Friday’s Endnotes – 01/28/22

By , January 28, 2022.

Breyer’s Rulings Shaped By Wariness Of Intellectual Property — Law360’s Ryan Davis examines Justice Breyer’s legacy on copyright and IP issues during his 27 year tenure on the Supreme Court, following Breyer’s retirement announcement this week.

Former wrestling coach Jim Gibbons urges lawmakers to strip Iowa PBS copyright — “Gibbons is the primary proponent of House File 579, a bill that states all ‘records, videos, electronic storage, documents, tapes, and other information’ kept by the Iowa public broadcasting board would be considered public records. That would include everything from high school sports to broadcasts of the Des Moines Metro Opera — and the 1986 Cyclone-Hawkeye duel.” Takings Clause?

States Should Follow New York’s Rejection of Mandatory eBook Licensing — “Lastly (in one of the many eyebrow raising arguments), the State accuses publishers of exploiting ‘the rapid advancement of digital technology to discriminate against public libraries when licensing e-books and audiobooks,’ noting that the first sale doctrine has not kept pace with digital works to upset the balance between publishers and libraries. It seems strange to invoke a federal copyright law doctrine as a justification to enact an overreaching state law and to also claim that there is no preemption problem.”

Zillow ordered to pay $1.9 million in copyright case — “The case has wound its way through the courts since VHT sued in 2015. In 2017, a federal jury ordered Zillow to pay $8.3 million, but the court reversed a portion of that verdict and both sides appealed. The Ninth Circuit Court of Appeals later sided in part with Zillow and a portion of the case was returned to the lower court.”

Friday’s Endnotes – 01/21/22

By , January 21, 2022.

Crypto Bros Spent $3 Million Thinking They Bought the Rights to Dune — A quick read of 17 U.S.C. § 202 could have saved them some cash.

How Instagram Changed Its Embedding Feature—and What That Means for Photographers and Publishers — Alicia Calzada, Deputy General Counsel for the National Press Photographers Association, writes, “In mid-December of 2021, Instagram quietly let it be known that it had added a feature to its service that allows users to disable its commonly misused and misunderstood embedding feature.”

2022–2026 Strategic Plan: Fostering Creativity and Enriching Culture — The U.S. Copyright Office this week published its Strategic Plan for the next five years. Among its priorities, the Copyright Office says, “A key focus will be ensuring that the copyright system is accessible to all, welcoming diversity and ultimately enriching the cultural landscape.”

Adblocking Does Not Constitute Copyright Infringement, Court Rules — Torrentfreak’s Andy Maxwell reports on this week’s decision from the Hamburg District Court in Germany, in litigation brought by publishing house Axel Springer against adblocking company Eyeo, and the reasoning the court used to reach its result.

Trade relieved but cautious as government delays decision on UK copyright changes — “The Intellectual Property Office (IPO) launched a consultation last summer which considered a weakening of copyright rules used for exporting books around the world. Changing the way these rules, known as copyright exhaustion, work would present ‘serious dangers for the health of the books industry’, according to groups including the Publishers Association (PA) which set up a Save Our Books campaign to fight the changes.”

Friday’s Endnotes – 01/14/22

By , January 14, 2022.

Copyright Office Activities in 2021: A Year In Review — “Last year was one the busiest years in recent history for the U.S. Copyright Office. In addition to numerous personnel changes—including a new Register of Copyrights in late 2020 and transitions in the Office of the General Counsel and the Office of Public Information and Education—Copyright Office staff have been working tirelessly on a number of policy studies and rulemakings. Here’s a look back at Copyright Office activities throughout 2021.”

Here Are The Legal Issues Affecting Content Creators In 2022 — Nashville attorney Franklin Graves takes a look at some of the major copyright and other legal issues—from copyright small claims, to fair use, to embedding, and more—that may impact internet content creators in the upcoming year.

