August 2022 Roundup of Copyright News
Here is a quick snapshot of several copyright-related activities that occurred during the month of August and a few events to look forward to for the month of September.
Copyright Alliance Activities
Copyright Alliance Launches the SCOOP Program and Releases New Videos in CCB Video Series: In August, the Copyright Alliance launched the Small Claims Opt-Out Protection (SCOOP) Program, through which claimants of a Copyright Claims Board (CCB) proceeding can have their $40 initial filing fee reimbursed by the Copyright Alliance if their claims are dismissed due to a respondent opting out. More information on participating in the program can be found on our SCOOP Program page. Additionally, the Copyright Alliance released a two-part video discussing how to file a claim with the CCB and posted FAQs discussing how a claimant notifies a respondent about a claim once the claim is approved by the CCB. [Note: The Copyright Alliance is no longer operating the SCOOP Program or accepting applications for the program as of August 1, 2023.]
Copyright Alliance Files Amicus Brief in Hachette Book Group, Inc. v. Internet Archive: On August 12, the Copyright Alliance filed an amicus brief in the case Hachette Book Group Inc., et al. v. Internet Archive, in support of Hachette Book Group and other publishers in their suit against the Internet Archive (IA) challenging its so-called “Controlled Digital Lending” practice. The brief explains that the IA’s unauthorized scanning and distribution of massive amounts of copyrighted works does not qualify as fair use, and is not permitted by the first sale doctrine. Differentiating the IA from libraries engaged in legitimate archival activity, the brief explains that the limitations on liability found in section §108 of the Copyright Act does not apply to its wholesale copying and digital distributions. The brief goes on to detail the substantial efforts of the creative industries to digitize and make their works available and warns of the devastating harms that would result from IA’s practice expanding to other types of works. The brief also reminds the court that only Congress has the authority to expand copyright’s limitations—not the courts and not one organization or individual like IA or its founder Brewster Kahle who decide to make copyright policy themselves.
Copyright Alliance Blogs: The Copyright Alliance posted several new blogs during the month of July.
- Since the CCB approved several cases for service of process, respondents may be wondering whether to participate or opt out of a CCB proceeding. We explain in this blog post the considerations respondents should weigh when making that decision.
- In August amicus briefs were filed in a number of important copyright cases. In this blog post, we summarized the main points of various amici who warned of the Internet Archive’s clear infringing activities via its purported “lending” practices. In another blog post, we summarized the main points of all the amicus briefs submitted to the Supreme Court in the case Andy Warhol Foundation v. Goldsmith, pointing out why Andy Warhol Foundation and its amicis’ fair use theories are flawed.
- In another blog post we explore the case of Sedlik v. Kat Von D., in which a court examines infringement and fair use in the context of photography and tattoos. The blog discusses how the court got a few things right, but incorrectly analyzed many important legal questions which were left for the jury to decide.
Copyright Office Activities
CCB Status Update: By the end of August, 136 cases had been filed with the Copyright Claims Board (CCB), an increase of 59 from last month. 33 of the cases are “smaller claims.” In at least 55 of the cases, the claimant is using legal counsel. At least 125 of the cases involve infringement claims, 16 involve Section 512(f) misrepresentation claims, and two involve non-infringement claims. The eCCB docket currently shows that the works at issue in these cases are as follows: Pictorial Graphic & Sculpture (67 cases); Literary Works (22); Motion Picture and Audiovisual Works (21); Sound Recordings (14); Musical Works (eight); and some cases include claims for multiple works. 15 claimants have filed multiple cases. Four cases have been dismissed for the following reasons: Due to Respondent’s Opt Out (Two); Due to Failure to Amend Noncompliant Claim (One); and Claimant Withdrawal and Dismissal of Claims (One).
USCO Declines to Implement Deferred Registration Examination: On August 1, the U.S. Copyright Office sent a letter on its findings and conclusions from its study on deferred examination of registration applications, as a response to a request from Senator Thom Tillis (R-NC) in May 2021 to study the issue. The Office did not recommend a new deferred examination registration system, concluding that it would potentially lead to “costlier and less efficient system, while also creating new concerns, including with regard to the public record.” Instead, the Office noted that alternative solutions might address some concerns and that the Office is evaluating whether to implement those solutions which include offering dynamic fee structures for small-entity or individual filers, increasing the limits for group registration of photographs, and adopting subscription-based pricing for certain registration options.
