The highly anticipated new copyright small claims court, the Copyright Claims Board opened its doors on June 16, allowing claimants to begin filing cases. But the U.S. Copyright Office staff was not the only ones busy with copyright law matters in June. Federal courts were also busy handling various copyright law issues, with various parties, including the Copyright Alliance, filing amicus briefs for a U.S. Supreme Court case on aspects of the fair use test. Here is a quick snapshot of several copyright-related activities that happened during the month of June and a few events to look forward to for the month of July.
Copyright Alliance Activities
Copyright Alliance Files Amicus Brief in SCOTUS Case Andy Warhol Foundation v. Goldsmith: On June 17, the Copyright Alliance filed an amicus brief in support of neither party in the Supreme Court case Andy Warhol Foundation v. Goldsmith, taking no position on the ultimate resolution of Petitioner’s (Andy Warhol Foundation) fair use defense and addressing only the narrow transformative use standard proposed in the question presented. The brief focuses on the importance of interpreting the Copyright Act in a manner that draws a clear line between transformative uses and uses that violate a copyright holder’s exclusive right to prepare derivative works under Section 106(2). Further, the brief cautions against the increasingly elevated weight courts have afforded to transformative use analyses and emphasizes the continued importance of the other three factors of the fair use test. After describing the harm Petitioner’s overbroad transformative use standard would have on the creative community, the brief articulates a set of guidelines it urges the Court to take into account when considering what standard should govern a transformative use analysis.
Copyright Alliance Blogs: The Copyright Alliance posted several new blogs during the June.
- The Register of Copyrights of the U.S. Copyright Office, Shira Perlmutter, shared her answers and thoughts on commonly asked questions about the CCB process in this blog post, highlighting how the Office is continuing to work at one of its new strategic goals of “copyright for all” through its different CCB resources for creators.
- After filing our amicus brief in the Supreme Court case, Andy Warhol Foundation v. Goldsmith, we explain why the Supreme Court should reject Warhol’s overbroad transformative use test under the first fair use factor and take a holistic view of the fair use factors in this blog post.
- Ahead of Father’s Day, we honored fathers and their dad jokes by exploring in this blog post of the copyright protections and limitations surrounding jokes. We also celebrated Pride Month 2022 in this blog post by highlighting seven LGBTQ+ changemakers in film and television and their journeys of navigating their creative fields to increase the voice and representation of LGBTQ+ creators.
Copyright Office Activities
CCB Begin Operations: On June 16, the new copyright small claims tribunal, the Copyright Claims Board (CCB), began operations. Potential claimants are now able to register for the eCCB, the CCB’s electronic case management and filing system and the public is able to view filed claims as well as various documents related to CCB proceedings. The CCB Handbook, as well as the opt out form, are also available on the CCB website. Shira Perlmutter, Register of Copyrights stated, “The Copyright Office, the Library of Congress, and the CCB staff have worked hard over the past year and a half to achieve this exciting milestone. The CCB has been designed to be user-friendly and will contribute to the Office’s goal of Copyright for All, which aims to make the copyright system as understandable and accessible to as many members of the public as possible, including individuals and small businesses.” On the first day, 13 cases were filed. By of the end of June, a total of 36 cases had been filed with the CCB.
USCO Publishes Report on Press Publishers’ Rights: On June 30, the Office published its conclusions from its study examining press publishers’ existing protections and rights in the U.S., and evaluating the possibility of adding new protections. The study was conducted at the request of Senators Patrick Leahy (D-VT), Thom Tillis (R-NC), John Cornyn (R-TX), Mazie Hirono (D-HI), Amy Klobuchar (D-MN), and Chris Coons (D-DE). The Office stated that it “does not believe it has been established that any shortcomings in copyright law pose an obstacle to incentivizing journalism or that new copyright-like protections would solve the problems that press publishers face. Given the available evidence, the  Office did not recommend adopting a new ancillary copyright to bolster press publishers’ protections.”