Increasing Access to Justice: The New Copyright Claims Board — “An important change in the U.S. government’s attitude toward copyright is greater attention to access to justice issues. There has been growing concern that enforcing copyrights is too expensive for ordinary Americans. Until recently, the only way to bring a claim for copyright infringement was in federal court. Federal court proceedings are typically very expensive.”

Copyright of Software API — Patently-O’s Dennis Crouch previews arguments made this week in SAS Institute v. WPL, a case in front of the Federal Circuit that raises issues concerning copyrightability of software interfaces, leading many to view the case as a follow-on to Google v. Oracle.

PrimeWire: Hollywood & Netflix Win Court Injunction to Disable Site Domains — Finally, Torrentfreak reports that a court last Friday ordered a preliminary injunction blocking a foreign website materially contributing to copyright infringement.

Friday’s Endnotes – 01/07/22

By , January 07, 2022.

Copyright Cases in 2021: A Year In Review — A look back at some of the highlights from the courts in 2021, from the “confusing but limited decision in Google v. Oracle,” to questions about the copyright registration system and state sovereign immunity.

Suzanne Wilson Named General Counsel of U.S. Copyright Office — Register of Copyrights Shira Perlmutter notes Wilson’s “deep knowledge and expertise in copyright law, litigation, and technology.” Wilson will head the Copyright Office’s Office of the General Counsel, which “assists the Register in carrying out critical work of the U.S. Copyright Office regarding the legal interpretation of the copyright law”; works with “the Department of Justice, other federal departments, and the legal community on a wide range of copyright matters, including litigation and the administration of Title 17”; and has “primary responsibility for the formulation and promulgation of regulations and the adoption of legal positions governing policy matters and the practices of the U.S. Copyright Office.”

IPA and European Publishers Back AAP’s Maryland Copyright Lawsuit — Porter Anderson writes at Publishing Perspectives, “The Association of American Publishers finds international backing for its lawsuit of Maryland’s new library digital book licensing law.”

U.S. District Court Grants Win to Plaintiffs in Kiss Library eBook Piracy Suit — “The U.S. Court for the Western District of Washington awarded $7.8 million in statutory damages to 12 Authors Guild members, Amazon Publishing, and Penguin Random House for 52 acts of copyright infringement in a default judgment against Kiss Library, permanently shutting down the Ukraine-based ebook piracy ring. In a decisive opinion on December 20, 2021, Judge Marsha Pechman, senior district judge for the Western District, decided all claims for the plaintiffs and awarded $150,000 per infringed book, the maximum penalty allowed under U.S. law.”

Public Libraries and Schools Surpass Half a Billion Digital Book Loans in 2021 — Overdrive reports, “As the pandemic persisted in 2021, librarians and educators enabled readers worldwide to borrow 506 million ebooks, audiobooks and digital magazines, a 16% increase over 2020. With a focus on equity of access to books for all, libraries achieved all-time records for circulation while lowering the average cost-per-title borrowed.”

Friday’s Endnotes – 12/17/21

By , December 17, 2021.

Note: because of the holidays, this will be the last Endnotes of 2021. A big thank you to all my readers for another year full of copyright excitement. See you all in 2022!

The Year in Copyright: From Google v. Oracle to the Takings Clause — Devlin Hartline looks back at some of the highlights in 2021, from the creation of a new copyright small claims court, to the Supreme Court’s first look at fair use in 27 years.

Michael Pietsch Looks at Publishing’s (Near) Future — A look ahead from the CEO of Hachette Book Group. Pietsch writes, “The clearest and most heartening lesson of this disruption is: Books are essential. Truly. In all times, and especially in difficult ones, a book is the best source of information, reassurance entertainment, education, escape, transformation. People reached out for connection—and a book remains the richest way ever created of connecting deeply with another mind.”

