Breyer’s Flawed Fourth Fair Use Factor in Google v. Oracle

By , June 01, 2021.

In April, the Supreme Court capped a long running and closely watched lawsuit between Google and Oracle stemming over Google’s copying of elements of Java code owned by Oracle into its Android software platform. Justice Breyer penned the 6-2 opinion, which left intact the Federal Circuit’s 2014 decision holding that the aspects of Java code copied by Google are copyrightable but found that Google’s copying was excused by fair use.

Justice Breyer’s opinion in Google v. Oracle is unusual in a number of respects, but I find one aspect in particular troubling from both a legal and a principled standpoint and worth highlighting. In his discussion of market effects (i.e., the fourth fair use factor), Breyer says, “we must take into account the public benefits the copying will likely produce.”1Slip op. at 31.

My concern is not that we shouldn’t take into account public benefits from copying as part of a fair use analysis, it’s that we already do—and if courts tread too far down the path Breyer lays out here, it could actually undermine the balance that fair use attempts to strike and lead to a result that is contrary to the public interest.

From a legal standpoint, I think Breyer is wrong to suggest that courts should consider the public benefits of copying as part of the fourth factor analysis. This type of consideration is already a part of the fair use analysis, which is designed overall to determine when certain publicly beneficial, but otherwise infringing, uses of works should be permitted.2Report of the Register of Copyrights on the General Revision of the US Copyright Law at 24 (1961) (“[B]roadly speaking, [fair use] means that a reasonable portion of a copyrighted work may be reproduced without permission when necessary for a legitimate purpose which is not competitive with the copyright owner’s market for his work.”). The consideration of publicly beneficial copying is addressed specifically through the first fair use factor—and Congress has even provided an illustrative list the types of copying considered publicly beneficial to aid courts: “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” Incorporating an additional, independent consideration of the public benefits of copying within the fourth fair use factor undermines that factor, which the Supreme Court has said “is undoubtedly the single most important element of fair use.”3Harper & Row v. Nation Enterprises, 471 US 539, 566 (1985). Breyer’s approach is inconsistent with the statutory scheme crafted by Congress and upsets the holistic balancing exercise that section 107 directs courts to engage in.

In making his statement, Justice Breyer cites to MCA, Inc. v. Wilson4677 F.2d 180, 183 (2d Cir. 1981). for the proposition that courts should balance “public benefits and losses to copyright owner under this factor,” but a closer look at the case reveals that Breyer is—perhaps inadvertently—engaged in judicial sleight of hand. The passage cited in MCA does indeed discuss the fourth fair use factor, but the balance it is referring to is not a balance within the factor, but a balance between this factor and the others. In other words, the court is discussing the relative weight that should be placed on this factor, which is clear from context. In discussing the first fair use factor, the court says, “While commercial motivation and fair use can exist side by side, the court may consider whether the alleged infringing use was primarily for public benefit or for private commercial gain.”5Id. at 182. Later, it concludes, “The less adverse effect that an alleged infringing use has on the copyright owner’s expectation of gain, the less public benefit need be shown to justify the use.”6Id. at 183. This point is reinforced when we look at the cases MCA itself cites: consideration of public benefit is accomplished through the fair use inquiry as a whole, not separately in the fourth factor.7See, e.g., Meeropol v. Louis Nizer, Doubleday & Co., 560 F.2d 1061, 1069-70 (2d Cir. 1977) (“the purpose and character of the use of the copyrighted material, the nature of the copyrighted work, and amount and substantiality of the work used, and its effect upon the potential market for the copyrighted material are factors which must be evaluated in concert. If the effect on the market by an infringing work is minimal, for example, far greater use may be privileged than where the market value of the copyrighted material is substantially decreased.”).

From a principled standpoint, Breyer’s departure from settled fair use analysis raises concerns. The danger Breyer invites with his freewheeling consideration of the public benefit in the fourth factor, untethered from the illustrative purposes of the first factor, is that it may cause courts to overlook the public benefit advanced through copyright protection itself. The public interest is served by creating marketable rights in works of creative expression, which enables the pursuit of private ends through the creation and dissemination of such works.8It bears emphasizing here the Court’s previous statements regarding copyright’s advancement of the public interest. In Eldred v. Ashcroft, the majority admonished Justice Breyer’s assertion that “copyright statutes must serve public, not private, ends,” saying “The two ends are not mutually exclusive, copyright law services public ends by providing individuals with an incentive to pursue private ones.” 537 US 186, 212 n.18 (2003). More directly, in Harper and Row, the Court agreed with the Second Circuit “that copyright is intended to increase and not to impede the harvest of knowledge” but believed that the Circuit Court, in finding fair use, “gave insufficient deference to the scheme established by the Copyright Act for fostering the original works that provide the seed and substance of this harvest.” 471 US at 545-46. It’s challenging to see this public interest in action—it’s not like we can compare a world with copyright to a world without copyright to see the differences. And it is difficult, if not impossible, to identify and measure the results of any changes—they are prospective, occur over a long period of time, and are subtle and diffuse.

