Tag: News Roundup

The U.S. Copyright Office was busy during the month of February with a range of activities, including hosting a roundtable on non-fungible tokens (NFTs) and publishing its much-awaited response to a registration application for a graphic novel which was created in part using artificial intelligence (AI). Meanwhile, a major AI-related lawsuit was brought by Getty in the U.S. Here is a quick snapshot of the copyright-related activities that occurred during the month of February as well as a few events to look forward to in March.

Copyright Alliance Activities

CCB Panel Video Released: On February 1, the Copyright Alliance—in partnership with 15 Volunteer Lawyers for the Arts (VLA) organizations—hosted a webinar on the Copyright Claims Board (CCB), titled The Copyright Claims Board—What We Know About the CCB So Far. Panelists included Terrica Carrington, VP of Legal Policy and Copyright Counsel at the Copyright Alliance; Maya Burchette, Attorney-Advisor for the CCB; and Thomas Maddrey, Chief Legal Officer & Head of National Content and Education for the American Society of Media Photographers (ASMP). During the event, which drew more than 400 attendees, panelists took an in-depth look at how things are working with the CCB seven months after its launch by the U.S. Copyright Office. On February 3, we released the recording of the event.

Copyright Alliance Blogs: In celebration of Black History Month, we explored in this blog post this year’s theme of Beauty and Resistance in the context of Black poetry throughout history, examining the lives and works of talented Black poets including Dr. Maya Angelou, Langston Hughes, Audre Lorde, Amanda Gorman, and Jericho Brown.

Copyright Office Activities

CCB Status Update: At the end of February 2023, 377 total cases had been filed with the Copyright Claims Board (CCB). Of these claims, 138 are “smaller claims.” In at least 128 of all cases, the claimant is using legal counsel. At least 329 of the cases involve infringement claims, 54 involve Section 512(f) misrepresentation claims, and eight involve claims for declarations of noninfringement. The eCCB docket currently shows that the works at issue in these cases are as follows: Pictorial Graphic & Sculpture (177 cases); Literary Works (51); Motion Picture and Audiovisual Works (80); Sound Recordings (38); Musical Works (22); and some cases include claims for multiple works. Thirty-seven foreign residents have filed claims. Of all the cases filed, 193 have been dismissed for the following reasons: Due to Respondent’s Opt Out (26); Due to Failure to Amend Noncompliant Claim (97); Due to Failure to Provide Proof of Service of Process (46); and Claimant Withdrawal and Dismissal of Claims (24). There are 27 active proceedings.

CCB Issues First Final Determination: On February 15, the Copyright Claims Board (CCB) issued its first final determination of a CCB case. The determination was issued in case number 22-CCB-0035, Flores v. Mitrakos, in which the claimant alleged that the respondent filed a knowingly false DMCA takedown notice that caused Google to remove materials from the Chrome Web Store. Through the CCB, the parties reached a settlement agreement that included a concession from the respondent that the information in the takedown notice was false and an agreement that the respondent will not file any future false takedown notices or counter-notices related to the claimant. The CCB approved the settlement agreement, dismissed the claim with prejudice (meaning that the claim cannot be brought again), and closed the case. 

USCO Denies Copyright Registration for AI-Generated Material Included in Graphic Novel: On February 21, the U.S. Copyright Office sent a letter to the attorney of Kristina Kashtanova, a visual artist who previously registered a work that contained artificial intelligence or AI-generated images, explaining that it would be reissuing a certificate of registration that would not extend to any AI-generated material. The Office took the position that while Kashtanova authored the work’s “text as well as the selection, coordination, and arrangement of the work’s written and visual elements,” the images that were generated using AI are “not the product of human authorship” and therefore do not constitute expressive material that can be registered. The Office initially granted the registration of Kashtanova’s work in September 2022 but initiated a review to consider canceling the registration after the AI-generated elements of the graphic novel came to light—mainly images generated using the AI tool Midjourney. In its letter, the Office stated that because the AI “generat[ed] the images in an unpredictable way” and the AI tool was “not controlled or guided” by Kashtanova, the images did not have sufficient human authorship. Further, the Office concluded that for other Midjourney-generated images that were subsequently edited by Kashtanova, the edits were not substantively original enough to be protectable under copyright law.

USCO Holds NFT Roundtable: On January 31, the 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 U.S. Copyright Office and U.S. Patent and Trademark Office (PTO) gather further input on their joint initiative, titled Study on Non-Fungible Tokens and Related Intellectual Property Law Issues. Kevin Madigan, VP of Legal Policy and Copyright Counsel, participated in the first panel, which focused on NFT technological processes. On February 3, the Copyright Alliance filed comments in response to the study which discuss the many opportunities and challenges copyright owners and creators have encountered in the NFT space. The comments also explain that, at this time, NFTs do not pose any particularly unique issues that would require a change in copyright law.

USCO Issues Interim Rule on MMA Reporting and Payment Requirements: On February 1, the Copyright Office issued an interim rule amending the expiration date of the transition period for the Mechanical Licensing Collective (MLC) to implement new reporting and payment procedures that were set forth by the Copyright Office in May 2022. The transition period will now end 30 days after the MLC receives written notice from the Office.

USCO Receives CCB Interim Rules Comment: On February 2, the Copyright Office received a public comment from the Copyright Alliance in response to a request for comments related to the interim rule amending the Copyright Claims Board (CCB) regulations governing the appearance of law student representatives, district court referrals, proof of service forms, and default proceedings. The comments support the Office’s interim rule that clarifies that a claimant need not pay a filing fee when a federal proceeding is referred to the CCB but recommends a possible fee structure if more cases are referred to the CCB by federal district courts.

Biden Administration Activities

NTIA Releases Report on Mobile Application Competitiveness: On February 1, the National Telecommunications and Information Administration (NTIA) released its report on Competition in the Mobile Application Ecosystem, examining the competitive conditions of the mobile application ecosystem. The agency reviewed 150 comments filed in response to the agency’s study, including the Copyright Alliance’s comments. The agency concluded that while the mobile app store model has provided benefits for developers and users, there are suboptimal market conditions resulting from Apple’s and Google’s policies and practices including the companies’ imposition of technical limits.

Congressional Copyright Related Activities

American Music Fairness Act Reintroduced in House and Senate: On February 2, the Senate and House reintroduced the American Music Fairness Act which provides for terrestrial public performance royalties for sound recording artists and performers. The Senate bill, S.253, was introduced by Senator Alex Padilla (D-CA) and cosponsored by Senators Blackburn (R-TN), Tillis (R-NC), and Feinstein (D-CA). The House bill, H.R.791, was introduced by Representative Darrell Issa (D-CA) and cosponsored by Representatives Nadler (D-NY), Lieu (D-CA), and McClintock (R-CA). On February 2, the Copyright Alliance sent letters to those Representatives and Senators, applauding them for their support and reintroduction of the bill.

Senators Named to Senate IP Subcommittee: On February 16, the Senate Judiciary Committee formally adopted its subcommittee lineups. The following Senators from the Democrat Party were named to the Subcommittee on Intellectual Property: Senators Coons (D-DE) (Chairman of the Subcommittee), Hirono (D-HI), Padilla (D-CA), Ossoff (D-GA), Welch (D-VT). The following Senators from the Republican Party were named to the Subcommittee: Senators Tillis (R-NC) (Ranking Member), Cornyn (R-TX), Cotton (R-AR), and Blackburn (R-TN).

Copyright in the Courts

Getty Images Sues Stable Diffusion in the U.S.: On February 3, Getty Images filed a lawsuit against Stability AI, Inc. in the district court for the District of Delaware, alleging that Stability AI infringed Getty’s images and accompanying text and metadata, and removed or altered copyright management information when it used the images scraped from Getty’s websites to train the AI machine, Stable Diffusion. Getty stated that Stability AI’s use of Getty’s works were a “brazen infringement of Getty Images’ intellectual property on a staggering scale” and claimed that Stability AI copied more than 12 million images from its database “without permission…or compensation…as part of its efforts to build a competing business.” The complaint also details the technical procedures of how an image is reproduced and altered by Stable Diffusion during the training process.

USCO Seeks Summary Judgment in AI Authorship Case: On February 7, the U.S. Copyright Office filed a response to a motion for summary judgment in Thaler v. Perlmutter, a case challenging the Office’s denial of copyright registration for a work claimed to be authored by artificial intelligence (AI). The response asks the District Court for the District of Washington DC to deny Thaler’s motion for summary judgment and grant its cross motion, arguing that the Office acted “reasonably and consistently” with the law when it refused to extend copyright protection to the work Thaler represented as created without any human involvement. The motion cites to the many sections of the Copyright Office Compendium that address the “longstanding requirement” of human authorship, explaining that registration decisions that rely on the Compendium cannot be deemed to be “arbitrary and capricious”—and therefore cannot, as Thaler claims, run afoul of the Administrative Procedures Act (APA). The Office also explains that the language of the Copyright Act, Supreme Court precedent, and federal court decisions refusing to extend copyright protection to non-human authorship all support its position. Finally, the motion argues that it correctly rejected Thaler’s arguments that he is the owner of the work based on common law or the work made for hire doctrine.

Court Sets Hearing Date in Publishers’ Case Against Internet Archive: Oral arguments in Hachette v. Internet Archive—a case involving Internet Archive’s mass scanning and distribution of literary works without authorization—are set for March 20 at 1 p.m. ET before the U.S. District Court for the Southern District of New York. The parties filed their initial cross motions for summary judgment in July of 2022 and their reply briefs in October of 2022. More information on the case can be found in this report. The Copyright Alliance filed an amicus brief in support of the publishers back in August 2022.

Eleventh Circuit Adopts “Discovery Rule” for Copyright Infringement Remedies: On February 27, in Nealy v. Warner Chappell Music, Inc., the Court of Appeals for the Eleventh Circuit held that when a copyright owner-plaintiff makes a timely claim for an infringement that occurred more than three years before a lawsuit was filed, they may still recover damages of that infringement. The Eleventh Circuit’s decision adopts the “discovery rule” approach, also taken by the Ninth Circuit. This is a split from the Second Circuit which has held that remedies for infringement are limited to the three-year statute of limitations preceding the filing of a lawsuit.

Copyright in Other Countries

UK Government to Retract Its Broad TDM Exception Proposal: On February 1, Minister for Science, Research, and Innovation, George Freeman, announced that the United Kingdom government will take a step back from its original proposal put forth in the summer of 2022 for a broad exception for the text-and-data mining of copyrighted works for any purpose in UK’s copyright laws. The Minister noted that the government will further consult stakeholders in the coming months to “ensure that we do not rush precipitately into a knee-jerk move that is wrong.”

EU Refers 11 Member Countries to Court of Justice for Failing to Transpose Copyright Laws: On February 15, the European Commission referred 11 Member States to the Court of Justice of the European Union for failing to notify the Commission of the transposition of various copyright measures under the Digital Single Market Directive (Bulgaria, Denmark, Finland, Latvia, Poland and Portugal) and the EU directive on online transmissions (Bulgaria, Finland, Latvia, Poland, and Portugal).

UKIPO Issues Report on Termination Rights and Contract Adjustment: On February 6, the United Kingdom Intellectual Property Office (UKIPO) published a report on the potential implications of introducing a termination and contract adjustment right into British copyright law and examining the landscape of termination rights in other countries and other industry-led initiatives.

UKIPO Publishes Results from 12^th Wave Copyright Infringement Survey: On February 3, the United Kingdom Intellectual Property Office (UKIPO) published the results from its 12^th Wave online copyright infringement tracker survey, which showed that overall levels of copyright infringement across all content categories (excluding visual images) increased from 25% to 32%.

Industry Activities

U.S. Chamber Releases 2023 International IP Index: On February 22, the U.S. Chamber of Commerce released the 2023 International IP Index. Now in the 11^th edition, the Index benchmarks the IP framework in 55 global economies across 50 indicators. Further, the 2023 report data “highlights a crucial turning point in the global IP landscape. As multilateral organizations continue to debate the future of IP and some of the world’s major economies—including the United States—propose unsettling policy changes, the decisions to be made by policy makers will carry unprecedented weight.”

Look Forward To And Save the Date For…

Copyright Public Modernization Committee Public Meeting: On March 2 at 1 p.m. ET, the Library of Congress will host a virtual meeting of the Copyright Public Modernization Committee (CPMC). In addition to updates from the Library of Congress and U.S. Copyright Office staff on the development of the Enterprise Copyright System, meeting attendees will be shown a live demonstration of the Office’s registration application currently in development, followed by a discussion with committee members and a Q&A. The event is free and open to the public. Participants must register in advance to attend.

Copyright and AI in Film and Video Production: On March 4 from 1-3 p.m. ET, the DC Independent Film Festival, Washington Area Lawyers for the Arts (WALA), and the Copyright Alliance will host a panel discussion regarding the rapid advancement of Artificial Intelligence (AI) technologies that are continuing to alter and impact creators’ lives everywhere—including the film and video community. The use of AI technologies is resulting in copyright and ethical issues surrounding the training and use of AI systems, their impact on copyrighted works, and how creators and filmmakers use AI in their own creations. Our expert panelists will discuss copyright issues in AI and the implications for the film and video industry.

WALA Copyright/Trademark Protection & Use Webinar: On March 7 from 11 a.m.-12:00 p.m. ET, the Washington Area Lawyers for the Arts (WALA) is hosting the next session of its Creative Entrepreneurs Series. During the event, attendees will explore the basics of forming a creative business, focused on understanding copyrights and trademarks, contract and negotiation skills, and taxes and grants.

2023 SXSW Annual Event: From March 10^th at 8 a.m. to March 19 at 5 p.m. ET, the SXSW annual March event will take place. The event “features conference sessions, film & TV festival screenings, music festival showcases, world-class exhibitions, competitions, awards ceremonies, and much more.” Attendees will experience panel discussions, speakers, professional development, and networking with fellow creatives from around the globe.

