Friday’s Endnotes – 08/13/21

By , August 13, 2021.

Is an MLB Mascot About to Change Hollywood’s Future? — “Many years later, after the Phanatic became very popular, both sides would dispute the amount of creative direction that the team had given Erickson, but what became important was how Harrison/Erickson obtained a registration from the Copyright Office by calling the Phanatic costume an ‘artistic sculpture.’ Then, attempting to leverage the termination provisions of the Copyright Act, which allows authors to reclaim newer works after 35 years, Harrison/Erickson attempted to grab back rights. In a suit, the team raised all sorts of theories why copyright termination was invalid, and before the termination became effective, the Phillies made some alterations to the Phanatic to the confusion and ire of its fan base.”

Unicolors Case Presents the Supreme Court With an Opportunity to Reinforce the Foundations of the Copyright Registration System — “Months into the litigation, after you’ve spent a considerable amount on legal fees and a tremendous amount of time preparing for litigation—time you could have spent creating new works and taking care of other business responsibilities—the infringer challenges the validity of your registration based on an error that appears in the registration. The error was an honest mistake on your part as to the legal interpretation of the date of publication. Even though the defendant clearly infringed your work, they found a loophole and they were able to invalidate your registration on a technicality. The scenario may sound far-fetched and unfair, but it’s what the Supreme Court could open the door to if it rules in favor of a similarly opportunistic defendant in Unicolors v. H&M.”

Apple Drops iPhone Copyright Lawsuit Against Cyber Startup Corellium — “Back in August 2019, Apple accused Corellium of both violating its copyright and breaching the Digital Millennium Copyright Act (DMCA) by creating ‘virtualized’ versions of the iPhone. Corellium had caused a stir in the security community in 2018 when Forbes revealed its plans to allow researchers to spin up iPhones on their laptops to start probing iOS for security weaknesses or usability flaws.”

‘WHYYYYYY?’: Police Upset Idiot Colleague Played Taylor Swift to Trigger YouTube Filter — “In at least four instances, this move has backfired by drawing massive attention to the offending cop, leading all of us to wonder what the hell they were thinking. Now, we know that the officers’ colleagues are thinking the same. New emails and documents obtained by Motherboard through a Freedom of Information Act request show that Shelby’s superiors and colleagues in the Alameda County Police Department were pissed and embarrassed by his attempt at censoring the public—and it was such a debacle, they revised rules for officers about they can use cell phones on duty. “

Friday’s Endnotes – 08/06/21

By , August 06, 2021.

Manhattan judge rejects ‘server test’ for internet copyright infringement — “In Friday’s opinion, Rakoff said the server rule is ‘contrary to the text and legislative history of the Copyright Act,’ which ‘defines “to display” as “to show a copy of” a work, not “to make and then show a copy of the copyrighted work.”‘ Rakoff said that under the test, ‘a photographer who promotes his work on Instagram or a filmmaker who posts her short film on YouTube surrenders control over how, when, and by whom their work is subsequently shown — reducing the display right, effectively, to the limited right of first publication that the [Act] rejects.'” Read the opinion here.

YouTube Rippers Shut Down in US & UK After Giving Up Legal Fight — “YouTube rippers FLVTO.biz and 2conv.com have closed their doors to visitors from the US and UK. The services are ‘permanently unavailable’ according to a message posted on the sites. This drastic decision follows shortly after their operator backed out of the legal battle against several record labels, which now hope to get a default judgment in US court.”

[Podcast] Formalities in U.S. Copyright with Steven Tepp — A delighfully wonky look at copyright formalities—notice, registration, and deposit—with copyright expert Tepp. The only downside with this podcast is that it was recorded just days before the D.C. District Court issued a decision in Valancourt Books v. Perlmutter, rejecting a Constitutional challenge to the Copyright Act’s mandatory deposit requirement, so we missed out on a discussion of that case.

In Copyright Case, Judge Evaluates Use of 9/11 Footage in 16 Films — Eriq Gardner breaks down a hefty Southern District of New York decision concerning the fair use of copyrighted clips by multiple film producers. Gardner notes, “What makes this 88-page summary judgment opinion especially fascinating is how the judge, when evaluating both famous films and obscure ones, comes to differing conclusions.”

