By , October 14, 2022.

Supreme Court Struggles with Warhol’s Transformative Use Theory — Wednesday’s oral arguments in Andy Warhol Foundation v. Goldsmith dominated the copyright news this week. First up, Kevin Madigan writes a play-by-play summary of the arguments, concluding, “While the Justices at times seemed skeptical of AWF’s position that a mere difference in meaning or message constitutes a transformative use, it’s difficult to predict an outcome based on oral arguments—especially with copyright stalwarts Ginsburg and Breyer no longer on the bench.”

The Surprisingly Confused History of Fair Use: Is it a Limit or a Defense or Both? — Next, Marquette Law School professor Bruce Boyden continues his illuminating series on the legal history of the fair use doctrine. In this first article, he observes how early courts used the term to encompass both a carve-out to infringement and a description of noninfringement. In Alan Latman and the Modern Fair Use Doctrine, Boyden looks at a Copyright Office report from 1955 that considers whether and how a revised copyright statute should address the doctrine.

Andy The Appropriator: The Copyright Battles You Won’t Hear About at The Whitney’s Warhol Exhibit — Finally, this 2019 Columbia Journal of Law & the Arts article notes that Goldsmith is not the first time the artist or his foundation faced claims of infringement. According to the article, “Warhol was sued at least three times by photographers who filed copyright infringement claims against him for using their photographs in his work. . . . All three photographers settled with Warhol out of court, but Warhol vowed to use his own photographs in his work thereafter.”

More Than 20,000 Pirate Sites Are Blocked By ISPs Around the Globe — “The Motion Picture Association has provided a fresh overview of global pirate site-blocking efforts, which now span over 20,000 sites. Blocking measures have expanded to 39 countries in recent years, with the United States remaining the key absentee. The lack of US participation is partly due to a shortcoming in US copyright law, which lacks a carve-out for no-fault injunctions.”

Scholar Identifies First Motion Picture Copyright Registration — A big discovery. “This summer, Kluge Fellow Claudy Op den Kamp discovered a letter dated November 14, 1893, from Dickson to Librarian of Congress, Ainsworth Rand Spofford, who was also acting as Register of Copyrights. Dickson asked about the status of the copyright application he submitted the previous month. To Op den Kamp’s great surprise, the letter included eighteen small images printed in two strips on a single sheet. The photographs depicted three men standing around an anvil enacting a scene from a blacksmith shop.”

By , October 07, 2022.

In Memory of Marybeth Peters, Eleventh Register of Copyrights — From the US Copyright Office, “On September 29, 2022, the copyright community lost a friend, advocate, and scholar when Marybeth Peters passed away peacefully in her sleep at the age of 83. Having served the Copyright Office for more than four decades in numerous capacities, including as the Office’s head, she was a global authority on copyright law and a well-known and well-loved presence in the world of copyright.” The broader copyright community shares memories of Peters at the Copyright Alliance’s Tribute Blog in Memory of Former Register of Copyrights Marybeth Peters.

The Stakes in Andy Warhol Foundation v. Goldsmith — Not one, but two articles this week about the Supreme Court’s review of Warhol Foundation, in anticipation of next week’s oral arguments in front of the Court. The first, from Marquette University Law School professor Bruce Boyden considers what various outcomes of the case might mean for the broader art and photography worlds.

Warhol v. Goldsmith: An Examination of Bill Patry’s Analysis — The second, from Neil Turkewitz, canvasses copyright expert Bill Patry’s treatment of the Second Circuit decision up for review in his copyright treatise. As Turkewitz says, “spoiler alert: ‘Warhol’s use was not a fair use.'”

RIAA Thwarts Yout’s Attempt to Declare YouTube-Ripping Legal — A preemptive attempt to have its stream-ripping platform declared non-infringing fails, as Torrentfreak reports. Last week, a federal judge rejected Yout’s argument that it does not circumvent technological protection measures employed by YouTube to prevent downloading audio and video files from the service. This follows a decision just shy of a year ago from a separate federal court finding a similar stream-ripping service liable copyright infringement and violating the DMCA’s anticircumvention provisions.

Guest Post — Missing Revenue in the Global Flip: Getting the Open Access Math Right — Roy Kaufman looks at the ramifications of a “recent OSTP memo calling for zero embargo public access policies for articles resulting from research funded by US Federal agencies.” Kaufman writes, “Whether driven by funders, governments, publishers, institutions, a genuine belief in an open future, or some other motivating factor, the so-called ‘Global Flip,’ will require major changes to the fundamental economics of journal publishing for it to be sustainable. In order to succeed in a flip, a holistic approach is needed, especially to ensure the survival of high-quality society-published journals on which both corporate and academic researchers rely.”