USCO to Study Deposit Requirements: On June 3, the Office published a notice of inquiry requesting input on the deposit requirements of section 407 and 408 of the Copyright Act and specifically asking whether removing the best edition requirement from the registration deposit process in section 408 could help improve the registration process. The Office is initiating this study in response to a request by Senator Thom Tillis (R-NC) in a May 2021 letter to Register Perlmutter. Comments are due to the Office by July 18, 2022.
Copyright Royalty Board Proposes Increase In Phonorecords Royalty Rates: On June 1, the Copyright Royalty Board (CRB) published its proposed regulations that set rates and terms applicable during the period beginning January 1, 2023, and ending December 31, 2027, for the use of nondramatic musical works in the making and distributing physical and digital phonorecords. Public comments are due by July 1, 2022.
Copyright Royalty Judges Announce Final Rules: On June 14, the Copyright Royalty Judges published a final rule for the funding of the operating budget for the Mechanical Licensing Collective (MLC) and MLC process and procedures, as well as other adjustments to the existing rules to correct outdated cross references.
Register Perlmutter Responds to Senators’ Letter On Retroactive Royalty Payments: On June 24, Register Perlmutter sent a letter to Senators Thom Tillis (R-NC), Mazie Hirono (D-HI), Marsha Blackburn (R-TN), Bill Hagerty (R-TN), and Sheldon Whitehouse (D-RI) in response to their June 16 letter about the Copyright Office’s review of the request made by the Digital Licensee Coordinator (DLC) to delay the payment of outstanding, retroactive royalties to songwriters. The Office responded by stating that, since the Phonorecords III rate-setting proceeding is ongoing, it would be “premature for the Office” to reach any conclusions on the merits, but that it “intends to engage further with stakeholders after the CRJ’s initial determination is issued so that [its] decision-making can benefit from a more concrete record.”
USCO Issues Report on Women in the Copyright System: On June 9, the Office published a report titled Women in the Copyright System: An Analysis of Women Authors in Copyright Registrations from 1978 to 2020. The report features data on women’s authorship rates within the U.S. copyright system, with a comparison to their participation in the copyright-based creative industries. According to the study, over 38% of all copyright registrations were granted to women authors in 2020, as compared to 28% in 1978. The study also notes that the share of copyright registrations that list women authors has risen across nearly every category.
USCO Licensing Section Moves to Single Payment Method for Royalty and Filing Fees: On June 30, the Office announced that its Licensing Section will move to a single EFT payment method (Pay.gov) for payment of current, past, and future royalty and filing fees. The Office retired the private Pay.gov forms previously used for royalty payments. More information on making statutory license royalty payments can be found in the Office’s Circular 74, tutorial, and FAQs.
Congressional Copyright Related Activities
Sens. Tillis and Leahy Request USCO and USPTO to Conduct Joint Study on NFTs: On June 9, Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT) sent a letter to Kathi Vidal, Under Secretary of Commerce and Director of the U.S. Patent and Trademark Office, and Shira Perlmutter, Register of Copyrights of the U.S. Copyright Office, requesting that the two agencies conduct a joint study on non-fungible tokens (NFTs) and the impact and application to intellectual property rights. The letter requests that the agencies respond as to whether they will undertake the study by July 9 and whether the study can be completed no later than June 8, 2023.
Senators Urge USCO to Reject Proposals to Delay Royalty Payments to Songwriters: On June 16, Senators Thom Tillis (R-NC), Mazie Hirono (D-HI), Marsha Blackburn (R-TN), Bill Hagerty (R-TN), and Sheldon Whitehouse (D-RI) sent a letter to the U.S. Copyright Office, urging the Office to reject requests made by the Digital Licensee Coordinator (DLC) to delay the payment of outstanding, retroactive royalties to songwriters. DLC member companies (which include Amazon, Apple, Pandora, YouTube, and Soundcloud) had previously requested that the Office adopt an interim rule—with no public notice or comment period—to indefinitely pause any obligation of the companies to make retroactive royalty payments due to copyright owners as per a Phonorecords III remand decision. The senators requested a response by July 16.
