October 2022 Roundup of Copyright News
Easily the most significant copyright-related event to take place this October was the U.S. Supreme Court hearing of oral arguments in the biggest fair use case in decades, Andy Warhol Foundation v. Goldsmith. Here is a quick snapshot of that case and many other copyright-related activities that occurred during the month of October as well as a few events to look forward to for the month of November.
Copyright Alliance Activities
Copyright Alliance Submits Comments to ITA on AI Export Competitiveness: On October 17, the Copyright Alliance submitted comments to the International Trade Administration (ITA) in response to its request for comments on Artificial Intelligence (AI) exports. The comments highlight the critical role the copyright community plays in AI export competitiveness, identify trade barriers, challenges, and foreign and domestic policies that affect AI exports and copyright law, and urge the ITA to ensure that copyright law is respected and preserved in AI-related trade policies.
Copyright Alliance Blogs: The Copyright Alliance posted several new blogs during the month of October.
- In October, various members of the copyright community, both individuals and organizations, collectively mourned former Register of Copyrights, Marybeth Peters’ passing and celebrated her life and legacy in this tribute blog.
- The U.S. Supreme Court held oral arguments for the closely watched copyright case, Andy Warhol Foundation v. Goldsmith, which we summarized in this blog post, noting that the Justices seemed to wrestle with the role and scope of the transformative use test in a fair use analysis and its relationship to the exclusive right to prepare derivative works.
- With the new NFL season underway, we uncovered and celebrated the hidden artistic talents of several NFL players in this blog post. Additionally, in time for Halloween, we also explored the spooky tradition of the jack-o-lantern and the copyrightability of these common Halloween decorations in this blog post.
Copyright Office Activities
CCB Status Update: At the end of October, 225 total cases were filed with the Copyright Claims Board (CCB), an increase of 42 from the previous month. Seventy-nine of the cases are “smaller claims.” In at least 74 of the cases, the claimant is using legal counsel. At least 183 of the cases involve infringement claims, 36 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 (120 cases); Literary Works (30); Motion Picture and Audiovisual Works (33); Sound Recordings (18); Musical Works (11); and some cases include claims for multiple works. 30 foreign resident(s) have filed claims. 18 claimants have filed multiple cases. 48 cases have been dismissed for the following reasons: Due to Respondent’s Opt Out (Eight); Due to Failure to Amend Noncompliant Claim (30); and Claimant Withdrawal and Dismissal of Claims (10). There are three active proceedings.
USCO Concludes Technical Measures Sessions: On October 4, the U.S. Copyright Office held its concluding plenary sessions on technical measures, which were broken up into morning and afternoon sessions with a variety of participants. The Office started the meetings with an overview of the plenary sessions to date before delving into additional topics on the agenda. The full recordings of the closing sessions are available on the Copyright Office’s website.
Register Perlmutter Responds to SJC Questions: Register of Copyrights Shira Perlmutter submitted responses to questions for the record submitted by Senators Patrick Leahy (D-VT), Thom Tillis (R-NC), and Dick Durbin (D-IL) for the Senate Judiciary Committee’s IP Subcommittee Oversight Hearing of the U.S. Copyright Office. Register Perlmutter answered questions from the Senators regarding the Copyright Claims Board, Mechanical Licensing Collective, the ALI’s Restatement of Copyright, copyright registration practices, the SMART Act, and other topics.
USCO Proposes Rule on Termination Rights and MMA’s Blanket License: On October 25, the U.S. Copyright Office published a notice of proposed rulemaking (NPRM) regarding the applicability of the derivative works exception to termination rights under the Copyright Act to the new statutory mechanical blanket license established by the Music Modernization Act (MMA). The Office’s proposed rule aims to clarify the appropriate payee under the blanket license to whom the MLC must distribute royalties in connection with a statutory termination. Written comments are due by November 25 and written reply comments are due by December 27.