Thus, it may be too easy for a court, confronted with a potential use “impeded” by copyright to fixate on the benefit of permitting the use in front of it while ignoring the more diffuse public benefit advanced by copyright protection. Judges can’t be blamed for this; it’s human nature. We are wired to make decisions based on what affects us more deeply rather than through a rational cost-benefit analysis, and immediately perceivable outcomes are far more affective than delayed, diffused outcomes.9See Paul Slovic et al., Risk as Analysis and Risk as Feelings: Some Thoughts About Affect, Reason, Risk, and Rationality, 24 Risk Analysis 311 (2004). That’s not to say judges are ruled by their emotions. But it does illustrate the benefits of constraining judicial decision-making through, for example, standards—like the four factors that Congress directs courts to consider when determining fair use. Judicial tools such as presumptions and burdens of proof might also play an important rule here. Instead, Breyer’s opinion leads courts down a path that compounds the inherent difficulties of assessing relative benefits and pushes fair use in the wrong direction.

References

References
↑1 Slip op. at 31.
↑2 Report of the Register of Copyrights on the General Revision of the US Copyright Law at 24 (1961) (“[B]roadly speaking, [fair use] means that a reasonable portion of a copyrighted work may be reproduced without permission when necessary for a legitimate purpose which is not competitive with the copyright owner’s market for his work.”).
↑3 Harper & Row v. Nation Enterprises, 471 US 539, 566 (1985).
↑4 677 F.2d 180, 183 (2d Cir. 1981).
↑5 Id. at 182.
↑6 Id. at 183.
↑7 See, e.g., Meeropol v. Louis Nizer, Doubleday & Co., 560 F.2d 1061, 1069-70 (2d Cir. 1977) (“the purpose and character of the use of the copyrighted material, the nature of the copyrighted work, and amount and substantiality of the work used, and its effect upon the potential market for the copyrighted material are factors which must be evaluated in concert. If the effect on the market by an infringing work is minimal, for example, far greater use may be privileged than where the market value of the copyrighted material is substantially decreased.”).
↑8 It bears emphasizing here the Court’s previous statements regarding copyright’s advancement of the public interest. In Eldred v. Ashcroft, the majority admonished Justice Breyer’s assertion that “copyright statutes must serve public, not private, ends,” saying “The two ends are not mutually exclusive, copyright law services public ends by providing individuals with an incentive to pursue private ones.” 537 US 186, 212 n.18 (2003). More directly, in Harper and Row, the Court agreed with the Second Circuit “that copyright is intended to increase and not to impede the harvest of knowledge” but believed that the Circuit Court, in finding fair use, “gave insufficient deference to the scheme established by the Copyright Act for fostering the original works that provide the seed and substance of this harvest.” 471 US at 545-46.
↑9 See Paul Slovic et al., Risk as Analysis and Risk as Feelings: Some Thoughts About Affect, Reason, Risk, and Rationality, 24 Risk Analysis 311 (2004).

Friday’s Endnotes – 05/28/21

By , May 28, 2021.

Instagram Embed Feature Sparks Copyright Suit From Users — “Two users on Wednesday sued Instagram, claiming its embed feature is designed to flout copyright laws to make money for its parent, Facebook. ‘Instagram misled the public to believe that anyone was free to get on Instagram and embed copyrighted works from any Instagram account, like eating for free at a buffet table of photos by virtue of simply using the Instagram embedding tool,’ writes attorney Solomon Cera in the complaint,” which is included in the article.

A voice gone viral: Canadian voice actor sues TikTok for using her voice without permission for text-to-speech feature — “Standing first became aware of her voice in TikTok videos in late 2020. Her friend sent a video to her, noticing her voice in the background. In early May, Standing filed a copyright violation claim against ByteDance for using her voice recordings without obtaining permission.”