Copyright in the Courts
Briefs Filed in SCOTUS Transformative Use Case: On June 10, The Andy Warhol Foundation filed its brief in the case Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith for which the U.S. Supreme Court granted the cert petition back in March. The question presented by the Foundation posits: “Whether a work of art is “transformative” when it conveys a different meaning or message from its source material (as this Court, the Ninth Circuit, and other courts of appeals have held), or whether a court is forbidden from considering the meaning of the accused work where it “recognizably deriv[es] from” its source material (as the Second Circuit has held).” In addition to the Copyright Alliance brief, numerous other organizations—including several Copyright Alliance members—filed amicus briefs in support of neither party, including the Motion Picture Association, News Media Alliance, Authors Guild, New York Intellectual Property Law Association, and the American Intellectual Property Law Association. All amicus briefs can be found on the Supreme Court’s website. Amicus briefs in support of Goldsmith are due in August. Oral arguments for the case will take place on Wednesday, October 12, 2022.
Court Grants Twitter’s Motion to Quash in 512(h) Subpoena Case: On June 21, the district court for the Northern District of California granted Twitter’s motion to quash a subpoena requested under section 512(h) of the Digital Millennium Copyright Act in In re DMCA § 512(h) Subpoena to Twitter, Inc. Twitter received a subpoena from plaintiff, Bayside, requesting information on the user behind the Twitter account @CallMeMoneyBags. Twitter moved to quash the subpoena arguing that revealing the user’s identity would violate the user’s First Amendment rights. The court found that “[b]ecause [plaintiff] has not made out a prima facie case of copyright infringement, and for the independent reason that the user’s constitutional interest in anonymity outweighs Bayside’s expressed interest in his identity (at least on this record), the subpoena must be quashed.”
Maryland Compulsory eBook Licensing Law Deemed Unconstitutional: On June 13, the federal district court for the District of Maryland held that “the state of Maryland’s compulsory eBook licensing bill [was] unconstitutional and unenforceable because it conflicts with and is preempted by the Copyright Act.” Association of American Publishers President and CEO Maria Pallante praised the decision, stating: “We thank Judge Deborah L. Boardman for delivering a clear decision that protects the exclusive rights that are the basis of the United States Copyright Act and the means by which authors and publishers make so many intellectual and economic contributions to society and the long-term public interest . . . Today’s decisive ruling, combined with Governor Kathy Hochul’s December, 2021 veto of a nearly identical bill in New York on constitutional grounds, sends a two-fold message to other legislatures being similarly lobbied: there is nothing judicious about undermining authors or the viability of an independent publishing industry.” Mary Rasenberger, CEO of the Authors Guild stated: “We congratulate the AAP on its victory against Maryland’s misguided mandatory ebook and audiobook licensing law, which was a wholly unwarranted rebuke of authors’ exclusive rights under the Constitution and federal copyright law to decide the terms on which they allow others to use their works. What’s more, this unconstitutional encroachment was not premised on any demonstrable need, as the vast majority of publishers large and small already license their ebooks and audiobooks to libraries, and authors want their books to be in libraries.”
Sports Publisher and Writer Files Cert Petition with SCOTUS in State Infringement Case: On June 15, Epic Sports and Michael Bynum, filed a petition for writ of certiorari with the U.S. Supreme Court in their appeal of their infringement case against the Texas A&M University and a pair of school officials, claiming the Fifth Circuit Court of Appeal’s decision leaves copyright holders “at the mercy of state infringers.” The petitioners originally filed suit in the Southern District of Texas, alleging that the university entity copied an unpublished chapter of the copyrighted work regarding the “12th Man” tradition at the university and posted it to their website without permission. The Fifth Circuit Court of Appeals denied a rehearing en banc of the case back in February after the district court dismissed the infringement claims.
SCOTUS Declines to Hear a Case On the Copyrightability of Floor Plans: On June 27, the U.S. Supreme Court (SCOTUS) denied the cert petition from a group of real estate organizations in the case, Columbia House of Brokers Realty, Inc. v. Designworks Homes, Inc., which concerned “[w]hether floor plans constitute ‘pictures, paintings, photographs, or other pictorial representations’ of an architectural work within the meaning of [the] § 120(a)” exception. The case involved a dispute between Charles James, a home designer who registered the designs with the U.S. Copyright Office for the home at issue and a realtor group that separately sketched out a floor plan of the home and used the sketch in marketing materials to sell it. The Eighth Circuit Court of Appeals, after reviewing the statutory text and legislative history, held that the § 120(a) exception “does not provide a defense to copyright infringement to real estate companies, their agents, and their contractors when they generate and publish floorplans of homes they list for sale.”