Congressional Copyright Related Activities
Senators Request USPTO and USCO to Form AI Commission: On October 27, Senators Thom Tillis (R-NC) and Chris Coons (D-DE) sent a letter to Kathi Vidal, Director of the U.S. Patent and Trademark Office, and Shira Perlmutter, Register of the U.S. Copyright Office, requesting that “the two agencies jointly establish a national commission on AI.” The Senators noted that the commission should be as diverse as possible to provide robust recommendations and assess potential changes in existing law or new legal frameworks to balance AI related innovations and creations. The Senators also requested that the commission should be established by October 17, 2023, and a report on the completed work sent to Congress by December 31, 2024.
Biden Administration Activities
ARTS Act Signed Into Law: On October 18, President Biden signed into law the Artistic Recognition for Talented Students (ARTS) Act. Introduced in the Senate by Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT) and in the House by Representatives Hakeem Jeffries (D-NY) and Nancy Mace (R-SC), the law directs the Register of Copyrights to waive the copyright registration fee for student winners of the Congressional Art Competition and the Congressional App Competition.
Copyright in the Courts
SCOTUS Hears Oral Arguments for AWF v. Goldsmith Case: On October 12, the U.S. Supreme Court (SCOTUS) heard oral arguments in the Andy Warhol Foundation v. Goldsmith transformative usecase, which lasted for approximately two hours. The Justices asked counsel for AWF, Goldsmith, and the U.S. Government various questions about the role and scope of “purpose and character” and “meaning or message” under the first fair use factor, including the differences between derivative works and works that qualify as transformative uses. The Copyright Alliance filed an amicus brief in the case in support of neither party.
SoundExchange Wins $9.7 Million Award In Royalties Lawsuit Against Slacker: On October 13, the district court for the Central District of California entered into a judgment against subscription-based music platform, Slacker Inc., and its parent company LiveOne, Inc., in a lawsuit brought by SoundExchange in June to recover unpaid digital streaming royalties for performers and rightsholders of sound recordings. SoundExchange had been negotiating with Slacker since 2017, when the music platform failed to pay outstanding royalties. The court awarded SoundExchange $9.7 million in damages and permanently barred Slack and LiveOne from using the section 114 statutory license.
ISP Agrees to Request Wholesale Providers to Block Access to Pirate Site: On October 4, a group of filmmaker plaintiffs, as well as internet service provider Earthlink, filed a joint stipulation for dismissal of the lawsuit the plaintiffs had brought against the ISP in June, alleging secondary copyright infringement claims. As part of the settlement, Earthlink, which resells internet services from larger companies including AT&T, agreed to request its wholesale providers to use commercially reasonable efforts to block access to the pirate site, YTS.
Shopify Settles Lawsuit with Major Educational Publishers: On October 4, a group of publisher plaintiffs, including Macmillan, Elsevier, and McGraw Hill, and online service provider, Shopify, filed a joint stipulation for dismissal of the lawsuit brought by the publishers in December 2021. The terms of the settlement are confidential. The publishers’ lawsuit had alleged that Shopify repeatedly ignored infringement notices of illicit versions of the plaintiffs’ educational materials which were being sold by Shopify users.
Copyright in Other Countries
Dutch Appeals Court Affirms That ISP Is Not Obligated to Forward Piracy Notices: On October 11, a Dutch appeals court affirmed a lower court ruling that major Dutch internet service provider, Ziggo, was not obligated to forward piracy notices to its users because the ISP lacked a license to process personal user information with the infringing IP addresses.
German Court Rules That Website Blocking Is a Last Resort Mechanism for Combatting Infringement: On October 13, the German Federal Court of Justice affirmed the lower court’s ruling that German internet service provider, Deutsche Telekom, was not obligated to block various Sci-hub domains and proxy sites where the plaintiff publishers had not exhausted other options including pursuing legal action against Sci-hub’s Swedish hosting providers. The court stated that under the German Telemedia Act a website blocking order is only appropriate where rightsholders have “no other possibility” of addressing infringement.
