Friday’s Endnotes – 07/15/22

By , July 15, 2022.

New CREATe Copyright History Resources: Two Working Papers and Further Vatican Sources by Jane Ginsburg for ‘Primary Sources on Copyright 1450-1900’ — Some fantastic new resources for copyright history buffs.

Ninth Circuit Reverses Opinion on Picasso Copyright Case That Said French Law Was Not Enforceable in U.S. Under ‘Fair Use’ — Interesting decision involving enforcement of foreign judgments arising out of copyright law. Here, the Ninth Circuit held that enforcement of a French judgment would not be repugnant to US law, reversing the district court’s holding that the infringement at issue would be permitted by fair use in the US. The Ninth Circuit instead found the use commercial and non-transformative.

Standing Up for Copyright — “Publishers deeply value libraries and recognize the important role they play in promoting both literacy and authors. Importantly, libraries pay authors and publishers when they purchase e-books for digital lending. So Internet Archive is not filling some void in the library system; it is directly competing with the library system to the detriment of the publishers and authors who created the very content that is so critical for the public to access.”

New Copyright Office Report Correctly Concludes News Publishers Enjoy Copyright Protections Similar to the EU, Acknowledges Bargaining Power Disparities as Major Obstacle for Publishers in Protecting News Content Online — From the News Media Alliance: “While the report recognizes that problems in the digital marketplace are largely competition-based, and therefore outside the Copyright Office’s remit, it highlights the [Journalism Competition & Preservation Act] as a potential non-copyright solution to the problem. The report also includes an extended fair use discussion, balancing both sides of the argument, and acknowledging that not all uses of news content by aggregators are likely to be fair use.”

Looking for Copyright Records in Old Florida — If you thought, like Zvi Rosen, that there were zero copyrights registered in Florida prior to 1870, then this post from Zvi about his search to corroborate that suspicion will delight and surprise you.

Friday’s Endnotes – 07/01/22

By , July 01, 2022.

Study on Ancillary Copyright Protections for Publishers — The US Copyright Office this week issued its policy study on the “viability of establishing ‘ancillary copyright’ protections for press publishers, similar to protections now being implemented in Europe, that would require online news aggregators to pay publishers for excerpts of content they provide for others to view.” The Office ultimately concluded “that adopting an EU-like right is unnecessary inasmuch as U.S. law already confers many of the same rights on press publishers, including via the work-made-for-hire doctrine.”

Virtual Event | What the New Copyright Claims Board Means for Creators — You can catch video of the event here, with Hudson Institute’s Devlin Hartline speaking with Maya Burchette of the Copyright Claims Board, Terrica Carrington of the Copyright Alliance, and attorney Michael Klipper about the recently launched copyright small claims court.

Pirate Site Blocking Expands to Kenya with Landmark Court Order — Kenya becomes the first African nation to join a growing group of jurisdictions that have found site-blocking to be a legitimate and effective remedy for addressing certain types of online piracy.

MapLab: The Legacy of Copyright Traps — The first part of this Bloomberg newsletter delves into efforts by mapmakers and dictionary publishers (among others) to detect misappropriation of their highly factual and functional works: the insertion of phony entries that would reveal when a competitor copied from them rather than primary sources.

Pyrotechnics Management v. FireTek [PDF] — Just in time for the Fourth of July weekend, the Third Circuit issued a decision involving copyrightability of software interfaces used to control firework displays. It is of some note to see a post-Google v. Oracle Circuit Court decision on software interface copyrightability that does not cite to Google v. Oracle.

Friday’s Endnotes – 06/24/22

By , June 24, 2022.

Google and France end fight over news copyright — “Google had fought hard against the idea of paying for content and was fined 500 million euros ($530 million) last year for failing to negotiate in good faith. But [France’s Autorité de la concurrence] said on Tuesday that Google had dropped an appeal against the fine and its commitments to negotiate fairly were ‘likely to put an end to the competition concerns.'”

Ed Sheeran Awarded Over $1.1 Million in Legal Fees in ‘Shape of You’ Copyright Case — After the musician prevailed against claims that he copied from another song when creating his 2017 hit, a British court ruled Sheeran was entitled to an interim payment for legal expenses incurred.

Paris Hilton is One of the First Defendants at the ‘Small’ Copyright Claims Board — After its first week up and running, Torrentfreak takes a peak at the US Copyright Claims Board’s docket to see what has been filed so far, highlighting one filing that names 2000’s It Girl Hilton as a defendant.