British authors warn of a potential devastating impact on the publishing sector if the UK changes its exhaustion regime — Emmanuel Legrand reports, “The letter was signed by such authors as Kazuo Ishiguro, Carol Ann Duffy, Hilary Mantel, Sara Sheridan, and Philip Pullman, among others. The letter reads: ‘UK currently has strong copyright laws which enable creators to be fairly compensated for their work and the UK to export more books than any other country in the world. Weakening the UK’s copyright laws would impair our ability to earn an income which would have a devastating impact on this country’s vibrant, world-renowned book industry. If writing becomes a profession only accessible to the wealthy, important stories will not be told.'”

Friday’s Endnotes – 07/30/21

By , July 30, 2021.

The National Library loses the plot, again — “What’s in the water at the National Library? Is it methylated spirits, or lysergic acid, or somesuch other derangement of the senses? After 12 months of rotten publicity and bitter backlash over its decision to try and dump over 600,000 New Zealand books at garage sales, the Library is embroiled in a new row which has authors and publishers in various states of shock, disbelief and anger.”

Cultural Misappropriation and Copyright Take Center Stage in #BlackTikTokStrike — Terrica Carrington writes, “It’s a tale we’ve heard a million times: white creators with large followings perform and ‘popularize’ (read: whitewash) the work of Black creators, and in turn reap all of the benefits. And while credit and attribution are important, copyright law empowers many of these creators to demand more in exchange for their work. In fact, it’s time that Black creators demand more, and that is what the #BlackTikTokStrike is all about—Black creators recognizing the value of their work and refusing to be exploited.”

BREIN Pulled 466 Pirate Sites and Services Offline Last Year — TorrentFreak reports, “Dutch anti-piracy group BREIN is one of the most active civil copyright enforcement groups in the world. This week the group announced its 2020 achievements, which include the shutdown of hundreds of pirate sites and services, dozens of settlements, and a local Pirate Bay blockade.”

Commission starts legal action against 23 EU countries over copyright rules — From Reuters: “France, Spain, Italy and 20 other EU countries may be taken to court for their tardiness in enacting landmark EU copyright rules into national law, the European Commission said on Monday as it asked the group to explain the delays.”

Golden Globe statuette 2018 denied copyright protection in the US — Finally this week, the IPKat’s Riana Harvey discusses a recent decision by the US Copyright Office to deny copyright registration for an updated version of the Hollywood Foreign Press Association’s famous film award statuette. One technical point regarding the headline: the Office’s decision denies copyright registration not copyright protection—the HFPA could still bring an infringement suit and ask the court to come to a different decision than the Office on the issue of copyright protection.

Friday’s Endnotes – 07/23/21

By , July 23, 2021.

Copyright Office Announces Appointments of Copyright Claims Board Officers — Click to see which three individuals were named to preside over copyright small claims disputes in the new tribunal.

Podcast – IP & Social Justice with Professor Lateef Mtima — Illusion of More’s David Newhoff speaks with Howard University Law professor and director of the Institute for Intellectual Property and Social Justice Lateef Mtima on the intersections between IP and social justice.

#BlackTikTokStrike: How TikTok Dance Creators Can Begin to Protect Their Choreographic Works — CDAS attorney Kamilah Moore talks about how black creators and other creators of color can protect their choreographic works, protect their rights, and monetize their creativity in a TikTok world.

Biden to appoint Big Tech critic to DOJ antitrust role — The nomination is for one of the last remaining open slots among government positions leading in antitrust enforcement efforts, and the choice signals that the Administration will be vigorous in enforcing antitrust laws against Big Tech.

UEFA Wins Two-Year Extension to Streaming Piracy Blocking Order — “UEFA, the governing body of football in Europe, has obtained an extension to a High Court injunction that requires major ISPs to block consumer access to pirated streams in Ireland. The plan is to continue blocking measures so that pirating customers of Eir, Sky, Virgin Media, and Vodafone can less easily watch UEFA Champions League and Europa Conference League matches.”

Friday’s Endnotes – 07/16/21

By , July 16, 2021.

France fines Google $593 million for news copyright violations — “French competition regulators said Tuesday they are fining Google 500 million euros, or roughly $593 million, for failing to comply with copyright rules around negotiating payment terms for news publishers. . . . It’s the latest in a string of competition penalties and investigations Google has faced abroad and at home, several of which concern the way Google compensates news publishers for distributing their work.”

