jury that he or she made an original selection or arrangement or included something beyond facts within their work. Sound a little odd? Perhaps, but it happens. For example, three years ago, a music journalist admitted to having ’embellished’ his articles about Tupac Shakur to sue Lionsgate over All Eyez on Me. The Jersey Boys case became another instance of this phenomenon. The 9th Circuit is now putting its proverbial foot down by adopting what some have referred to as the doctrine of copyright estoppel and what this panel of judges prefer to call an ‘asserted truths’ doctrine.”

Data Shows 90 Percent of Streams Go to the Top 1 Percent of Artists — “In its early days, streaming offered a glimmer of a utopian free-for-all: A music landscape where all artists had equal chances of making it big, where a $9.99-per-month endless buffet of music would drive listeners away from the mainstream and into the niche. Wired editor Chris Anderson was so optimistic in 2004 that he famously suggested that streaming would upend our notions of supply and demand, creating a ‘long tail’ where the non-hits would get a bigger share than they ever had before. But in the reality of 2020, things look largely the same. Sure, albums have given way to playlists, hip-hop is the new pop and digital downloads have all but vanished. But the enormous disparity, the who-has-what of it all — that part hasn’t really changed. In fact, streaming hasn’t just upheld the gap between music’s haves and have-nots; it’s widened it.”

Judge Sets Tentative Schedule for Internet Archive Copyright Case — “In an August 31 scheduling order, Judge John G. Koeltl mostly accepted the discovery schedule proposed by the parties late last week, and set a few key dates in the case schedule: * Dispositive motions are to be completed by October 8, 2021. * Pretrial Order/Motions in Limine must be submitted by October 29, 2021. * The parties, barring a motion that would moot the schedule, are to be ready for trial on 48 hours notice on or after November 12, 2021.”

Archivists Want Broader DMCA Exemption for ‘Abandoned’ Online Games — “A few weeks ago the Copyright Office started its latest review of the DMCA exemptions which will be updated next year. Since then, several submissions from archivists, digital rights, and consumer organizations have come in. Several of these ask the Office to renew the current exemptions for abandoned online games. The Software Preservation Network (SPN) and the Library Copyright Alliance (LCA) note that this new exemption ensures that classic games will be preserved. This allows nostalgic gamers and younger generations to play older games that are no longer officially supported. This has already led to some success stories.”

Friday’s Endnotes – 08/14/20

By , August 14, 2020.

Matt Herron, documentary photographer and adventurer, dies while flying glider — “Matt Herron never set out to be a photojournalist in the detached and objective tradition. What he set out to do was march 54 miles from Selma to Montgomery in support of Black voting rights in 1965. And he did it moving backward in order to photograph his fellow marchers.”

Post-Open Source — A critique of the free software and open source movements from an author who shares many of their goals. Well worth a read, and implicit in it is the important role copyright plays beyond simply commercializing creative works—as this piece reveals, authors also want some say in how their work is used (or not used) by others.

Google Beats Song Lyric Scraping Lawsuit — The Hollywood Reporter‘s Eriq Gardner reports, “Google may have been caught ‘redhanded,’ but a federal judge rules that Genius hasn’t alleged any viable claims not be preempted by copyright law.”

Easier Copyright Registration Coming for Blogs and Social Media Posts — The National Law Review reports, “Starting this month, social media influencers and other authors of online content can take advantage of a new group copyright registration option for short online works such as blog entries, social media posts and web articles. Authors could even register their own comments to a social post as separate copyrightable works in certain situations.” Read the final rule here.

Mango v. Buzzfeed (2nd Circuit) [PDF] — This week, the Second Circuit, in an issue of first impression, held that liability for removing copyright management information under 17 USC § 1202(b) does not require “proof that a defendant knew, or had reasonable grounds to know, that its conduct would lead to future, third-party infringement.” It is sufficient to show that removal concealed infringement by the defendant itself.

Friday’s Endnotes – 08/07/20

By , August 07, 2020.

Keep Moving Forward: Performance of the Copyright Office during COVID-19 — Acting Register of Copyrights Maria Strong takes stock of the US Copyright Office’s work in the past twenty weeks since remote operations began.

U.S. Copyright Office Celebrates 150 Years of Fostering American Creativity and Innovation — Speaking of the US Copyright Office, it marked a notable anniversary this week. The U.S. Chamber’s Frank Cullen offers some celebratory remarks.

Loveland company Anatomy in Clay wins copyright ruling — A recent Tenth Circuit decision rejected defendant’s argument that plaintiff’s anatomical model was a “useful article” and thus excluded from copyright protection. In part, the court said, “The Maniken might be useful for teaching anatomy, but a fact finder could reasonably attribute this usefulness to the information that the Maniken conveys about human anatomy. If the Maniken’s usefulness lies solely in the information it conveys, the Maniken would not be a useful article.” Interestingly, the opinion does not cite once to the Supreme Court’s recent decision on useful articles, Star Athletica v. Varsity Brands.