Oracle Awarded $30 Million in Copyright Lawsuit Against HP: On June 14, a California jury awarded Oracle $30 million in total damages in its copyright infringement suit against Hewlett-Packard (HP). Oracle sued HP in 2016 alleging that HP was willfully blind to its IT support company, Terix, installing unauthorized updates of Oracle’s Solaris software for customers. The jury also found that HP was liable for direct and vicarious infringement, but not liable for contributory infringement. The jury also found that HP was liable for intentional interference with Oracle’s contracts, and awarded $24 million for those claims.
Registration Claimant Sues USCO Over Rejected Application for AI-Authored Work: On June 2, Stephen Thaler filed a complaint in the District Court for the District of Washington, DC against the U.S. Copyright Office, alleging that the Office’s denial of Thaler’s registration application for the AI-authored work, “A Recent Entrance to Paradise,” was an arbitrary and capricious agency action. Thaler argues that the work in question meets all requirements for copyright protection, that there is no supporting case law for the proposition that AI-authored works are not protected by copyright law, and that he is entitled to the property created by his AI under the principles of accession and first possession.
DOJ Announces Seizure of Pirate Domain Names: On June 27, the U.S. Department of Justice and Homeland Security Investigations (HSI) announced the seizure of six pirate websites that were registered with a U.S.-based registry or a U.S.-based domain registrar. The websites illegally distributed music content by making these works available for streaming or downloading (sometimes releasing works ahead of their commercial release dates) and were identified as part of the federal government’s collaboration to combat copyright infringement with Brazilian and U.K. authorities and police forces. The six websites combined had estimated monthly audiences of approximately 5 million visitors.
Sentence for Criminal Copyright Pirate Upheld: On June 23, the Court of Appeals for the First Circuit upheld the federal jury’s finding that Douglas Gordon was guilty of two counts for criminal copyright infringement and one count of mail fraud for deceptive marketing. He was sentenced to 36 months of imprisonment on the copyright counts. For five years, Gordon ran Edge Video, a small chain of video stores and websites that sold and rented movies that were copied from “master” DVDs, which were in turn copied from VHS tapes. Even after receiving a demand letter from the Maine Attorney General’s Office in 2012 and undergoing a federal investigation in 2015 and a second search in 2017, Gordon continued his infringing activities. Gordon claimed that his actions were not willful because he believed his sales were permitted based on the DVDs’ status as orphan works and on the fair use doctrine. The First Circuit stated that a jury could readily conclude that Gordon acted willfully based on the fact that he continued his infringing activities even while knowing he was under investigation by the Maine Attorney General and the federal government.
Copyright in Other Countries
WTO Publishes Final Text to Waive Certain IP Rights Under the TRIPs Agreement: One June 15, the World Trade Organization (WTO) released its final Ministerial Decision waiving certain IP rights/obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) Agreement for certain Member countries (developing nations). The finalized waiver is narrowly tailored to patent rights related to the production and supply of COVID vaccines, and excludes copyright law. The waiver will last for 5 years (with a possible extension) and is subject to an annual review by the WTO’s General Council. The WTO will also reconsider this waiver in 6 months regarding any expansions related to COVID diagnostics and therapeutics.
UK IPO Publishes Conclusions From AI Consultation, Plans to Expand Text and Data Mining Exceptions for AI: On June 28, the United Kingdom Intellectual Property Office (IPO) issued its outcome on its consultation on Artificial Intelligence (AI) and Intellectual Property: Copyright and Patents. Though the UK IPO declined to change its current laws for computer-generated works and AI-devised inventions, it did state plans to “introduce a new copyright and database exception [that] allows text and data mining (TDM) for any purpose.” Currently, UK law provides a TDM exception only for researchers, but decided through this consultation to introduce this “new copyright and database exception [that] allows TDM for any purpose” to support “AI and wider innovation.”