Copyright Society Fireside Chat/Reception to Honor Justice Stephen Breyer’s Copyright Legacy: On March 20 at 4:00 p.m. ET, the DC Chapter of the Copyright Society, in partnership with the George Washington University Law School, will host a two-part event in honor of Justice Breyer’s Copyright Legacy. Part one will feature a Fireside Chat with Justice Breyer and Professor Robert Brauneis; and part two will feature a panel discussion with academics and practitioners.

Register Perlmutter to Speak at LA Copyright Society Event: On March 23 at 11:30 a.m. – 2:00 p.m. PT, the LA Chapter of the Copyright Society will host its annual event titled Copyright and the California Coast, which will be presented by Shira Perlmutter, Register of Copyrights and Director of the U.S. Copyright Office. During the event, Register Perlmutter will provide an update on the state of copyright as well as share information on the Office’s priorities.

Tin Pan South Songwriting Seminar (TPSSS): From March 27-28, the Tin Pan South Songwriting Seminar (also known as TPSSS and formerly known as Spring Training) will be presented by NSAI and Belmont University. The seminar is described as the “perfect event for songwriters of any genre and any skill level to further develop their songwriting toolkit, build a stronger network, and learn [by attending] enriching segments from experts across the music industry.” Past attendees include hit songwriters such as Jon Vezner, Tia Sillers, Barry Dean, and Lance Carpenter. Once attendees register, they will have the opportunity to submit a song for consideration to be played on Night One of the Tin Pan South Songwriters Festival.

USCO Monthly Recordation Webinar: On March 30 at 1 p.m., the U.S. Copyright Office will hold its next webinar in a series 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 transfer their copyrights to someone else electronically. The webinars will “cover announcements about the module, important reminders, frequently asked questions, and a live Q&A session.” Anyone interested in attending (including members of the public) may join the session.

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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.

Industry Activities

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.

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.

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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If you aren’t already a member of the Copyright Alliance, you can join today by completing our Individual Creator Members membership form! Members gain access to monthly newsletters, educational webinars, and so much more — all for free!

Artificial Intelligence (AI) issues heated up quickly in November, with a major visual arts community and an AI developer making changes to their policies on AI use of copyrighted works and with a lawsuit filed over the use of software for AI training. But copyright-related AI issues were not the only ones to keep creators and copyright owners busy this past November. Here is a quick snapshot of these and many other copyright-related activities that occurred during the month of November as well as a few events to look forward to for the month of December.

Copyright Alliance Activities

Copyright Alliance Launches New CCB Video: On November 15, the Copyright Alliance launched our latest Copyright Claims Board video to provide answers to questions that respondents involved in a CCB case may have regarding whether to participate in or opt out of a CCB claim. For additional CCB resources, visit our CCB Explained webpage.

Copyright Alliance Publishes AI Position Paper: On November 21, the Copyright Alliance published its position paper on copyright-related Artificial Intelligence (AI) issues. In the paper, we highlight the importance of preserving and protecting copyright works and the creators who make them when considering AI issues and policies and lay out general principles including that: (1) when formulating new AI laws and policies, it is essential that the rights of creators and copyright owners be respected; (2) long standing copyright laws and policies must not be cast aside in favor of new laws or policies obligating creators to essentially subsidize AI technologies; and (3) education is paramount in the AI space.

Copyright Alliance Submits Comments to UK Parliament on AI Governance: On November 23, the Copyright Alliance filed a submission responding to the United Kingdom Parliament’s Science and Technology Committee’s Call for Evidence on Artificial Intelligence (AI) Governance. The comments describe the relationship between AI and copyright law, explain that the protection of creative works is foundational to AI innovation, and urges the UK government to respect and preserve copyright law when examining and formulating AI policies.

Copyright Alliance Blogs: The Copyright Alliance posted some new blogs during the month of November.

• In his annual Thanksgiving blog our CEO, Keith Kupferschmid, highlighted his appreciation for certain members of the copyright community who helped the Copyright Alliance continue advocating for strong copyright laws and protections for the creative community in 2022.

• The Copyright Alliance celebrated Native American Heritage Month by dedicating a webpage sharing educational and anti-racism resources and by exploring in this blog the protections for indigenous artists against infringement and appropriation.

Copyright Office Activities

CCB Status Update: At the end of November, 250 total cases were filed with the Copyright Claims Board (CCB), an increase of 25 from the previous month. Ninety-four of the cases are “smaller claims.” In at least 82 of the cases, the claimant is using legal counsel. At least 210 of the cases involve infringement claims, 41 involve Section 512(f) misrepresentation claims, and four involve non-infringement claims. The eCCB docket currently shows that the works at issue in these cases are as follows: Pictorial Graphic & Sculpture (130 cases); Literary Works (37); Motion Picture and Audiovisual Works (40); Sound Recordings (19); Musical Works (14); and some cases include claims for multiple works. 33 foreign resident(s) have filed claims. 18 claimants have filed multiple cases. 98 cases have been dismissed for the following reasons: Due to Respondent’s Opt Out (10); Due to Failure to Amend Noncompliant Claim (77); and Claimant Withdrawal and Dismissal of Claims (11). There are five active proceedings.

USCO and USPTO Announce NFT Study and Roundtables: On November 23, the U.S. Copyright Office and the U.S. Patent and Trademark Office published a notice of inquiry announcing a joint study regarding issues of intellectual property (IP) law and policy associated with non-fungible tokens (NFTs). Comments are due by January 9, 2023. Roundtable 3, which is titled Copyright and NFTs, will be held on January 18, 2023. Requests to participate as a panelist must be received by December 21. Additional information is available on the Copyright Office’s NFT Study webpage.

USCO Receives Comments on “Smaller Claims” Procedures: On November 14, the Copyright Office received two comments in response to its request for comments regarding the Copyright Claims Board (CCB) procedures for “smaller claims.” The Copyright Alliance submitted comments suggesting that the Office clarify various parts of the rule including that claimants may change their choice of proceeding between a smaller claims process and the standard process, and when in the CCB process a claimant would be permitted to make such a change.

CRB Proposes Royalty Rates for Making and Distributing Phonorecords of Nondramatic Musical Works: On November 7, the Copyright Royalty Board (CRB) published its proposed rates applicable from January 1, 2023, to December 31, 2027, for the section 115 statutory license for making and distributing phonorecords of nondramatic musical works. Comments or objections on the proposed rates are due by December 7.

USCO to Hold Monthly Recordation System Webinars: The Copyright Office will hold monthly webinars to keep the public updated on the Office’s optimized Recordation System. Separate from the Office’s registration application, the new recordation system allows users to electronically transfer their copyrights to someone else. The upcoming webinars will “cover announcements about the module, important reminders, frequently asked questions, and a live question-and-answer session.” The first webinar will be held on December 1, 2022, at 1 p.m. ET, featuring a walkthrough of the application dashboard and submission wizard.

Congressional Copyright Related Activities

Performing Artists Urge Legislators to Support AMFA: On November 1, more than 60 music artists, including Gloria Estefan, Cyndi Lauper, and Jackson Browne, sent a joint letter to the Senate Judiciary Committee through the musicFIRST organization, urging lawmakers to pass the American Music Fairness Act, which would ensure payments for performing artists when songs are broadcasted over the air.

Hakeem Jeffries Selected to Lead House Democrats: On November 30, Representative Hakeem Jeffries (D-NY), became the first black lawmaker to lead a Congressional party as House Democrats elected him to succeed Representative Nancy Pelosi (D-CA). Representatives Katherine Clark (D-MA) and Peter Aguilar (D-CA) were also elected to join the party’s top leadership. Representative Jeffries is a big supporter of the creative community, supporting key pieces of copyright legislation including introducing the Copyright Alternative in Small-Claims Enforcement (CASE) Act and co-sponsoring the Music Modernization Act (MMA).

Copyright in the Courts

Jury Awards Record Labels $46.7 Million In Lawsuit: On November 3, a jury in the district court for the Western District of Texas awarded a group of record labels, including Universal Music Group, Sony Music Entertainment, and Warner Records, $46.7 million in statutory damages for the 1,403 songs pirated by the users of the internet service provider, Grande Communications.

U.S. Authorities Seize Website of Popular Pirate E-Book Provider, Z-Library; SiteOperators Charged with Criminal Copyright Infringement: Since November 4, the popular pirate e-book site, Z-Library, has been seized by the Federal Bureau of Investigation (FBI) and the U.S. Attorney’s Office for the Eastern District of New York. On November 16, the U.S. Department of Justice announced that the district court for the Eastern District of New York unsealed an indictment against Anton Napolsky and Valeriia Ermakova, the operators of the popular e-Book pirate site Z-Library. Napolsky and Ermakova are charged with criminal copyright infringement, wire fraud, and money laundering for operating Z-Library, and were arrested in Argentina.

Movie Studios Awarded $51.6 Million in Infringement Case: On November 18, the district court for the Central District of California awarded $51.6 million in damages for group of movie studio plaintiffs including Columbia Pictures, Disney Enterprises, Paramount Pictures, Warner Bros. Entertainment, and Universal against the operators of the illicit site, Nitro. The court additionally made a preliminary injunction into a permanent injunction against the defendants and third-party companies which hosted Nitro, ordering the parties from further infringing activities and from modifying, selling, or deleting the Nitro domains until they are transferred to the plaintiffs.

Ninth Circuit Upholds Unicolors’ Registration in SCOTUS Remand: On November 10, the Ninth Circuit Court of Appeals held that Unicolors, a textile and garment company, had a valid copyright registration to a group of fabric designs because the company lacked the requisite knowledge of the inaccuracy of the publication of the fabric designs in the registration application. The case was remanded to the court after the U.S. Supreme Court, earlier this year, held that mistakes of law or fact on copyright registration applications will not invalidate the registration.

Software Coders File Class Action Lawsuit Against Microsoft for Training AI Tool with Open Source Code: On November 3, a group of GitHub programmers filed a class action lawsuit against Microsoft and Open AI for allegedly violating their open source licenses and scraping their code to train Microsoft’s AI tool, GitHub Copilot.

Court Awards Broadcasters $15.7 Million and Permanent Injunction Against Pirate IPTV Providers: On November 4, the district court for the Eastern District of Michigan awarded plaintiffs, DISH Network and the International Broadcaster Coalition Against Piracy, a default judgment resulting in a $15.7 million award and permanent injunction against Iraq-based pirate IPTV provider, iStar. The court declined to extend the injunction against third party service providers unless the plaintiffs specifically named the services and provided evidence of how these services allow for the defendants to conduct their infringing activities.

Copyright in Other Countries

Indian Court Orders Country Regulators to Take Action Against U.S. Registrars: On November 9, the High Court of Delhi issued an order directing India’s Department of Communications and Department of Electronics and Information Technology (DeiTY) to take action against several domain name registrars (DNRs) for failing to comply with a dynamic website blocking order. The court also requested that DeiTY investigate whether the DNRs “ought to be permitted to continue to offer their goods and services in India…” Indian sports broadcasters, Star India and Novi Digital Entertainment, were awarded the injunction from the court, but several DNRs failed to comply. One of the domain name registrars, NameCheap, indicated that it requires a U.S. state or federal court order to comply with any website blocking injunctions.

Canadian Court Grants Blocking Order Against Pirate Streaming Websites of Live NHL Games: On November 21, the Federal Court of Appeal in Canada granted a new injunction for a group of plaintiff Canadian broadcast companies. The injunction directs Canadian Internet Service Providers to block or attempt to block access to websites livestreaming National Hockey League (NHL) games for the 2022-23 season. Previously, the broadcasters were granted a similar pirate website blocking order for NHL’s 2021-2022 season.

Japanese Court Orders “Fast Movie” Uploaders to Pay $3.56 Million: According to reports, the Tokyo District Court ordered two individuals to pay $3.56 million to a group of media company plaintiffs for uploading truncated popular mainstream movies to Youtube, known as “Fast Movies.” In 2021, the defendants also received criminal punishment for the activities via prison sentences and fines. 

Industry Activities

Artist Behind AI Generated Work Sends Appeal Letter to USCO: On November 21, visual artist, Kristina Kashtanova, sent a letter to the U.S. Copyright Office, appealing the Office’s decision to retract its grant of a copyright registration for the graphic novel work, Zarya of the Dawn, which was generated by the AI machine, Midjourney. In late October, the Office sent notice that it would cancel Kashtanova’s registration because it deemed that the work did not have human authorship. The appeal letter details Kashtanova’s creative process to argue that the artist was the author of the visual work, that the work can be distinguished from autonomously generated AI works, and that Midjourney was merely a tool used by the artist to create the work.

Stable Diffusion Update Makes It More Difficult to Emulate Artist’s Styles: According to reports, updates to Stable Diffusion, the AI machine which generates images, have made it more difficult for its users to generate images in the styles of specific artists, nude or pornographic images, and realistic images of celebrities.

DeviantArt Enables Artists to Prevent AI Scraping: On November 11, artist community website, DeviantArt, announced that they rolled out an option on their website that enables artists to prevent third parties from scraping artwork for AI use from the platform without the artist’s authorization. Artists who select to opt out of unauthorized scraping would enable their artwork to be appended with an HTML tag that prevents robots from scraping the artwork.

New DCC Report Reaffirms ‘Creativity Is an Engine for Economic Change’: On November 1, the Digital Creators Coalition (DCC) released a new report that reaffirms “Creativity is an engine for economic growth in the United States, and copyright protection is its fuel, particularly in the digital age.” The report offers insights on how the arts and creative industries—including music, film, television, books, photography, news media, sports, and more—not only drive culture, but also help to perpetuate “a thriving society [for] millions of American creators and [contributes] trillions of dollars to the U.S. economy.”According to astatement about the DCC report by the Recording Industry of America (RIAA), “Across all fields and occupations, the music industry supported directly or indirectly, 2.47 million American jobs. Citing economic activity from the nonprofit arts industry, Americans for the Arts recognizes ‘an additional $102.5 billion in event-related expenditures by their audiences.’”