Advocat General dismisses Poland’s challenge to Copyright Directive — “Article 17 of the Copyright directive introduces the principle content sharing service providers might be liable if users upload content that breaches copyrights. Providers can be exempted from this liability if they take measures to prevent illegal uploads, which most commonly takes the form of automatic content recognition tools. Poland challenged the provisions before the Court of Justice, contending that Article 17 should be annulled because it violates freedom of expression.”

Copyright Office’s Busy Summer Includes a Full Slate of Studies and Rulemakings — The Copyright Alliance reviews the full slate of studies and rulemakings that the US Copyright Office is engaged in this summer, addressing everything from implementation of the new copyright small claims tribunal to state sovereign immunity and state compulsory e-book licensing bills.

US Copyright Office report: The MLC should hold unclaimed mechanical royalties for longer than the statutory minimum periods — “The US Copyright Office has issued a series of recommendations regarding the way the Mechanical Licensing Collective (MLC), created by the 2018 Orrin G. Hatch–Bob Goodlatte Music Modernisation Act (MMA) to license and administer mechanical royalties for the digital use of music in the United States, should deal with unclaimed royalties, in particular that they ‘should be held for longer than the statutory minimum periods where appropriate.'” 

Spotify Blocks Users For “Improperly Downloading” Tracks With Third-Party Software — “Spotify has reportedly blocked the accounts of several customers after they ‘improperly’ downloaded tracks from the service using a third-party software tool. Audials Music exploits Spotify to stream music to users at breakneck speed while recording tracks locally as MP3 files. This was noticed at Spotify and has resulted in users being suspended from the service for abuse.”

Friday’s Endnotes – 07/09/21

By , July 09, 2021.

Copyright Office Releases Report on Best Practice Recommendations for the Mechanical Licensing Collective — The report outlines how the newly established Mechanical Licensing Collective can ensure songwriters are getting the royalties they’ve earned under the new blanket license for digital streaming, focusing on on how the MLC can identify and locate songwriters of unclaimed accrued royalties, encourage songwriters to claim their royalties, and reduce the incidence of unclaimed royalties.

A Years-Long Intellectual Property Battle Over a Painting of David Bowie Has Been Dismissed by a Berlin Court — “The court found that Moebius’s work differed from Evans’s in both form and message. ‘It radiates softness and tranquility, which is primarily caused by the altered eye area,’ the court said of Moebius’s image. ‘The drawing shows a world-famous artist performing an everyday, yet absurd gesture with great seriousness.’ By contrast, Evans’s photograph is defined by the strong contrast in its lighting and the vertical line formed by finger and nose. In it, Bowie ‘commands the viewer to remain calm,’ the court said.”

5th Circuit set to referee ‘egregious’ 12th Man copyright case — “Bynum sent the chapter to the Texas A&M Athletic Department’s media-relations team in 2010 to inquire about obtaining photographs to accompany it. The chapter listed Bynum as the book editor and copyright owner, and listed the commissioned writer as Whit Canning, a well-known Texas sportswriter. In 2014, media rep Brad Marquardt found the yellowed pages of Bynum’s 2010 manuscript, had his secretary ‘key them in,’ and posted it online as a special report that Canning had prepared for Texas A&M. . . . During the three days the story remained online, the department promoted it to ‘hundreds of thousands’ of social media followers and subscribers to its ‘TAMU Times’ e-newsletter – destroying the market for his book among its ‘core audience,’ Bynum alleged.”

RIAA and Rightscorp Defeat RCN’s Claims of “Fraudulent” Piracy Notices — “The RIAA and its anti-piracy partner Rightscorp have won a legal battle over allegedly ‘fraudulent’ piracy notices. A New Jersey federal court dismissed the complaint of Internet provider RCN, which failed to show that it was financially hurt as a direct result of any incorrect notices sent. The case is not completely over yet, however.”

French anti-trust decision on Google’s copyright talks with publishers due in coming days — “Antitrust investigators have accused Alphabet’s Google of failing to comply with the state competition authority’s orders on how to conduct negotiations with news publishers over copyright, sources who read the investigators’ report have said. Several publishers complained the talks weren’t made in ‘good faith’ and that Google didn’t provide access to some of its traffic data to determine a remuneration for news content online. Google has repeatedly said it held talks in good faith.”

Friday’s Endnotes – 06/25/21

By , June 25, 2021.