USCO Expands Recordation System Access to Public: On August 1, the U.S. Copyright Office announced that the new recordation system is publicly available, allowing users to submit electronic documents related to transfer of copyright ownership or other documents pertaining to copyright under § 205 of the Copyright Act.
White House OSTP Issues Guidance to Make Federally Funded Research Immediately Available: On August 25, the White House Office of Science and Technology (OSTP) announced that it updated its U.S. policy guidance to “make the results of taxpayer-supported research immediately available to the American public at no cost.” Under the new guidance, the OSTP is now mandating that all federal agencies update their public access policies as soon as possible to make publications and research funded by taxpayers publicly accessible, without an embargo or cost. The new guidance also states that by December 31, 2025, publications funded by federally funded research will no longer be embargoed for 12 months.
Biden Administration Activities
ITA Solicits Public Comment on AI Export Issues: On August 16, the International Trade Administration (ITA) published a notice requesting comments on Artificial Intelligence Export Competitiveness. ITA is looking to gain insight on the current global AI market and stakeholder concerns regarding international AI policies, regulations, and other measures which may impact U.S. exports of AI technologies. Comments are due by October 17.
USTR Publishes Federal Register Notice Requesting Comments for 2022 Notorious Markets List: On August 29, the U.S. Trade Representative (USTR) published a notice requesting comments “that identify online and physical markets to be considered for inclusion in the 2022 Review of Notorious Markets for Counterfeiting and Piracy (Notorious Markets List).” The 2022 Notorious Markets List will examine the impact of online piracy on U.S. workers. Comments are due by October 7, 2022. Rebuttal comments are due by October 21, 2022.
Congressional Copyright Related Activities
Representative Tlaib Introduces House Resolution Proposing New Streaming Royalty Rates: On August 9, Representative Rashida Tlaib (D-MI) introduced a resolution (H.Con.Res.102) in the House proposing a new royalty program to provide income to featured and non-featured performing artists whose music or audio content is listened to on streaming music services, like Spotify. The resolution is cosponsored by Representative Jamaal Bowman (D-NY).
Congress Releases Updated Version of Journalism, Competition and Preservation Act: On August 22, a bipartisan group of lawmakers including Senators Amy Klobuchar (D-MN), John Kennedy (R-LA) and Representatives David Cicilline (D-RI), Ken Buck (R-CO), and Senate and House Judiciary Committee Chairs Dick Durbin (D-IL) and Jerrold Nadler (D-NY) released a revised and expanded version of the Journalism Competition and Preservation Act (JCPA). The JCPA broadly gives qualifying news organizations the ability to collectively bargain with major tech platforms for access and use of news content. The edits establish the specifics of the collective bargaining procedure, details the required qualifications for participating news organizations, and establishes an arbitration process if parties cannot reach an agreement. The legislation is expected to be considered during a Senate Judiciary Committee hearing after Labor Day. The bill is supported by the News Media Alliance and the Authors Guild, among others.
Copyright in the Courts
Briefs Filed in Andy Warhol Foundation v. Goldsmith: On August 15, the U.S. Supreme Court received amicus briefs filed in support of photographer, Lynn Goldsmith, in the case Andy Warhol Foundation v. Goldsmith. All the briefs have now been filed in the case. Nine amicus briefs were filed in support of the Andy Warhol Foundation, 20 amicus briefs were filed in support of Goldsmith, and eight amicus briefs were filed in support of neither party. The Copyright Alliance provided a brief summary and overview of all the amicus briefs in this blog post. Oral arguments for the case are scheduled to take place on October 12.
Briefs Filed in Hachette Book Group, Inc. v. Internet Archive: By August 12, the district court for the Southern District of New York received all amicus briefs in the case Hachette Book Group Inc., et al. v. Internet Archive. Hachette Book Group and other publishers filed a lawsuit in 2020 against the Internet Archive (IA) challenging its so-called “Controlled Digital Lending” practice. Various organizations and scholars filed briefs in support of the publishers including a group of copyright law professors, a group of international rightsholder organizations, a coalition of creator groups, and the Copyright Alliance.
Court Holds That YouTube Must Continue in Putative Class Action Infringement Case: On August 1, the district court for the Northern District of California denied YouTube’s motion to dismiss the putative class action copyright infringement lawsuit brought against it by musician, Maria Schneider and Uniglobe Entertainment LLC and AST Publishing LTD, back in the summer of 2020. The plaintiffs argue that YouTube restricts access to its rights management tools to independent artists which meant that the platform did not qualify for safe harbor protections, making it liable for copyright infringement of pirated works existing within the service. The court noted that plaintiffs’ complaint adequately identifies the infringed works and the ownership and timely registration thereof, and that the plaintiffs’ complaint adequately alleged that YouTube removed copyright management information from works uploaded to its site.
