Whether you’re a creator, a creative community advocate, an attorney or an interested spectator, those plugged into the copyright arena typically take a look back at the end of each year to recap the most significant copyright happenings that occurred. They also enjoy forecasting what’s likely to happen in the copyright arena during the coming year.
But as 2020 came into view last month, many of my colleagues and I started pondering what the biggest stories of the past decade were (not just the past year). It seems like it would be easy enough to develop such a list. But not so fast! Between 2010 and the start of 2020, so much happened in the copyright world that compiling a list of the top stories (including cases, legislation and other significant happenings) is pretty daunting. Nevertheless, I set out to do just that.
Check out my picks below for the “top 10 copyright stories of the past decade,” and let me know what you think they were (and why). And remember — this is not a list of stories and events that were necessarily positive for copyright advocates. Instead, it’s a compilation of the biggest pro and con copyright stories from the past decade based on my observations.
Music Modernization Act (MMA)
After many long years of negotiations and collaborations across parties and across the tech and music industries, on October 11, 2018, the Orrin G. Hatch–Bob Goodlatte Music Modernization Act (MMA) was signed into existence as public law no. 115-264, updating the previous outdated music copyright law that had been on the books for nearly a century. Combining three previously introduced bills — the Music Modernization Act of 2018, the Classics Protection and Access Act, and the AMP Act — the MMA was designed to enable creators across the music industry to make a fairer living through their creativity by: Improving compensation to songwriters and streamlining how their music is licensed; enabling legacy artists (who recorded music before 1972) to be paid royalties when their pre-1972 music is played on digital radio; and providing a consistent legal process for studio professionals — including record producers and engineers — to receive royalties for their contributions to music that they help to create.
With regard to music licensing, the MMA creates a compulsory blanket mechanical license covering activities related to the making of permanent downloads, limited downloads, and interactive streams of musical works embodied in sound recordings. The MMA also creates a mechanical licensing collective (“MLC”) to issue and administer the new blanket licenses for digital downloads and reproductions. In order to effectuate these changes, there were several different rulemakings the Copyright Office needed to engage in throughout 2019. Perhaps the most significant of these concluded on July 8, 2019 when the Office issued a final rule designating Mechanical Licensing Collective, Inc. as the mechanical licensing collective, and Digital Licensee Coordinator, Inc. as the digital licensee coordinator.
The MMA is significant on so many levels, not the least of which is the fact that — once fully implemented — it will bring music copyright law into the digital age and enable creators to be paid much more fairly than was the case prior to its enactment. You can find more information about the MMA here.
Kim Dotcom and Megaupload
If you haven’t heard of the infamous Kim Dotcom (aka Kim Schmitz), founder of the former file-hosting service Megaupload, you probably weren’t cruising the internet or reading the news during the past decade.
Kim, a German-Finish self-proclaimed “Internet entrepreneur” and political activist, rose to fame in the 1990s. In 2005, Kim founded Megaupload — a company he ran from 2005-2012, when it was seized by the U.S. Department of Justice (DOJ). The DOJ pressed a long laundry list of charges against Dotcom, including copyright infringement, money laundering, racketeering and wire fraud (among others).
Dotcom denied — and continues to deny — any wrong-doing and has accused U.S. authorities (not to mention Hollywood) of waging a vendetta against him. Since Dotcom resided in New Zealand when the DOJ pressed charges, a New Zealand court ruled in 2017 that he, as well as co-accused former colleagues Mathias Ortmann, Bram van der Kolk and Carter Edwards, could be extradited to the U.S. on fraud charges related to Megaupload. This decision was upheld by a New Zealand appeals court in 2018. If you’re curious as to what he has to say these days, you can find him making political proclamations and generally pontificating on Twitter under the handle @KimDotcom.
If the Monkey Selfie dispute left you scratching your head, you weren’t alone. This equally bizarre and intriguing story caught the world’s attention when a seven-year old crested black macaque named Naruto took some photos using equipment that belonged to David Slater, a British nature photographer who believed that he alone owned the copyrights to the pictures.