Maryland’s Unlawful Compulsory License for eBooks Should Have a Short Shelf Life — From Free State Foundation’s Seth Cooper: “Copyright protections secured by federal law preempt state laws that interfere with them. Yet the Maryland legislature apparently ignored or didn’t realize that when it enacted Maryland House Bill (HB) 518 in May of this year. The law, if it goes into effect in 2022, would grant Maryland public libraries a state-level compulsory license to access eBooks, audiobooks, and other digital literary works belonging to copyright owners at state-regulated rates. But a lawsuit filed in U.S. District Court on December 9 almost certainly means that the state’s law will have a short shelf life.”

It’s No Laughing Matter As Spotify Removes Comedy Tracks — Aaron Moss looks at an unexpected issue that has arisen in streaming music. Recorded music consists of two separate copyrights, the underlying song, and the recording of the song, and the music industry is built around a complex set of rules and institutions regarding compensation for each of these two copyrights, including on streaming music services. Technically, spoken word recordings like comedy albums, also consist of two separate copyrights. Moss notes, “ But historically, unlike the case with music, the use of the underlying words has not been separately compensated.” Should it?

How Music Created Silicon Valley — “Before the rise of Silicon Valley, hundreds of millions of records were sold each year in the US, and teens accounted for almost half of the purchases. Nowadays many teenagers refuse on principle to spend any money on music, because they believe it should be free. This attitude was created and validated by tech companies, especially those FAANG behemoths. These companies have made tons of money from music, but almost always have reinvested the funds into their other corporate initiatives. In the parlance of MBAs, music is now a cash cow. You milk it, and put as little money into it as possible. When the cow stops giving milk, you send it to the slaughterhouse.”

Friday’s Endnotes – 12/10/21

By , December 10, 2021.

AAP files against Maryland law forcing publishers to license library e-books — Mark Chandler of the Bookseller writes, “Pallante said: ‘Maryland does not have the constitutional authority to create a shadow copyright act or to manipulate the value of intellectual property interests. It is unambiguous that the US Copyright Act governs the disposition of literary works in commerce—and for that matter, all creative works of authorship. We take this encroachment very seriously, as the threat that it is to a viable, independent publishing industry in the United States and to a borderless copyright economy.'”

The CASE Act: Copyright Claims Board to Begin Hearing Cases in Spring 2022 — US Register of Copyrights Shira Perlmutter provides an update on the copyright small claims court her office is currently setting up. The body, which “will offer a cost-effective, streamlined, and voluntary alternative to litigation in federal court” is on track to be up and running by Spring.

What Happened to Amazon’s Bookstore? — There’s a lot of detail in this David Streitfeld article on the utter chaos of the globally dominant retailer’s bookstore, but this quote from Institute for Self-Reliance co-director Stacy Mitchell touches on one of the through lines: “‘“Best sellers and other books that you might find at a local bookstore are almost all sold by Amazon itself at prices that keep those competitors at bay,’ Ms. Mitchell said. ‘Then Amazon lets third-party sellers do the rest of the books, taking a huge cut of their sales.’ Amazon ‘doesn’t care if this third-party stuff is a chaotic free-for-all,’ she added. ‘In fact, it’s better for Amazon if legitimate businesses don’t stand a chance. In the same way Amazon wants to turn all work into gig jobs, it wants to turn running a business into a gig job. That way it can walk off with all the spoils.'”

NCAC Leads Coalition Statement on the Attack on Books in Schools — “Libraries offer students the opportunity to encounter books and other material that they might otherwise never see and the freedom to make their own choices about what to read. Denying young people this freedom to explore–often on the basis of a single controversial passage cited out of context–will limit not only what they can learn but who they can become.”

Google Features YTS and 123movies as “Best Movie Websites” — Ernesto Van der Sar at Torrentfreak reports, “Google’s algorithms have made life a lot more convenient for many people, but they sometimes lead to peculiar results. When searching for the best movie websites, the search engine features pirate sites including YTS and 123movies in related searches. These and other not-so-legal sites also appear in one of Google’s ‘best movie website’ lists.”

Friday’s Endnotes – 12/03/21

By , December 03, 2021.

