From historic midterm elections to royal weddings (yes, there was more than the one), 2018 was packed with major, unforgettable moments. It seemed as if no day went by where the internet wasn’t shocked by something – remember when we thought we lost IHOP to burgers? Or when we did lose Rosanne but then The Connors lived on? It was hard to keep up with it all. And somehow, the world of copyright was moving just as fast. The creative community worked for and witnessed the biggest reform to copyright law in decades, the Supreme Court agreed to hear not one but two copyright cases, and the international community decided to make copyright waves as well. Here are the 10 most memorable copyright moments of 2018:
The Music Modernization Act
A 2018 copyright year-in-review must begin with the Orrin G. Hatch-Bob Goodlatte Music Modernization Act (MMA), perhaps the biggest moment in copyright this year and definitely the biggest reform to copyright law in decades. The MMA was signed into law on October 11, 2018, following unanimous votes in the House and Senate. The Act is the culmination of three bills that ultimately update copyright law to improve music licensing in the era of streaming services and help improve the compensation for the music creative community. To say that this was a huge moment for copyright and the creative community would be an understatement.
Small Claims Court Legislation
Copyright’s momentum did not stop with music modernization. This year also saw progress for the Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2017. The CASE Act would establish an alternative way for small creators, like photographers, songwriters and authors, who cannot afford federal court to resolve their infringement disputes. The House Judiciary Committee held a hearing on the bill on September 27, and garnered numerous additional co-sponsors throughout the year. Following the lead of the MMA, the CASE Act seems to be the next copyright legislation in line to receive significant consideration by Congress.
Copyright in the Supreme Court
It seems that the Supreme Court did not want to let Congress have all of the copyright fun this year. On June 28, the Supreme Court agreed to hear Fourth Estate v. Wall-Street.com, a case addressing what constitutes “registration” of a copyrighted work for filing an infringement lawsuit. This case would end a long-standing debate between supporters of the “application” approach, who argue that ‘registration’ is satisfied upon submitting application materials to the Copyright Office, and supporters of the “certificate” approach, who argue that ‘registration’ is not complete until the Copyright Office acts on those application materials—a significant difference, given that registration pendency currently averages six to nine months for online registrations and 13-20 months for registration by mail.
Then, on September 27, the Supreme Court decided to take on another copyright case. (I told you, a LOT happened this year). The Court agreed to hear Rimini Street v. Oracle, which addresses whether courts are limited in what costs they may award to a prevailing party in a copyright infringement case under §505 of the Copyright Act. Oral arguments for both cases are scheduled for January, so follow along as they are sure to be memorable moments of 2019.
Fair Use Decisions
Fair use was a popular topic in the courts this year. So popular, that it had to be split into two “moments.” Bear with me, it ends on a high note!
Courts’ Poor Analysis of Fair Use
2018 witnessed some poor fair use decisions. In both of the following cases, the District Courts sided with the defendants and their unauthorized uses of photographs by concluding that every fair use factor favored the defendants. On June 11, in Brammer v. Violent Hues Productions, the U.S. District Court for the Eastern District of Virginia decided that the Northern Virginia Film Festival’s unauthorized use of Brammer’s photo on its website was protected by fair use. The court reasoned that the use was transformative, and thus fair, because “Brammer’s purpose in capturing and publishing the photograph was promotional and expressive, [while the defendant’s] purpose in using the photograph was informational: to provide festival attendees with information regarding the local area.” The court also determined that the defendant’s use did not adversely affect the market for the photograph, the fourth fair use factor, because Brammer had licensed the photograph at least two times since the alleged infringement. Brammer is currently on appeal before the U.S. Court of Appeals for the Fourth Circuit.
Then, on October 11, in Bell v. Powell, the U.S. District Court for the Southern District of Indiana concluded that an organization’s use of an unauthorized photograph of the Indianapolis skyline in a brochure promoting its conference was fair. Here, the Court reasoned that (1) the photograph was not a prominent feature of the brochure because it “appeared with two other photographs,” (2) the defendant did not profit from the brochure, and (3) that the “nature of the photograph” was different in the defendant’s use than it was in the plaintiff’s—the defendant used it “to provide a factual depiction of Indianapolis” to show where the conference would be held, whereas the plaintiff’s depicted the skyline in ordered to sell copies of it. Many members of the creative community strongly believe that these rulings are completely erroneous and will cause broader harms to copyright owners.