Look Forward To And Save the Date For…

USCO Recordation System Webinar: On December 1 at 1 p.m. ET, the U.S. Copyright Office will hold its first of its monthly webinar series 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 transfer their copyrights to someone else electronically. The webinars will “cover announcements about the module, important reminders, frequently asked questions, and a live Q&A session.” The December 1 webinar will feature a walkthrough of the application dashboard and submission wizard. Anyone interested in attending (including members of the public) may join the session. More information can be found on the registration page.

RightsClick Copyright Café Q&A: On December 1 at 1 p.m. ET, RightsClick co-founders David Newhoff and Steven Tepp will host a weekly “Copyright Q&A” session on Facebook Live to offer creators a resource for getting answers to their copyright questions. The free session is open to the public and creators across all disciplines are welcome to attend. More information is available on the event page.

ASCAP Song Accelerator Workshop: On December 3 from 12 p.m. to 3 p.m. ET, ASCAP will be hosting a virtual Song Accelerator Workshop on Zoom for songwriters who want to fast track the completion of their works. Attendees are invited to bring their best songs to receive feedback in “a vigorous yet supportive environment.” The workshop is limited to twelve participants. Attendance is free to ASCAP members and $20 for non-members. Workshop leaders are Alex Forbes and Valerie Ghent. More information is available on the registration page.

Deadline to Submit Comments on 2023-2027 Proposed Regulations by Copyright Royalty Board: December 7 is the deadline for comments to the Copyright Royalty Board in response to its proposed regulations for rates and terms for January 1, 2023, through December 31, 2027, for section 115 statutory license for making and distributing phonorecords of nondramatic musical works.

IPO Education Foundation Annual Awards: On December 7 from 6 p.m. to 10 p.m. ET, he IPO Education Foundation will host its Annual Awards and Celebration in Washington, DC. This event is attended by more than 500 members of the IP community to “celebrate modern-day heroes for their accomplishments in the fields of innovation, creativity, and IP rights.” This year, Copyright Alliance VP of Policy and Copyright Counsel Terrica Carrington will be the first to accept the all-new 2022 Inspiration Award. More information is available on the event page.

The Donald C. Brace Memorial Lecture: On December 13 from 6 p.m. to 8 p.m. ET, the Copyright Society will host its 52^nd Annual Donald C. Brace Memorial Lecture at Fordham University Law School.  The lecture will be presented by Maria Pallante, the President and CEO of the Association of American Publishers, who will present the topic of “The Art of Innovation of Exclusive Rights.” More information is available on the event page.

USCO Ringer Honors Program Application Deadline: December 31 is the deadline to submit applications for the U.S. Copyright Office’s Barbara A. Ringer Copyright Honors Program. The program was created for attorneys in the initial stages of their careers who demonstrate exceptional ability and interest in copyright law. Those selected will serve as full-time federal employees for the term of their fellowships and are eligible for salary and benefits as permitted under federal law. Additional details about the program, including the application process, can be found on the Barbara A. Ringer Copyright Honors Program website.

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If you aren’t already a member of the Copyright Alliance, you can join today by completing our Individual Creator Members membership form! Members gain access to monthly newsletters, educational webinars, and so much more — all for free!

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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If you aren’t already a member of the Copyright Alliance, you can join today by completing our Individual Creator Members membership form! Members gain access to monthly newsletters, educational webinars, and so much more — all for free!

In September, the U.S. Copyright Office released a new final rule on deposit accounts and Congress held a U.S. Copyright Office oversight hearing. Here is a quick snapshot of those and many other copyright-related activities that occurred during the month of September and a few events to look forward to for the month of October.

Copyright Alliance Activities

Copyright Alliance Launches IPDC Program in Support of BIPOC Creators: On September 27, the Copyright Alliance launched the Initiative to Promote Diversity in Copyright (IPDC program), which brings together volunteers and sponsors from across the copyright community to encourage and support the participation of Black creators, Indigenous creators, and creators of color (BIPOC creators) in the copyright system. BIPOC creators can apply to the program and, if eligible, will work with program volunteers to file their copyright registration applications with the U.S. Copyright Office at no cost to the creator. The goal is to educate program participants on the benefits of copyright registration and empower them to be able to register their own works going forward. Please help us make this program a success by sharing this information with BIPOC creators who may be interested in the program.

Copyright Alliance Launches Photographers Industry Webpage: On September 14, the Copyright Alliance launched an industry webpage geared toward photographers. The page is designed to be a one-stop destination for everything that photographers need to know about copyright law. In the future, we will also be launching other targeted webpages for fine artists, musicians, YouTube creators, and more.

Copyright Alliance Blogs: The Copyright Alliance posted several new blogs during the month of September.

• In September, we wrote a blog post about our newly launched IPDC program— a copyright registration assistance program for Black creators, Indigenous creators, and creators of color (BIPOC creators)— and how it furthers the Copyright Alliance’s goals of advocating for laws and policies that bolster the strength of our copyright system and helping ensure that the system fosters diversity, equity, and inclusion.

• When it comes to registering works, creators can come across several questions in the registration application that can be tricky to answer. We explain in this blog post of several tricky copyright law concepts creators should know about before filing a registration application.

• In celebration of Hispanic Heritage Month, we explore in this blog post the origins of Mexican Muralism, its impact on contemporary muralists, and the legacies of three famous Hispanic artists in this artistic tradition.

Copyright Office Activities

CCB Status Update: During the month of September, 183 cases were filed with the Copyright Claims Board (CCB), an increase of 46 from last month. Fifty-four of the cases are “smaller claims.” In at least 70 of the cases, the claimant is using legal counsel. At least 161 of the cases involve infringement claims, 27 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 (100 cases); Literary Works (27); Motion Picture and Audiovisual Works (27); Sound Recordings (16); Musical Works (nine); and some cases include claims for multiple works. 27 foreign resident(s) have filed claims. 18 claimants have filed multiple cases. 19 cases have been dismissed for the following reasons: Due to Respondent’s Opt Out (Six); Due to Failure to Amend Noncompliant Claim (Seven); and Claimant Withdrawal and Dismissal of Claims (Six).

USCO Publishes Final Rule on Remitter Payments and Deposit Accounts: On September 30, the U.S. Copyright Office published its final rule on remitter payments and deposit accounts. The final rule consolidates all regulations regarding payment options for Copyright Office services, eliminates the requirement for a minimum number of 12 transactions per year for deposit accounts, and opts to maintain the current rule that the Office will automatically notify deposit account holders when their accounts fall below a minimum balance of $450 rather than assessing a service change. In response to proposals raised in comments submitted by the Copyright Alliance: (1) the Office will now accept Paypal and Amazon digital wallet options on Pay.gov “to better accommodate a broader range of stakeholders”; and (2) the Office conducted a further investigation and determined that Pay.gov permits automatic replenishment via ACH transactions and will explore the feasibility of implementing that feature to help avoid overdraft of deposit accounts. In light of a general desire from commenters that the Office increase communication regarding account status issues, the Office will automatically notify account holders if their accounts are made inactive due to inactivity or being overdrawn.

USCO Releases New and Updated Resources in Spanish: On September 29, the U.S. Copyright Office announced that it has released the first set of new and updated copyright resources and webpages translated into Spanish. “This set of materials includes educational circulars, handouts related to the Music Modernization Act (MMA), and an updated Frequently Asked Questions (FAQ) page, all in Spanish [language].” The Office timed the release of these materials to coincide with the celebration of Hispanic Heritage Month and in keeping with the Office’s strategic plan. Links to the resources can be found on the new Engage Your Creativity homepage, Involucre su creatividad, in Spanish and English languages.

Former Register of Copyrights Marybeth Peters Passes Away: On September 29, former Register of Copyrights Marybeth Peters passed away at the age of 83 following a long illness. Former Register Peters led the U.S. Copyright Office for 16 years, from 1994 to 2010, and dedicated 40-plus years of her career to copyright policy and leadership. She was a distinguished attorney who was broadly respected around the world, as well as a leading expert on U.S. and international copyright law. During her tenure at the Copyright Office, she was instrumental in countless important initiatives, including helping to implement the 1976 Copyright Act and the 1998 Digital Millennium Copyright Act, which serve as cornerstones of today’s copyright law. In light of the news, the Copyright Alliance initiated a statement as did the U.S. Copyright Office, and many others.

Congressional Copyright Related Activities

SJC IP Subcommittee Holds USCO Oversight Hearing: On September 7, the Senate Judiciary Committee’s Subcommittee on Intellectual Property, held a hearing titled Oversight of the U.S. Copyright Office. The sole witness was Register of Copyrights and Director of the U.S. Copyright Office Shira Perlmutter. Overall, the hearing focused on the current activities and positions of the Copyright Office related to modernization efforts, AWF v. Goldsmith, performance rights, and open access. During the hearing, Register Perlmutter stated that the Office was looking into increasing the limit for group registrations of photographs and that the Office will publish a notice of a rulemaking concerning a group registration option for two-dimensional artwork. Senator Tillis submitted his questions for the record and his opening remarks. Register Perlmutter’s written statement is available on the subcommittee’s website.

American Music Fairness Act Introduced in Senate: On September 22, Senators Alex Padilla (D-CA) and Marsha Blackburn (R-TN) introduced the American Music Fairness Act (AMFA), which would ensure that artists and music creators receive sound recording public performance royalties when their songs are played on AM/FM radio. This legislation is the Senate companion to the same House bill introduced last year by Representatives Ted Deutch (D-FL), Darrell Issa (R-CA), Jerry Nadler (D-NY), Karen Bass (D-CA), Diana Harshbarger (R-TN), and Judy Chu (D-CA). In speaking about the bill, Senator Padilla stated, “For too long, our laws have unfairly denied artists the right to receive fair compensation for their hard work and talent on AM/FM broadcasts. California’s artists have played a pivotal role in enriching and diversifying our country’s music scene. That is why passing the American Music Fairness Act is so important. It’s time we treat our musical artists with the dignity and respect they deserve for the music they produce, and [that] we enjoy every day.”

ARTS Act Passed by Congress: On September 19, the House of Representatives passed S.169, the Artistic Recognition for Talented Students (ARTS) Act, which directs the U.S. Copyright Office to waive various copyright registration-related fees for works authored by high school students who win certain competitions sponsored by the Congressional Institute or established by Congress. To qualify for the fee waiver, the copyright registration application must be filed within a specified time frame, but the Copyright Office may waive fees for a qualifying work even if the application is filed outside the timeframe. The full Senate passed the bill in July of last year, and the bill has now been enrolled so it can move to the President’s desk to be signed into law.

JCPA Favorably Reported to Full Senate Floor: On September 22, the Senate Committee on the Judiciary favorably reported the Journalism Competition and Preservation Act (JCPA) out of the committee and to the full Senate floor via a majority voice vote, during which Senators Josh Hawley (R-MO) and Marsha Blackburn (R-TN) registered no votes. Senator Amy Klobuchar stated that parties agreed upon an amendment, SIL22B36, which further clarifies that bill is about compensation and that content moderation is outside the scope of the bill. The full recording of the hearing is available on the committee’s website.

Copyright in the Courts

Publishers File Opposition Brief to Internet Archive’s Motion for Summary Judgment: On September 2, a group of plaintiff-publishers in Hachette Book Group, Inc. v. Internet Archive, filed an opposition brief to Internet Archive’s motion of summary judgment. The opposition brief argues that: (1) appellate courts have solidly rejected first sale and fair use arguments for digitized works; (2) the Internet Archive had no way of knowing whether physical and digital copies of a book were in circulation at the same time; (3) the Internet Archive showed contempt for authors and the rule of law; and (4) the Internet Archive is directly competing with authorized eBook channels. On September 29, organizations including the Association for American Publishers (AAP), the Authors Guild (AG), and numerous others, publicly decried an open letter by Fight for the Future (FFTF) that supports the Internet Archive’s (IA) digital lending practices regarding e-books. According to a statement by AAP’s General Counsel Terrence Hart in response to the letter, he stated, “That authors and publishers support libraries is not in dispute and most certainly not at issue in the infringement case against the Internet Archive, which is not a library. On the contrary, the Internet Archive operates an unlicensed digital copying and distribution business that copies millions of literary works without permission and gives them away for free. This activity is unprecedented and outside any reasonable interpretation of the copyright law that grants to authors the decision as to whether, when, [and] through whom…to distribute their works to the public.”

Independent Filmmakers and Major ISPs Quickly Settle Lawsuits: In September, a group of independent filmmakers filed lawsuits against major internet service providers (ISPs), AT&T, Verizon, and Comcast alleging that the ISPs were liable for contributory and vicarious copyright infringement and for violating the Digital Millennium Copyright Act (DMCA). The plaintiffs sought damages and injunctive relief that would require At the ISPs to adopt a reasonable repeat infringer policy and block users from accessing certain infringing websites. However, on September 16, the plaintiffs settled all three lawsuits brought against Verizon, AT&T, and Comcast.

DC Circuit Hears Oral Arguments in Green v. DOJ: On September 12, oral arguments were heard in Matthew Green v. Department of Justice (DOJ), a pre-enforcement action brought by the Electronic Frontier Foundation (EFF) on behalf of various putative plaintiffs challenging the constitutionality of the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA). Appealing a district court’s 2021 denial of its motion for preliminary injunction, EFF argued that a narrower construction of section 1201 of the DMCA should be adopted so that plaintiffs can distribute decryption tools that can circumvent digital locks protecting access to copyrighted works. Surprisingly, the DOJ’s attorney told the three-judge panel that one of the activities at issue, Green’s publication of a book containing instructions and circumvention code, would not violate the DMCA because it is not being marketed or sold as a circumvention method. However, the DOJ confirmed that another plaintiff’s activity surrounding the sale of a program to circumvent technology that restricts access to digital videos does violate the statute. The DOJ ultimately recommended that EFF’s appeal of the injunction denial be denied, and the case be sent back to the district court, where Green’s claims should be dismissed.

