If this past month is any indication, then 2023 promises to be another busy year in copyright law. Here is a quick snapshot of the copyright-related activities that occurred during the month of January as well as a few events to look forward to for the month of February.
Copyright Alliance Activities
Copyright Alliance Blogs: The Copyright Alliance posted some new blogs during the month of January.
- We started off 2023 with our year in review blogs focusing on last year’s newsworthy and impactful copyright cases, U.S. Copyright Office activities, and copyright legislation. Following that, our CEO, Keith Kupferschmid, highlighted some of the most significant copyright issues likely to arise in 2023.
- The International Intellectual Property Alliance (IIPA) released its much anticipated Copyright Industries in the U.S. Economy: The 2022 Report (2022 Report). IIPA’s Executive Director, Kevin Rosenbaum, highlights in this blog post some key findings and takeaways from the report in this blog and how these findings affirm importance and impact of the creative sector on the U.S. economy.
Copyright Office Activities
CCB Status Update: At the end of January 2023, 324 total cases had been filed with the Copyright Claims Board (CCB). Of the 324 cases, 124 are “smaller claims.” In at least 102 of all cases, the claimant is using legal counsel. At least 279 of the cases involve infringement claims, 48 involve Section 512(f) misrepresentation claims, and six involve non-infringement claims. The eCCB docket currently shows that the works at issue in these cases are as follows: Pictorial Graphic & Sculpture (155 cases); Literary Works (46); Motion Picture and Audiovisual Works (64); Sound Recordings (30); Musical Works (19); and some cases include claims for multiple works. Thirty-seven foreign resident(s) have filed claims. Of all the cases filed, 173 have been dismissed for the following reasons: Due to Respondent’s Opt Out (25); Due to Failure to Amend Noncompliant Claim (93); Due to Failure to Provide Proof of Service of Process (93); and Claimant Withdrawal and Dismissal of Claims (16). There are 27 active proceedings.
USCO Appoints Andrew Foglia as Deputy Director of Policy and International Affairs: On January 17, Register of Copyrights Shira Perlmutter announced the appointment of Andrew Foglia as Deputy Director of Policy and International Affairs for the U.S. Copyright Office. In his new role, “Foglia will assist the Associate Register of Copyrights and Director of Policy and International Affairs with the critical policy functions of the Office, including domestic and international policy analyses, legislative support, and trade negotiations.” Foglia joined the Office in November 2020 as Senior Counsel for Policy and International Affairs. Prior to joining the Office, Foglia worked in Winston & Strawn’s Copyright, Media, and Technology group for five years, where he focused on the Digital Millennium Copyright Act (DMCA) and mass-infringement cases. Foglia earned a J.D. from Duke University School of Law and a B.A. from Davidson College.
USCO Holds NFT Roundtable: On January 31, the U.S. Copyright Office held a day-long roundtable on the copyright implications of non-fungible tokens (NFTs). The roundtable—which consisted of four separate sessions on topics such as technological processes, creative sector uses of NFTs, and enforcement—was held to help the Copyright Office and U.S. Patent and Trademark Office (PTO) gather further input on their joint Study on Non-Fungible Tokens and Related Intellectual Property Law Issues. Similar roundtables were recently held on the implications of NFTs for patents and trademarks. The roundtable sessions were open to the public and recorded, and they will soon be posted to the Copyright Office’s NFT study webpage. In addition to participating in the roundtable, the Copyright Alliance will be submitting written comments before the February 3 deadline.
Copyright in the Courts
Class Action Lawsuit Filed Against Stability AI, Midjourney, and DeviantArt: On January 13, artists Sarah Andersen, Kelly McKernan, and Karla Ortiz filed a class-action lawsuit against Stability AI, Midjourney, and DeviantArt in the Northern District of California, alleging copyright infringement and right of publicity violations for the use of the plaintiffs’ works in training data sets for the AI image-generating platforms Stable Diffusion, the Midjourney Product, DreamStudio, and DreamUp.
Getty Images Sues Stability AI in the UK: On January 17, Getty Images announced that it has filed a lawsuit against Stability AI in the High Court of Justice in London for unlawful copying and processing of millions of copyrighted images and the metadata thereof, which are owned or administered by Getty. Getty stated that, “Stability AI did not seek any [AI] license from Getty Images and instead, we believe, chose to ignore viable licensing options and long‑standing legal protections in pursuit of their stand‑alone commercial interests.”