By , September 30, 2022.

AAP Statement on the Death and Legacy of Former Register of Copyrights Marybeth Peters — “During her long tenure, Ms. Peters helped to implement both the 1976 Copyright Act and the 1998 Digital Millennium Copyright Act, which together constitute the foundation of our present-day copyright system. She championed numerous, additional improvements—both statutory and regulatory—through rigorous studies and testimony.”

Fifty Years of U.S. Copyright: Toward a Law of Authors’ Rights? — From copyright scholar Jane Ginsburg, a comprehensive look at the 1976 Copyright Act and “how that law marks a watershed in U.S. copyright, shifting us toward a law of authors’ rights more consonant with the international standards of the Berne Convention on the Protection of Literary and Artistic Property.”

The MLC Announces New Data Portal for Distributors — The Mechanical Licensing Collective, which distributes songwriter royalties for mechanical reproductions by digital service providers, has unveiled a new tool that makes it easier for independent distributors like TuneCore and CD Baby to provide data to help identify unmatched recordings and get money earned by songwriters into their hands.

99 Web domains illegally streaming sports, Korean drama blocked — “More than one-third of 1,000 respondents in Singapore in a survey, conducted in December 2021 by research firm YouGov and commissioned by Avia, said that site blocking changed their content viewing habits, such as by subscribing to paid legitimate services instead. In a similar survey by YouGov in Indonesia, more than half of about 2,300 respondents said they had stopped or rarely access pirate services after piracy sites were blocked.”

Upcoming Webinar—Taking the Initiative on IP Protection: Motion Pictures’ Multi-front Battle Against Digital Piracy — The MPA’s Karyn Temple and Jan van Voorn will discuss the “motion picture industry’s comprehensive approach to defending creators’ copyrights worldwide” in this WLF webinar scheduled for October 4, 2:00-3:00pmET.

By , September 23, 2022.

French Publishers Win Z-Library Piracy Blocking Order — Torrentfreak reports, “The National Publishing Union, an industry group representing more than 700 members in the publishing sector, says that legal action launched in the summer to prevent piracy has been successful. The expedited process at a Paris court targeted more than 200 domains related to Z-Library, all of which must now be blocked by French ISPs.”

ECtHR finds violation of right to property by State’s failure to enforce copyright — “First, the question whether copyright is exhausted by the physical publication of a book (distribution) with effect for its digital dissemination (communication to the public and reproduction) has now been settled in the EU. . . Second, the attempt of the national courts to rely on the apparent object and purpose of copyright exceptions without considering their substantive requirement demonstrates a commitment to legal certainty and foreseeability. It also demonstrates that the protection of copyright, and intellectual property in general, as determined by statutory rules cannot be shifted by creative (and possibly policy-driven) application of the law by courts.”

Getty Images bans AI-generated content over fears of legal challenges — “Getty Images CEO Craig Peters told The Verge that the ban was prompted by concerns about the legality of AI-generated content and a desire to protect the site’s customers. ‘There are real concerns with respect to the copyright of outputs from these models. . . There are real concerns with respect to the copyright of outputs from these models and unaddressed rights issues with respect to the imagery, the image metadata and those individuals contained within the imagery,’ said Peters. Given these concerns, he said, selling AI artwork or illustrations could potentially put Getty Images users at legal risk.”

Amazon Is Changing Its Ebook Return Policy in Major Breakthrough for Authors — The Authors Guild reports, “This process will create a strong deterrent against buying, reading, and returning ebooks within seven days, and readers who attempt to abuse the return policy will be penalized under Amazon’s policies. The Authors Guild and the Society of Authors, its counterpart organization in the U.K., had taken up this issue with Amazon’s senior executives earlier this year.”

Balganesh on Learned Hand & Copyright — Via the Legal Theory Blog, “Learned Hand is often described as the greatest copyright judge to have ever sat on the bench. By the 1950s, the most important parts of U.S. copyright law had been his creation, all from his time as a judge on the Second Circuit Court of Appeals. Despite all of this, there has been little systematic analysis of Hand’s approach to copyright and of the reasons why his jurisprudence in multiple areas of copyright law have survived the test of time.”