Congressmen Introduce American Music Fairness Act to Compel Radio to Pay Royalties on Recorded Music — “The United States is the only major country in the world where terrestrial radio pays no royalties to performers or recorded-music copyright owners of the songs they play, a situation that is largely due to the powerful radio lobby’s influence in Congress. While the more than 8,300 AM and FM stations across the country pay royalties to songwriters, they have never paid performers or copyright holders, although streaming services do. On Thursday, Reps. Ted Deutch (D-FL) and Darrell Issa (R-CA) introduced the bipartisan American Music Fairness Act, which aims to rectify that situation.”

CJEU rules on platform liability under copyright law, safe harbours, and injunctions — “The early reactions I have seen, likely supported by the rather misleading title of the press release, have been in the sense that the CJEU has ruled that platforms like YouTube and Uploaded do not communicate to the public under Article 3. In turn, this would mean that Article 17 of the DSM Directive is a novel regime that does not at all ‘clarify’ the law (recital 64 of the DSM Directive), but rather changes it. This interpretation is, in my view, incorrect.”

“Oh, the Places You’ll Boldly Go!” dispute won’t go to SCOTUS, justices say — “The high court won’t review the 9th Circuit’s December decision written by U.S. Circuit Judge Margaret McKeown that author David Jerrold and ComicMix LLC’s mashup of ‘Star Trek’ elements with Dr. Seuss’s ‘Oh, the Places You’ll Go!’ didn’t make fair use of Seuss’s work largely because it wasn’t transformative.”

Library of Congress Announces Copyright Public Modernization Committee — “. . . the CPMC is being established by the Library to expand and enhance communication with external stakeholders on IT modernization of Copyright Office systems. Committee members were selected from a pool of applicants for their ability to represent a broad cross section of the copyright community and other interested groups. CPMC members will provide valuable input into the development of the new Enterprise Copyright System (ECS), which includes the Office’s registration, recordation, public records, and licensing IT applications, and will be encouraged to help spread awareness of the Library’s development efforts more broadly.”

Library of Congress to Celebrate the Return of Visitors to the Thomas Jefferson Building in July — “A limited number of free timed entry passes will be available on Thursdays, Fridays and Saturdays between 10 a.m. and 4 p.m., with last entry at 3 p.m. For information on reserving tickets, visit loc.gov/visit – visitors can review ‘Know Before You Go’ guidelines and reserve their free passes. Each visitor must have a printed paper pass or a digital copy of the pass available on a mobile device for entry. All visitors, regardless of age, must have a timed pass for entry, and each visitor will be able to reserve up to (6) passes. Passes will be released on a rolling, 30-day basis, so for visitors planning to visit within the next month, please visit the reservation site for availability.”

Friday’s Endnotes – 06/18/21

By , June 18, 2021.

First Circuit Rules Markham’s Development of ‘The Game of Life’ Was Work Made For Hire Not Subject to Termination Rights — Markham argued that the Supreme Court’s decision in CCNV v. Reid, which interpreted the work for hire provisions of the 1976 Copyright Act, was applicable to works protected under the 1909 act. The First Circuit disagreed, holding that the “instance and expense” test still applied to such works.

Unicolors v. H&M Raises Some Thorny Issues for Copyright Owners — David Newhoff looks at the first copyright case the Supreme Court has agreed to hear for its next term.

Just What Is the Case with the CASE Act? A Brief Overview — “The phrase ‘creators have rights, but no remedies’ is likely familiar to those aware of the current landscape of copyright protection for individual creators and small businesses. While the Copyright Act of 1976 grants a bundle of rights to Creators for the protection of their works, for years Creators have faced an uphill battle enforcing those rights against infringers. There are many who are optimistic, however, that things might soon change with the passage of ‘The Copyright Alternative in Small-Claims Enforcement Act of 2020’ (CASE Act).”

The Beijing Treaty: A step forward in the protection of related rights in audiovisual performances — “For the first time, an international instrument confers express protection to performing artists for fixations of their work on an audiovisual medium, acknowledging their right to decide the time and manner in which their audiovisual works are used abroad, while also receiving a share of the profits obtained from their exploitation, even in the digital environment. Up to now, only sound fixations enjoyed this protection (see the WIPO Performances and Phonograms Treaty – WPPT – approved in 1996 and in force since 2002).”

Friday’s Endnotes – 06/11/21

By , June 11, 2021.

