June 2024 Roundup of Copyright News
In June, Congress was busy with copyright hearings and other activities, and many courts remained busy with many copyright cases on their dockets. Here is a quick snapshot of some of copyright-related activities that occurred during the month of June as well as a few events to look forward to in July.
Copyright Alliance Activities
Copyright Alliance Welcomes Rightsify as a New Member: The Copyright Alliance welcomed Rightsify as its newest member. Rightsify provides music to thousands of businesses in more than 180 countries across the globe, spanning public spaces, streaming platforms, and generative AI applications.
Copyright Alliance Announces Two New Community Partners: The Copyright Alliance welcomed two new Community Partners to our Community Partner Program, Free Juice and Black Film Space. Free Juice works to increase diversity within the photography industry through mentorship and education initiatives, while also promoting the importance of copyright protection and enforcement. Black Film Space works to create education, networking, and pipeline programming specifically for Black Filmmakers.
Copyright Alliance Celebrates LGBTQI+ Creators During Pride Month 2024: In honor of June’s Pride Month, the Copyright Alliance highlighted numerous LGBTQI+ creators who have helped to shape the world we live in through their incredible creative contributions. The Copyright Alliance also published a blog post to celebrate LGBTQI+ trailblazers in the creative industries.
Copyright Alliance Blogs: The Copyright Alliance published a few blogs during the month of June:
- AI Transparency and Copyright: The Copyright Alliance’s CEO, Keith Kupferschmid, penned a blog post on why transparency is so important in the AI and copyright context, and who and when AI transparency requirements should apply when it comes to the use of copyrighted works.
- Music Copyright Law History: We published this blog post to celebrate World Music Day 2024 and the various copyright milestones in the history of music law, and how it impacted the music industry.
- USCO Modernization Hearing: We published this blog post, summarizing the House Administration Committee’s hearing on U.S. Copyright Office modernization, and the takeaways from the hearing.
Copyright Office Activities
CCB Status Update: At the end of June 2024, 891 total cases had been filed with the Copyright Claims Board (CCB). Of these claims, 377 are “smaller claims.” In at least 232 of all cases, the claimant is using legal counsel. At least 774 of the cases involve infringement claims, 159 involve Section 512(f) misrepresentation claims, and 30 involve claims for declarations of noninfringement. The eCCB docket currently shows that the works at issue in these cases are as follows: Pictorial Graphic & Sculpture (371 cases); Literary Works (139); Motion Picture and Audiovisual Works (192); Sound Recordings (85); Musical Works (60); and some cases include claims for multiple works. One-hundred and eight foreign residents have filed claims. Of all the cases filed, 742 have been dismissed for the following reasons: Due to Respondent’s Opt-Out (86); Due to Failure to Amend Noncompliant Claim (361); Registration Issues (16); Due to Failure to Provide Proof of Service of Process (138); Claimant Withdrawal and Dismissal of Claims (78); Bad Faith Claimant (14); and Settlement (49). There are 61 active proceedings and 24 final determinations.
USCO to Retire Special Pandemic Accommodation for Deposits: On June 27, the U.S. Copyright Office announced that on July 27 it will retire its Deposit Ticket Declaration form, a temporary accommodation adopted during the COVID-19 pandemic that allowed registration applicants who were required to submit physical copies of the “best edition” of their works to upload an identical electronic copy of the work. The Office will no longer accept electronic deposit copies submitted with this form.
Congressional Copyright Activity
Technical Amendments to Copyright Act Section 105 Introduced in Senate Bill: On June 3, Senator Mark Warner (D-VA) introduced S. 4443, the Intelligence Authorization Act for Fiscal Year 2025, a bill to authorize appropriations for fiscal year 2025 for intelligence and intelligence-related activities of the United States Government and other governmental agencies. The bill includes technical amendments to Section 105 of the Copyright Act pertaining to U.S. Government works. The main technical change proposed by the bill is to remove the definition of “covered Secretary” in 17 U.S.C. § 105(d)(3) and include the Secretary of Homeland Security Authority and Secretary of Transportation Authority under 17 U.S.C. § 105(c). Because of the removal of § 105(d)(3), the bill makes §105(d)(4) defining “covered work” as the new §105(d)(3) with no change in the definition. The bill also makes a small amendment in the definitions section, §105(d)(2)(M), that corrects two subpart “M”s into subparts “M” and “N.” Structural amendments in the definition section places the defined words in all capital letters before the word is defined.