Education Publishers Sue Shopify for Copyright, Trademark Infringement — According to the complaint, “Shopify not only provides its repeat-infringer subscribers with the tools they need to run their illegal businesses, but also provides them with anonymity, a false veneer of legitimacy, and a safe haven from which to break the law. When Shopify becomes aware that one of its subscribers is using its services to infringe, Shopify must do something about it. Blindly ignoring piracy in order to make more money, as Shopify does here, is not a lawful option.”

New Zealand Library Halts Donation to Internet Archive — “The National Library of New Zealand (NLNZ) is halting its donation of 600,000 books from its overseas collection to the Internet Archive in response to mounting pressure from author and publisher groups around the world, including the Authors Guild, which sent out an alert to its members last week encouraging them to opt out of the program by the stated deadline of December 1. On Monday, November 29, the NLNZ issued a statement announcing that it was ‘reconsidering’ plans ‘in light of concerns raised by interested parties, including issues associated with copyright.'”

US Copyright Office Update on Online Publication Study [PDF] — According to the letter, some copyright registration applicants have expressed uncertainty as to how the term “publication” applies in the online context, and there is a perceived lack of consensus among courts on the issue, which can have significant legal implications for copyright owners. Since launching its study, the Office says, “Commenters provided insightful, but sometimes conflicting, suggestions about whether and how Congress or the Office could provide further clarity. The Office has already taken action to provide additional guidance regarding what constitutes publication, and we will supplement those efforts going forward. The Office also continues to analyze the comments submitted regarding potential statutory and regulatory changes, and to consider the feasibility of commenters’ various proposals in light of our current and future technological infrastructure and systems.”

The accuracy and completeness of drug information in Google snippet blocks — On the perils of automating knowledge. According to a recent study, “In 2014, Google introduced the snippet block to programmatically search available websites to answer a question entered into the search engine without the need for the user to enter any websites. This study compared the accuracy and completeness of drug information found in Google snippet blocks to US Food and Drug Administration (FDA) medication guides. . . . Google snippets provide inaccurate and incomplete drug information when compared to FDA-approved drug medication guides. This aspect may cause patient harm; therefore, it is imperative for health care and health information professionals to provide reliable drug resources to patients and consumers if written information may be needed.”

Senate Committee Advances Jessica Rosenworcel Nomination — John Eggerton of NextTV reports, “Acting Federal Communications Commission chairperson Jessica Rosenworcel was approved by the Senate Commerce Committee Wednesday (Dec. 1) for a new, five-year term, meaning only likely, swift full-Senate confirmation before she becomes the regulator‘s first non-acting woman chair.”

Friday’s Endnotes – 11/19/21

By , November 19, 2021.

SCOTUS Hears Oral Arguments in Unicolors v. H&M Case that Could Redefine Copyright Registration Standards — On Monday, the Court considered the sole copyright case (so far) in front of it this term. Kevin Madigan provides a thorough overview of the issues that came out during oral arguments regarding the question of when a copyright owner’s mistake on a registration application is enough to result in invalidation of the registration.

Will the Supreme Court Finally Declare Copyright Infringement As “Theft”? — Photographer Jim Olive has filed a cert petition requesting the Supreme Court review a Texas Supreme Court decision that denied a takings claim brought against the University of Houston for posting one of his photos to its website without permission.

Google agrees 5-year deal to pay AFP for online content: executives — “Global tech giants — mostly American — have run into a wide range of disputes with Brussels and EU member states, over taxation, abuse of their dominant market power, privacy issues and of making money from journalistic content without sharing the revenue. To tackle this the EU directive created the form of copyright called neighbouring rights that would allow outlets to demand compensation for use of their content.”

Instagram is offering huge bonuses for posting on Reels, its TikTok clone — It turns out maybe online platforms can pay creators?

Friday’s Endnotes – 11/12/21

By , November 12, 2021.

World Copyright Highlights in Late 2021: Michael Healy’s Overview — “In Canada, South Africa, Singapore, India, and the United Kingdom, says Copyright Clearance Center’s Michael Healy, copyright concerns are pending.”

