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.”

Friday’s Endnotes – 04/29/22

By , April 29, 2022.

Measuring Fair Use’s Market Effect — An intriguing forthcoming paper from a pair of researchers that “find[s] evidence that negative perceptions about an earlier work are created when sampled in a new work that itself is a failure.” This result, say the authors, has implications for fair use determinations, since it “points to a negative spillover effect that may harm perceptions of the underlying copyrighted work.”

Podcast: Copyright & Culture with Terrica Carrington — Illusion of More’s David Newhoff talks with Copyright Alliance’s Terrica Carrington about her work in public policy and artist advocacy, touching upon topics like #blacktiktokstrike and engaging young creators in copyright.

USTR Suspends Review of Ukraine, Remains Concerned with China in Latest Special 301 Report — IPWatchdog reports on the release this week of the US Trade Representative’s annual Special 301 Report, which examines the “adequacy and effectiveness of U.S. trading partners’ protection and enforcement of intellectual property (IP) rights”—including patent, trademark, copyright, and trade secret. Among the highlights not included in the headline, the Report raises concerns over the EU’s promotion of Geographical Indicators (GIs), which are source indicators for items from a certain geographical area possessing certain characteristics or reputation, like feta cheese, champagne, and Kalamata olives.

Article 17 of the DSM Directive is valid: an early take on today’s Grand Chamber ruling — Eleonora Rosati analyzes this week’s long awaited ruling involving a challenge to internet platform obligations in the EU’s Digital Single Market copyright directive brought by Poland. The topline outcome of the CJEU ruling is that Article 17’s obligations are “compatible with freedom of expression/information.”

Making the Case: The Economic Rationale for Intellectual Property Rights  — The US Chamber this week released a statistical annex to its International IP Index, which “examines 29 different correlations to illustrate the economic benefits of improving IP protection.” Among the findings: “economies with effective IP systems have . . . 2X the access to new music through legitimate platforms . . . [and] 46% more likely to attract venture capital and private equity.”

Friday’s Endnotes – 04/22/22

By , April 22, 2022.

34th Annual Horace M. Manges Lecture – Judge Margaret McKeown, April 4, 2022 — “Judge Margaret McKeown of the Ninth Circuit delivered the Kernochan Center’s 34th Annual Horace M. Manges Lecture, entitled ‘Art, Music, and Mash-ups — A View from the Bench on Creativity and Copyright’ at Columbia Law School on the evening of April 4, 2022.”

New York Public Library makes some banned books free to all — The move, which allows digital checkouts even without an NYPL library card through May, is the result of a partnership with publishers Hachette Book Group, Macmillan Publishers and Scholastic.

MPA Wins Piracy Battle, US Court Orders PrimeWire to Shut Down — Torrentfreak reports, “Several Hollywood studios and Netflix have prevailed in their battle to shut down pirate streaming site PrimeWire. Despite PrimeWire recently removing all links to pirated movies and TV shows and losing more than 60% of its traffic in a month, a US court found the streaming site liable for copyright infringement. PrimeWire’s domains will now be seized.”

Emily Ratajkowski Lawsuit Over Paparazzi Photo Settles — The settlement precludes any legal ruling in a case where the judge entertained Ratajkowski’s fair use defense, in part because the photo was posted on her Instagram Story, which is only available for 24 hours.

Photography Copyright Cases Photographers Should Know — From decisions establishing that photographs are copyrightable to when communicating photos online implicates the exclusive right of public display, the Copyright Alliance reviews the major cases involving photos and copyright law.

Friday’s Endnotes – 04/15/22

By , April 15, 2022.

Piracy Numbers Drop After Indonesia Blocks Over 3,500 Pirate Sites — Torrentfreak reports, “The Government of Indonesia continues to crack down on piracy. The country’s list of blocked sites and services has grown to more than 3,500 domain names. According to the Coalition Against Piracy, these actions resulted in a 75% decrease in pirate site traffic, while the use of legal alternatives has tripled.”

How to Support Your Local Library — Paul Sweeting writes about the demise in court of a Maryland law effectively creating a compulsory license of ebooks to libraries for digital lending. Taking a look at data regarding library expenditures, he suggests the aim of the bill was misplaced. “Indeed, insofar as public libraries face growing financial challenges, those challenges are not coming from the cost of material in their collections; it is coming from higher operating and administrative costs. . . . If state legislators genuinely want to help public libraries, they would get more bang for the buck by increasing funding for operating and administrative costs, not by trying to rewrite federal copyright law for e-books.”

Empowered to negotiate or obliged to contract? Lessons from the Italian implementation of the press publishers’ right — A look at one European Union country’s experience with implementing article 15 of the EU’s Directive on Copyright in the Digital Single Market, which allows press publishers to authorize or prohibit the use of their content by information society service providers.

Goold & Simon on Luck & the Labor Theory of Intellectual Property — Via Lawrence Solum: “A person naturally owns the fruits of their intellectual labour; so goes the labour argument for intellectual property. But what should happen when a creator gets ‘lucky’ – such as the photographer who is in the right place at the right time or the scientist who accidentally discovers a new drug?” The authors of the paper argue that the presence of luck does not undermine the labor theory of IP law.

Brent Lutes Named First Chief Economist of the U.S. Copyright Office — “Register of Copyrights Shira Perlmutter has announced the appointment of Dr. Brent Lutes as the first Chief Economist of the U.S. Copyright Office, effective April 10, 2022. As Chief Economist, Lutes will evaluate the economic impacts of programs and policies relating to the U.S. and international copyright systems. He will advise the Register and other senior officials on how these impacts affect the Office, copyright stakeholders, and the general public.”

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