By , September 16, 2022.

The U.K. May Sacrifice Copyright Law to Attract AI Big Business — “A new proposed exception in the country’s copyright law would explicitly make it legal for AI to be fed any online content. It would allow machine learning programs to freely use all imagery published online, according to a scathing review of the proposed changes by the Association of Photographers (AOP).”

Anti-Hacking Copyright Law Scrutinized in Free Speech Challenge — Bloomberg Law’s Isaiah Poritz previews the oral arguments in Green v. DOJ, which took place Monday in the DC Circuit Court of Appeals. The EFF is appealing its unsuccessful challenge to Section 1201’s prohibition on circumventing technological measures used by copyright owners to protect their works. I attended the arguments in person, and note that the panel devoted far more time to several of the thorny procedural issues of the appeal rather than the substance of EFF’s claims.

Tedious Anti-Copyright Stance of EFF is Not About Protecting Anyone — “Streaming models have fostered a diverse range of projects that would never have been made, let alone been sustainable, in the narrower distribution paradigms pre-Netflix. But a reality of all this bounty is that more experimentation and risk-taking means that a higher volume of material will be canceled or redistributed more frequently as audiences respond to what gets made. That’s just the business of making entertainment media, and the EFF always acts as if the business is what makes efforts to mitigate piracy somehow dishonest or sinister.”

Possible copyright changes could mean more money for Inuit artists — “In December 2021, federal Innovation Minister François-Philippe Champagne received a mandate letter from Prime Minister Justin Trudeau that included a directive to amend Canada’s Copyright Act to allow for resale rights for artists. . . . Advocates hope the resale right will mean artists or their estates will get five per cent of resales, if their work is sold through an auction or gallery. For Theresie Tungilik, a Rankin Inlet artist who is part of the Canadian Artists Representation Le Front Des Artistes Canadiens (CARFAC), that would be a vital — and long overdue — change.”

By , September 09, 2022.

Petitioner Pushes Back on Texas AG’s Arguments in Plea to High Court to Review Copyright Takings Case Against Texas A&M — The Supreme Court will consider whether to review a decision dismissing copyright infringement claims on sovereign immunity grounds at its first conference of its upcoming October 2022 term. IPWatchdog reviews petitioner Michael Bynum’s recently filed reply brief, which argues the Fifth Circuit “erred in failing to find constitutional violations of both the Fifth Amendment’s Takings Clause and due process under the Fourteenth Amendment.”

11th Circuit overturns $1.4 million award for rapper in copyright battle — The court vacated a default judgment after holding that the lower court erred when it concluded that the plaintiff did not have to serve an amended complaint on the defendant. One of the judges wrote a concurring opinion that directed the court on remand to consider whether the award of both a permanent injunction and a running royalty is appropriate.

Will Divergent Copyright Laws Between the US and UK Influence Where You Do Business as an Artificial Intelligence Company? — “While certain decisions suggest that copying of works for non-expressive automated processes, such as training an AI system, may constitute a fair use, the issue not fully settled in the US and requires a fact intensive inquiry under the four fair use factors. By contrast, the UK government recently issued its response to the UK Intellectual Property Office’s Consultation, proposing a new copyright and database right exception that allows text and data mining (TDM), i.e., automated computational techniques used to analyze large amounts of information, for any purpose.”

Book publishers, Internet Archive spar over fate of digital-book lending lawsuit — Blake Brittain reports for Reuters, “The publishers responded Friday that the Archive’s argument is a ‘study in blind denial that ignores established law.’ They said courts and Congress have rejected the Archive’s position that buying physical books allows it to create ‘millions of unauthorized ebooks.’ They also said the Archive ‘displays contempt for authors’ by usurping the market for their e-books, and challenged the Archive’s assertion that its project is not commercial. The brief cited the project’s ‘symbiotic’ relationship with the for-profit, socially conscious bookseller Better World Books, which is owned by an Archive-affiliated nonprofit.”

Oversight of the U.S. Copyright Office — On Wednesday, the Senate IP Subcommittee heard from Register of Copyrights Shira Perlmutter regarding the ongoing work of the Office. Perlmutter’s testimony covered the Office’s launch of the Copyright Claims Board in June, its new report examining women’s authorship rate in the U.S. copyright registration system, IT modernization efforts, and its usual rulemaking, legislative, and litigation activities.

By , August 19, 2022.