Round Hill Music Files $32M Copyright Infringement Lawsuit Against TuneCore — Billboard reports on a recently filed lawsuit against indie distributor TuneCore, which alleges (complaint here) the company failed to license mechanical reproductions of musical compositions embodied in the sound recordings it distributed to download and streaming services.

YouTuber Wins Attorneys’ Fees in Clinton Party Copyright Case — “YouTube personality Carl Benjamin—known on the platform as Sargon of Akkad—won attorneys’ fees in Manhattan federal court on Wednesday after successfully defending a copyright suit over his mocking of a video taken at Hillary Clinton’s election night party. Comedian Akilah Hughes’ lawsuit was objectively unreasonable and meant to ‘inflict financial harm on Benjamin and to raise her own profile in the process,’ the U.S. District Court for the Southern District of New York said.”

Friday’s Endnotes – 07/31/20

By , July 31, 2020.

Internet Archive Answers Publishers’ Copyright Lawsuit — The nonprofit filed its response to a complaint alleging that its reproduction and distribution of copyrighted books is not infringing. Andrew Albanese of Publishers Weekly reports, “‘The Internet Archive does what libraries have always done: buy, collect, preserve, and share our common culture,’ reads the IA’s preliminary statement to its answer, contending that its collection of roughly 1.3 million scans of mostly 20th century books, many of which are out of print, is a good faith and legal effort to ‘mirror traditional library lending online’ via a process called Controlled Digital Lending (CDL).”

What’s Fair? Senate IP Subcommittee Contemplates Problems with Copyright Fair Use Regime — This week, the US Senate IP Subcommittee held a hearing to explore the intersection of the DMCA safe harbors and notice-and-takedown system with fair use. IPWatchdog recaps the discussion.

The AG Opinion in YouTube/Cyando: a regressive interpretation of the right of communication to the public — Eleonara Rosati analyzes the recent Advocate General opinion in a case involving copyright and user-uploaded content currently in front of the Court of Justice of the European Union.

Music Consent Decrees Give Unfair Boost to Tech Giants, DOJ Told — “The DOJ’s antitrust division Tuesday brought together Rimes and the heads of the nation’s top music publishing rights organizations to discuss whether the government should consider undoing nearly 80-year-old consent decrees with the American Society of Composers, Authors, and Publishers (ASCAP) and Broadcast Music Inc. (BMI). The decrees require them to license music to public venues on equal terms, set by a federal court.”

Blocking Piracy Websites — Analysis of a recent Canadian decision where “the Federal Court granted an injunction, demanding various ISPs (Internet Service Providers) in Canada block access to pirate subscription sites that stream the content of the plaintiffs – Bell Media Inc, Group TVA Inc and Rogers Media Inc.”

Friday’s Endnotes – 07/24/20

By , July 24, 2020.

Oracle v Google Copyright Case Slated For Supreme Court Arguments — Originally scheduled to be heard by the Supreme Court this past March, oral arguments in Oracle v Google were first postponed because of the pandemic and then delayed until next term. The Court has now set a date—October 7—to hear from both sides in the long-running litigation over software copyright. The Court has also called for supplemental briefing on the standard of review for jury verdicts of fair use, with briefs due August 7.

9th Circ. Revives Disney ‘Pirates’ Script IP Suit — An unpublished decision reversing a motion to dismiss on substantial similarity is not on its face a big case law development, but the case here—involving allegations that a 20 year old, multi-billion dollar film franchise infringed on plaintiff’s work—raises the profile of the decision. Worth noting the court’s discussion of whether pirate movie tropes are unprotectable or whether “the blockbuster Pirates of the Caribbean film franchise may itself have shaped what are now considered pirate-movie tropes.”

No Easy Fix Seen for Digital Copyright Law Amid Content Flood — Writing for Bloomberg Law, Kyle Jahner explores the state of play for potential reform of the DMCA’s provisions on intermediary liability and notice and takedown. “Rightsholders decry ineffective DMCA ‘whack-a-mole’ enforcement where infringing content pops back up almost as soon as it’s removed. But public interest groups and some lawyers say legitimate speech gets removed over mere allegations, and the system for fighting that and getting content restored is ineffective.”

TikTok and National Music Publishers Association Strike Multi-Year Deal — Video sharing app TikTok has emerged as a new avenue for music discovery, and this week, as Variety reports, it has signed an agreement with music publishers that “accounts for TikTok’s past use of musical works and ‘sets up a forward-looking partnership.'”

