Friday’s Endnotes – 11/18/22

By , November 18, 2022.

Authors Guild Applauds Arrest, Indictment of Major E-Book Pirates — “According to court filings, the U.S. Department of Justice is charging Anton Napolsky and Valeriia Ermakova with criminal copyright infringement, wire fraud, and money laundering for operating the popular Z-Library pirate site. The pair was arrested on November 3 in Cordoba, Argentina at the request of U.S. authorities, just days after site’s highly trafficked domains were seized by the DOJ and blocked.”

US—Copyright Round-Up — Copyright expert Paul Goldstein highlights several recent US appellate decisions touching upon personal jurisdiction for online infringement, fair use, and copyright and AI.

Ninth Circuit Affirms Validity of Unicolors’ Copyright Registration on Remand, But H&M Scores Big on Remittitur Calculations — “On November 10, the U.S. Court of Appeals for the Ninth Circuit ruled in Unicolors, Inc. v. H&M Hennes & Mauritz, L.P. following remand from the U.S. Supreme Court, which earlier this year clarified the knowledge standard required for invalidating copyright registrations based on inaccuracies in the registration application.”

‘Wild West’ of Generative AI Raises Novel Copyright Questions — “The rapid rise of artificial intelligence applications has left the burgeoning industry reckoning with how the powerful new technology interacts with copyright laws that govern everything from source code to art prints. The legal landscape is far from clear, with both the creators of AI tools and the artists who use them confronting copyright questions that haven’t yet been answered.”

Friday’s Endnotes – 11/11/22

By , November 11, 2022.

A North Carolina Filmmaker Continues to Challenge State Sovereign Immunity — Litigation in Allen v. Cooper did not end with the Supreme Court decision in March 2020 holding that Congress did not validly abrogate state sovereign immunity for copyright infringement claims. Learn more about the background of the case here and where things stand now.

Z-Library Aftermath Reveals The Feds Seized Dozens of Domain Names — Torrentfreak reports on the US action against the pirate book site here. According to the site, “All signs suggest that the U.S. Department of Justice and the FBI are behind the action, a theory supported by an updated seizure banner. While Z-Library remains operational through the Tor network, new details show that more than a hundred domains were affected by the action, including the ‘GLOBAL Electronic library.'”

The lawsuit that could rewrite the rules of AI copyright — The Verge interviews the programmer and lawyers behind a class-action suit brought against Microsoft and GitHub alleging the company’s AI-powered programming assistant violates copyright law. Fascinating discussion.

‘Top Gun’ Copyright Lawsuit Survives Paramount’s Motion to Dismiss — Variety reports, “U.S. District Judge Percy Anderson held that there are enough similarities between the film and the 1983 magazine article upon which the original ‘Top Gun’ was based to allow the author’s heirs to pursue the lawsuit.”

Friday’s Endnotes – 11/04/22

By , November 04, 2022.

Frankenstein’s Derivative Monster(s) — Jaci McDole examines the important derivative works right by considering the history of Frankenstein’s monster. Mary Shelley’s famous novel that introduced the character inspired countless derivative works, from translations and reprints, to film adaptations and beyond.

Valancourt Books v. Garland — IP scholar Zvi Rosen summarizes oral arguments held by the DC Circuit Court of Appeals a few weeks ago in Valancourt Books v Garland concerning the mandatory deposit provisions found in the US Copyright Act. Rosen notes, “This case might seem esoteric, but it implicates fundamental questions of the power of Congress to regulate speech, and whether such mandatory deposit of valuable books constitutes a taking of private property without compensation.”

Two Copyright Claim Wrongs Don’t Make a Copyright Claim Right: Analyzing Melendez v. Sirius XM Radio, Inc. — Analysis of a recent Second Circuit decision that affirmed the dismissal of right of publicity claims brought by “Stuttering John,” a character appearing on the Howard Stern Show. The Circuit Court agreed with the lower court’s decision that these claims are preempted by the federal Copyright Act.

Record Labels Win $47 Million Piracy Liability Verdict Against ISP Grande — A jury awarded the damages after finding the ISP liable for willful copyright infringement occurring as a result of its subscribers’ repeated infringing conduct.

Mexico and Switzerland Question Need for Extension of COVID IP Waiver — “Ultimately, the two countries want to ensure that public health is being protected and that TRIPS-related rights are not hindering that goal, but based on the evidence at hand they express skepticism that an extension of the TRIPS waiver will have any practical impact: ‘If a systemic problem regarding the access to COVID-19 therapeutics and diagnostics is demonstrated conclusively and such lack of access is caused by the current IP system, steps have to be taken to improve the situation to ensure unimpeded access. However, based on the information laid out above, we do not face a situation where we have an IP-induced lack of access to or a lack of manufacturing capacity of COVID-19 therapeutics and diagnostics. As a consequence, no adjustments to the IP system seem to be required.'”