Court Holds that Use of Photograph in an Article Is Not Fair Use: On August 3, the Court of Appeals for the Ninth Circuit in McGucken v. Pub Ocean Limited held that Pub Ocean’s use of McGucken’s photographs in an article about an ephemeral lake in Death Valley did not qualify for the fair use exception, reversing the district court’s ruling on the matter and remanding for further proceedings. On the first factor, the court held that the use was commercial and was not transformative because the photographs were used for the same exact purpose as the original, which was to depict the lake. Furthermore, the court held that simply embedding the photographs within the article was not transformative because the photographs were merely used as a visual recording of the article’s subject matter. On the second factor, the court found that the photographs were highly creative, weighing it against a fair use finding. On the third factor, the court found that Pub Ocean used the photographs with negligible cropping and extensively copied the works, weighing this factor against a fair use finding. The court also weighed the fourth factor against a fair use finding, finding that if Pub Ocean’s conduct was carried out in a widespread and unrestricted manner, it would destroy McGucken’s licensing market.
Court Dismisses Choreography Infringement Case Against Epic Games: On August 24, the district court for the Central District of California dismissed choreographer, Kyle Hanagami’s lawsuit against Epic Games, in which Hanagami alleged that the gaming company infringed on Hanagami’s choreography in certain “emotes” sold in the popular game, Fortnite. The court held that Hanagami’s choreography could be characterized as unprotectable forms of movement such as social dances and simple routines.
Industry Activities
Music Publishers and Songwriters Reach Mechanical Royalty Settlement with Digital Services: On August 31, the National Music Publishers’ Association (NMPA) and the Digital Media Association (DiMA) announced a settlement for certain mechanical royalty rates for the period 2023-2027, which sets the rate a 15.35% and includes increases to the “Total Content Costs (TCC)” calculations. NMPA President & CEO David Israelite stated, “This historic settlement is the result of songwriters making their voices heard. Instead of going to trial and continuing years of conflict, we instead move forward in collaboration with the highest rates ever, guaranteed. We thank the digital services for coming to the table and treating creators as business partners. Critically, since this is a percentage rate, we know that as streaming continues to grow exponentially, we will see unprecedented value of songs.” NSAI Executive Director Bart Herbison stated, “This collaborative process will lead to increased songwriter compensation from digital streaming companies and locks in our historic 43.8% increase from the previous CRB proceeding. Along with the upward rate momentum there are also new structures to help ensure minimum payments.”
Copyright in Other Countries
Spanish La Liga Granted Another Dynamic Injunctive Order: According to reports, telecommunications company, Telefónica announced that a Barcelona court granted a dynamic injunctive order to the company and Spanish soccer league, La Liga, for the 2024/2025 season. The order allows Telefónica and La Liga to oblige all internet service providers to block illicit pirate sites that stream La Liga matches within a maximum of three hours from receipt of notification of a list of infringing sites from the companies. The order also provides that the companies do not have to obtain permission from the court to block new URLs, domains, and IP addresses of pirate services, allowing ISPs to more dynamically and effectively dismantle pirate streams of La Liga matches.
Italian Court Orders Vimeo to Pay $8.6 Million for Copyright Infringement: According to reports, in the beginning week of August, the Rome Court of Appeals affirmed a judgment against Vimeo for failing to remove infringing content from its platform, and ordered that the platform service pay $8.6 million to Italian broadcast company, Mediaset. The court also ordered Vimeo to prevent new uploads of infringing content, otherwise, the failure to do so can result in a fine of €1,000 for each offense.
Look Forward To And Save the Date For…
SJC IP Subcommittee Hearing: Oversight of the U.S. Copyright Office: On September 7 at 2:30 P.M. ET, the Senate Judiciary Committee IP Subcommittee will hold a hearing titled Oversight of the U.S. Copyright Office. Register of Copyrights Shira Perlmutter will testify during the hearing. The event will be in-person at the Dirksen Senate Office Building and livestreamed on the subcommittee’s webpage.