YouTube Granted Partial Summary Judgment in Schneider Infringement Class Action: On January 5, the U.S. District Court in the Northern District of California granted in part and denied in part YouTube’s motion for summary judgment seeking to dismiss infringement claims brought by composer and musician Maria Schneider. The class action case was brought against YouTube in 2020, with Schneider and others alleging that YouTube facilitates infringement by not enforcing a repeat infringer policy and not offering smaller or individual copyright owners the same opportunity to remove infringing works through its anti-piracy tools as it does for larger content creators. After its motion to dismiss was denied, YouTube moved for summary judgment, arguing that (1) Schneider licensed her works to YouTube; (2) Schneider did not present evidence of a DMCA violation; and (3) the claims were untimely. In the order granting in part and denying in part YouTube’s motion, the court dismissed all claims related to 27 works, which it said discovery failed to produce any evidence of infringement. As to the licensing defense, the court denied summary judgment, finding that there is a quintessential factual dispute. Addressing the argument that Schneider’s claims are untimely, the court found that YouTube established that Schneider had knowledge of 121 infringements more than one year before she filed suit, and thus they are barred by the one-year limitations clause in YouTube’s terms of service, which Schneider agreed to when she created a YouTube account and uploaded several videos containing her music.
Court Finds That Facebook Does Not Qualify for DMCA Safe Harbor: On January 4, the district court for the Northern District of California partially granted and denied a motion to dismiss brought by Meta in the lawsuit filed against it by fine artist, Jennifer Cook. Cook sued Meta in April 2022, alleging that Meta did not expeditiously remove infringing content in response to her Facebook DMCA notifications about advertisements and accounts using stolen images of Cooks’ snake sculptures. The court held that Meta did not qualify for the DMCA safe harbor and rejected Meta’s argument that the platform had acted expeditiously when the infringing material was removed within 24 hours of notifying the platform’s IP counsel since the notification and removal process happened outside of the platform’s official DMCA process.
Thaler Files Summary Judgment Motion in AI Authorship Copyright Case: On January 10, Dr. Stephen Thaler, who filed a lawsuit against the U.S. Copyright Office for its rejection of Thaler’s registration application for an AI-authored work, A Recent Entrance to Paradise, filed a motion for summary judgment. Thaler argues that the plain language of the Copyright Act establishes that AI-generated works are eligible for copyright protection and that is the copyright owner of the AI-generated work by either common law property principles or through the work-made-for-hire doctrine.
Copyright in Other Countries
USTR Releases Notorious Markets Report: On January 31, the Office of the U.S. Trade Representative released its 2022 Review of Notorious Markets for Counterfeiting and Piracy. The report highlights examples and markets that reportedly engage in, facilitate, or turn a blind eye to, or benefit from substantial piracy or counterfeiting. The topic of this year’s report focuses on The Impact of Online Piracy on U.S. Workers.
Belarus Legalizes Piracy of Copyrighted Works from ‘Unfriendly Countries’: On January 3, Belarus’ president, Alexander Lukashenko, signed a bill into law that effectively legalizes the piracy of copyrighted works including audiovisual works and software owned by rightsholders of “unfriendly countries” and allows for the unauthorized importation of IP goods from such countries. The law additionally requires users of these works to pay for such use and send funds to a state-owned account administered by the National Patent Authority. Rightsholders can claim funds that are legally theirs within three years from the date of the credit. The law will remain in effect until December 31, 2024.
One of Sci-Hub’s Main Domain Names Is Deactivated by Domain Registry: According to reports, one of Sci-Hub’s main domain names, ending in .se, has been deactivated by the domain name registry. The .se domain is managed by the Swedish Internet Foundation, which commented that the domain name owner received relevant information that led to the deactivation of the domain name for the academic publishing pirate website.
Indian Court Issues First Interim Website Blocking Order Against Stream-Ripping Websites: On January 12, the High Court of Delhi granted an interim order in favor of a group of record label companies, requiring Indian Internet Service Providers to block access to 18 defendants operating stream ripping websites that collectively drew approximately 20 to 22 million visits per month. According to the International Federation of the Phonographic Industry (IFPI), this is the first successful site blocking order issued in India targeted against stream ripping sites in the country.