Could ISNI be Metadata’s Missing Link? — “Getting metadata right has become priority number one for the rights management community. In the music sector, ISRCs (recordings) and ISWCs (compositions) are the key identifiers, but what if ISNIs were the missing link? Such is the belief of French metadata expert FX Nuttall (FX stands for François-Xavier), who sees himself as an ISNI evangelist. ISNI, or International Standard Name Identifier, is an International Organisation for Standardisation (ISO 27729) – a certified global standard number for identifying the millions of contributors to creative works, including researchers, inventors, writers, artists, visual creators, performers, producers, publishers, aggregators, and more.”

Friday’s Endnotes – 07/10/20

By , July 10, 2020.

Grammy Winner Maria Schneider Files Class Action Copyright Piracy Lawsuit Against YouTube, LLC Over Content ID — Justia reports, “The lawsuit concerns copyright piracy on YouTube and alleges that YouTube’s copyright management tool, Content ID, ‘actually insulates the vast majority of known and repeated copyright infringers from YouTube’s repeat infringer policy’ and leaves plaintiffs in the class with ‘no meaningful ability to police the extensive infringement of their copyrighted work.'”

Authors Guild, Amazon, PRH File Suit Against E-book Pirate Site — It’s notable to see Authors Guild and Amazon on the same side in a copyright infringement case, but their interests happen to align in this lawsuit against what Authors Guild Executive Director Mary Rasenberger calls a “particularly egregious criminal enterprise” that “sells highly commercial books and passes itself off as a legitimate site.”

Tuned in: Music Modernization Act Updates and Related News — The US Copyright Office has a newsletter that provides updates on implementation of the MMA’s blanket license. Subscribe at the link or check out the archive of past issues, including the latest issue.

The MLC Announces Tools to Help Self-Administered Songwriters and Publishers “Play Their Part” — Speaking of the MMA, The MLC, which is charged with administering the blanket license, announced this week a set of tools for self-administered songwriters and publishers to help them get ready for the new license and make sure they are getting the royalties they are entitled to.

U.S. Copyright Office: Disconnecting Persistent Pirates is Not Always Preferred — Ernesto Van der Sar of Torrentfreak reports on a US Copyright Office response to a Senate IP Subcommittee letter asking follow-up questions about the Office’s recent Section 512 report, noting in particular, “The Copyright Office is clearly mindful of individual user rights.”

Friday’s Endnotes – 06/26/20

By , June 26, 2020.

Shampooing Baby Elephants, Buddha’s Tooth, and the World Intellectual Property Organization — Longtime copyright attorney Michael Remington recollects, “Almost three decades ago, the World Intellectual Property Organization (WIPO) invited Ralph Oman (then the U.S. Register of Copyrights), and me (at the time, a counsel to the House Judiciary Committee, specializing in intellectual property matters) to travel to Sri Lanka and participate in a ‘regional training course on intellectual property for developing countries of Asia and the Pacific.’ The setting was Colombo, the country’s capital; the timing, late July 1991. Our rough assignment was to discuss U.S. copyright law through oral presentations, interaction with trainees, and answers to questions. . . .”

South Africa President sends controversial copyright bill back to Parliament — Emmanuel Legrand reports, “South African President Cyril Ramaphosa has decided on June 16 to refer back to Parliament the controversial Copyright Amendment Bill and Performers’ Protection Amendment Bill for reconsideration. The President’s office said questions of constitutionality have been raised regarding certain provisions in the text.”

Court Reconsiders Mashable’s Win in Embedding Suit — Eriq Gardner of The Hollywood Reporter writes about an about face in a case that caught the attention of copyright fans (and includes a copy of the actual decision in the article). “In April, U.S. District Court Judge Kimba Wood granted a motion to dismiss with a provocative opinion that leaned on how Sinclair had signed up for Instagram service and had posted some of her work there. ‘Here, [Sinclair] granted Instagram the right to sublicense the Photograph, and Instagram validly exercised that right by granting Mashable a sublicense to display the Photograph,’ ruled Wood at the time. . . . In Sinclair’s suit against Mashable, Wood is now backing off her original conclusion just a bit. The judge maintains that by agreeing to Instagram’s terms, Sinclair authorized the social media service to grant users a sublicense to embed. But there’s a difference between having power and using power. ‘The Court does, however, revise the Opinion by finding that the pleadings contain insufficient evidence that Instagram exercised its right to grant a sublicense to Mashable,’ writes Wood in granting a motion for reconsideration.”

WIPO Releases Secure Content Timestamping Service — Bill Rosenblatt takes a look at an interesting new service from the World Intellectual Property Organization: “For a nominal price of CHF 20 ($21), you can obtain a token–a small file–from WIPO that contains a tamper-proof timestamp with a cryptographic hash of the file’s contents, evidence that you had possession of the digital file at a certain point in time.” As Rosenblatt correctly points out, such a service has no value in the United States due to the copyright registration requirement, but it may provide some value in countries where registration is not a prerequisite for litigation.