Copyright Society and GiantSteps Media Technology Strategies: Copyright + Technology 2022: On September 13, the Copyright Society and GiantSteps Media will host their Copyright + Technology 2022 annual conference which “focuses on the dramatic and fast-moving influences that technology has on copyright in the digital age.” The event will bring together technologists, attorneys, media industry professionals, and public policy decision makers “for in-depth dialog on current hot topics related to copyright and technology.”
U.S. Intellectual Property Alliance Virtual Panel on The Value and Protection of Image in Entertainment, Arts & Sports: On September 14 from 4:00-5:30 P.M. ET, the U.S. Intellectual Property Alliance will host a virtual IP roundtable panel discussion on The Value and Protection of Image in Entertainment, Arts & Sports. Panelists include Scott Bearby, General Counsel of NCAA, David Lowery, UGA Professor and Music Celebrity/Founder of Camper Van Beethoven and Cracker, Brannon Anthony, General Counsel of Terry Perry Studios, and Kendall Spencer, DI Transformation Committee- NCAA National Champion- Long Jump. Registration is free. More information is available on the registration page.
Graphic Artists Guild and RightsClick: Managing your Copyrights and Protecting Yourself Online: On September 21 at 2 PM, the Graphic Artists Guild and RightsClick are hosting a webinar to educate artists about how to most successfully protect their works. “Artists commonly say enforcing their rights isn’t worth the time. But 65% of artists also report that their work has been used without permission!” RightsClick is a software suite designed to walk you through the steps to manage, register, and enforce your copyright rights—quickly and easily. Attend this free webinar with co-founders (and creator advocates) David Newhoff and Steven Tepp, along with representatives from the Artists Rights Guild. The RightsClick suite will be presented as well as an explanation on how it was explicitly designed for the busy, entrepreneurial creator who wants/needs to protect their works. More information is available on the registration page.
George Mason University Antonin Scalia Law School Fall Conference: IP on the Wane: Examining the Impacts as IPR Are Reduced: On September 22-23, the Center for Intellectual Property x Innovation Policy (C-IP2) will host its Annual Fall Conference. “After decades of efforts by some to slow the perceived expansion of intellectual property rights (IPR) around the globe, policymakers and courts in a number of countries have responded by placing greater limitations on IPR. Now that such limits have been in effect for a few years, researchers have been able to start measuring the impact on innovators, creators, and the overall economy.” C-IP2’s Annual Fall Conference “will bring together leading researchers, policymakers, creators, and innovators to share their experiences and results.” Additional information is available on the event’s page.
Authors Guild Foundation: WIT: Words, Ideas, and Thinkers Festival: On September 22-25, the Authors Guild Foundation will host its inaugural WIT: Words, Ideas, and Thinkers Festival to “expand [attendees’] understanding of critical issues, celebrate America’s literary culture, and amplify new voices and perspectives.” The festival’s theme is Reimagining America, which will be explored through conversations, presentations, panels, and speeches throughout the event. The festival is free and open to the public. Tax-deductible contributions can be made to the Authors Guild Foundation and the WIT Festival on the donation page. More information about the event can be found on the registration page.
WIPO Copyright Infrastructure Webinar: Multi-territorial Licensing for Musical Works for Digital Music Services: On September 28 at 1 P.M., the World Intellectual Property Organization (WIPO) is hosting a webinar featuring “multi-territorial licensing practices for musical works for digital music services, based on the experience of SACEM, a French Collective Management Organization (CMO) operating in the music field.” Speakers include Caroline Champarnaud, Director of International, Society of Authors, Composers and Publishers of Music (SACEM); and Habib Achour, Head of International Development for Africa & the Middle East, SACEM.
WIPO: Overview of WIPO and Its Activities with a Focus on the Collective Management of Copyright and Related Rights: On September 29 at 2:00 P.M., the World Intellectual Property Organization (WIPO) is hosting a webinar to present an overview of WIPO’s general activities, as well as to share information about Collective Management of Copyright and Related Rights. Additional information is available on the registration page.
AIMP and California Copyright Conference: Music Industry Toolbox: On September 29 from 3:00-8:00 P.M., the Association of Independent Music Publishers (AIMP) and the California Copyright Conference present their sixth Music Industry Toolbox—”a unique event created for music publishers, record companies, production music libraries/producers, managers, attorneys, and artists, but should be of interest to all music industry professionals.” The event “features leading firms in music management software and services essential to the music industry” and enables music industry professionals to connect with industry leaders in an informal setting. Additional information on the event is available on the registration page.
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