Industry Activities

DCA Issues New Piracy Report, Finds That 12% of Ads on Pirate Sites Involve Malware: On September 15, the Digital Citizen’s Alliance (DCA) released a report titled Piracy to Ads to Ransomware: How Illicit Actors Use Digital Ads on Piracy Sites to Profit by Harming Internet Users. The report revealed that piracy operators, through the lure of offering “free content,” engage in a lucrative business with advertisers for malware to engage with pirate website users, collectively earning up to $120 million a year.

MLC Issues Royalties For Matched Historical Uses: On September 14, the Mechanical Licensing Collective (MLC) announced that it has distributed the first set of matched historical royalties that were transferred from Google Play totaling nearly $1.5 million. The royalties represent the first set of matched royalty distributions for uses that occurred between 2013 and 2017.

Getty Images Prohibits Upload and Sale of AI Generated Images to Its Platform: According to reports, Getty Images banned the upload and sale of illustrations generated using artificial intelligence (AI) art tools due to concerns about the legal ambiguities surrounding AI-generated content. Getty Images CEO Craig Peters said, “There are real concerns with respect to the copyright of outputs from these models and unaddressed rights issues with respect to the imagery, the image metadata, and those individuals contained within the imagery.” Given these concerns, Peters said that selling AI artwork or illustrations could potentially put users of Getty Images at legal risk. “We are being proactive to the benefit of our customers,” he added.

RIAA Releases Positive Mid-Year 2022 Music Revenue Report: On September 21, the Recording Industry Association of America (RIAA) released its 2022 Mid-Year Music Revenue Report. According to the report, “U.S. recorded music revenues rose 9% to $7.7 billion at estimated retail value” during the first half of 2022, building on the growth experienced in 2021. In addition, “streaming revenues from paid subscriptions, ad-supported services, and other formats grew 10% to $6.5 billion during this period. The number of paid subscriptions grew to a record high of 90 million.” In a blog by RIAA CEO Mitch Glazier, he stated, “We are pleased to release strong U.S. recorded music revenue figures…These results reflect the incredible creative and commercial partnerships artists and labels have forged that have powered another extremely successful half year.”

Amazon Changes e-Book Return Policy Resulting in Breakthrough for Authors: According to a September 22 statement by the Authors Guild (AG), Amazon is changing its policy regarding e-Book returns following ongoing discussions with AG. The new policy will allow readers to return e-books online within seven days of purchase, regardless of the amount read. The new policy will replace the current protocol, which restricts returns to purchases where no more than 10 percent of the book has been read. This change will go into effect by the end of 2022.

Look Forward To And Save the Date For…

Closing Plenary Sessions of USCO Technical Measures Consultations: On October 4 from 11 a.m. to 1 p.m. ET and 2-4 p.m. ET, the U.S. Copyright Office will hold two closing plenary sessions to conclude its Technical Measures Consultations. The meetings will be on Tuesday, October 4 and will offer a discussion of “preliminary findings and emerging themes.” Both of the sessions are open to the public. More information is available on the webinar registration page.

Deadlines for Submitting Written Comments to USTR for Notorious Markets List: The deadline for submitting written comments to the U.S. Trade Representative for its 2022 Notorious Markets List is midnight on October 7, 2022. The deadline for submission of rebuttal comments and other information that USTR should consider is due by midnight on October 21, 2022.

Andy Warhol Foundation v. Goldsmith Oral Arguments: On October 12 at 10 a.m. ET, the U.S. Supreme Court will hear oral arguments in the case Andy Warhol Foundation v. Goldsmith. The question presented before the court is “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).” The oral arguments will be open to the public and will be livestreamed on the Court’s website. More information is available on the hearings calendars and list on the Court’s website.

Deadline for Submitting Public Comments to ITA on AI Export Issues: On October 17, comments to the International Trade Administration (ITA) are due in response to its notice regarding international AI policies, regulations, and other measures that may impact U.S. exports of AI technologies.

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If you aren’t already a member of the Copyright Alliance, you can join today by completing our Individual Creator Members membership form! Members gain access to monthly newsletters, educational webinars, and so much more — all for free!

Here is a quick snapshot of several copyright-related activities that occurred during the month of August and a few events to look forward to for the month of September.

Copyright Alliance Activities

Copyright Alliance Launches the SCOOP Program and Releases New Videos in CCB Video Series: In August, the Copyright Alliance launched the Small Claims Opt-Out Protection (SCOOP) Program, through which claimants of a Copyright Claims Board (CCB) proceeding can have their $40 initial filing fee reimbursed by the Copyright Alliance if their claims are dismissed due to a respondent opting out. More information on participating in the program can be found on our SCOOP Program page. Additionally, the Copyright Alliance released a two-part video discussing how to file a claim with the CCB and posted FAQs discussing how a claimant notifies a respondent about a claim once the claim is approved by the CCB. [Note: The Copyright Alliance is no longer operating the SCOOP Program or accepting applications for the program as of August 1, 2023.]

Copyright Alliance Files Amicus Brief in Hachette Book Group, Inc. v. Internet Archive: On August 12, the Copyright Alliance filed an amicus brief in the case Hachette Book Group Inc., et al. v. Internet Archive, in support of Hachette Book Group and other publishers in their suit against the Internet Archive (IA) challenging its so-called “Controlled Digital Lending” practice. The brief explains that the IA’s unauthorized scanning and distribution of massive amounts of copyrighted works does not qualify as fair use, and is not permitted by the first sale doctrine. Differentiating the IA from libraries engaged in legitimate archival activity, the brief explains that the limitations on liability found in section §108 of the Copyright Act does not apply to its wholesale copying and digital distributions. The brief goes on to detail the substantial efforts of the creative industries to digitize and make their works available and warns of the devastating harms that would result from IA’s practice expanding to other types of works. The brief also reminds the court that only Congress has the authority to expand copyright’s limitations—not the courts and not one organization or individual like IA or its founder Brewster Kahle who decide to make copyright policy themselves.

Copyright Alliance Blogs: The Copyright Alliance posted several new blogs during the month of July.

• Since the CCB approved several cases for service of process, respondents may be wondering whether to participate or opt out of a CCB proceeding. We explain in this blog post the considerations respondents should weigh when making that decision.

• In August amicus briefs were filed in a number of important copyright cases. In this blog post, we summarized the main points of various amici who warned of the Internet Archive’s clear infringing activities via its purported “lending” practices. In another blog post, we summarized the main points of all the amicus briefs submitted to the Supreme Court in the case Andy Warhol Foundation v. Goldsmith, pointing out why Andy Warhol Foundation and its amicis’ fair use theories are flawed.

• In another blog post we explore the case of Sedlik v. Kat Von D., in which a court examines infringement and fair use in the context of photography and tattoos.  The blog discusses how the court got a few things right, but incorrectly analyzed many important legal questions which were left for the jury to decide.

Copyright Office Activities

CCB Status Update: By the end of August, 136 cases had been filed with the Copyright Claims Board (CCB), an increase of 59 from last month. 33 of the cases are “smaller claims.” In at least 55 of the cases, the claimant is using legal counsel. At least 125 of the cases involve infringement claims, 16 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 (67 cases); Literary Works (22); Motion Picture and Audiovisual Works (21); Sound Recordings (14); Musical Works (eight); and some cases include claims for multiple works. 15 claimants have filed multiple cases. Four cases have been dismissed for the following reasons: Due to Respondent’s Opt Out (Two); Due to Failure to Amend Noncompliant Claim (One); and Claimant Withdrawal and Dismissal of Claims (One).

USCO Declines to Implement Deferred Registration Examination: On August 1, the U.S. Copyright Office sent a letter on its findings and conclusions from its study on deferred examination of registration applications, as a response to a request from Senator Thom Tillis (R-NC) in May 2021 to study the issue. The Office did not recommend a new deferred examination registration system, concluding that it would potentially lead to “costlier and less efficient system, while also creating new concerns, including with regard to the public record.” Instead, the Office noted that alternative solutions might address some concerns and that the Office is evaluating whether to implement those solutions which include offering dynamic fee structures for small-entity or individual filers, increasing the limits for group registration of photographs, and adopting subscription-based pricing for certain registration options.

USCO Expands Recordation System Access to Public: On August 1, the U.S. Copyright Office announced that the new recordation system is publicly available, allowing users to submit electronic documents related to transfer of copyright ownership or other documents pertaining to copyright under § 205 of the Copyright Act.

White House OSTP Issues Guidance to Make Federally Funded Research Immediately Available: On August 25, the White House Office of Science and Technology (OSTP) announced that it updated its U.S. policy guidance to “make the results of taxpayer-supported research immediately available to the American public at no cost.”  Under the new guidance, the OSTP is now mandating that all federal agencies update their public access policies as soon as possible to make publications and research funded by taxpayers publicly accessible, without an embargo or cost. The new guidance also states that by December 31, 2025, publications funded by federally funded research will no longer be embargoed for 12 months.

Biden Administration Activities

ITA Solicits Public Comment on AI Export Issues: On August 16, the International Trade Administration (ITA) published a notice requesting comments on Artificial Intelligence Export Competitiveness. ITA is looking to gain insight on the current global AI market and stakeholder concerns regarding international AI policies, regulations, and other measures which may impact U.S. exports of AI technologies. Comments are due by October 17.

USTR Publishes Federal Register Notice Requesting Comments for 2022 Notorious Markets List: On August 29, the U.S. Trade Representative (USTR) published a notice requesting comments “that identify online and physical markets to be considered for inclusion in the 2022 Review of Notorious Markets for Counterfeiting and Piracy (Notorious Markets List).” The 2022 Notorious Markets List will examine the impact of online piracy on U.S. workers. Comments are due by October 7, 2022. Rebuttal comments are due by October 21, 2022.

Congressional Copyright Related Activities

Representative Tlaib Introduces House Resolution Proposing New Streaming Royalty Rates: On August 9, Representative Rashida Tlaib (D-MI) introduced a resolution (H.Con.Res.102) in the House proposing a new royalty program to provide income to featured and non-featured performing artists whose music or audio content is listened to on streaming music services, like Spotify. The resolution is cosponsored by Representative Jamaal Bowman (D-NY).

Congress Releases Updated Version of Journalism, Competition and Preservation Act: On August 22, a bipartisan group of lawmakers including Senators Amy Klobuchar (D-MN), John Kennedy (R-LA) and Representatives David Cicilline (D-RI), Ken Buck (R-CO), and Senate and House Judiciary Committee Chairs Dick Durbin (D-IL) and Jerrold Nadler (D-NY) released a revised and expanded version of the Journalism Competition and Preservation Act (JCPA). The JCPA broadly gives qualifying news organizations the ability to collectively bargain with major tech platforms for access and use of news content. The edits establish the specifics of the collective bargaining procedure, details the required qualifications for participating news organizations, and establishes an arbitration process if parties cannot reach an agreement. The legislation is expected to be considered during a Senate Judiciary Committee hearing after Labor Day. The bill is supported by the News Media Alliance and the Authors Guild, among others.

Copyright in the Courts

Briefs Filed in Andy Warhol Foundation v. Goldsmith: On August 15, the U.S. Supreme Court received amicus briefs filed in support of photographer, Lynn Goldsmith, in the case Andy Warhol Foundation v. Goldsmith. All the briefs have now been filed in the case. Nine amicus briefs were filed in support of the Andy Warhol Foundation, 20 amicus briefs were filed in support of Goldsmith, and eight amicus briefs were filed in support of neither party. The Copyright Alliance provided a brief summary and overview of all the amicus briefs in this blog post. Oral arguments for the case are scheduled to take place on October 12.

Briefs Filed in Hachette Book Group, Inc. v. Internet Archive: By August 12, the district court for the Southern District of New York received all amicus briefs in the case Hachette Book Group Inc., et al. v. Internet Archive. Hachette Book Group and other publishers filed a lawsuit in 2020 against the Internet Archive (IA) challenging its so-called “Controlled Digital Lending” practice. Various organizations and scholars filed briefs in support of the publishers including a group of copyright law professors, a group of international rightsholder organizations, a coalition of creator groups, and the Copyright Alliance.

Court Holds That YouTube Must Continue in Putative Class Action Infringement Case: On August 1, the district court for the Northern District of California denied YouTube’s motion to dismiss the putative class action copyright infringement lawsuit brought against it by musician, Maria Schneider and Uniglobe Entertainment LLC and AST Publishing LTD, back in the summer of 2020. The plaintiffs argue that YouTube restricts access to its rights management tools to independent artists which meant that the platform did not qualify for safe harbor protections, making it liable for copyright infringement of pirated works existing within the service. The court noted that plaintiffs’ complaint adequately identifies the infringed works and the ownership and timely registration thereof, and that the plaintiffs’ complaint adequately alleged that YouTube removed copyright management information from works uploaded to its site.

Court Holds that Use of Photograph in an Article Is Not Fair Use: On August 3, the Court of Appeals for the Ninth Circuit in McGucken v. Pub Ocean Limited held that Pub Ocean’s use of McGucken’s photographs in an article about an ephemeral lake in Death Valley did not qualify for the fair use exception, reversing the district court’s ruling on the matter and remanding for further proceedings. On the first factor, the court held that the use was commercial and was not transformative because the photographs were used for the same exact purpose as the original, which was to depict the lake. Furthermore, the court held that simply embedding the photographs within the article was not transformative because the photographs were merely used as a visual recording of the article’s subject matter. On the second factor, the court found that the photographs were highly creative, weighing it against a fair use finding. On the third factor, the court found that Pub Ocean used the photographs with negligible cropping and extensively copied the works, weighing this factor against a fair use finding. The court also weighed the fourth factor against a fair use finding, finding that if Pub Ocean’s conduct was carried out in a widespread and unrestricted manner, it would destroy McGucken’s licensing market.