Supreme Court Should Reject Warhol’s Overbroad Transformative Use Test — “If AWF’s standard is accepted, practically any secondary use would qualify as transformative and a copyright owner’s statutory right to create and control derivative works would be rendered meaningless. But by limiting the scope of uses that are considered “transformative” so as not to limit the derivative work right, the Court can strike that correct balance between both Sections 106 and 107 of the Copyright Act.”

Here’s Why Dua Lipa Can Be Sued for Posting Photos of Herself to Instagram — “On the surface, it might seem odd that a celebrity can be sued for posting a picture of themselves on social media. But in these cases, the law is fairly clear on what rights stars have when it comes to this corner of the intellectual property world.”

Friday’s Endnotes – 06/17/22

By , June 17, 2022.

Copyright Office Announces Claims Board Is Open for Filing — Authors and creators now have a streamlined, low-cost option for settling small copyright claims. The CCB opened its virtual doors on Thursday to begin accepting claims. The CCB also made its Handbook available, a plain language practice manual to aid both petitioners and respondents in navigating the copyright claims board process.

Judge in Maryland strikes down library e-book law — After previously finding the law clearly preempted by the federal Copyright Act, Judge Boardman entered a final judgment in the lawsuit, finding the Maryland law “unconstitutional and unenforceable.” The article notes that late last year, NY governor Kathy Hochul vetoed a virtually identical law passed in that state, also recognizing the preemption issues.

Petition Asks SCOTUS to Clarify Takings Clause in Context of Copyright Infringement — “In their petition, the plaintiffs argue that the Fifth Circuit’s ruling affirming the Southern District of Texas’ dismissal of copyright claims over Texas A&M’s unauthorized reproduction of portions of Bynum’s manuscript on the nearly 100-year history of the famed ’12th Man’ tradition at Texas A&M erred in failing to find constitutional violations of both the Fifth Amendment’s Takings Clause and due process under the Fourteenth Amendment.”

Big Tech Protests US Pirate Site Injunction “Power Grab” Against Cloudflare — Torrentfreak reports that Big Tech—Google, EFF, and CCIA—have intervened in a lawsuit following an injunction barring ISPs and other online service providers from doing business with three pirate streaming sites.

Andy Warhol Foundation v. Goldsmith, Brief for Petitioner [PDF] — AWF filed its opening brief with the Supreme Court last Friday in a closely watched copyright case. On an unrelated note, anyone interested in licensing works created by Andy Warhol can visit the Foundation’s Licensing page to request permission.

Friday’s Endnotes – 06/10/22

By , June 10, 2022.

Copyright Office Releases Report on Women in the Copyright System — The report is important in its own right, providing a foundation to advance, as Register Perlmutter puts it, “the Office’s commitment to ‘copyright for all.’” But it is also notable as one of the first public-facing product from the Office after it has begun bolstering its own in-house economic expertise.

A Fire-Proof Copy of ‘The Handmaid’s Tale’ That Even Margaret Atwood Tried (and Failed) to Torch Sells for $130,000 at Sotheby’s — The photo of the author with a flamethrower alone is worth a click.

NHL Broadcasters Win Canada’s First ‘Dynamic’ Pirate IPTV Blocking Order — From Torrentfreak: “Canada’s Federal Court has handed down a ‘dynamic’ blocking order to prevent live NHL games from being viewed via pirate IPTV streams. The first of its kind in Canada, the flexible injunction was obtained by companies including Rogers, Bell, The Sports Network, and Groupe TVA. Unusually, it will be independently audited to assess over-blocking and any user circumvention via VPNs.”

Thaler Pursues Copyright Challenge Over Denial of AI-Generated Work Registration — Following an unsuccessful effort at the US Copyright Office to register the copyright in a work asserted to be the creation of Artificial Intelligence, an AI researcher is asking a federal court to reverse the agency’s decision.

Copyright Small Claims Has Arrived — “As of June 16, participants will be able to register for the CCB’s electronic filing and case management system (eCCB) and submit a claim.”

Friday’s Endnotes – 06/03/22

By , June 03, 2022.

Copyright Claims Board to Begin Accepting Claims Later This Month — Since the law creating the voluntary adjudication process for small copyright claims was passed in late 2020, the Copyright Office has undergone tremendous efforts to implement the board within the tight statutory deadlines. It announced this week that it has now set a date: the Copyright Claims Board will begin accepting claims on Thursday, June 16, 2022.

Support for Australia’s News Media Bargaining Code grows as 24 publishing minnows secure Google deals — As noted here, “Critics of the legislation, which effectively forces Google and Meta/Facebook to pay for news, have frequently argued that it was designed to benefit large publishers like Rupert Murdoch’s News Corporation.”