New Report Examines Changes to Copyright Law for Sound Recordings — The Library of Congress National Recording Preservation Board has published a report that analyzes the Music Modernization Act and its implementation, with a focus on how the law impacts sound recording preservationists. The report includes a number of guides and resources for libraries and archives.

Cox Appeals $1B Piracy Liability Verdict to ‘Save the Internet’ — ISP Cox submitted its opening appellate brief to the Fourth Circuit this week, along with a healthy dose of hyperbole. Cox is appealing the lower court’s holdings on vicarious liability, contributory infringement, and statutory damages. A copy of the brief is included in the article.

Federal Court of Appeal Court Upholds Canadian Pirate Site Blocking Order — Torrentfreak’s Ernesto Van der Sar reports, “Canada’s Federal Court of Appeal concluded today that the country’s first pirate site blocking order can stay in place. The Court dismissed the appeal from Internet provider TekSavvy. According to the Court, site-blocking injunctions don’t violate the Copyright Act, freedom of speech, or net neutrality. While it’s not a perfect remedy, it trumps other available options.”

Friday’s Endnotes – 05/21/21

By , May 21, 2021.

Stages of Grief: What the Pandemic Has Done to the Arts — A compelling and devestating read from William Deresiewicz. “What has been happening across the arts is not a recession. It is not even a depression. It is a catastrophe. There is another thing the rest of us, the audience, do not fully appreciate: the crisis is rooted in the destruction that was visited upon the arts even before the pandemic—that is, in the scandal of free content, which has been going on for more than twenty years and which implicates us all.”

A Bounty of Fair Use: ‘Google v. Oracle’ and ‘Warhol Foundation v. Goldsmith’ — Copyright attorneys Robert Bernstein and Bob Clarida discuss what impact the Supreme Court’s recent decision in Google v. Oracle may have on Warhol Foundation v. Goldsmith, where the Andy Warhol Foundation is currently seeking for rehearing of the Second Circuit’s earlier decision rejecting a fair use defense. And this just in: the Warhol Foundation reply in support of its petition for rehearing, filed yesterday.

German musicians criticize planned copyright reform — “The German federal government is planning its most extensive reform of copyright law within the last two decades, as it faces a June 7 deadline to implement European copyright directives into its national law. The proposed bill has, however, drawn criticism; a recent open letter to the German Bundestag protesting against the reform was signed by 1,145 musicians, bands and singers, including Peter Maffay, Helene Fischer, Herbert Grönemeyer, H.P. Baxxter, Campino and Marteria.”

South Africa’s Parliament starts the process for a new Copyright Amendment Bill — “South Africa’s Trade and Industry Committee at the National Assembly met on 12 May to discuss a new draft of the Copyright Amendment Bill (CAB), which was sent back to the Parliament in June 2020 by President Cyril Ramaphosa due to constitutional concern about the law. . . . The creative community was critical of the scope of exceptions to copyright in the original law through the introduction of a wide-ranging fair use provision. Consumers groups and organisations representing blind people were supportive of the bill.”

The Myth of Internet Exceptionalism: Bringing Section 230 into the Real World — “Offering perhaps the most concrete legal embodiment of Barlow’s internet exceptionalism, Section 230(c)(1) as applied by the courts has exempted platforms from the common law duty of taking reasonable steps to prevent users of their services from causing harm. Ironically—and in many cases tragically—this reduces the likeli­hood platforms will moderate content, the opposite of what Congress intended. Free from potential liability, platforms have a financial interest in minimizing spending on proactive measures to prevent unlawful activity, and even on reactive measures to mitigate further harm when unlawful activity has already occurred. As a result, instead of creating an incentive to moderate content, Section 230 creates a misincentive. Platforms can conserve resources and invest more reck­lessly in growth, giving them a competitive edge over their brick-and-mortar rivals and allowing them to shift onto society the costs of combating (or failing to combat) harm”

Friday’s Endnotes – 05/14/21

By , May 14, 2021.

Holding States Accountable for Copyright Piracy — “This paper identifies how copyright law and sovereign immunity came into conflict recently, explains why this conflict matters, and proposes a solution: Congress should enact new legislation that holds states accountable for when state officials pirate the fruits of creative labors of citizens by stealing their copyrighted works.”