Copyright controversy erupts as prominent scholars urge veto of ALI restatement — “In 2018, Balganesh, Menell and Nimmer asked ALI’s governing council to consider their objection to the restatement’s black letter departures from the language of the Copyright Act. The council, according to Balganesh, referred their concerns to a different ALI committee, but they were never apprised of that committee’s conclusions.” The ALI ignored the concerns and approved the sections of the draft on Tuesday.

How IP Rights Keep Markets Free — Law professor Jonathan Barnett writes in a new policy brief, “weak or nonexistent patents advantage larger integrated firms while disadvantaging smaller firms that have strong innovation but weak commercialization capacities. Rather than advancing the public interest in a robust innovation economy, IP-skeptical policies undertaken by courts, legislators, and regulators may have mostly promoted the private interests of large technology firms that advocated for those policies.”

Leading authors sound alarm over post-Brexit changes to copyright — “Mosse, author of the bestselling Labyrinth and founder of the Women’s prize, said: ‘If we don’t ensure writers remain respected for their work, then many will be forced to leave the industry and Britain’s cultural landscape will suffer hugely. . . . It will become less diverse, less innovative, less inspiring,’ said Mosse. ‘Copyright is the bedrock of authors’ earnings and ensures that everyone – whatever their background, their genre of writing – is properly remunerated for their talent.'”

Record Labels Sue Frontier For Failing to Terminate Persistent Pirates — Torrentfreak’s Andy Maxwell reports, “Holding Frontier liable for contributing to the direct infringements of its customers, the labels say that the ISP was motivated to keep infringing subscribers on board for financial benefit, adding that terminating subscribers would deprive it of revenue and make its service less attractive to existing and prospective customers. Since P2P use consumes lots of data usage, infringing customers were particularly lucrative, the plaintiffs add. Pirates are likely to pay more money for faster connections with greater usage limits, leading Frontier to turn a blind eye to repeat infringement by known specific subscribers.”

Roblox Hit With $200 Million-Plus Lawsuit by Music Publishers Alleging Unauthorized Song Use — Variety’s Todd Spangler reports, “NMPA president/CEO David Israelite announced the lawsuit against Roblox at the trade group’s 2021 annual meeting. He cited Roblox’s massive user base of more than 42 million active daily players and alleged that Roblox has gone to great lengths to avoid paying music creators.”

Friday’s Endnotes – 06/04/21

By , June 04, 2021.

Supreme Court Grants Cert in Unicolors v. H&M to Consider Whether Section 411 Includes Intent-to-Defraud Requirement — The first copyright case to land on the Supreme Court’s 2022 docket arrived this week, with the Court agreeing to decide when copyright registrations with inaccurate information can be invalidated by courts.

Street Artist Kaves Slaps the NYPD With a Lawsuit, Saying It Illegally Whitewashed a New York Mural He Painted With Full Permission — According to Artnet News, “The artist is asking the court to decide whether the NYPD’s policy and practices violate the Visual Artists Rights Act (VARA), which gives artists certain protections for public art projects.”

AAP Vows to Protect Copyright from All Challengers — “In his opening remarks, Napack praised the publishing community for ‘keeping the river of ideas flowing’ during the pandemic, especially as the industry faced threats and challenges from different quarters. He promised that AAP would continue to fight against forces that ‘chip away’ against freedom of expression as well as those who seek to erode copyright protection.”

New EU copyright rules that will benefit creators, businesses and consumers start to apply — From the EU Commission: “This Monday 7 June marks the deadline for Member States to transpose the new EU copyright rules into national law. The new Copyright Directive protects creativity in the digital age, bringing concrete benefits to citizens, the creative sectors, the press, researchers, educators and cultural heritage institutions across the EU. At the same time, the new Directive on television and radio programmes will make it easier for European broadcasters to make certain programmes on their online services available across borders. Furthermore, today, the Commission has published its guidance on Article 17 of the new Copyright Directive, which provides for new rules on content-sharing platforms.”

The American Law Institute Proceeds with its Misstatement of Copyright Project — “Next week, sections of the American Law Institute’s (ALI) Copyright Restatement will be offered for approval for the first time at the ALI’s annual membership meeting. If approved by the full membership, these sections will be made publicly available and may then be cited by attorneys in briefs and used by judges to help decide copyright cases. The problem is that the Restatement project has been plagued from the start with a myriad of substantive and procedural deficiencies that remain unaddressed.”

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