Biggie Smalls Estate Says Photographer’s Copyright is Irrelevant — Matt Growcoot reports at Petapixel about a dispute between copyright and right of publicity. The estate of the iconic rapper Biggie sued photographer Chi Modu for allegedly selling apparel and other merchandise that featured images of the rapper. The defendant answered, in part, that his exclusive rights under federal copyright law preempt any state claims related to the commercial use of Biggie’s name and likeness. The court heard arguments on a preliminary injunction motion earlier in May.

Are game show formats in Vietnam protected by copyright? — “Globally, this is a question without a clear and explicit answer. The Format Recognition and Protection Association (FRAPA), a trade association formed in 2000 to advocate recognition of television formats as intellectual property, strongly believes that format rights are protectable and has been working to convince courts and lawmakers around the world to define these rights under law. However, recognition of format rights is still very limited, and is often determined on a case-by-case basis.”

Types of Errors Hiding in Google Scholar Data — “Google Scholar (GS) is a free tool that may be used by researchers to analyze citations; find appropriate literature; or evaluate the quality of an author or a contender for tenure, promotion, a faculty position, funding, or research grants. . . . The aim of this study was to examine the accuracy of citation data collected from GS and provide a comprehensive description of the errors and miscounts identified. . . . The results revealed an unprecedented error rate, with 279 of 281 (99.3%) examined references containing at least one error.”

Friday’s Endnotes – 05/27/22

By , May 27, 2022.

State Restrictions on Ebook License Prices Are Preempted by Federal Law [PDF] — From Seth Cooper at the Free State Foundation, “A February 2022 decision by a U.S. District Court correctly determined that Maryland’s law mandating licensing of ebooks and digital audiobooks to public libraries in that state on ‘reasonable terms’ is preempted by federal copyright law. Yet advocates of state ebook licensing regulation appear to be seeking ways for state legislation to evade the result in Frosh by not mandating licensing but instead regulating the prices and other terms on which ebooks may be licensed to public libraries. Yet price-related restrictions on ebook licensing are still subject to preemption.”

[Guest post] Could your beliefs about copyright be protected under the Equality Act? — That is the interesting question arising out of a recent employment law dispute in the UK.

CISAC to monitor impact of AI on copyright — “In its 2022 annual report published today, CISAC said it had been looking at key issues arising from the relationship between AI and copyright, and whether there is a need to adapt current legislation to evolving technologies.”

The WIPO Files II: is international lawmaking on copyright still possible? — A report from the 42nd session of the World Intellectual Property Organization’s Standing Committee on Copyright and Related Rights, which took place earlier this month in Geneva. The main items on the agenda were a discussion of next steps on a work program for limitations and exceptions for libraries, archives, educational institutions, research institutions, and persons with other disabilities, and continued discussion of a broadcast treaty.

Federal Oracle-HP copyright fight kicks off in Silicon Valley — Courthouse News‘s Natalie Hanson reports, “Oracle sued HP in 2016, accusing the company of selling unauthorized updates to Oracle’s Solaris software — operating systems with security to protect customers from hackers — to customers who did not have support contracts with Oracle. In 2021, a federal judge denied HP’s motion for summary judgment, opening the door to the trial that kicked off this week.”

Friday’s Endnotes – 05/20/22

By , May 20, 2022.

Congress’ copyright office has its first chief economist — Tom Temin speaks with Brent Lutes, who was named as the first Chief Economist within the US Copyright Office. Lutes talks about his background and what the role entails. “There’s going to be an internal component and an external component. And the internal component will be understanding how policy decisions and operational decisions affect access to and benefits from our copyright system, then we’ll have an external component where a large part of my job will be establishing a research agenda, not just for myself, for the copyright office, but hopefully for the academic community to answer the questions that we really care about.”

‘Vape’ is the word: U.S. judge allows ‘Grease’ parody — “In a 22-page decision, [Judge] Swain said that by keeping the ‘Grease’ characters and plot arc while changing the script and lyrics, ‘Vape’ ‘comments on how misogynistic tendencies have both evolved since “Grease” was developed and remain the same.’ She distinguished the case from a March 2021 appeals court decision that Andy Warhol violated federal copyright law by drawing on a photograph of Prince for a series of images of the rock star, because the images were not transformative.”

Copyright: Commission urges Member States to fully transpose EU copyright rules into national law — As we approach the one year anniversary of the deadline for EU member states to transpose the copyright in the Digital Single Market directive, the European Commission has sent a formal submission to those countries that have yet to enact the new rules in their national legislation.