In 2014, David Slater further claimed that — because the photos taken by the macaque were being published without his consent in outlets such as Wikimedia Commons and Techdirt — he was losing revenue. Then PETA jumped into the fray, alleging that the macaque is the author and owner of the copyrights for the photos. The U.S. Copyright Office said otherwise when it chimed in to note that works created by a non-human are not copyrightable. Then PETA decided to use the monkey selfies as legal precedent for animals becoming copyright holders, resulting in a suit against David Slater over a new book he’d published using the photos.
Finally, in 2018, things came to a screeching halt when an appeals court affirmed that animals cannot hold copyrights, which meant that PETA could no longer file suit and Naruto would not become the world’s first non-person copyright holder. More specifically, the panel of three judges ruled that PETA lacked “next friend” status, which would be required for it to bring the lawsuit on behalf of Naruto, and also ruled that animals in general don’t have standing to sue under the Copyright Act.
U.S. Copyright Office Modernization
Throughout the past several years, there’s been much discussion about the U.S. Copyright Office needing to “modernize” its IT infrastructure in order to streamline processes, update policies and develop an “enterprise copyright system” that would make registering a work much easier — and faster — for users. A couple of years ago, it was not uncommon for someone to submit an application to copyright their work and then wait upwards of nine months to hear back from the Office.
Although the modernization process has only recently gotten underway, in her July 30, 2019 testimony before the Senate Judiciary IP Subcommittee, then-Register Karyn Temple reported that the backlog of registration applications no longer exists and pendency was improved by 40% during the past two years, thanks to “the Subcommittee’s continued support as … modernization [of] both Office technology and services, and work to improve operation of the copyright system overall,” continues.
And last year, things really picked up speed. Starting in August 2019, the Senate Judiciary Committee’s Intellectual Property Subcommittee held monthly roundtables on modernization that were attended by a variety of stakeholders. Additionally, the Copyright Office created a Modernization Office to keep focused on the challenge and to ensure that the public stays informed as efforts progress forward.
For more information on Copyright Office modernization, you can attend their frequent webinars on this initiative.
The Marrakesh Treaty Implementation Act, legislation that facilitates access to published literary works for persons with print disabilities, was signed into law on October 10, 2018. According to the World Intellectual Property Organization (WIPO), the Treaty “has a clear humanitarian and social development dimension and its main goal is to create a set of mandatory limitations and exceptions for the benefit of the blind, visually impaired, and otherwise print disabled.”
Among other things, the Treaty allows an authorized entity to export copies of a previously published literary or musical work in accessible formats to another country that is a party to the Marrakesh Treaty, and also for an authorized entity or an eligible person or their agent to import accessible formats of a previously published literary or musical work.
President and CEO of the Association of American Publishers (AAP) Maria Pallante said in a statement, “AAP worked tirelessly to find agreement within the copyright, disabilities and library communities to finally bring the long process for ratification and implementation of the Treaty by the U.S. to fruition. Now we look forward to working with our members and these communities to ensure that the Treaty works to effectively provide cross-border access to accessible format copies of literary works in many different languages to people who need them all around the world.”
Today, the Treaty continues to help people all over the world who are blind or visually impaired more easily access published literary works in formats they can use.
A summary of the Marrakesh Treaty provided by WIPO is available here.
Although there are probably some close runners up, it’s unlikely that the copyright and tech worlds will ever again see division on the scale that occurred when the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA) were introduced in the House and Senate (respectively) in 2012. The bills were designed to make it harder for anyone to sell pirated copyrighted materials outside the U.S. — including movies, music and even goods like counterfeit watches and purses. Although well-intended by those who supported them, SOPA and PIPA resulted in chaos to the extent that internet protests (including sites such as Wikipedia going dark for 24 hours to make a point) occurred to voice opposition against this proposed legislation.