Canadian Court Issues Site-Blocking Order for Illicit Live Streaming of World Cup: On October 21, the Federal Court in Canada granted several Canadian television and media companies an injunction ordering Canadian Internet Service Providers (ISP) to block various IP addresses used to illegally stream live matches from the upcoming FIFA World Cup in Qatar while the games are being broadcast. The rightsholders are responsible for the costs (up to $15,000 CAD) incurred by the ISPs’ implementation of the order.
French Agency Reports Success from French Site Blocking Efforts: In October, French anti-piracy administrative agency, the Audiovisual and Digital Communication Regulatory Authority (ARCOM), released a report titled Impact of Blocking Illicit Sports Services. The report indicates that the number of viewers of illegal live sports streams was halved by end of the first half of 2022.
Industry Activities
CLE Issues White Paper, Urges DMCA Reform: On October 13, the International Center for Law & Economics (ICLE) released a white paper titled A Roadmap to Reform Section 512 of the Copyright Act, which outlines the shortcomings of the DMCA and proposes various solutions to reform the DMCA including clarification of knowledge standards, filtering technologies, and no-fault injunctions. More information is available here.
Look Forward To And Save the Date For…
Copyright Society Webinar on Parody in Copyright and Trademark Law: On November 4 at 3:00 p.m. PST, the Northern California Chapter of the Copyright Society is hosting a webinar on Parody in Copyright and Trademark Law. Speakers include Alfred (Fred) C. Yen, Professor of Law and Dean’s Distinguished Scholar at Boston College Law School; Lincoln Bandlow, an attorney whose practice focuses on media, First Amendment, intellectual property and other entertainment-related litigation matters; and Preetha Chakrabarti, a partner in Crowell & Moring’s New York office and a member of the firm’s Technology & Intellectual Property Department.
Deadline for Additional Comments to USCO on Final Rule for ‘Smaller Claims’: November 14 is the deadline for submitting additional written comments to the U.S. Copyright Office regarding the procedures and rules for the “smaller claims” process in the Copyright Claims Board (CCB).
University of Georgia Artists Rights Symposium: From November 14-15, the Music Business Certificate Program at the University of Georgia’s Terry College of Business is hosting the Artists’ Rights Symposium III, titled The Future of Authorship and the U.S. Copyright Office. “The symposium will examine ways that songwriters and performers might have more input into royalty and rule-making proceedings” that are overseen by the U.S. Copyright Office, as well as discuss whether “the Copyright Office should take a more active role in the regulation of libraries.” More information about the event and registration is available on the event page.
Copyright Alliance and WALA Webinar: Copyright Basics: On November 15 from 11 a.m. to 1:00 p.m. ET, the Copyright Alliance and the Washington Area Lawyers for the Arts (WALA) are hosting a webinar presentation and Q&A on Copyright Basics, which will be facilitated by Copyright Alliance’s Terrica Carrington and Rachel Kim. Topics will include copyright registration, copyright licensing, third parties, fair use basics, and more. More information can be found on the registration page.
WALA Hosts Legal Clinic on Copyright in the Metaverse: On November 15 from 2:00 to 3:00 p.m. ET, the Washington Area Lawyers for the Arts (WALA) and IP law students from the Arts & Entertainment Advocacy Clinic at George Mason University’s Antonin Scalia Law School are hosting a legal clinic titled Copyright in the Metaverse. The event will enable attendees to get their copyright questions answered. More information is available on the event page.
Deadline for Submitting Written Comments to USCO on Termination Rights and MMA Blanket License NPRM: November 25 is the deadline for submitting written comments to the U.S. Copyright Office regarding its notice of proposed rulemaking regarding the applicability of the derivative works exception to termination rights under the Copyright Act to the new statutory mechanical blanket license established by the Music Modernization Act (MMA). The Office’s proposed rule aims to clarify the appropriate payee under the blanket license to whom the MLC must distribute royalties in connection with a statutory termination.
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