U.S. Copyright Office Announces Start of Eighth Triennial Rulemaking Proceeding under Section 1201 — “Section 1201 provides that the Librarian of Congress, upon the recommendation of the Register of Copyrights, may adopt temporary exemptions to the DMCA’s prohibition against circumvention of technological measures that control access to copyrighted works. The ultimate goal of the proceeding is to determine whether there are particular classes of works as to which users are, or are likely to be in the next three years, adversely affected in their ability to make noninfringing uses due to the prohibition on circumventing access controls.”

Friday’s Endnotes – 06/19/20

By , June 19, 2020.

What You Need to Know About the Copyright Office’s Section 1201 Rulemaking — The US Copyright Office is holding a webinar on June 23 to provide an overview of section 1201 and the upcoming rulemaking proceeding. It will discuss the governing legal standards, the exemptions established by the last rulemaking, the Office’s streamlined procedure to renew existing exemptions, and the process for seeking new or expanded exemptions.

World Trade Organization: Saudis facilitated sports piracy — The WTO ruled in a long-running dispute over the beoutQ broadcasting network. ABCNews reports, “Saudi Arabia failed to take action to stop beoutQ’s operations and protect the intellectual property of rights holders, the WTO dispute panel concluded. The panel highlighted how beIN was prevented from hiring lawyers in Saudi Arabia to take action in the courts against the piracy.”

The Dutch DSM copyright transposition bill: safety first (up to a point) – Part 1 — Remy Chavannes at the Kluwer Copyright Blog takes a deep dive into the first bill transposing the EU’s DSM copyright directive into national law. Also check out Part 2 and Part 3.

Internet Archive to End ‘National Emergency Library’ Initiative — “Citing a copyright infringement lawsuit filed by publishers, Internet Archive founder Brewster Kahle announced this week that the IA’s National Emergency Library initiative will cease operating on June 16, two weeks earlier than its previously announced June 30 closing date.”

Photographer Selling Copyright to Nirvana’s First Major Magazine Cover Shoot — “Watermann says he has decided to sell the shoot because of the economic devastation brought on by the COVID-19 pandemic. ‘I shoot live music, and music is gone,’ he says. ‘More specifically, I’m a tour photographer. I travel around the world with my clients and document them performing every night… Because of the virus, big concerts were the first thing to be canceled this year and they aren’t coming back until next summer. Meaning I’ll have no real income for the next 12 months. So, I’m flipping an asset in order to keep my business running.'”

Friday’s Endnotes – 06/05/20

By , June 05, 2020.

Black lives matter.

How to Help Like Artists and the Music Industry Are Doing in the Wake of George Floyd’s Death — Billboard compiles a list of efforts from the music community to support protests and calls for reform in policing and racial justice. Many other sectors of the creative community—like publishing, video games, photographers, theatre, libraries, and others—have also responded and called for far greater efforts to address the long history of denying equal respect and dignity to black Americans.

U.S. Copyright Office roundup — my colleagues at the Office are certainly keeping themselves busy. This week, among other things, the Office announced it is soliciting public comments on best practices for the mechanical licensing collective to identify owners of unclaimed royalties under the MMA (the announcement was accompanied by a report on collective rights management practices around the world, which could help inform those best practices); it is also seeking public comments on copyright infringement by states and state entities, following the Supreme Court’s sovereign immunity decision in Allen v. Cooper; and it will be holding its ninth webinar on Copyright Office modernization, focusing this time on “the development of the online Copyright Public Record with a prototype that demonstrates simple keyword search, advanced search, filters, and the new design language of the Enterprise Copyright System.”

AFM & SAG-AFTRA Owes Session Musicians and Background Vocalists $46 Million — Here’s How Eligible Performers Can Get Paid — Under the statutory license for digital performance of sound recordings by noninteractive services like internet radio, “nonfeatured” performers, i.e., session musicians and background vocalists, are entitled to a percentage of royalties collected. A recent settlement has initiated a process to distribute accrued royalties to those performers who are entitled to those royalties but have until now not been identified or locatable. Digital Music News provides information here on how to claim those royalties.

Instagram just threw users of its embedding API under the bus — But at the same time, potentially good news for visual artists. Ars Technica reports, “Instagram tells Ars that it’s exploring the possibility of giving users more control over photograph embedding. Right now, Instagram users can block embedding of their posts by switching their Instagram account to private. But that will also prevent users on the Instagram platform from seeing their content, too, which can be a career liability for professional photographers. Right now, Instagram offers no option to make content public inside the Instagram app while disabling embedding on external websites.”

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