And a Few Well-Reasoned Decisions
2018 also witnessed some positive fair use analysis. On February 27, in Fox News Network v. TVEyes, the U.S. Court of Appeals for the Second Circuit held that TVEyes’ services, specifically the watch function that provided TVEyes’ customers the ability to view and download ten-minute clips of recorded television broadcasts, were “not justifiable as a fair use.” The Court reasoned that the fourth fair use factor—the effect of the use on the potential market of the work—favored Fox because “TVEyes ha[d] usurped a function for which Fox is entitled to demand compensation under a licensing agreement.” In getting to this conclusion, the court made what you would think everyone would consider a pretty reasonable argument: Fox’s content is obviously of value to TVEyes, so it should be willing to properly pay for it. The Second Circuits reasoning is going to stand because the Supreme Court recently declined to review the case.
And finally, on March 27, the U.S. Court of Appeals for the Federal Circuit decided that Google’s use of Oracle’s Java APIs in the Android platform was not fair use, reversing a previous ruling in the nearly 8-year battle between Oracle and Google. The Court stated that “[t]here is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original on a competing platform.” The Court then declined to re-hear the case on August 28. Although this decision certainly comes as good news for the copyright community, the battle is not over as Google plans to file a petition for certiorari with the Supreme Court.
ALI Copyright Restatement
The American Law Institute’s Council approved its first set of sections for its Copyright Restatement draft in October, another reminder that not all that has happened in 2018 has been great for copyright law. The ALI’s Copyright Restatement project started in 2015 and drafting has continued despite significant concern from the entire creative community and many in the academic community. The ALI decided to forge ahead with the project in the face of strong criticisms from the U.S. Patent and Trademark Office, U.S. Copyright Office, the ABA IP Section, and several individuals and organizations representing creators, copyright owners and academia. In doing so, the ALI has willingly become a political tool for those who would like to reduce the copyright protections afforded to creators and copyright owners.
Marrakesh Treaty Implementation
The MMA was not the only legislation signed into law this year, on October 10, the President signed the Marrakesh Treaty Implementation Act. This Act aligns U.S. law with the Marrakesh Treaty, which facilitates access to published works for persons who are blind, visually impaired or otherwise print disabled.
EU Copyright Directive
On September 12, the EU Parliament approved an updated version of the EU Copyright Directive. The Directive was first introduced as a means to update copyright laws in the context of digital technologies but has sent Europe into a dramatic fight over the future of copyright and its internet. The approved directive included amendments to its most contentious provisions—Articles 11 and 13. Article 11 would create a neighboring right for news publishers that would allow them to protect their publications against unauthorized uses online. And Article 13 clarifies liability for user-uploaded content services. The Directive is currently going through a “trilogue” process, but, when formalized, EU member countries would be required to enact laws supporting it.
Cases Dealing with Copyright and the Internet
On February 15, in Goldman v. Breitbart News Network, the U.S. District Court for the Southern District of New York held that websites embedding a tweet that contains a copyrighted photograph is a copyright violation. In its holding, the Court rejected the Ninth Circuit’s “Server Test,” which states that a website publisher can be directly liable for copyright infringement only if they host the copyrighted material on their servers—something the defendants did not do. The U.S. Court of Appeals for the Second Circuit denied an immediate appeal of the District Court’s opinion on July 17, but this case remains something to keep your eye on as it has potentially significant ramifications for website publishers.
In a case you no longer have to keep your eye on, Cox Communications and BMG Rights Management reached a settlement on August 24 to end the litigation between the two companies over Cox’s alleged contributory copyright infringement. Prior to settlement, the Fourth Circuit concluded that Cox could not avoid liability by availing itself of the safe harbors provided in Section 512 of the Copyright Act because it failed to reasonably implement a repeat infringer policy. The Court stated that “[a]t a minimum… an ISP has not ‘reasonably implemented’ a repeat infringer policy if the ISP fails to enforce the terms of its policy in any meaningful fashion” – and here, Cox failed to terminate subscribers who repeatedly violated its policy.
USMCA: The New NAFTA
Last but certainly not least, the U.S.-Mexico-Canada Agreement (USMCA), or the new NAFTA, was agreed to on September 30, 2018. The agreement’s intellectual property chapter, Chapter 20, will set minimum standards of copyright protection that the three countries must provide. The agreement would provide high standards of protection. Here is the full text of the agreement, which must now be ratified by each of the three countries.