Court Dismisses Choreography Infringement Case Against Epic Games: On August 24, the district court for the Central District of California dismissed choreographer, Kyle Hanagami’s lawsuit against Epic Games, in which Hanagami alleged that the gaming company infringed on Hanagami’s choreography in certain “emotes” sold in the popular game, Fortnite. The court held that Hanagami’s choreography could be characterized as unprotectable forms of movement such as social dances and simple routines.

Industry Activities

Music Publishers and Songwriters Reach Mechanical Royalty Settlement with Digital Services: On August 31, the National Music Publishers’ Association (NMPA) and the Digital Media Association (DiMA) announced a settlement for certain mechanical royalty rates for the period 2023-2027, which sets the rate a 15.35% and includes increases to the “Total Content Costs (TCC)” calculations. NMPA President & CEO David Israelite stated, “This historic settlement is the result of songwriters making their voices heard. Instead of going to trial and continuing years of conflict, we instead move forward in collaboration with the highest rates ever, guaranteed. We thank the digital services for coming to the table and treating creators as business partners. Critically, since this is a percentage rate, we know that as streaming continues to grow exponentially, we will see unprecedented value of songs.” NSAI Executive Director Bart Herbison stated, “This collaborative process will lead to increased songwriter compensation from digital streaming companies and locks in our historic 43.8% increase from the previous CRB proceeding. Along with the upward rate momentum there are also new structures to help ensure minimum payments.”

Copyright in Other Countries

Spanish La Liga Granted Another Dynamic Injunctive Order: According to reports, telecommunications company, Telefónica announced that a Barcelona court granted a dynamic injunctive order to the company and Spanish soccer league, La Liga, for the 2024/2025 season. The order allows Telefónica and La Liga to oblige all internet service providers to block illicit pirate sites that stream La Liga matches within a maximum of three hours from receipt of notification of a list of infringing sites from the companies. The order also provides that the companies do not have to obtain permission from the court to block new URLs, domains, and IP addresses of pirate services, allowing ISPs to more dynamically and effectively dismantle pirate streams of La Liga matches. 

Italian Court Orders Vimeo to Pay $8.6 Million for Copyright Infringement: According to reports, in the beginning week of August, the Rome Court of Appeals affirmed a judgment against Vimeo for failing to remove infringing content from its platform, and ordered that the platform service pay $8.6 million to Italian broadcast company, Mediaset. The court also ordered Vimeo to prevent new uploads of infringing content, otherwise, the failure to do so can result in a fine of €1,000 for each offense.

Look Forward To And Save the Date For…

SJC IP Subcommittee Hearing: Oversight of the U.S. Copyright Office: On September 7 at 2:30 P.M. ET, the Senate Judiciary Committee IP Subcommittee will hold a hearing titled Oversight of the U.S. Copyright Office. Register of Copyrights Shira Perlmutter will testify during the hearing. The event will be in-person at the Dirksen Senate Office Building and livestreamed on the subcommittee’s webpage.

Copyright Society and GiantSteps Media Technology Strategies: Copyright + Technology 2022: On September 13, the Copyright Society and GiantSteps Media will host their Copyright + Technology 2022 annual conference which “focuses on the dramatic and fast-moving influences that technology has on copyright in the digital age.” The event will bring together technologists, attorneys, media industry professionals, and public policy decision makers “for in-depth dialog on current hot topics related to copyright and technology.”

U.S. Intellectual Property Alliance Virtual Panel on The Value and Protection of Image in Entertainment, Arts & Sports: On September 14 from 4:00-5:30 P.M. ET, the U.S. Intellectual Property Alliance will host a virtual IP roundtable panel discussion on The Value and Protection of Image in Entertainment, Arts & Sports. Panelists include Scott Bearby, General Counsel of NCAA, David Lowery, UGA Professor and Music Celebrity/Founder of Camper Van Beethoven and Cracker, Brannon Anthony, General Counsel of Terry Perry Studios, and Kendall Spencer, DI Transformation Committee- NCAA National Champion- Long Jump. Registration is free. More information is available on the registration page.

Graphic Artists Guild and RightsClick: Managing your Copyrights and Protecting Yourself Online: On September 21 at 2 PM, the Graphic Artists Guild and RightsClick are hosting a webinar to educate artists about how to most successfully protect their works. “Artists commonly say enforcing their rights isn’t worth the time. But 65% of artists also report that their work has been used without permission!” RightsClick is a software suite designed to walk you through the steps to manage, register, and enforce your copyright rights—quickly and easily. Attend this free webinar with co-founders (and creator advocates) David Newhoff and Steven Tepp, along with representatives from the Artists Rights Guild. The RightsClick suite will be presented as well as an explanation on how it was explicitly designed for the busy, entrepreneurial creator who wants/needs to protect their works. More information is available on the registration page.

George Mason University Antonin Scalia Law School Fall Conference: IP on the Wane: Examining the Impacts as IPR Are Reduced: On September 22-23, the Center for Intellectual Property x Innovation Policy (C-IP2) will host its Annual Fall Conference. “After decades of efforts by some to slow the perceived expansion of intellectual property rights (IPR) around the globe, policymakers and courts in a number of countries have responded by placing greater limitations on IPR. Now that such limits have been in effect for a few years, researchers have been able to start measuring the impact on innovators, creators, and the overall economy.” C-IP2’s Annual Fall Conference “will bring together leading researchers, policymakers, creators, and innovators to share their experiences and results.” Additional information is available on the event’s page.

Authors Guild Foundation: WIT: Words, Ideas, and Thinkers Festival: On September 22-25, the Authors Guild Foundation will host its inaugural WIT: Words, Ideas, and Thinkers Festival to “expand [attendees’] understanding of critical issues, celebrate America’s literary culture, and amplify new voices and perspectives.” The festival’s theme is Reimagining America, which will be explored through conversations, presentations, panels, and speeches throughout the event. The festival is free and open to the public. Tax-deductible contributions can be made to the Authors Guild Foundation and the WIT Festival on the donation page. More information about the event can be found on the registration page.

WIPO Copyright Infrastructure Webinar: Multi-territorial Licensing for Musical Works for Digital Music Services: On September 28 at 1 P.M., the World Intellectual Property Organization (WIPO) is hosting a webinar featuring “multi-territorial licensing practices for musical works for digital music services, based on the experience of SACEM, a French Collective Management Organization (CMO) operating in the music field.” Speakers include Caroline Champarnaud, Director of International, Society of Authors, Composers and Publishers of Music (SACEM); and Habib Achour, Head of International Development for Africa & the Middle East, SACEM.

WIPO: Overview of WIPO and Its Activities with a Focus on the Collective Management of Copyright and Related Rights: On September 29 at 2:00 P.M., the World Intellectual Property Organization (WIPO) is hosting a webinar to present an overview of WIPO’s general activities, as well as to share information about Collective Management of Copyright and Related Rights. Additional information is available on the registration page.

AIMP and California Copyright Conference: Music Industry Toolbox: On September 29 from 3:00-8:00 P.M., the Association of Independent Music Publishers (AIMP) and the California Copyright Conference present their sixth Music Industry Toolbox—”a unique event created for music publishers, record companies, production music libraries/producers, managers, attorneys, and artists, but should be of interest to all music industry professionals.” The event “features leading firms in music management software and services essential to the music industry” and enables music industry professionals to connect with industry leaders in an informal setting. Additional information on the event is available on the registration page.

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If you aren’t already a member of the Copyright Alliance, you can join today by completing our Individual Creator Members membership form! Members gain access to monthly newsletters, educational webinars, and so much more — all for free!

Here is a quick snapshot of several copyright-related activities that occurred during the month of July and a few events to look forward to for the month of August.

Copyright Alliance Activities

Copyright Alliance Launches CCB Video Series and Other CCB Related Materials: On July 13, the Copyright Alliance launched the first Copyright Claims Board (CCB) educational video as part of the Alliance’s Copyright Academy creator video series, to help CCB claimants in better understanding the new smalls claims court. The Copyright Academy CCB video is titled Fees Associated with Bringing or Defending a Case Before the CCB. The goal of this video is to help educate users on what CCB fees are, how they work, when they are due, and more. Stay tuned for additional videos in the CCB Video Series and an expanded FAQ collection on the CCB process by checking out our CCB explained page.

Copyright Alliance Blogs: The Copyright Alliance posted several new blogs during the month of July.

• To help creative professionals better understand the Copyright Office’s new small claims court (the CCB), we kickstarted a CCB blog series by first highlighting in this blog post the top 15 most important things to know about the CCB including the types of claims that can be filed, why the CCB is voluntary, and the appeals process. For claimants interested in bringing a case before the CCB, we took a deeper dive in this blog post into the top 10 things to know about filing a claim with the CCB. Adding to our CCB blog series was this blog post, where we explored the CCB public database and analyzed some statistics and details of the cases and dockets to understand how the CCB is working so far.

• At the end of June, the U.S. Copyright Office released its findings from its study on ancillary rights for press publishers. Though the Office did not recommend that the U.S. adopt new ancillary rights for press publishers, we examined in this blog post how the report still exposes some major obstacles which make it challenging for press publishers to enforce the copyrights in their news content.

• This summer, the music community has been buzzing with the welcomed news of the Copyright Royalty Board’s decision to raise the royalty rates for songwriters in its Phonorecords III decision. However, the major streaming services asked the Copyright Office if they could delay these payments. We explain in this blog post, why it makes no sense to have songwriters bear the brunt of what amounts to poor planning from the streaming services.

Copyright Office Activities

CCB Status Update: As of the end of July, 85 cases were filed with the Copyright Claims Board (CCB). Seventeen of these are “smaller claims.” In at least 31 of the cases, the claimant is using legal counsel. At least 55 of the cases involve infringement claims and six 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 (38 cases); Literary Works (10); Motion Picture and Audiovisual Works (16); Sound Recordings (seven); Musical Works (four); Software (one); and some cases include claims for multiple works. Seven foreign resident(s) have filed claims. No one has opted out thus far. 

CRB Affirms Royalty Rate Increase Paid to Songwriters and Publishers by Streaming Services: On July 1, the Copyright Royalty Board (CRB) maintained its decision to increase the royalty rate paid to songwriters in the United States from on-demand streaming services between the years 2018 and 2022. The rate will be increased to 15.1% despite protests by streaming services such as Spotify. However, the definition of “bundled services” have been modified to an older version and the total content cost has been capped.

David P. Shaw Named New Chief Copyright Royalty Judge: On July 19, Librarian of Congress Carla Hayden announced that David P. Shaw has been selected as the new Chief Copyright Royalty Judge and head of the Copyright Royalty Board (CRB). Shaw replaces Suzanne Barnette, who served as the Interim Chief Copyright Royalty Judge since November 2021. Shaw most recently served as an administrative law judge for the International Trade Commission for more than ten years. He previously worked as an administrative law judge for the Social Security Administration and spent 23 years as an attorney-advisor for the International Trade Commission.

USCO Receives Comments for Its Best Edition Study: On July 18, the Copyright Office received 14 comments in response to the Notice of Inquiry (NOI) regarding the Office’s public study on copyright deposit and best edition requirements. 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. The Copyright Alliance also filed comments advocating that the Office reduce the burdens of the current “best edition” deposit requirements on copyright owners, the Library of Congress, and the Copyright Office itself by having the Library articulate which types of copyrighted works they would like best edition copies of and by permitting/expanding the options of submission of electronic copies.

USCO Publishes Amended Deposit Requirements for Registration of a Single Issue Serial Publication: On July 22, the Copyright Office published a final rule amending deposit requirements for a registration of a single issue serial publication. When the rule goes into effect, the Office will allow copyright owners to deposit just one copy of such works and provides an option for copyright owners to upload a digital copy, even if the issue was published in a physical format.

USCO and USPTO Agree to Take on Joint NFT Study: On July 8, the Copyright Office and the U.S. Patent and Trademark Office (USPTO) sent a letter to Senators Patrick Leahy (D-VT) and Thom Tillis (R-NC), agreeing to conduct a joint study to examine various matters related to intellectual property that have arisen from the growth in the use of non-fungible tokens (NFTs). In early July, the Senators sent a letter to USPTO Director Kathi Vidal and the Register of Copyrights Shira Perlmutter, requesting the joint study. Both agencies stated that they have started to discuss next steps and how to best consult with stakeholders on the issue. 

USCO Hosts Copyright Public Modernization Committee Meeting: On July 28, the Copyright Office held its public Copyright Public Modernization Committee (CPMC) Meeting. At the meeting, Register Perlmutter announced that the public will be able to access the Online Enterprise Copyright System’s (ECS) Recordation system starting August 1 and that the new public records system will go live later this summer. The Office provided a demonstration of aspects of the ECS software that will be used internally by USCO staff and also fielded questions from the public and CPMC members. The next public meeting will take place in January or February of 2023.

USCO Releases New Webpage on Registration of Non-Photographic Automated Databases: On July 28, the Copyright Office released a new webpage that provides general guidance for registering automated databases that do not primarily consist of photographs. The Office provides information and resources on what kinds of works qualify as databases and the different registration options for such works.

USCO Celebrates 40 Millionth Copyright Registration and 152^nd Birthday: On July 8, the Copyright Office announced that it has reached 40 million U.S. copyright registrations, while also celebrating its 152nd birthday. According to a post by the Office, “Today, on our 152nd birthday, the U.S. Copyright Office celebrates a historic milestone: the 40 millionth copyright registration made in the United States! As we acknowledge this monumental achievement, we reflect on the importance of copyright registration and highlight some of our creative works and copyright owners that have received the benefits of registration.”