Friday’s Endnotes – 10/28/22

By , October 28, 2022.

Copyright Office Issues NPRM to Correct MLC’s ‘Erroneous’ Dispute Policy on Post-Termination Blanket License Royalties — Your head can start spinning if you think too long about the intersection of termination rights, statutory licenses, and mechanical reproductions. But the Copyright Office has recently waded into those waters because it needs to answer the important question: who gets paid.

C-IP2 2022 Fall Conference Panel Discusses Copyright Under Pressure — Last month, I participated on this panel as part of C-IP2’s annual fall conference. This article summarizes the discussion, which focused on “the current state of copyright law, the pressures it has come under in recent years, and their differing perspectives on how the digital world is shaping copyright” and covered issues such as “enforcement techniques, trends in fair use, and the impact of evolving technology on copyright.”

Survey: Creators describe tense relationship with social media — From Axios, “In Patreon’s survey of more than 1,500 creators (some of whom do not use Patreon), 70% say they feel social media platforms put them at a disadvantage, but 60% say they are reliant on those platforms to showcase their work. Seventy-five percent of creators said in response to survey questions they wish to make more diverse work, but feel compelled by social media algorithms to keep putting out what may perform best.”

Move Slow and Fix Things — Although this article focuses on admissions in elite universities, it makes a broader point about how nowadays, innovation and disruption is privileged over maintaining existing things. I see a parallel to broader discussions of copyright. That is, notwithstanding copyright’s requirement of originality, the legal framework is built around the maintenance art and knowledge, supporting, for example, the intellectual and creative labor that goes into scientific, cultural, and entertainment institutions. Many challenges to copyright over the past several decades have portrayed it instead as a “barrier” to innovation. That portrayal deserves closer scrutiny.

Meta defeats photographer’s lawsuit over Facebook embedding, for now — Unsurprisingly, a district court in the Ninth Circuit remained bound to that Circuit’s “server test” for determining infringement of the public display right.

Friday’s Endnotes – 10/21/22

By , October 21, 2022.

Zelensky hails power of books and knowledge in Frankfurt Book Fair address — The Bookseller reports of the speech from Ukrainian President Zelensky, “He told delegates ‘knowledge is the answer’ to ‘those who are scared, to those who manipulate and to those who don’t believe’. ‘Books, documentary scripts, articles, reports — these are the answers. I invite all of you to Ukraine: publishers, authors, business people and public figures, educators and journalists. Everyone. Take a look at what our people are going through. What we have managed to gain. What are the threats we are still facing. Witness it and tell about it.’ His speech was greeted with a standing ovation.”

How GitHub Copilot could steer Microsoft into a copyright storm — “GitHub Copilot – a programming auto-suggestion tool trained from public source code on the internet – has been caught generating what appears to be copyrighted code, prompting an attorney to look into a possible copyright infringement claim.”

RIAA Flags ‘Artificial Intelligence’ Music Mixer as Emerging Copyright Threat — “The RIAA has submitted its most recent overview of notorious markets to the U.S. Trade Representative. As usual, the music industry group lists various torrent sites, cyberlockers and stream-ripping services as familiar suspects. In addition, several ‘AI-based’ music mixers and extractors are added as an emerging threat.”

That company’s ‘About Us’ page may be full of fake pictures of ‘people’ who don’t actually exist — Just in case you got the impression that AI is only raising copyright-related concerns. “Some companies are using fake, AI-generated images of ‘staff’ who don’t exist on their ‘about us’ pages in an attempt to make their company look bigger.”

The Supreme Court’s Self-Conscious Take on Andy Warhol — “Judging from oral argument, the Justices seemed to lean toward deciding for Goldsmith. Several of them seemed particularly concerned that deciding against her might result in upending the general understanding that an adaptation of a book into a movie or a television show is not fair use and requires payment to the author, even though Hollywood often adds new meanings—including altered plotlines, themes, and characters—to the original material. If those changes were considered ‘transformative,’ the entire industry’s assumption that book authors are to be paid for use of their intellectual property would be disrupted, giving Hollywood a windfall.”

Friday’s Endnotes – 10/14/22

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.”

Friday’s Endnotes – 10/7/22

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.”

Friday’s Endnotes – 09/30/22

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.

Friday’s Endnotes – 09/23/22

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.”

Friday’s Endnotes – 09/16/22

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.”

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