Members of Congress Send Bipartisan Letter to USCO on Spotify’s Plan to Undercut Songwriters’ Royalties: On June 12, Representative Ted Lieu (D-CA) and Adam Schiff (D-CA), along with Senator Marsha Blackburn (R-TN), sent a letter to the U.S. Copyright Office (USCO) in light of Spotify’s recent bundling of audiobooks with music in its premium services, thereby undercutting royalties payable to songwriters. The letter asks the Office to provide information on the protections in place to ensure that the compulsory licensing scheme and statutory rate process cannot be abused to the detriment of copyright owners and whether there are efficient, low-cost processes by which copyright owners can seek relief for improper or illegal actions taken by licensees.
House Appropriations Approves LOC FY25 Budget: On June 14, the House Committee on Appropriations held a hearing to mark up several budget bills, including the Legislative Branch Appropriations bill for FY 2025. The Legislative Branch Appropriations bill was approved by the Committee with a vote of 33 to 24. Overall, the Legislative Branch bill provides $883.4 million for the Library of Congress (LOC), which is $31.3 million above the FY24 enacted level. Additionally, $59.7 million was allocated for the U.S. Copyright Office, which is $2.2 million above the FY24 enacted level.
House Administration Committee Holds Hearing on USCO Modernization: On June 26, the House Administration Committee held a hearing titled The U.S. Copyright Office: Customers, Communities, and Modernization Efforts. Register of Copyrights Shira Perlmutter was the only hearing witness. Written testimony was submitted by the Copyright Alliance, PLUS Coalition, Professional Photographers of America (PPA), News/Media Alliance, and the Association of American Publishers (AAP) and the Authors Guild. Statements for the record were submitted by National Music Publishers’ Association (NMPA), Copyright Clearance Center, Coalition of Visual Artists, Digital Media Association, and Nashville Songwriters Association International (NSAI). Chairman Bryan Steil (R-WI) highlighted the need to simplify the copyright registration process, address widespread copyright infringement, and develop IT and AI policies. Ranking Member Joe Morelle (D-NY) acknowledged the Copyright Office’s progress with the Enterprise Copyright System (ECS) and emphasized the importance of timely guidance on AI-generated content as well as guidance on the use of copyrighted materials in AI training. Despite the intended focus of the hearing and its title, much of the Q&A portion of the hearing largely focused on issues unrelated to modernization of the copyright registration system, including the importance of local journalism, cybersecurity, right to repair exemptions under the Digital Millennium Copyright Act (DMCA), the Mechanical Licensing Collective (MLC), the Copyright Office’s digitization of copyright records project, and international collaboration on AI. Register Perlmutter said that the Copyright Office has adequate staff and resources to examine AI policy issues and complete its modernization efforts for its Enterprise Copyright System (ECS). She also stated that modernization of the copyright registration process will be rolled out in pilot phases and that the Office is looking to retire the current electronic copyright registration system by the end of 2026. Further, Register Perlmutter noted that the Office is on track to deliver improved capabilities for digital uploads in the registration process and a pilot version of the new standard registration application later this year. The Copyright Alliance summarized the hearing in a blog post.