U.S. backs photographer at Supreme Court in Andy Warhol copyright battle — Briefs supporting the photographer in the fair use case were due this past Monday with the Court, and the US Solicitor General and US Copyright Office joined in. Reuters reporter Blake Brittain writes, “The brief focused on the foundation’s specific act of alleged infringement — a 2016 license to Conde Nast. The government said the license ‘served the same purpose — depicting Prince in an article about him published by a popular magazine — for which Goldsmith’s photographs have frequently been used.’ The government also said finding that Warhol’s supposed new meaning transformed Goldsmith’s photograph would ‘dramatically expand copyists’ ability to appropriate existing works.'”

Doc Filmmakers Brief in AWF v. Goldsmith is Misguided — Speaking of the Warhol case, David Newhoff takes a closer look at a brief filed earlier this summer arguing the opposing view. “If the filmmakers would have the Court believe that documentarians have thus far relied on the fair use rationale as applied by the district court in this case, history does not support this claim. On the contrary, if the Court were to agree with AWF’s reasoning as presented, it would create a novel presumption of certainty by broadening fair use to encompass almost any use that adds ‘something’ to the world.”

Amici Warn of Internet Archive’s Dangerous “Lending” Practice — Kevin Madigan discusses the latest in the copyright infringement case against Internet Archive’s unauthorized reproduction and distribution of books. “Most recently, briefs were filed by creator organizations, copyright scholars, international rightsholder groups, and the Copyright Alliance in support of the plaintiff publishers’ motion for summary judgement. And while the briefs vary in focus, they share an underlying message: the Internet Archive’s practices are clearly infringing, do not qualify as fair use, and would devastate creators and creative industries if sanctioned by the court.”

Zillow Only Wants to Be Fined Once for 2,700 Photo Copyright Infringements — A good reminder that under the US Copyright Act, a copyright owner can only receive one award of statutory damages per work, and thus there’s a big difference between whether at issue is many individual works, or one compilation of those works. Here, the difference is dramatic.

‘Stripped Of Poetic License’: RIAA Pushes California Lawmakers to Pass Rap Lyrics Law — “‘Creative expression’s greatest capacity is to lift us out of the real world and to present us with the unexpected, the unlikely, and the unthinkable,’ Glazer said. ‘Hyperbole and fantastical imagery are customary, and often necessary, elements of that creative expression. [] Yet, when rap and hip hop artists adhere to this time-honored tradition of make-believe, their lyrics are too often – and unfairly – taken literally, stripped of the poetic license afforded other genres,’ he wrote. ‘While such mischaracterization may be uneventful in everyday music consumption, its application in criminal proceedings can skew the truth and destroy artists’ lives.'”

By , August 12, 2022.

Andy Warhol Foundation v Goldsmith, Brief for Respondents [PDF] — Goldsmith’s counsel this week filed its merits brief in the closely-watched Supreme Court copyright case. The brief argues, “AWF’s test would transform copyright law into all copying, no right. Altering a song’s key to convey different emotions: presumptive fair use. Switching book endings so the bad guys win: ditto. Airbrushing photographs so the subject conforms to ideals of beauty: same. That alternative universe would decimate creators’ livelihoods. Massive licensing markets would be for suckers, and fair use becomes a license to steal.”

Microsoft Sues Activation Key & Token Sellers For Enabling Customers’ Piracy — Torrentfreak reports on a lawsuit filed by the software giant this week. “Like software tokens, which enable downloads and automatic software activation, activation keys are anti-piracy tools, and exchanging money for them is not the same as buying a license. Indeed, Microsoft makes itself very clear – the activation of a piece of software means nothing in the absence of a license. Microsoft’s problem is that product activation keys can be ‘decoupled’ from the software they were meant to authorize and then reused to activate more copies of the software, in some cases more copies than the attached Microsoft license permits. As a result, there is a global black market for activation keys which are sold to often unsuspecting consumers who then download official software from Microsoft, without buying a license.”

Copyright Public Modernization Committee: Biannual Meeting — Video from the committee meeting held July 28 is now online. The US Copyright Office hosted the public forum in order to share information and answer questions regarding its five-year IT modernization efforts.