Ultimately, the bills were dubbed Hollywood vs. Silicon Valley, with the entertainment industries wanting to protect creative assets and tech companies like Google battling to have SOPA and PIPA just go away.
After months of calls, emails, petitions and online protests by a broad coalition of organizations, internet companies, academics and others, who banded together to convince Congress not to “break the internet,” numerous supporters of the legislation withdrew their backing (including a number of co-sponsors), leaving them dead in the water and — even to this day in 2020 — rightly or wrongly, there is still controversy that erupts when SOPA/PIPA are discussed.
What makes this story so compelling is not only the events that led to the 2012 protests, but that whenever a new and different copyright policy issue arose throughout the rest of the decade, SOPA/PIPA opponents would immediately remind everyone about their successful opposition, threaten a similar protest and claim the newest copyright change would, like SOPA/PIPA, “break the internet.” Despite these threats, these groups were not able to muster anything near the same level of opposition that occurred in 2012. And these days, claims that something or someone will “break the internet” have taken on a whole new meaning.
Oracle v. Google
Back in August of 2010, Oracle sued Google for copyright and patent infringement over Google’s use of Oracle’s Java API in its Android software (a case that a colleague of mine refers to as the Clash of the Titans). Initially, the case focused on whether the Java APIs used were protected under copyright. In May 2014, the Federal Circuit court determined that they were.
The case was then heard again in the Northern District of California, but this time focused on Google’s claims that its use was considered fair use. In May 2016, a jury found in favor of Google, determining that its use of Oracle’s Java API was fair use. Oracle appealed to the Federal Circuit on the fair use ruling and Google cross-appealed to defend its claim that the Java APIs were not copyrightable. In March 2018, the Federal Circuit reversed the district court’s decision. Oracle then appealed to the Federal Circuit on the adverse fair use ruling and remanded for a trial on damages. The Court weight the first and fourth factors heavily in favor of Google and weighed the third factor as neutral. After considering all factors, the Court found that Google’s use did not constitute fair use, and it denied its cross appeal regarding the copyrightability of the Java APIs at the heart of the suit and held that the Courts 2014 opinion resolved that question.
In January 2019, Google filed a cert petition with the U.S. Supreme Court, asking it to review both Federal Circuit decisions. On April 29, 2019, the Supreme Court called for the views of the Solicitor General, who recommended that the Court deny the petition as no further review was warranted, noting that the Federal Circuit had already (correctly) held that neither Section 102(b) nor the merger doctrine forecloses copyright protection and no reasonable jury could find fair use on this record. The Court disagreed with the SG and granted cert.
As we now watch and wait to see what the final outcome is for this case, many observers (myself included) believe that Google was looking to leverage Oracle’s intellectual property so that it could expedite its own technology, while simultaneously ducking from liability. Only time — and the Supreme Court — will tell what the legal outcome is.
Update to EU Directive
On April 15, 2019 the Council of the European Union approved the EU Copyright Directive, a broad set of reforms aimed at modernizing EU copyright rules as part of its Digital Single Market strategy. The Directive came into force on June 7, 2019, giving EU Member States 24 months to transpose the Directive into their national legislation. The Directive attempts to improve cross-border access to content online; widen opportunities to use copyrighted materials in education, research and cultural heritage; and increase the copyright marketplace. Two articles in the Directive generated quite a bit of controversy. Article 15 (formerly Article 11) grants publishers direct copyright over “online use of their press publications by information society service providers.” Article 17 (formerly Article 13) requires certain online platforms to obtain authorization from rights holders to upload works and, in certain instances to provide them fair remuneration. Of course, there are exceptions to this, such as where the content is used in a “quotation, criticism, review” or for “the purpose of caricature, parody or pastiche.” Perhaps most importantly is the exception that applies when the platform has “made best efforts to obtain an authorization” to prevent copyright infringement and has demonstrated that they have acted expeditiously to remove a piece of content, after being notified by the owner of the rights.