Congressional Copyright Related Activities

Senators Tillis and Hirono to Serve as New Senate Co-Chairs of the Creative Rights Caucus: On July 1, Senator Thom Tillis (R-NC) announced that he will serve as the new Senate Co-Chair of the Creative Rights Caucus alongside Senator Mazie Hirono (D-HI) in the Senate and Representatives Judy Chu (D-CA) and Drew Ferguson (R-GA) in the House. Senator Tillis stated, “I am excited to further my bipartisan work by being named Co-Chair of the Creative Rights Caucus alongside Senator Hirono. I look forward to working with her and our House Co-Chairs, Representatives Chu and Ferguson, to protect and promote America’s creative community and ensure we continue to be the world’s global leader in creative industries in the 21^st century.”

Representative Tlaib to Propose Better Streaming Royalty Rates for Performers: According to reports, on July 26, Representative Rashida Tlaib (D-MI) circulated a letter to her colleagues saying she would be introducing legislation that would create a new royalty program to provide performers with reasonable remuneration on streaming music services on a per-stream basis. The letter states that the proposed program would be overseen by the Copyright Royalty Board and administered by SoundExchange.

RAP Act Introduced in House: On July 27, Representatives Hank Johnson (D-GA) and Jamaal Bowman (D-NY) introduced the Restoring Artistic Protection Act (RAP Act) of 2022, which proposes to amend the Federal Rules of Evidence by adding a presumption that would limit the admissibility of evidence of an artist’s creative or artistic expression against that artist in a criminal proceeding. Supporters of the bill include the Recording Academy, the Recording Industry Association of America (RIAA), Universal Music Group, Artists Rights Alliance, SAG-AFTRA, Black Music Action Coalition, Music Artists Coalition, Song Writers of North America, and several others.

Copyright in the Courts

AAP Members Move for Summary Judgment in Lawsuit Against IA: On July 7, member companies of the Association of American Publishers (AAP) filed a motion for summary judgment against Internet Archive (IA) in its lawsuit against IA for the mass scanning, public display, and distribution of literary works offered to the public through its Open Library and National Emergency Library businesses. AAP member companies argue that IA’s actions infringe on the companies’ copyright and that IA’s use of the books are “the very opposite of fair use.” In a statement regarding the motion, AAP CEO Maria A. Pallante said, “Outrageously, IA has wrapped its large-scale infringement enterprise in a cloak of public service, but that posture is an affront to the most basic principles of copyright law. We hope and expect that the court will uphold established legal precedent, including by recognizing that formats are neither fungible nor free for the taking, but rather a key means by which authors and publishers exercise their copyright interests, develop new markets, and contribute to public progress.”

Ninth Circuit Holds That Copyright Owners Can Recover Damages for All Infringements: On July 14, the Court of Appeals for the Ninth Circuit held in Starz v. MGM, that the discovery rule for accrual allows copyright holders to recover damages for infringing acts that occurred before they knew or reasonably should have known of the infringements. In May 2020, Starz sued MGM after discovering that MGM had been operating in violation of the parties’ licensing agreements for Starz’s content. In July 2020, MGM moved to dismiss the case, arguing that many of Starz’s copyright infringement claims were barred by the Supreme Court’s decision in Petrella v. MGM,which MGM asserted “impose[d] a strict bar to collecting any damages for copyright infringements that occur more than three years prior to the filing of the complaint.” However, the district court denied MGM’s motion and concluded that Petrella left unaffected the discovery rule—that the three-year damages bar under § 507(b) does not applywhen the plaintiff reasonably was not aware of the infringements at the time they occurred. The Ninth Circuit Court of Appeals affirmed the district court’s ruling, noting that “it would make very little sense to bar recovery of damages beyond the three-years before a lawsuit was filed where a copyright holder did not delay, but acted in accordance with” the Copyright Act. The court also cited an amicus brief filed by the Authors Guild (AG), the American Society of Media Photographers (ASMP), the Graphic Artists Guild, and other creator organizations to note that, with technology making infringements “easier to commit, harder to detect, and tougher to litigate,” accepting MGM’s arguments would “incentivize violation of the copyright holder’s exclusive rights, not protect those rights, which is the purpose of the Copyright Act itself.”

Ninth Circuit Rules Rejects Fair Use Defense for Catalogs Containing Photographs of Picasso Works: On July 13, the Court of Appeals for the Ninth Circuit held that the fair use exception did not apply to a defendant who used plaintiff’s photographs of Pablo Picasso’s works in the defendant’s series of books about Picasso. The court held that all four fair use factors weighed against a finding of fair use, finding that the defendant’s use was commercial and not transformative under the first factor and that there was a presumption of market harm under the fourth factor since the use was commercial and non-transformative.

Ninth Circuit Finds Foreign Website Subject to U.S. Jurisdiction: On July 21, the Ninth Circuit Court of Appeals issued an opinion in Lang Van v. VNG, holding that the operators of a Vietnam-based website are subject to personal jurisdiction in the United States. Lang Van, a California corporation that produces and distributes of Vietnamese music and entertainment, sued Vietnam-based music streaming website VNG in 2014 for copyright infringement, alleging that the service offered thousands of Lang Van’s copyrighted works without authorization. In 2019, a district court in California dismissed the claims, finding that Lang Van failed to show that the foreign company had enough contacts with the state for the court to exercise jurisdiction. Reversing and remanding that dismissal, the Ninth Circuit’s opinion explains that because VNG “purposefully targeted American companies and their intellectual property” and “purposefully availed itself of the privilege of conducting business in the United States,” that jurisdiction in the U.S. is reasonable. The opinion adopts many of the points made in an amicus brief filed by the Copyright Alliance in support of Lang Van that, among other things, warns of the burdensome barriers the district court’s decision created for U.S. copyright owners who wish to enforce their copyrights against infringing foreign websites in U.S. courts. 

Epidemic Music Sues Meta for Unlicensed Music: On July 20, Epidemic Sound, a company that provides licensed music for online content creators, sued Meta in the district court for the Northern District of California, alleging that Meta curates and offers Epidemic’s music without proper attribution or payment across Facebook and Instagram, allowing users to download, stream, and use those songs—including allowing users to rip licensed Epidemic music from other users’ videos via Instagram’s Original Audio and Reels Remix functions. Epidemic also alleges that Meta denied Epidemic access to Meta’s rights management tool for music content.

Record Labels Win Partial Summary Judgment on TikTok Ad Infringement: On July 11, the district court for the Southern District of Florida partially granted a motion for summary judgment for plaintiffs, a group of record labels, holding that Bang Energy, an energy drink maker, infringed the plaintiffs’ copyrights by posting TikTok advertisements containing unauthorized music. However, the court denied the plaintiffs’ motion for summary judgment on the plaintiffs’ claims that Bang Energy was secondarily liable for encouraging Bang Energy influencers to create and post TikTok videos that incorporated Bang Energy products and plaintiffs’ music, due to insufficient evidence.  

Copyright in Other Countries

EU Approves Digital Services Act: On July 5, the European Union Parliament adopted both the Digital Services Act (DSA) and Digital Markets Act (DMA). The DSA lays out Internet Service Provider (ISP) obligations to manage and coordinate with users, rightsholders, and law enforcement with regards to infringing and illicit products and content, while the DMA lays out competition-based obligations for ISPs including making messaging services interoperable and providing business users access to data. Both regulations must be formally adopted by the European Council. The DSA will come into effect 15 months after its publication in the EU Official Journal or from January 1, 2024 (whichever is later) and the DMA will come into effect six months after its publication in the EU Official Journal.

EU Commissioner Confirms that EU Countries Can Introduce New Remuneration Rights for Performers: According to reports, the European Union’s Commissioner for the Internal Market, Thierry Breton, issued a statement confirming that European Union member countries can introduce new remuneration rights for performers when implementing Article 18 of the 2019 European Copyright Directive. The article states that performers who do not own or control the copyright in their sound recordings shall receive “appropriate and proportional remuneration,” but leaves the mechanisms of implementation of this language to each member country. Germany and most recently, Belgium, have added a new remuneration right for performers to their copyright laws.

UK Music Opposes UK’s New Text and Data Mining Exceptions: On July 6, UK Music, the collective voice of the UK Music industry, sent a letter to Culture Secretary Nadine Dorries opposing the UK’s plans to introduce a broad exception in the country’s intellectual property laws for text and data mining for artificial intelligence (AI) machine learning. The letter states, “These proposals…are hugely concerning to the future growth of the whole of the creative industries…Rather than adopt a more sensible targeted approach, the Government has rejected narrower legislative changes and taken a huge risk by opting for the widest possible exception on offer. By seeking a text and data mining exception ‘for any purpose,’ and without an available opt-out, the Government would be inflicting the maximum potential harm on the creative industries as a result of this policy. Our innovation has value. Our creative IP is not raw material for others to freely monetize— yet this is what these proposals open the door to.”

UK Broadband and Mobile Provider Voluntarily Blocks Access to Illicit Site for Its Mobile Networks: According to reports on July 12, UK mobile provider EE announced that it would voluntarily block mobile music piracy sites and apps. Previously, in 2012, the UK High Court granted an injunction that ordered fixed line broadband networks to block access to The Pirate Bay and 70 other websites that pirated music content. EE announced that it would extend that injunction to its own mobile networks, stating that, “Historically the majority of piracy took place on fixed line networks, but as network speeds increase and content file sizes for music decreases, mobile networks are seeing a rise in piracy. EE believes in supporting content creators by combatting piracy across both our mobile and fixed networks.”

Mexico Joins Beijing Treaty on Audiovisual Performances: On July 7, Mexico became the 47^th country to join the World Intellectual Property Organization’s (WIPO) Beijing Treaty on Audiovisual Performances, which extends economic and moral rights to actors and performers in audiovisual performances such as films, videos, and television programs.

Italian Court Orders Cloudflare to Block Three Pirate Websites: According to reports, the Milan Court granted an interim injunction against DNS provider, Cloudflare, requiring the company to block three pirate torrent websites (and any future domain names the sites might use) on its public Doman Name System (DNS) resolver. Italian anti-piracy group FPM and music group FIMI argued that Cloudflare’s DNS resolver facilitated piracy by helping users access pirate sites, even when those sites did not utilize Cloudflare’s content delivery network services.

Chinese Authorities Fine Major Manga Pirate: According to reports, Chinese authorities penalized the operator of a major manga pirate website, MangaBank, with a $6,864 administrative fine for making manga works available online and profiting from those activities. A group of major Japanese manga publishers had been investigating popular manga pirate sites, and discovered that MangaBank, which had approximately 81 million monthly visits (making it Japan’s 44^th most popular site), had connections in China, leading the publishers to eventually involve Japanese police authorities and the anti-piracy group, CODA, to file a petition for administrative action by the Chinese authorities.

Look Forward To And Save the Date For…

The MLC: Understanding Your Royalty Statements: On August 16 at 12:00 PM ET, the Mechanical Licensing Collective (MLC) is hosting a webinar to share information about how monthly MLC royalty payments work. The team will walk attendees through the royalty statement documents that are sent in tandem with payments. They will also cover what those documents include and how additional detailed royalty information can be accessed via The MLC Portal.

The MLC: Are You Getting All of Your Digital Mechanical Streaming Money?: Additionally, on August 30 at 12:00 PM ET, the Mechanical Licensing Collective (MLC) is hosting this webinar for self-administered songwriters who are looking for step-by-step instructions on how you can “Connect to Collect.” The event will cover how to sign up with The MLC and how to collect all U.S. digital mechanical royalties that are due.

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 “12^th 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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The U.S. Copyright Office announced today that the new copyright small claims court, the Copyright Claims Board will open its doors on June 16. The announcement follows last month’s publication of the Office’s last set of final rules governing CCB active proceedings. To help creators learn more about the CCB, we are preparing webinars and new programs, updating the CASE Act Guide, and hosting educational events like our panel event last month with CCB staff. Here is a quick snapshot of several copyright-related activities that happened during the month of May and a few events to look forward to for the month of June.

Copyright Alliance Activities

Copyright Alliance, TALA, and ASMP Host CCB Panel: On May 16, the Copyright Alliance, Texas Accountants and Lawyers for the Arts (TALA), in partnership with the American Society of Media Photographers (ASMP), hosted a panel titled Learn About the Copyright Claims Board. With the CCB due to launch before the end of June, the panel walked the 287 attendees step-by-step through the CCB process and provided them with the information they will need to bring and defend cases before the CCB. Panelists included David Carson, Copyright Claims Officer, Copyright Claims Board, U.S. Copyright Office; Whitney Levandusky, Supervisory Copyright Claims Attorney, Copyright Claims Board, U.S. Copyright Office; Thomas Maddrey, General Counsel & Head of National Content and Education, ASMP and TALA board member; Terrica Carrington, Vice President Legal Policy and Copyright Counsel, Copyright Alliance; and Keith Kupferschmid (panel moderator), CEO, Copyright Alliance. Rewatch the event and keep updated on the CCB on our Learn About the Copyright Claims Board webpage.

Copyright Alliance Submits Comments on NTIA Mobile App Study: On May 23, the Copyright Alliance submitted comments to the National Telecommunications and Information Administration (NTIA) in response to a request for comments (RFC) published on April 22, 2022, regarding developing a report on competition in the mobile app ecosystem. The Copyright Alliance asked NTIA to examine the harms of infringement on the legitimate mobile app ecosystem and to consider setting forth guidelines and best practices for screening app developers and their products to combat fraudulent and infringing apps.

Copyright Alliance Blogs: The Copyright Alliance posted several new blogs during the month.