Georgia Governor signs SB 238 into law — This week, the Georgia governor signed into law a bill that would allow the state to continue to offer an annotated code in light of last year’s Supreme Court decision in Georgia v. Public Resource Org. The bill clarifies which parts of the Code have or do not have the effect of law, clarifies the oversight of Georgia’s Code Revision Commission with respect to supplementary content, and revises a provision relating to copyright of the Code.

Goldsmith: The Supreme Court’s Google v. Oracle decision did not alter fair use analysis — Yesterday, the photographer filed her response to the Warhol Foundation’s request for rehearing of the Second Circuit’s decision finding Warhol’s use of Goldsmith’s Prince photo was not fair use. The Warhol Foundation has seven days to file a reply.

US Copyright Office: Notice and Takedown — The US Copyright Office recently published this helpful overview of the DMCA’s notice and takedown process, which copyright owners can use to request removal of infringing content from online services.

The Copyright Restatement and Judicial Discretion Within a Comprehensive Statute

By , May 10, 2021.

The American Law Institute (ALI), an independent organization of legal experts founded in 1923, is scheduled to consider portions of its copyright Restatement project at its annual meeting June 8, 2021. This will be the first time any part of the project will be considered by the full ALI membership since it began in late 2015. In those years, the project has attracted criticism from members of Congress, the US Copyright Office, the American Bar Association IP Law Section, the New York City Bar Association Copyright & Literary Property Committee, and numerous other groups and individuals.

Many of these critics have pointed out that copyright is governed by a comprehensive and detailed federal statute, making it ill-suited to the approach traditionally employed by ALI’s Restatement projects. Restatements have historically addressed common law areas of the law such as contract and tort, adopting the perspective of a common law court to determine the best rules for legal issues and express them as “black letter” law—presenting a “codification” of the law to guide other courts.1American Law Institute, Capturing the Voice of the American Law Institute: A Handbook for ALI Reporters and Those Who Review Their Work 5-7 (2015). But a court engaged in interpreting an area of law governed by statute must necessarily take a different approach. Courts start with black letter law—the text of the statute itself—and then rely on a panoply of interpretive methodologies and authoritative sources, such as legislative history, to determine the meaning of the law.  

In Restatements of Statutory Law: The Curious Case of the Restatement of Copyright, law professors Shyamkrishna Balganesh and Peter S. Menell describe the attempt to use the Restatement approach on an area of statutory law a “fatal mismatch,” and worry it threatens not only the legitimacy of the copyright Restatement project, but the credibility of the ALI itself.244 Columbia Journal of Law & the Arts 285 (2021). Above all, they say, Restatements of statutory subjects such as copyright law “need to first address the distinctiveness of statutory interpretation as a judicial function.”3Id. at 337. Different courts use different methods of interpreting statutes. A Restatement that simply adopts the view of a common law court, as Restatements have historically done, “masks the crucial choice of methodological framework.” And a Restatement that does not explain the interpretive approach it is employing and applies different approaches to different provisions, as Balganesh and Menell argue the copyright Restatement does, leads to further confusion rather than the clarification ALI seeks.4Id. at 338.

ALI Director Richard L. Revesz has acknowledged that Restatements have traditionally “dealt with areas of state common law,” but brushes aside concerns by saying that “in the last few decades,” Restatements have “undertaken significant efforts” in areas covered by statutory law.5The ALI Adviser, Restatement of the Law, Copyright (April 28, 2021). Though Revesz also acknowledges that the copyright Restatement differs from even those projects—”because the Copyright Act covers many of the subjects on which the Restatement will focus”—he argues that the conceptual issues remain the same, and the ALI will continue to “provide guidance to the courts in instances in which judges are called on to exercise their discretion.”6Id.

In other words, the ALI argues that it does not need to change the traditional methodology of Restatement projects if it just focuses on those areas of a legal topic that remain squarely the province of the courts. But even if that leaves us with a worthwhile project to pursue, it still doesn’t answer a threshold question. How do we know when a complex, detailed statute like the Copyright Act leaves an issue to the discretion of a court? Sometimes the statute is clear on this point, but oftentimes it’s not. Sometimes a statute incorporates the common law of an issue that has developed in courts, other times it alters or overrules that common law, either expressly or implicitly. This threshold question is frequently disputed. So you can’t say you don’t need a statutory interpretation methodology by sticking to the common law areas of a statute, because the very identification of those issues itself requires statutory interpretation.