French ISPs and Sports Programming Association Partner in an Anti-Piracy Pact: On January 18, France’s national anti-piracy agency, the Audiovisual and Digital Communication Regulatory Authority (ARCOM), announced that the Association for the Protection of Sports Programs (APPS) and four major French Internet Service Providers signed an agreement to partner on implementing anti-piracy measures against illicit websites and an agreement on how site blocking costs should be covered.
New Report Indicates Live TV Piracy Cost €1.8 Billion in Economic Losses in Germany: Consulting and research group, Goldmedia, released a new report, showing that live television piracy cost €1.8 billion annually in economic losses in Germany. According to the report, 72% of those streaming live TV did so illegally at least once a week.
Whitepaper Reports a Disproportionate Number of Pirate and Counterfeit Websites Utilize Cloudflare’s Services: Corsearch, a brand protection company, released a whitepaper that showed a disproportionate number of websites are engaging in online piracy using Cloudflare’s services. Corsearch reported that 71% of websites that it notified to Google for search engine demotion used Cloudflare’s Content Delivery Network (CDN) services and that nearly half of all websites flagged for pirated copyrighted works, including film, TV, music, and photography, used Cloudflare.
Look Forward To And Save the Date For…
Deadline for Comments to USCO on CCB Interim Rules: February 2 is the submission deadline for comments responding to the U.S. Copyright Office’s interim rule amending its regulations governing the appearance of law student representatives before the Copyright Claims Board (CCB), district court referrals, proof of service forms, and default proceedings. The interim rules allow the CCB to modify or suspend certain rules when a claim is referred by a district court and, in cases that are first filed before the CCB, accept alternative proof of service forms. The new rules also clarify the rules governing default proceedings and law student representations.
Deadline for Comments to USCO and USPTO on NFT Study: February 3 is the submission deadline for written comments responding to the U.S. Copyright Office and U.S. Patent and Trademark Office’s notice for comments on their joint study on issues regarding intellectual property issues that arise from the use of non-fungible tokens (NFTs).
California Copyright Conference and SONA Host “Writers in the Round”: On February 7 from 6:15 – 9:15 p.m. PST, the California Copyright Conference, in partnership with SONA, is hosting a night of music, stories, and networking. In addition, there will be live performances “as songwriters perform their hits and [share] the dirty little secrets behind each song.” Business representatives will join music artists on stage to talk about the business side of songwriting. Attendees are invited to bring their questions. More information is available on the registration page.
Copyright Society 2023 Midwinter Meeting: On February 9-11, the Copyright Society will host its Midwinter Meeting for members of the copyright and entertainment communities to convene from across the globe. Speakers include Clark Asay, Hugh W. Colton Professor of Law at BYU Law School; Naomi Jane Gray, principal at Shades of Gray Law Group, P.C., and immediate Past President of the Copyright Society; Elaine K. Kim, partner in Entertainment, IP, and Litigation practice groups at Mitchell Silberberg & Knupp LLP (MSK); and many others. More information is available on the registration page.
NAIAC Open Meeting on AI: On February 10, the National Artificial (AI) Intelligence Advisory Committee (NAIAC) will hold an open meeting in-person and online to discuss how to direct their input into actionable recommendations to present to the President and National Artificial Intelligence Initiative Office. The final agenda and registration information can be found on the NAIAC website once it becomes available. Comments may be submitted on agenda items before and during the meeting.
USPTO Hosts 2023 Black Innovation and Entrepreneurship Program: On February 10 from 2:00-4:30 p.m. EST, the U.S. Patent and Trademark Office is hosting the 2023 Black Innovation and Entrepreneurship Program to assist aspiring entrepreneurs, inventors, and small business owners who want to “transform their innovation into an enterprise.” The event will feature Black entrepreneurs, small business owners, and inventors as panelists, “who will discuss resources and services that can help you access capital, protect your intellectual property (IP), find mentors, and network with fellow innovators and entrepreneurs.” More information is available on the registration page.
USCO Monthly Recordation System Webinar: On February 23, the U.S. Copyright Office will hold its monthly 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 webinar 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.
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