• The Copyright Alliance celebrated its 15^th Year Anniversary during the month of May. Our CEO, Keith Kupferschmid shared his thoughts in this blog post on the growth of the Copyright Alliance’s membership and staff over the years, current major copyright policy priorities, and his thoughts on the future of copyright law and policies.

• Ahead of Mother’s Day, we explored in this blog post whether flower arrangements are copyrightable. In another blog post, we examine the scope of copyright protections for popular tropes like bearded wizards and caped superheroes, and whether the first iterations of these tropes and the current iterations of the tropes are protectable under copyright law.

• We also celebrated Asian American Pacific Islander Heritage (AAPI) Month 2022 by profiling several AAPI creators in this blog post and their journeys of embracing or representing their heritages as they innovated and impacted their creative communities through their works.

Copyright Office Activities

USCO Issues Final Rule on CCB Active Proceedings and Evidence and Announces Start Date for CCB: On May 17, the U.S. Copyright Office published a final rule, effective June 16, on active proceedings and evidence before the Copyright Claims Board (CCB) covering topics including procedural practice, scheduling, conferences, discovery, written testimony, hearings, settlement, default and failure to prosecute, records, post-determination procedures, conduct of parties, and limits on the number of claims that can be brought. Parties may provide any feedback regarding the CCB’s regulations at any time via the Office’s ex parte meeting process. Additionally, the Office is inviting additional public comments on the portion of the final rule pertaining to the “smaller claims” process, due no later than November 14, 2022. Among the final procedures and elements of an active CCB proceeding, the final rule sets the limitation of the number of cases within a period of 12 months at 30 for parties, 80 for law firms, and 40 for attorneys (although the quota is not limited to “active proceedings”), eliminates Requests for Admissions in the normal course of a proceeding except on a limited basis and for good cause shown, streamlines the “smaller claims” process, and clarifies that the CCB will be able to consider meritorious defenses in the case of a respondent default.

Following the publication of this last set of final rules, the U.S. Copyright Office announced today that the start date of the CCB is Thursday, June 16. As of that date, CCB participants will be able to register for the CCB electronic filing and case management system, the eCCB, and access other CCB materials such as the Office’s CCB Handbook.

USCO to Assign New Deposit Account Numbers for Existing Account Holders: On May 9, the U.S. Copyright Office announced that starting June 6, it will assign new account numbers to all active, compliant deposit accounts and that it will close inactive, noncompliant deposit accounts. The change is due to the fact that the Office is working to digitize and publish its records, some of which display the numbers of active deposit accounts. The Office will host an informational webinar on June 8 to provide more information on these changes.

USCO Updates List of Acceptable File Types: On May 10, the U.S. Copyright Office announced that starting June 9, it would no longer accept electronic deposits of copyrighted works embodied in certain file types such as .midi, .ram, and .htm in order to improve registration pendency times. For more information, check out the full list of acceptable file types for electronic deposits.

USCO Receives Comments on Technical Measures: On May 27, the U.S. Copyright Office received 60 public comments in response to its April 27^th notice of inquiry on the development and use of standard technical measures for the protection and identification of copyrighted works. The Copyright Alliance submitted comments, answering several questions related to existing standard technical measures, obstacles to adoption of existing technologies, and interpretations of and improvements to various parts of section 512(i)(2)(A) of the Copyright Act.

USCO Amends Reporting Requirements for Licensing Under the MMA: On May 24, the U.S. Copyright Office published a set of interim rules, effective immediately, governing certain reporting requirements of digital music providers pursuant to the Music Modernization Act (MMA) in response to operational and compliance challenges with existing regulations. Public comments on the interim rules are due by July 8.

USCO Chief Economist Studying Gender Disparity in Copyright: According to an interview with the U.S. Copyright Office’s Chief Economist Brent Lutes, the Office will release a study on gender disparity issues in copyright law. The study was conducted in collaboration with Professor Joe Waldfogel at the University of Minnesota’s Carlson School of Management. Lutes indicated that the Office will “extend [the] analysis [on gender disparity] to additionally look at racial and ethnic disparities in the usage of the copyright system.”

USCO Names Miriam DeChant as Associate Register of Copyrights and Director of Public Information and Education: On May 10, Register of Copyrights Shira Perlmutter announced the appointment of Miriam DeChant as Associate Register of Copyrights and Director of Public Information and Education at the U.S. Copyright Office, effective May 8, 2022. In the announcement, Register Perlmutter stated, “I am delighted to welcome Miriam to this important position. Her knowledge of copyright and her extensive experience managing programs to broaden access to intellectual property systems will be a valuable addition to our senior management team.” DeChant previously worked at the U.S. Patent and Trademark Office, “where she served as director of the Global IP Academy, providing domestic and international intellectual property capacity-building, technical assistance, and education policy and programs.” DeChant also served as co-lead of the Gender Committee for the U.S. Department of Commerce’s Equity Council. She earned a JD from Villanova University School of Law, and an undergraduate degree in the design field from Colorado State University.

Congressional Copyright Related Activities

Sens. Leahy and Tillis Introduce Bill to Facilitate Music-Related Cultural Exchange Programs: On May 12, Senators Patrick Leahy (D-VT) and Thom Tillis (R-NC) introduced the Promoting Peace, Education, and Cultural Exchange (PEACE) through Music Diplomacy Act. “This bipartisan and bicameral bill authorizes the State Department to facilitate music-related exchange programs, including those focused on conflict resolution, with other countries” According to Senator Leahy, “Music and the arts are fantastic tools not only to enrich our own culture but to facilitate connections between cultures and advance cultural diplomacy…I have seen firsthand the power that music has to bring people together from all walks of life, and I am proud to join this effort.” According to Senator Tillis, “America’s creative industries spread our values—freedom, liberty, justice, and hope—throughout the world. I’m proud to partner with my friend Senator Leahy to promote America’s music industries and all the values we share and treasure with the people of the world.”

Copyright in the Courts

Second Circuit Denies Termination Rights to Songwriters’ Successors: On May 4, the Second Circuit Court of Appeals denied the appeal made by the family of the late songwriter and record producer, Hugo Peretti, to terminate a 1983 grant of rights by Peretti and his family to a third party (who in turn assigned the rights to Authentic Brand LLC) in the musical work for the hit song “Can’t Help Falling In Love.” The court affirmed the district court ruling, noting that in the 1983 agreement, Peretti only granted the rights in its original copyright term since he died before the renewal term started in 1989. Though Peretti’s family properly renewed the copyright in the musical work, they had effectively already transferred their rights in the 1983 agreement to the third party, and the court stated that because the grant of the rights to the third party were not actually “grants executed by the author,” Peretti’s family could not terminate the agreement under § 203.

Copyright in Other Countries

Megaupload Co-Defendants Will Not Be Extradited to the U.S.: Mathias Ortmann and Bram van der Kolk, who were officers of the notorious piracy website, Megaupload, reached a deal with New Zealand and U.S. authorities to be charged in New Zealand for offenses similar to the offenses they face in the United States. In exchange, the United States will withdraw its extradition proceedings against the pair. Megaupload founder Kim Dotcom still faces the possibility of extradition to the U.S.

Italy Proposes Legislation to Restrict Access to Infringing Sites: According to reports, a bill was introduced in the Italian legislature to enable Italy’s telecoms regulator, AGCOM, to direct internet service providers to restrict access to infringing websites for “live” content and to perform precautionary blocking for IP addresses previously identified as carrying infringing content. The bill reportedly received unanimous joint commission support and is now being considered by the Italian Chamber of Deputies.

French Performer and Label Groups Reach Voluntary Agreement On Digital Remuneration: According to reports, various organizations representing French artists, performers, and record labels welcomed an agreement regarding the sharing of streaming royalties. The agreement establishes a minimum streaming royalty rate for featured artists and the minimum commitment is 10% of monies received by the record label.

Number of Copyright Registrations in China Increases: According to reports, the National Copyright Administration in China published the total number of copyright registrations nationwide, reporting that there were 6.26 million copyright registrations in 2021, which was up by 24.30% from last year. Art works were registered the most, followed by photographic works, written works, and film/audiovisual works.

Cuba Updates Copyright Laws: On May 16, the Cuban National Assembly of People’s Power passed legislation that updates Cuban copyright law to include rights for computer programs, applications, and databases, and also addresses rights for artistic, technical, scientific, educational, and journalistic works.

Look Forward To And Save the Date For…

Copyright Claims Board to Begin Accepting Claims: On June 16, the Copyright Claims Board (CCB) will begin accepting claims. CCB participants will be able to register for the CCB electronic filing and case management system, the eCCB, and access other CCB materials such as the U.S. Copyright Office’s CCB Handbook. To register for the eCCB and to learn more about the CCB, check out the Copyright Office’s CCB website. For additional information and access to Copyright Alliance resources and alerts related to the CCB, check out our Learn More About the Copyright Claims Board webpage.

PPA: 5 Keys to Awaken Your ‘Great’: On June 1, at 2:00 p.m. to 2:30 p.m. ET, the Professional Photographers of America (PPA) is hosting a Facebook Live 30-minute event titled 5 Keys to Awaken Your Great, which is “designed to show [attendees] how to awaken [their] ‘great’ for breakthrough in business, and in life” through tools shared by keynote and inspirational speaker PeriSean Hall. More information is available on the Facebook Live event page.

USPTO: Intellectual Property Basics and Helpful Resources: On June 2, the U.S. Patent and Trademark Office will host an informational session on (IP) basics “and potential ways to protect your innovation as you transition from idea to product,” covering patents, trademarks, copyrights, and trade secrets. The event is offered for free to aspiring innovators and will cover local resources and assistance that the USPTO and its agencies makes available. More information is available is on the registration page.

USCO Webinar on Changes to Deposit Accounts for Existing Account Holders: On June 6, the U.S. Copyright Office will assign new account numbers to all active, compliant deposit accounts and that it will close inactive, noncompliant deposit accounts. The change is due to the fact that the Office is working to digitize and publish its records, some of which display the numbers of active deposit accounts. The Office will host an informational webinar on June 8 to provide more information on these changes. Additional information about the event is available on the webinar registration page.

C-IP2 and WIPO: U.S. Summer School on Intellectual Property: From June 6-17, the Center for Intellectual Property x Innovation Policy (C-IP2) at George Mason University Antonin Scalia Law School and the World Intellectual Property Organization (WIPO) are partnering to host the WIPO-U.S. Summer School on Intellectual Property. The two-week course will be held in person in Arlington, Virginia, just outside of Washington, DC. “The program provides an opportunity for senior students, young professionals, and government officials to acquire deeper knowledge of each domain of IP and of the role and functions of WIPO,” and includes “lectures, case studies, simulation exercises, and group discussions on selected IP topics, with an orientation toward the interface between IP and other disciplines.” A certificate is awarded to participants who successfully complete the program. More information is available on the registration page.

AIMP: 2022 Global Music Publishing Summit: On June 14, the Association of Independent Music Publishers (AIMP) will host its 5th annual AIMP Global Music Publishing Summit in a hybrid format, both online and in-person, and will present a full day of panels and keynotes on business, sync, and creative areas of the independent music publishing industry. The event will include a reception and songwriter showcase presented by NYC3 and Music Publishers Canada.

A2IM: Indie Week 2022: From June 16-18, A2IM will host Indie Week, a four-day international conference and networking event “aimed at maximizing the global impact of independent music.” It will feature keynotes, panels, exclusive networking sessions, and more, and has “historically drawn an attendance of over 1200 participants from over 30 countries.” More information is available on the registration page.

USCO Modernization Webinar: Recordation System: On June 27, at 1:00 p.m. ET, the U.S. Copyright Office will host a public modernization webinar on its limited pilot program of an online recordation system, launched in April 2020 which will be open to the general public in the coming months. The webinar will discuss features of the new online recordation system.

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At the end of April, creators and innovators all across the globe celebrated World Intellectual Property (IP) Day— this year focusing on how young inventors, creators, and entrepreneurs can use intellectual property rights to help further create, invent, and innovate in various fields. As part of the worldwide celebration, the Copyright Alliance hosted a panel discussion on how copyright law affects youth. In other news, the U.S. Copyright Office published a final rule and some clarifying and correcting rules related to the new copyright small claims court, the Copyright Claims Board (CCB), and officially launched the CCB website. Here is a quick snapshot of several copyright-related activities that happened during the month of April and a few events to look forward to for the month of May.

Copyright Alliance Activities

Copyright Alliance to Host with TALA and ASMP: Learn About the Copyright Claims Board (CCB): On May 16 from 2 p.m. to 3:15 p.m. ET, the Copyright Alliance, Texas Accountants and Lawyers for the Arts (TALA), in partnership with the American Society of Media Photographers (ASMP), will host a panel titled Learn About the Copyright Claims Board (CCB). With the CCB due to launch before the end of June, the panel is designed to provide parties with the information they will need to know to bring and defend cases before the CCB. The panel will walk attendees through each step of the CCB process from filing a case to the final decision. Panelists include David Carson, Copyright Claims Officer, U.S. Copyright Office; Whitney Levandsuky, Supervisory Copyright Claims Attorney, Copyright Claims Board, U.S. Copyright Office; Thomas Maddrey, ASMP General Counsel & Head of National Content and Education; Terrica Carrington, Vice President of Legal Policy and Copyright Counsel, Copyright Alliance; and Keith Kupferschmid, CEO, Copyright Alliance (panel moderator).

Copyright Alliance Celebrates World IP Day, Hosts Panel: On April 26, the Copyright Alliance hosted a World IP Day panel titled Copyright and Youth: Creating a Better Future, in keeping with the World Intellectual Property Organization’s (WIPO) 2022 theme of IP and Youth: Innovating for a Better Future. Panelists included Kick Lee of the Cincinnati Music Accelerator (CMA); Janet Hicks of Artists Rights Society (ARS); David Sohn of Copyright and Creativity; fine artist Mary Adelaide (Addie) Clark; Kim Tignor, Executive Director of the Institute for Intellectual Property & Social Justice and founder of the Take Creative Control program; and Keith moderated the panel. The event video can be viewed on our World IP Day webpage, along with our blog, video messages from elected officials, and more.