HJC IP Subcommittee Holds Hearing on Terrestrial Broadcast Royalties for Sound Recording Performances: On June 26, the House Judiciary Committee’s (HJC) IP Subcommittee held a hearing titled Radio, Music, and Copyrights: 100 Years of Inequity for Recording Artists. Witnesses included, Randy Travis, Recording Artist; Curtis LeGeyt, President and Chief Executive Officer, National Association of Broadcasters (NAB); Michael Huppe, President and Chief Executive Officer, SoundExchange; and Eddie Harrell Jr., Regional Vice President and General Manager, Radio One, Inc., Cleveland. Throughout the hearing, Members of the Committee and witnesses discussed the American Music Fairness Act of 2023 (AMFA), which would create a public performance right for non-subscription terrestrial radio broadcast transmissions, subject to numerous exceptions. The primary focus was on AMFA, although artificial intelligence and the No AI FRAUD Act also constituted a large part of the hearing discussion. Witnesses debated the potential financial burden on broadcasters versus the fairness of compensating artists and preserving traditional radio’s benefits versus adapting to modern copyright standards.
Copyright in the Courts
Publishers Sue Google Over Ads for Infringing Books: On June 5, a group of publishers, including Cengage Learning, Macmillan, Elsevier, and others, filed a complaint against Google over advertisements for unauthorized, infringing copies of plaintiffs’ textbooks and other works, and facilitating and reaping profits from those sales. The complaint also alleges that despite the plaintiffs’ reports to Google of infringements, those reports were ignored. The plaintiffs include counts of contributory copyright infringement, vicarious copyright infringement, trademark infringement, and deceptive practices claims under New York state law. Copyright Alliance Legal Advisory Board member, Oppenheim + Zebrak, LLP represents the plaintiff-publishers.
DC Court of Appeals Rules USCO Regulations Subject to Approval by LOC Are Subject to the APA; LOC Lacks Sovereign Immunity for Lawsuits Over Triennial Rulemaking Proceeding: On June 7, in the case of Medical Imaging & Technology Alliance v. Library of Congress, the Court of Appeals for the DC Circuit held that the triennial rulemaking process of determining exceptions to the anti-circumvention of technological protection measures under the Digital Millennium Copyright Act is subject to the Administrative Procedures Act (APA). Plaintiff trade associations argued that the Library of Congress’ (LOC) grant of an exemption to permit circumvention of access controls on medical devices violated the APA because the Librarian of Congress acted beyond the scope of her authority and the exercise of the rulemaking power was unconstitutional because it was either a legislative decision rendered without bicameralism and presentment or an executive rulemaking performed by a Congressional officer. The lower court held that the Library was not an “agency” because it was a part of Congress and found that the APA claims were barred by sovereign immunity. The Court of Appeals disagreed, holding that, reading sections 701(e) and 702 of the Copyright Act together, all actions of the Register of Copyrights are subject to the APA, and all regulations established by the Register under the Copyright Act are subject to the approval of the Librarian, meaning that such regulations promulgated by the Register and approved by the Librarian are subject to the APA and are judicially reviewable.
Operators of Large-Scale U.S. Illegal Streaming Service Sentenced to Prison: On June 20, the U.S. Department of Justice announced that a federal jury in Las Vegas, NV, convicted five men—Kristopher Dallmann, Douglas Courson, Felipe Garcia, Jared Jaurequi, and Peter Huber—for operating one of the largest illegal streaming services in the U.S., Jetflicks, since 2007. The operators amassed a catalog larger than the combined catalogues of Netflix, Hulu, Vudu, and Amazon Prime. The jury convicted Dallman, Courson, Garcia, Jaurequi, and Huber of conspiracy to commit criminal copyright infringement. Courson, Garcia, Jaurequi, and Huber each face a maximum penalty of five years in prison, and Dallmann faces a maximum penalty of 48 years in prison.