Lin-Manuel Miranda Calls Out ‘Illegal, Unauthorized’ Production of ‘Hamilton’ by Texas Church — “Miranda, who created the Tony-winning sensation ‘Hamilton’ and portrayed the title character on Broadway, also retweeted a statement from the Dramatist Guild — an organization representing playwrights, composers and lyricists — that reads, ‘The Dramatists Guild condemns the Door McAllen Church for its unauthorized production of Lin-Manuel Miranda’s groundbreaking musical ‘Hamilton,’ performed on August 5 and August 6, 2022, in McAllen, Texas. In addition to performing the show without a license, the Door McAllen Church changed lyrics and added text without permission.'”

Canada Moves to Alter Copyright Law to the Benefit of Artists — Artforum covers efforts in Canada to introduce a resale royalty right there. Such a right, currently established in over 90 countries (but not the US), would direct a percentage of the resale for certain visual art works to the original artist.

By , August 05, 2022.

Pirated books thrive on Amazon — and authors say web giant ignores fraud — NYPost: “The end result is that readers are getting stuck with illegible books that bleed ink or fall apart, while authors and publishers lose revenue to the publishing pirates. Amazon, however, takes a cut of third-party sales regardless of whether the books they ship are real or fake, giving the company no incentive to crack down on counterfeits, people in the publishing industry gripe. They say the site that’s typically known for speedy service is excessively slow to respond to their concerns about fakes.”

YouTube Lawyers Fail to Shut Down Copyright Infringement Lawsuit Brought By Grammy-Winning Jazz Composer Maria Schneider — Digital Music News: “Maria Schneider is seeking to turn her YouTube lawsuit into a potential class-action, where other creators can share their copyright woes. YouTube sought to have the lawsuit dismissed, but U.S. District Court Judge James Donato said YouTube failed to show why the lawsuit should be dismissed at this early stage.”

Copyright Online Recordation System Opens for Public Use — It’s worth appreciating the significance of this milestone. When the US Copyright Office began its comprehensive modernization of its enterprise copyright system over two years ago, the recordation system was still a paper-based, manual system. Now, all members of the public can record transfers of copyright ownership and other documents pertaining to copyright online, quickly and easily.

Music labels settle copyright dispute with Bright House on eve of trial — “The labels have sued several internet service providers for allegedly turning a blind eye to user piracy, including Frontier Communications, RCN Corp and Cox Communications Inc. They have also separately sued Bright House’s parent company Charter Communications in Colorado. A jury in Virginia awarded the labels $1 billion against Cox in 2019, which Cox has since appealed.”

Mechanical Licensing Collective 2021 Annual Report [PDF] — “The Mechanical Licensing Collective (The MLC) is responsible for administering a new blanket compulsory license created by The Music Modernization Act of 2018 (MMA) that covers the use of musical works by U.S. interactive streaming and download services. As of January 2021, The MLC began collecting these digital audio mechanical royalties from the digital services operating under the blanket license and distributing those royalties on a monthly basis at no cost to its Members: music publishers and administrators; ex-U.S. collective management organizations (CMOs); and self-administered songwriters, composers and lyricists.”

By , July 29, 2022.

Hot Topics in Copyright Law & Policy [YouTube] — The Free State Foundation has video of a webinar it hosted this week on current issues in copyright law, including DMCA reform, ebook licensing, and sovereign immunity.

Purposeful Direction in a Forum Activates the Long Arm of the Law — Analysis of an important decision from the Ninth Circuit that allows copyright owners to pursue offshore infringers who purposefully direct their infringing activities to the United States.

Latest majors v ISP copyright case heading to trial next week — “One of the big old copyright infringement lawsuits being pursued by the music industry against an American internet service provider will get properly to court next week, with the music companies hoping that the recent trend of juries finding in their favour in disputes of this kind continues.”

Canada: Supreme Court Of Canada Recognizes ‘Making Available’ Right — “While copyright owners cannot claim double royalties, the Supreme Court’s recognition of a making available right creates a new mechanism to stop infringing copies from ever being made. By enforcing a making available right, copyright owners are in a better position to combat on-demand creation of infringing copies or streams.”

Copyright decision increases need for Congress to help save local news — “For smaller news outlets, getting paid by big corporate users will save jobs and keep lights on. Most can’t pay for an adequate newsroom and agonize over which cities and counties they can no longer cover, and how many voters they’re leaving in the dark. Everywhere this is happening, platforms use a similar playbook to resist or weaken the policies. They threaten to drop services and sow doubt, confusion and nitpicky criticism through allies and grant recipients in academia and nonprofits. They also say these approaches will break the internet, which is getting silly now that they’re paying up in several countries where this dire prediction proved false.”