ALI Copyright Restatement
The American Law Institute (ALI) is a century-old independent organization that produces and publishes scholarly works, including “Restatements of the Law” that are intended to provide guidance to judges by summarizing and clarifying court decisions across U.S. states. ALI has no formal legal authority. However, its Restatements are used frequently by attorneys and cited by judges — and therefore play a significant role in shaping court decisions.
In 2016, the ALI undertook an initiative called the Copyright Restatement Project, which — if completed — would “restate copyright law.” Numerous concerns have been expressed regarding the project, including those shared by former U.S. Register of Copyrights Karyn Temple, who sent a letter to ALI in January 2018. In the letter, Register Temple wrote that the Institute’s project “appears to create a pseudo-version of the Copyright Act” and urged it to reconsider the entire initiative.
On December 3, 2019, Congress also sent a letter to ALI, sharing its questions and serious concerns about the project. According to the letter, which was signed by Senator Thom Tillis (R-NC) and Representatives Ben Cline (R-VA), Ted Deutch (D-FL), Martha Roby (R-AL) and Harley Rouda (D-CA), “…courts should rely upon statutory text and legislative history, not [on] Restatements that attempt to replace the statutory language and legislative history established by Congress with novel interpretation.” The letter also points out that, “Throughout its almost 100 years of existence, the ALI has never chosen to draft a Restatement of an area of law that is almost exclusively federal statutory law — until now.”
In addition to Congress and the U.S. Copyright Office, others have expressed concern over the past years — including the U.S. Patent and Trademark Office, the American Bar Association’s IP Law Section, numerous academics and federal judges, along with ALI advisors, liaisons and council members. More information regarding the initiative and related concerns can be found here and here.
The Copyright Alternative in Small-Claims Enforcement Act, or the CASE Act as it most widely known, was first introduced in 2016 by Representative Hakeem Jeffries (D-NY) and former-Congressman Tom Marino (R-PA). The current version of the bill, which deviates slightly from the original, was reintroduced on May 1, 2019 in the House (H.R. 2426) by Representatives Hakeem Jeffries (D-NY) and Doug Collins (R-GA); and in the Senate (S. 1273) by Senators John Kennedy (R-LA), Thom Tillis (R-NC), Dick Durbin (D-IL), and Mazie Hirono (D-HI). Original House co-sponsors include House Judiciary Committee (HJC) Chairman Jerry Nadler (D-NY) and HJC IP Subcommittee Chairman Hank Johnson (D-GA), as well as Martha Roby (R-AL), Judy Chu (D-CA), Ben Cline (R-VA), Ted Lieu (D-CA), and Brian Fitzpatrick (R-PA).
The legislation, which has broad bipartisan support and has been pending for several years in some form, would create a voluntary small claims board within the U.S. Copyright Office that will provide copyright owners with an alternative to the expensive process of bringing copyright claims, including infringement claims and claims of misrepresentation, in federal court. Despite the best efforts and numerous outlandish falsehoods about the bill that have been spun by organizations like Electronic Frontier Foundation (EFF) and Public Knowledge that oppose any copyright legislation, the CASE Act went on to pass the House by an overwhelming majority vote of 410-6. On July 18, 2019, the Senate Judiciary Committee voted the bill favorably out of committee by voice vote. It is now awaiting a vote by the full Senate, which will happen when Senator Ron Wyden (D-OR) — the only Senator who opposes the bill — removes his hold on it.
Although the full story has yet to be written regarding the CASE Act, creators, advocates, and legislators across the U.S. strongly favor this bill, as it will provide independent creators and small businesses with the ability to enforce their copyrighted works and protect their livelihoods, which is currently extremely difficult due to the high cost of federal court.
Other stories from the past decade that nearly made the cut of “top ten” — but didn’t — include: Fourth Estate case, “Dancing Baby” case, BMG v. Cox, Allen v. Cooper, changes in the Register position at the U.S. Copyright Office, and many more! Again, share your picks for “Top 10 Copyright Stories of the Decade,” and tell me what you would have included that isn’t on my list.