First sale

One example that demonstrates the challenges in identifying areas of statutory law amenable to the traditional Restatment approach is copyright’s first sale doctrine. Revesz identifies this as one of the areas “that have clear common-law origins, where there is significant scope for judicial discretion.” 7Id. Yet a recent Second Circuit decision reveals a contentious dispute over the scope of judicial discretion, one that could have been determinative of the outcome.

The first sale doctrine, codified in 17 USC § 109, is premised on the fundamental distinction between ownership of a copyrighted work and ownership of a physical object that contains that work. Among the exclusive rights protected under the Copyright Act, a copyright owner has the exclusive right “to distribute copies . . . of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.”817 U.S.C. § 106(3). But the right to distribute one particular copy of that work is exhausted after the copyright owner has transferred ownership of that copy (i.e., after the “first sale” of the copy). Hence, copyright does not prevent someone who has bought, say, a paperback book from reselling or lending it to others.

In Capitol Records v. ReDigi, the Second Circuit confronted the issue of how first sale applies to digital files, where copies of works are transmitted via the internet rather than conveyed in physical objects.9910 F.3d 649 (2018). In such cases, a single copy of the digital file is not being transported from a “seller” to a “buyer”; rather, data is being transmitted from the device containing the original file to a new device, resulting in a copy of the file existing on both devices. The court determined that the statute was clear on this question: § 109 only limits the exclusive right of distribution; transmission of a digital file results in the creation of a new copy of a work, which implicates a copyright owner’s exclusive right of reproduction; thus, the first sale doctrine does not permit resale of works embodied in digital files via internet transmission.

In reaching that conclusion, the court heard from a group of intellectual law professors who argued that Congress intended the first sale doctrine to apply broadly, permitting the conduct at issue in Redigi. In codifying first sale, they argued, Congress embraced “a long line of common law exhaustion cases . . . without limitation or reservation.”10Capitol Records v. ReDigi, Brief of Copyright Law Scholars as Amici Curiae in Support of Defendants-Appellants and Reversal at 8, No. 16-2321 (2017). The professors highlighted legislative history suggesting an intent to “restate and confirm” the scope of first sale at common law to support this assertion, along with “the rule of law principle that counsels courts not to interpret statutes granting exclusive rights in a way that modifies common law principles or restricts common law rights in the absence of irresistibly clear legislative intent to do so.” 11Id. at 8-9. Thus, the professors concluded, the statute leaves courts with the discretion to interpret the first sale doctrine broadly enough to permit reproductions that are necessary to effectuate the transfer of “ownership” of digital files via the internet.

The court considered these arguments but unequivocally rejected them, saying,

Furthermore, as to the argument that we should read § 109(a) to accommodate digital resales because the first sale doctrine protects a fundamental entitlement, without regard to the terms of § 109(a) (and incorporated definitions), we think such a ruling would exceed the proper exercise of the court’s authority. The copyright statute is a patchwork, sometimes varying from clause to clause, as between provisions for which Congress has taken control, dictating both policy and the details of its execution, and provisions in which Congress approximatively summarized common law developments, implicitly leaving further such development to the courts. 12910 F.3d at 664.

As the Second Circuit correctly observes, the dispute over the scope of judicial discretion to apply a provision of law is not limited to the first sale doctrine. The scope of discretion among all Copyright Act provisions varies significantly. Is there value in distilling and clarifying those doctrines that are left largely to the courts? Absolutely. But statutory interpretation is needed to identify those doctrines in the first instance. Without articulating a clear and transparent methodology of statutory interpretation, such efforts will only result in more confusion than clarity. That is, you can’t use the traditional Restatement approach to determine what areas of a complex statute to restate.

References

References
↑1 American Law Institute, Capturing the Voice of the American Law Institute: A Handbook for ALI Reporters and Those Who Review Their Work 5-7 (2015).
↑2 44 Columbia Journal of Law & the Arts 285 (2021).
↑3 Id. at 337.
↑4 Id. at 338.
↑5 The ALI Adviser, Restatement of the Law, Copyright (April 28, 2021).
↑6 Id.
↑7 Id.
↑8 17 U.S.C. § 106(3).
↑9 910 F.3d 649 (2018).
↑10 Capitol Records v. ReDigi, Brief of Copyright Law Scholars as Amici Curiae in Support of Defendants-Appellants and Reversal at 8, No. 16-2321 (2017).
↑11 Id. at 8-9.
↑12 910 F.3d at 664.