Copyright Alliance Files Amicus Brief in § 512(h) Subpoena Case: On April 4, the Copyright Alliance filed an amicus brief (in support of neither party) in In re DMCA § 512(h) Subpoena to Twitter, Inc., urging the U.S. District Court for the Northern District of California to adopt a magistrate judge’s ruling denying Twitter’s motion to quash a 512(h) subpoena on free speech grounds. The brief explains the legal framework behind Section 512(h) and the importance of the provision to copyright owners who seek to identify alleged infringers. In response to Twitter and its amici supporter’s claim that the burden of establishing an absence of fair use rests with the copyright owner, the brief explains that the burden is always on its proponent and that Twitter cannot raise a fair use defense on behalf of a user who declined to assert it themselves. The brief concludes by warning that if Twitter and its amici’s arguments are adopted, it would erect unnecessary and even insurmountable barriers to U.S. copyright owners who need to enforce their copyrights against anonymous infringers and leave them without effective protection for their valuable intellectual property. A hearing has been scheduled for May 12.

Copyright Alliance Files Amicus Brief in Capitol Records v. Vimeo: On April 19, the Copyright Alliance joined the National Music Publishers’ Association (NMPA) and the Recording Industry Association of America (RIAA) in an amicus brief filed in support of plaintiff-appellant Capitol Records in the case Capitol Records v. Vimeo. In 2016, Vimeo was granted summary judgment on the red flag knowledge issue (i.e., whether some viewing by a service provider’s employee of a video that plays all or virtually all of a recognizable copyright protected song is sufficient to establish red flag knowledge). However, there is now a consolidated appeal in the Second Circuit Court of Appeals that addresses an issue that was not decided, namely what it means for an online service provider to have “the right and ability to control” users’ infringing activity under 512(c)(1)(B). The brief argues that Vimeo’s “curation practices constituted substantial influence over their users’ infringing videos and should have disqualified Vimeo from the safe harbor.”

Copyright Alliance Sends Letter to Congress on U.S. Innovation and Competition Act: On April 5, the Copyright Alliance submitted a letter to Senate Majority and Minority Leaders Senators Chuck Schumer (D-NY) and Mitch McConnell (R-KY), and House Majority and Minority Leaders Representatives Nancy Pelosi (D-CA) and Kevin McCarthy (R-CA), expressing concerns that the United States Innovation and Competition Act of 2021 will undermine copyright protections for American rightsholders. Specifically, the letter points out that while public access to research reports and raw data is important, the bill’s public access language goes too far by undermining copyright protection through unreasonable licensing requirements.

Copyright Alliance Blogs: The Copyright Alliance posted several new blogs this month.

• In March, Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT) introduced important new legislation, the Strengthening Measures to Advance Rights Technologies (SMART) Act. But as we explain in this blog, the bill has its detractors—anti-copyright groups who unsurprisingly make the same arguments used countless times in the past from their tired playbook.

• In light of the announcement that the Supreme Court will hear the photography fair use case Andy Warhol Foundation v. Goldsmith, we explored the scope of copyright law as applicable to photography by examining some of the most impactful photography cases in this blog.

• Lastly, we celebrated World IP Day in this blog by examining some of the reasons why young creators should care about copyright law and what resources are available to them. We also profiled several incredible Arab American creators in this Arab American Heritage Month 2022 blog, highlighting their many accomplishments and impact in their respective creative disciplines and also on American culture.

Copyright Office Activities

USCO Launches New Copyright Claims Board Website: On April 7, the U.S. Copyright Office launched ccb.gov, “a website serving as a gateway to the first copyright small claims tribunal in the United States, the Copyright Claims Board (CCB).” The launch of [this site] is considered to be “a major milestone toward the full opening of the CCB to creators and users of copyrighted materials later this spring.” The new website is also considered to be the home of the CCB “and is focused on helping everyone understand [its] mission and processes.” The site will become the “primary location for information about filing and responding to claims, opting out of a proceeding, accessing the CCB’s Handbook, and contacting the CCB with questions.” The new site hosts the Designated Service Agent Directory and will also host  “updates on the status of CCB-related rulemakings as well as a list of libraries and archives that have preemptively opted out of CCB proceedings on the Office’s Libraries and Archives page.

USCO Publishes Final Rules on Law Student and Business Entity Representations: On April 8, the U.S. Copyright Office published final rules governing the appearance of law student representatives and representatives of business entities in proceedings before the Copyright Claims Board (CCB). The final rules expand the scope of law student participation to include law student representatives who are part of pro bono legal services organizations that have a connection with the student’s law school. The final rule also relaxes various prerequisite requirements for law student representatives and clarifies that law school clinics and pro bono organization participation in the CCB’s pro bono database is voluntary. The language in the rules governing representations of business entities remains unchanged from the language of the proposed rule.

USCO Hosts Modernization Webinar on Copyright Public Records System: On April 19, the U.S. Copyright Office held a modernization webinar to update the public on the Copyright Public Records System. Program Analyst Shawn Gallagher and Director of Copyright Records Denise Wofford were the presenters. They provided a brief overview of Release 1.0 in December 2020, Release 2.0 in August 2021, and Release 3.0 in March of 2022, which included the updated name directory and related registration records search. They also talked about the new public records system, including PDF certificates, and the virtual card catalog. As for future developments, the Office will provide additional indexing information captured by the new recordation pilot and plans for user accounts to have saved search and saved records capabilities.

USCO Corrects and Clarifies Some CCB Final Rules: On April 22, the U.S. Copyright Office published a correction to the final rules on initiating of proceedings and related procedures and a clarification to the final rules on small claims expedited registration procedures. The corrected final rule reverses an inadvertent instruction in the Federal Register to ensure that the rule incorporates the fee table for initiating a Copyright Claims Board (CCB) proceeding. The clarified final rule amends language to provide that when a CCB proceeding cannot continue because a registration is still pending, the Board may hold proceedings in abeyance at any point before a final determination is issued. The rule also describes the process for the Board to receive registration certificates when they are issued while a proceeding is pending, allows parties to request expedited registration before a proceeding becomes active, and corrects non-substantive typographical errors.

USCO Requests Comments on Standard Technical Measures: On April 27, U.S. Copyright Office published a notice of inquiry (NOI) titled Standard Technical Measures and Section 512, which solicits comments to “gather information on the development and use of standard technical measures for the protection and identification of copyrighted works” in order to “enhance the public record and advise Congress.” The NOI is separate from the Office’s ongoing consultations regarding technical measures. Comments are due on Friday, May 27. The Office will announce a due date for reply comments if needed.

USCO Names Brent Lutes as First Chief Economist: On April 12, Register of Copyrights Shira Perlmutter announced the appointment of Dr. Brent Lutes as the first Chief Economist of the U.S. Copyright Office. “As Chief Economist, Lutes will evaluate the economic impacts of programs and policies relating to the U.S. and international copyright systems [and advise] the Register and other senior officials on how these impacts affect the Office, copyright stakeholders, and the general public.” In a statement about Lutes, Register Perlmutter noted, “I am excited to welcome Brent to the Office… Bringing in-depth economic expertise to the Office has been one of my priorities since I became Register; economic analysis will assist in realizing progress on the goals of our new strategic plan.” 

Congressional Copyright Related Activities

Judge Ketanji Brown Jackson’s Questions for the Record on Copyright Law Available: Around April 1, Judge Ketanji Brown Jackson answered several questions for the record related to copyright law during her nomination process to become a U.S. Supreme Court Justice. The Senate posed various questions including whether artificial intelligence (AI) systems would be eligible for copyright protection and whether the Takings Clause applies to copyrighted works. In response to many of the copyright law policy questions, Judge Jackson noted that public policy was within Congress’ purview and that she would focus on faithfully applying the relevant statutes and regulations.

Copyright in the Courts

Real Estate Organizations File Amicus Brief in SCOTUS Case: On April 7, the National Association of Realtors (NAR), along with other real estate organizations, filed an amicus brief with the U.S. Supreme Court in support of the defendant Columbia’s cert petition, in Columbia House of Brokers Realty, Inc. v. Designworks Homes, Inc., a case concerning “[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 involves 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 the home. The Eighth Circuit Court of Appeals, after reviewing the statutory text and legislative history, had 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.”

Maryland Declines to Oppose Possible Permanent Injunction of its State eBook Licensing Bill: On April 11, the state of Maryland filed a response to a show cause order from the U.S. District Court for the District of Maryland, in the lawsuit filed by the Association of American Publishers against the state over the state’s compulsory eBook licensing bill. Maryland stated that it “does not intend to oppose the court should it convert the preliminary injunction against the state’s compulsory eBook licensing bill.” However, noting that the state did not enforce the law against the publishers at any point, the state argued that it was not necessary for the court to grant any relief beyond a declaratory judgment.

Copyright in Other Countries

EU Reaches Agreement on Digital Services Act: According to reports, on April 23, the European Parliament, the French Presidency of the Council of the EU, and the European Commission agreed on the final text for the Digital Services Act (DSA) — new legislation that could come into effect before the end of the year. Among other provisions, the DSA aims to obligate internet platforms to remove illegal or infringing content “expeditiously” and to provide more information about their processes and algorithms to increase transparency and accountability. To address free speech and data protection rights, the DSA reportedly will include safeguards so that removal of illegal content will be “processed in a non-arbitrary and non-discriminatory manner and with respect” for those rights.

EU Court Upholds Article 17 ‘Upload Filter’ Challenge: On April 26, the Court of Justice of the European Union (CJEU) rejected a legal challenge made by Poland to Article 17 of EU Directive 2019/790 on Copyright in the Digital Single Market. Article 17 “establishes the principle that providers of online content-sharing services . . . are directly liable when protected subject matter (works and so forth) is illegally uploaded by users of their services.” Article 17 also sets forth a safe harbor provision for online service providers that requires them to “actively monitor the content uploaded by users, in order to prevent the uploading of protected subject matter [that] the rightsholders do not wish to make accessible on those services.” The court stated in its press release that contrary to Poland’s arguments that Article 17 violated the rights to freedom of expression and information, the legislation was accompanied by Article 11 of the EU Charter of Fundamental Rights, which ensured the proper safeguards and struck the balance between those rights and IP rights.

Biden Administration Requests Release of Official TRIPS Waiver Text: According to reports, the Biden Administration is urging the World Trade Organization’s (WTO) Director-General Ngozi Okonjo-Iweala to release an official draft of the waiver agreement of The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) for which the U.S., European Union, South Africa, and India were spearheading negotiations. The request was made ahead of the WTO’s 12^th Ministerial Conference taking place in Geneva on June 13.

Canadian Budget Proposes Copyright Term Extension: On April 7, Canada’s Finance Minister Chrystia Freeland put forth the government’s budget, which included a proposal to amend the Canadian Copyright Act to extend the general term of copyright protection from 50 to 70 years after the life of the author as agreed under the Canada-United States-Mexico Agreement. Margaret McGuffin, CEO of Music Publishers Canada stated that, “For music publishers, composers and their songwriters, copyright is their paycheck. We applaud Budget 2022’s commitment to ensuring a strong, modern copyright regime through the implementation of copyright term extension.”

USTR Releases 2022 Special 301 Report: On April 27, the Office of the U.S. Trade Representative (USTR) released the 2022 Special 301 Report, identifying 27 trade partners on its “Priority Watch List” or “Watch List,” which highlights countries that have problems with intellectual property protection, enforcement, or market access for U.S. IP rightsholders. Countries on the Priority Watch List include Argentina, Chile, China, India, Indonesia, Russia, and Venezuela.

Look Forward To And Save the Date For…

George Mason University’s Antonin Scalia Law School’s C-IP2: From Great Ideas to Global Impact: A Talk with Andrew Byrnes: On May 4 from 2.00 pm to 3.15 p.m. ET, George Mason University’s Antonin Scalia Law School’s Center for Intellectual Property x Innovation Policy (C-IP²)will host a discussion with tech executive, attorney, and investor Andrew Byrnes regarding “the path from developing innovative ideas to achieving broad impact, including key legal issues, and business imperatives.” In addition, Byrnes will offer insights on leadership, building high-functioning teams, engaging policymakers, and other critical stakeholders, and navigating existing and emerging regulatory regimes and challenges.” More information can be found on the registration page.

ASMP, APA, Authors Guild, MWA, SSFWA, Graphic Artists Guild, Dramatists Guild, International Counsel of Design, and National Writers Union: Creators Conference: On May 11 at 11.am. to 5:30 p.m. ET, nine creator rights organizations are hosting a free one-day conference open to writers, photographers, illustrators, designers, dramatists, songwriters and composers on what creators can do to avoid being taken advantage of in the marketplace. The event will feature three panels titled Working for Free/Paying to Work: Contests, Crowdsourcing, and Publishing Platforms; Contracts and Terms: the Unethical, the Unenforceable, and the Unavoidable; and Copyrights and Rights Grabs: How Your work Is Taken, and How You Can Protect Your Rights. More information is available on the registration page.

Copyright Alliance and WALA Webinar: Copyright Basics: On May 17 from 11 a.m. to 12:30 a.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 CEO Keith Kupferschmid and Copyright Counsel 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.

WIPO Webinar: EUIPO’s Registries for Orphan and Out-of-Commerce Works: On May 25 at 7.00 a.m., the World Intellectual Property Organization (WIPO), will host a webinar focusing on copyright infrastructure and “feature a number of speakers from the public and private sectors on a range of topics relevant to copyright infrastructure, such as metadata, identifiers, technology solutions and WIPO services.” The host of the event is Gyta Bernasneviciute-Singh.

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