Record Labels Sue Companies Behind AI Music Generators: On June 24, a group of record labels, including Sony Music Entertainment, Warner Music Group, and Universal Music Group, filed a complaint against a generative AI music company, Suno, in the District Court for the District of Massachusetts, and one against Udio in the Southern District of New York of the over the unauthorized use of sound recordings to train their generative AI music models. The complaints in both cases are similar in that they both consist of counts of direct infringement for unauthorized use of pre-1972 and post-1972 recordings. Both complaints explain how neither AI company denied copying the plaintiffs works for training but argued that it qualifies as fair use. In response, the complaints explain why the companies’ activities are not transformative and do not qualify as fair use. The complaints also include multiple examples of output that mimic identifiable features of plaintiffs’ works, although the complaints are clear that they are not currently alleging that the outputs constitute infringing works. For example, the Suno complaint alleges its AI model generated an almost identical replica of Michael Bublé’s 2003 hit single “Sway,” when prompted with “Canadian smooth male singer, 2003 jazz pop Buble, Sway, Latin mambo minor key.” In the Udio complaint, the plaintiffs allege that when Udio was prompted with “Mariah Carey, contemporary R&B, holiday, Grammy Award-winning American singer/songwriter, remarkable vocal range,” the AI model generated “12 different outputs that contain portions of Mariah Carey’s hit-Christmas single “All I Want for Christmas is You.”
Anthropic AI Lawsuit Transferred to the Northern District of California: On June 24, a judge in the Middle District of Tennessee issued a memorandum opinion granting Anthropic’s motion to transfer Concord v. Anthropic, a copyright infringement case brought by a group of music publishers, to the Northern District of California. Finding that the Court does not have personal jurisdiction over Anthropic, the opinion says that Plaintiffs failed to make a prima facia showing of purposeful availment because none of the alleged contacts were expressly aimed at the state of Tennessee. The opinion explains that neither having remote employees working in Tennessee nor having contacts with Tennessee companies satisfies the purposeful availment test. It also did not find that Anthropic purposefully availed itself of Tennessee merely because users can access its Claude generative AI service in Tennessee and Claude can output content related to Tennessee upon request. The opinion concludes that “Plaintiffs made a strategic decision to sue a California-based company in the Middle District of Tennessee, and in doing so ran the risk of encountering a jurisdictional hurdle too high to climb,” but added that “[o]nce that hurdle is pushed to the side and this case is transferred to the Northern District of California, Plaintiffs will be free to run their case to the finish line on the merits.”
Center for Investigative Reporting Sues OpenAI and Microsoft for Unauthorized Use of Its News Articles to Train ChatGPT: On June 27, nonprofit news organization, the Center for Investigative Reporting, Inc. (CIR), filed a complaint against OpenAI and Microsoft over the unauthorized use of CIR’s articles to train ChatGPT, which is also incorporated into Microsoft’s Copilot product. The complaint alleges that the training sets used to develop ChatGPT, including WebText and WebText2, contain URLs leading to CIR’s news content from publications such as Mother Jones and Reveal. The plaintiffs also provide evidence that ChatGPT reproduces CIR’s works verbatim. The plaintiffs make claims of direct and contributory copyright infringement, and violation of copyright management information removal claims.
Copyright in Other Countries
French Telecom Regulator Releases 2023 Report on Enforcement Activities: On June 13, French telecom regulator, Arcom, released an annual report of its activities in 2024. While engaging in the country’s three-strike graduated response system of enforcement against infringing internet users on peer-to-peer networks, the regulator reported that 3,844 subscribers received a third warning, with 1,526 cases being sent to the public prosecutor and 234 users receiving a financial penalty.
Bill Redefining Criminal Copyright Liabilities Signed into Law in Russia: On June 12, Russian Vladimir Putin signed into law a bill that contains various amendments to Russian copyright law to increase the threshold for criminal liability, including refining the term “large scale” as applicable to criminal copyright infringement by raising the value of pirated copies of copyright works or the rights to those works by 500%.
EU Launches Consultation for Counterfeit and Piracy Watch List: On June 4, the European Commission launched a consultation for its 2025 Counterfeit and Piracy Watch List, which identifies online services and physical marketplaces that engage in, facilitate, or benefit from activities infringing intellectual property rights. The Commission also invites companies and services that appeared on the 2022 version of the list to submit comments. The Counterfeit and Piracy Watch List is slated for publication during the second quarter of 2025. Comments are due by August 15.