Canada Extends Copyright Term to Life Plus 70 Years: On June 23, the Parliament of Canada passed legislation to extend the term of copyright protection in literary, dramatic, musical, and artistic works to life of the author plus an additional 70 years. The term extension will not apply retroactively, and the effective date of the new law is yet to be determined.
New Zealand Extends Term of Copyright Protection: In June, as part of New Zealand’s new Free Trade Agreement with the European Union, New Zealand agreed to extend the term of protection for copyrighted works by 20 years for authors, producers, and performers, resulting in a protection term of the life of the author plus 70 years. Under this FTA, New Zealand will also extend the protection for anti-circumvention technological protection measures. The country will have four years from the date of entry into force of the Agreement to implement these changes to its Copyright Act.
German Court Holds That Service Providers Could Be Liable for Users’ Infringing Activities: A German court held that online service providers like YouTube could be held liable for its users’ infringing activities when the service provider fails to take appropriate actions regarding the infringement. The court’s ruling takes into account an interpretation by the Court of Justice of the European Union (CJEU), which stated that online services providers can be held liable for their users’ infringing actions when they act in “full knowledge of the consequences” with the goal of giving the public access to works protected by copyright law.
Megupload Pair Pleads Guilty to Piracy Charges in New Zealand: On June 22, Mathias Ortmann and Bram van der Kolk pled guilty to criminal piracy charges in New Zealand for their involvement in the operations of the notorious pirate site, Megaupload. They face up to ten years in prison. Kim Dotcom, the founder and former CEO of Megaupload, currently faces possible extradition to the U.S.
Look Forward To And Save the Date For…
WIPO: Intellectual Property Management Clinic Sustainable Fashion: Understanding of the Role of IP Management: On July 6-7, the World Intellectual Property Organization (WIPO) is hosting an event via Zoom to assist attendees in better understanding the role of intellectual property (IP) management “throughout the development, manufacturing, branding, and marketing of environmentally sound products and technologies in the fashion industry.” More information is available on the registration page.
USPTO: Intellectual Property Basics and Helpful Resources: On July 7 from 12:00 PM-1:30 PM ET, the U.S. Patent and Trademark Office (USPTO) is hosting its “free event for aspiring entrepreneurs, innovators, and students . . .” on various topics in intellectual property law. The topics that will be covered include: An overview of intellectual property types: patents, trademarks, copyrights, and trade secrets; Why innovators and entrepreneurs should consider protecting their IP; Local resources and assistance available through the USPTO and other agencies. More information is available on the USPTO’s website and at Events@uspto.gov.
RightsClick: Tool Demo and Q&A: On July 7 at 1:00 PM ET,RightsClick, a new copyright management suite that was designed by copyright experts/advocates “who care about making the system work for independent creative professionals,” will host its first webinar to share information about the tool, answer user questions, and listen to creator ideas for the tool. More information about the webinar can be found on the registration page.
Deadline for Comments to USCO on Interim Rules Regarding MMA Reporting Requirements: On July 8, public comments are due to the U.S. Copyright Office regarding its set of interim rules on the reporting requirements of digital music providers pursuant to the Music Modernization Act (MMA). On May 24, the Office published these rules and a request for comments in response to operational and compliance challenges with existing regulations.
Assemblies of the Member States of WIPO: Sixty-Third Series of Meetings of Member States: From July 14 to 22, the World Intellectual Property Organization’s (WIPO) Sixty-Third Series of Meetings of the Assemblies of the Member States will take place at WIPO headquarters in Geneva, Switzerland, as well as online (to enable compliance with current health and safety measures).
Deadline for Comments to USCO on Section 407 and 408 Deposit Requirements: On July 18, public comments are due to the U.S. Copyright Office related to the Office’s notice of inquiry requesting input on the deposit requirements of section 407 and 408 of the Copyright Act and whether removing the best edition requirement from the registration deposit process in section 408 could help improve the registration process. The Office is initiating this study in response to a request by Senator Thom Tillis (R-NC) in a May 2021 letter to Register Shira Perlmutter.
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