Friday’s Endnotes – 05/07/21

By , May 07, 2021.

Perlmutter addresses copyright issues at first House oversight hearing — The head of the US Copyright Office appeared in front of the House Judiciary Committee for the first time since taking the helm as Register of Copyrights last October. Perlmutter discussed the Office’s operations during the pandemic, continued modernization efforts, implementation of the Music Modernization Act and CASE Act, and fielded questions concerning policy issues like DMCA reform, terrestrial radio royalties, and resale royalties.

Foreign Works, US Rights: The 7th Circle of Copyright Hell? — Aaron Moss discusses the thorny issues implicated in a copyright infringement lawsuit filed against Nirvana. “The legal issue, simply stated, is whether a work first published in a foreign country without proper copyright notice is subject to copyright protection in the United States. The answer, unfortunately, isn’t so simple, at least for works first published before 1978. It’s made even more complicated as a result of a controversial Ninth Circuit case, Twin Books v. Walt Disney Co., which involved the novel “Bambi, a Life in the Woods,” first published in Germany in 1923 without copyright notice.”

Copyright reform in Singapore continues release of draft Bill for public consultation — “In February 2021, Ministry of Law (MinLaw) and Intellectual Property Office of Singapore (IPOS) released a draft Copyright Bill (the draft Bill) for public consultation. The draft Bill is significant because it is the first time the existing Copyright Act (the Act) is being restructured and rewritten as a whole.”

Friday’s Endnotes – 04/30/2021

By , April 30, 2021.

ABC, CBS, Fox and NBC Battle “Freemium” — “What’s Locast? It’s a digital app that streams over-the-air television stations. Meaning, if a cord-cutter wanted to watch last night’s Oscars on ABC and didn’t have an ol’ rabbit ears antenna handy, this individual could go to Locast.org and sign up to see the local affiliate retransmitted online. It’s free. Well, sorta. A wrinkle may soon play a major role in an important copyright case. Broadcasters are now preparing to ask a federal judge for a sweeping legal victory against Locast. In July 2019, ABC, CBS, Fox and NBC filed a lawsuit over Locast. Nodding to a big Supreme Court decision a few years earlier, the complaint stated, ‘Locast is simply Aereo 2.0, a business built on illegally using broadcaster content.'”

World Book Day: Publishers Call for Canada’s Copyright Law To Be Fixed — “In the flurry of international recognition days in April—Earth Day (Thursday, April 22); World Book and Copyright Day (Friday, April 23); World Intellectual Property Day (Monday, April 26)—Canada’s writing and publishing industries have issued a statement, ‘calling on the federal government in Ottawa to fix Canada’s copyright law to address the systemic exploitation of creators’ and publishers’ works by educational institutions.’”

YouTube TV removed from Roku channel store amid Google contract dispute — “These spats happen regularly between Pay-TV providers and linear TV networks. But in the digital era, this is one of the rare times in which consumers will have a major streaming network removed from their platform’s channel store due to a breakdown in negotiations.”

Instagram is working on creator shops and a ‘branded content marketplace’ for influencers — “Creator Shops would be an extension of the company’s existing shopping features, which allows businesses to sell products. ‘We see a lot of creators setting up shops too, and one part of being a content creator business model is you create great content, and then you can sell stuff, and so having creator shops is awesome,’ Zuckerberg said.”

The Second Circuit is teeing up what could be the first decision to consider the impact of the Supreme Court’s decision in Google v. Oracle on the application of the fair use doctrine. This week, it called for briefing “solely addressing the impact, if any” of the decision on the appropriate disposition of the appeal in Andy Warhol Foundation v. Goldsmith.

Friday’s Endnotes – 04/23/21

By , April 23, 2021.

The Authors’ Take – Comment on Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith — Professor Jane Ginsburg on last month’s Second Circuit decision reversing a finding of fair use by artist Andy Warhol. Writes Ginsburg, “Like other recent decisions, this judgment may signal a taming of ‘transformative use.'”

Recordation: The Vital Back Office of US Copyright — “As the Copyright Office is currently in the midst of a project to build a new and modernized recordation process, I thought it might be useful to write this post about the often-overlooked (and definitely unsexy) work of the Recordation Section and its role in keeping rightsholders, potential licensees, and the general public au courant on the current ownership status (including the issuance of many licenses) of US works registered under copyright.”