Dutch Anti-Piracy BREIN Publishes Annual Report: BREIN, a Dutch anti-piracy group, published its annual report on the organization’s priorities and progress over the past year. The report showed that BREIN completed 615 investigations and regulated the shutdown of 610 pirate sites and services.
Peruvian IP Enforcement Agency Issues Two Dynamic Website Blocking Orders: Peru’s special IP enforcement government agency, INDECOPI, issued two dynamic website blocking orders, ordering the country’s Internet service providers to block user access to illegal sports streaming sites. The orders follow a complaint filed by Peruvian sports broadcasting company, 1190 Peru.
UK Court Sentences Man to Prison for Selling IPTV Devices: On June 4, it was announced that the Liverpool Crown Court had sentenced Kevin James O’Donnell to a two-year suspended prison sentence and 150 hours of unpaid work for illegally promoting and selling Amazon Firesticks that were preloaded with pirate IPTV subscriptions that offered unauthorized broadcasts of various media, including live sporting events.
UAE and LaLiga Announce Partnership to Combat Online Piracy: The United Arab Emirates (UAE) and Spanish football league, LaLiga, signed a Memorandum of Understanding (MOU) regarding efforts to combat online piracy. The MOU includes the parties agreeing to launch an “anti-piracy laboratory,” which will focus on the blocking of illicit websites and developing technical anti-piracy tools.
Federal Agency Activities
NMPA Files FTC Complaint Against Spotify Over Platform’s New Bundle Plan: On June 12, the National Music Publishers’ Association (NMPA) filed a complaint with the Federal Trade Commission (FTC) over Spotify’s recent bundling of audiobooks with music for their premium subscription service, thereby undercutting royalties payable to songwriters. The complaint alleges that Spotify is deceiving consumers by converting millions of subscribers without their consent from music-only subscriptions to “bundled” audiobook-and-music subscriptions, failing to offer options for subscribers to revert to a music-only subscription, and engaging in problematic negative-option practices contrary to the FTC’s policies. NMPA also sent the complaint to 10 state attorneys general and numerous consumer advocacy groups to encourage state investigations.
Save the Date For…
Deadline to Submit Comments on DOJ Promoting Competition in AI Workshop: July 15 is the deadline to submit comments to the Department of Justice (DOJ) in response to topics covered during its May 30th workshop, Promoting Competition in AI. Those interested in sharing comments may email them to ATR.2024AIworkshop@usdoj.gov by July 15.
WALA Copyright Basics Webinar: On July 16 from 11 a.m. to 1 p.m. ET, the Washington Area Lawyers for the Arts (WALA) will host a Copyright Basics webinar led by attorney Edward A. Fultz of Reed Smith LLP. The session will address information such as who owns a copyright, when does a copyright exist, what is the effect of a copyright notice, the basics of fair use, how the DMCA works, and much more. More information is available on the registration page.
MLC Q&A for Self-Published Songwriters and Administrators: On July 18 at 12 p.m. ET, the Mechanical Licensing Collective (MLC) is hosting a question and answer session for self-published songwriters, composers, and administrators to share how they can join the organization, the timing and cadence of royalty payments distributed, the royalty rates used, and much more. More information is available on the registration page.
USCO Monthly Recordation System Webinar: On July 25 at 1 p.m. ET, the U.S. Copyright Office will hold a webinar to keep the public updated on the Office’s optimized Recordation System. Separate from the Office’s registration application, the new recordation module allows users to electronically transfer their copyrights to someone else. The webinars will “cover announcements about the module, important reminders, frequently asked questions, and a live Q&A session.” More information is available on the registration page.
VLANY Webinar on Legal Essentials for Street Photography in NYC: On July 25 from 5-6 p.m. ET, the New York Volunteer Lawyers for the Arts (VLANY), will provide an overview of how federal and New York state law treats street photography, how the law distinguishes different types of street photography depending on where the image is taken, what to do if approached by law enforcement while photographing, and the ins-and-outs of protecting and distributing your street photography in commercial contexts. Additionally, the event will cover special considerations for videotaping in public. More information is available on the registration page.
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