Final Rule Released For Copyright Claims Board Proceedings — This week, the US Copyright Office has published a final rule governing the initiation and prosecution of claims in the new copyright small claims tribunal. This completes all the regulations needed for the tribunal, which is anticipated to begin operating in just a few weeks.

Paper’s take-off — Some interesting historical highlights tracing paper’s emergence as the material of choice for the written word.

Friday’s Endnotes – 05/13/22

By , May 13, 2022.

EXCLUSIVE Google paying more than 300 EU publishers for news, more to come — Thanks to the EU’s Directive on Copyright in the Digital Single Market, the search giant has come to the table and “signed deals to pay more than 300 publishers in Germany, France and four other EU countries for their news and will roll out a tool to make it easier for others to sign up too.”

Publishing and Library E-Lending: An Analysis of the Decade Before Covid-19 — From Publishing Research Quarterly: “What started as a search for the proper way to value ebooks and ensure their prosperity so all parties (including authors) could benefit, morphed into a widespread belief that all the Big publishers disliked libraries, only saw negatives in e-lending, and only begrudgingly started e-lending after they were coerced by the ALA. But a thorough assessment of the history shows that generalizing the Big publishers in this way was largely unfounded and inaccurate.”

Law360: ‘Mickey’ Singer Owns Recordings’ Copyright, 9th Circ. Affirms — In an unpublished opinion, the Ninth Circuit reviews the requirements for when a “joint work” is created under the Copyright Act and finds that Toni Basil’s record producer failed to meet the standard to be considered a co-author of the songs on Basil’s 1981 album, including the mega-hit “Mickey.”

Megaupload Pair Sign Deal to Avoid Extradition, Dotcom Vows to Fight On — Torrentfreak’s Andy Maxwell reports, “After 10 years of legal battles following the closure of Megaupload, Mathias Ortmann and Bram van der Kolk have reached a deal with the authorities that will see them avoid extradition and face charges in New Zealand instead. Kim Dotcom says he won’t accept ‘injustice’ and will keep fighting against extradition to the United States.”

Warhol Foundation v. Goldsmith at SCOTUS Part I: The Transformative Question — “Different meaning may be present, but if the secondary work does not contain at least some element of comment upon the original, there is no rationale keeping the first factor analysis from spilling over the levy quoted above in Campbell. . . . This is one reason why the ‘transformativeness’ concept has caused so much trouble:  because it leads courts to find fair use solely on the basis of ‘some difference,’ and this implies a fair use doctrine without limits.”

Friday’s Endnotes – 05/06/22

By , May 06, 2022.

Copyright Royalty Board Asked to Approve 32% Increase on Mechanical Royalties for Physical Products, Downloads — The motion comes from members of the major labels, music publishers, and NSAI, and if approved by the CRB, would boost royalties for songwriters and publishers in an area, thanks in no small part to a resurgence in vinyl album sales, “remains a dominant format with no sign of a slow-down.”

Examining Copyright — Copyright scholar Zvi Rosen has published a draft of his long-awaited study on examination of copyright applications by the US Copyright Office. As Rosen writes, the article “presents a history of copyright examination, empirical data and findings on what has been rejected over the past sixty years, and a proposal based on these findings for improving the efficiency of the copyright registration system going forward.”

Movie, Music, Gaming & Publishing Groups Join ISPs in Deal to Block Piracy — Torrentfreak reports that rights groups in Sweden have teamed up with ISPs in the country “to operate a simplified and more efficient process to handle [site] blocking orders.” Furthermore, “The parties to the agreement have also agreed to jointly strive for new and clear legislation for administrative blocking in Sweden.”

U.S. Court Orders Pirate Site Blocking. Internet Should Break Any Day Now. — And in the US, after ruling against a group of pirate streaming entities in a copyright infringement lawsuit, a federal judge has ordered US ISPs to block access to the websites operated by the entities. David Newhoff observes in his piece here, “Ordering an unnamed third party in a complaint to cease facilitating harmful conduct is not groundbreaking law, which is one reason why all the shouting about that legislation ten years ago was so ridiculous.”

Can You Copyright a Dress? — “In the late 1920s, French haute-couture houses lost approximately the equivalent of a billion US dollars (based on 2011 numbers) due to piracy of designs. French designers, who considered their work a form of art, tried many times and methods to close down avenues of access to their original thinking, even going so far as to call the police on alleged copyists in the interwar period.”

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