Have tech platforms captured the Supreme Court? — Professor Jonathan Barnett discusses the Supreme Court’s decision in Google v. Oracle, which held that Google’s copying of software owned by Oracle was permitted by fair use. Barnett says, “This conclusion relies on a familiar but often false tradeoff between enforcing IP rights on the one hand and preserving access for users and subsequent innovators on the other hand.”

IPA Statement on World Book and Copyright Day 2021 — The International Publishers Association marks today’s celebration of World Book and Copyright Day. “The global copyright framework provides the foundation that publishers depend on to invest in publishing books that educate, enlighten and entertain audiences around the world as well as new technologies to improve their widespread availability and accessibility.”

Chicago Will Turbocharge Its Public Art Budget by 15,000 Percent as Part of a New $60 Million Cultural Recovery Program — “Under the new plan, the city’s current public art budget of $100,000 will increase by $3 million for each of the next five years—marking a 15,000 percent increase in that time. The effort ‘will not only leverage capital improvements to spur local economic development and job creation, but also mark a major advancement in the standard of public asset maintenance, and, consequently, the quality of life and livability of all Chicago communities,’ according to the city’s announcement. “

Friday’s Endnotes – 04/16/21

By , April 16, 2021.

United States Copyright Office Annual Report 2020 [PDF] — The Office published its annual report this week, covering a year marked by a global pandemic and leadership changes within the Office itself. Despite these significant challenges, the Office managed to continue its registration, recordation, and statutory licensing operations apace while also marking substantial accomplishments in its legal and policy work.

The One Saving Grace of Google v. Oracle Might be Its Limited Applicability — More analysis of last week’s Supreme Court decision addressing fair use and programming code. Kevin Madigan writes, “The decision presents a troubling misapplication of the fair use factors and a greater misunderstanding of the goals of the copyright system, but some relief comes in the Court’s explanation that its determination is limited in scope to the specific code at issue in the case and does not ‘overturn or modify its earlier cases involving fair use.'”

The Dawn of a New Era for Copyright Online — Abigail Slater and Brad Watts discuss the Protecting Lawful Streaming Act of 2020, passed at the end of 2020. The law aligns the criminal penalties for unauthorized commercial scale streaming of copyrighted with those of unlawful reproduction and addresses the shift away from downloads toward streaming for enjoying music, movies, and other copyrighted works.

Salt Bae Faces Allegations of Copyright Infringement in Latest Legal Battle — An artist alleges the meme-ified celebrity restaurateur commissioned artwork for murals in his restaurants but then, without permission, reproduced the artwork further on branding and merchandise. Kudos to the Eater for including a copy of the complaint with this article.

Friday’s Endnotes – 04/09/21

By , April 09, 2021.

Google Copyright Case Appears to Have Little Hollywood Impact — “Some of this can be chalked up to spin — either playing up the harms before the ruling, or playing them down after, or both. But it is also true that Justice Stephen Breyer went out of his way to say that he was only concerned with computer code, and that he was not trying to expand the general definition of ‘fair use’ in copyright law.”

Professors Balganesh and Menell on “The Curious Case of the Restatement of Copyright” — “While Profs. Balganesh and Menell support a Restatement of Copyright, they argue against ALI’s application of the traditional Restatement format to an area of law dominated by a detailed federal statute. They argue that such an application ignores the analytical mismatch between the traditional Restatement format and statutory domains that will create more confusion than clarity.”

The Met Wins a Case Against a Photographer Who Claims It Posted His Image of Eddie Van Halen Online Without Permission — “A panel of judges has ruled in favor of the Metropolitan Museum of Art in a copyright case over the institution’s use of a photograph of Eddie Van Halen. A 1982 concert image of Van Halen shot by Florida-based photographer Lawrence Marano was used by the museum in an online catalogue for the 2019 exhibition ‘Play It Loud: Instruments of Rock and Roll,’ which featured the late musician’s famous ‘Frankenstein’ guitar.”

U.S. Copyright Office Guide on Common Copyright Issues for Librarians — To commemorate National Library Week, the Library of Congress published an updated research guide from the US Copyright Office directed at libraries.

France’s New Strategy For Tackling Online Piracy Presented in New Bill — “A new bill presented to the Council of Ministers this week has several key goals including a pirate site ‘blacklist’, mechanisms to deal with mirror sites, and a new system to tackle live sports piracy. A new regulatory body will also be formed by merging Hadopi and the Higher Audiovisual Council.”

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