No, Crediting the Artist Is Not ‘Enough’: The Case of Hallie Bateman Reveals How Online Exposure Can Be Tough for Artists — Sarah Cascone writes at Artnet News, “It’s a miracle we ever met (2016) is a simple line drawing in crayon of people walking across a blank white page, colored pathways trailing behind them, illustrating the unlikelihood of two people’s lives ever intersecting. Stichting Ijsberg had contacted Bateman in March, asking to use the piece in a July show about the arbitrary nature of human connection. She initially declined, and did not respond further when the organizers followed up to see if they could agree on a fee for the use of the work.”

Cloudflare Tests Limits of Contributory Copyright Infringement — From Devlin Hartline and IPWatchdog: “While it is certainly disappointing to see Cloudflare score a victory here against Mon Cheri in the district court, its position ultimately is wrong: There is no Ninth Circuit loophole that allows service providers to knowingly host and distribute infringing content without incurring contributory liability.”

American middle-class musicians are worth fighting for — Musician Blake Morgan makes the case for terrestrial broadcasters compensating the recording artists who create the music they play all day.

How to Trouble Isaac Newton — “[I]f hard problems are hard to think about, they are even harder to write about. And if you can’t write about them in a convincing way, your ideas are unlikely to gain much traction. Compelling writing is no less important in the scientific realm than it is in works of literature, say, or young adult fiction. In the sciences, I would argue, books (or, to use a more scholarly descriptor, monographs) provide the ideal setting for the careful laying out of a complex argument.”

Friday’s Endnotes – 11/05/21

By , November 05, 2021.

Who Is the Bad Copyright Friend? (Guest Column) — “Are you #TeamDawn or #TeamSonya? The internet was divided into warring camps in light of the viral New York Times Magazine article “Who Is the Bad Art Friend?” by Robert Kolker. It’s a tale as old as time: two writers locked in a bitter legal dispute over a short story inspired by Facebook posts about kidney donation.”

Should Copyright Exceptions Apply to AI Mined Data? And Other Questions Raised Under the UKIPO Consultation on Artificial Intelligence and Copyright and Patents — “Last Friday, the UK’s Intellectual Property Office launched a consultation entitled ‘Artificial Intelligence and IP: copyright and patents’, which closes 11:45pm on 7 January 2022 (London Time). The consultation forms part of the UK government’s ‘National Artificial Intelligence (AI) Strategy’, which followed the government’s 2017 Industrial Strategy publication. The aim of the consultation is to determine the right incentives for Artificial Intelligence development and innovation, while continuing to promote human creativity and innovation.”

Apple Class Action Suit Reprises the “Digital First Sale” Conversation — “Perzanowski and others argue that a ‘digital first sale’ doctrine would be a way of, ‘Restoring genuine ownership,’ and allege that the copyright owners ‘don’t like it because it creates pressure and competition.’ Neither statement is quite true. In answer to the second statement, as the courts held in the ReDigi case, allowing a trade at internet scale in ‘used’ digital works would not create a secondary competitive market but rather an alternative primary market in which used-goods prices are exchanged for material that is ‘used’ in name only.”

Spain adopts EU copyright law, paving way for Google News to return — “The EU legislation, which must be adopted by all member states, requires platforms such as Google, Facebook and others to share revenue with publishers but it also removes the collective fee and allows them to reach individual or group agreements with publishers. Google said it wanted to bring its news services back to Spain but would closely analyse the law before making any firm commitment.”

Apple to pay US$1.9 million to online Chinese publisher for copyright infringement in App Store — “That ruling in favour of the Tianjin subsidiary of COL Digital Publishing Group, which has been locked in a legal battle with Apple for a decade, found that several unnamed apps on the US firm’s online App Store in mainland China published unlicensed content, including popular novels, that can only be distributed by the online publisher, according to a report by national newspaper the China Securities Journal.”

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