Category Archives: Education

SUPPORT NEEDED FOR CASE ACT!!

I’m sure that you’re aware we been working for the last few years with a group of other associations on what is now the CASE Act (HR#3945) the SMALL CLAIMS TRIBUNAL BILL, a bill by Representatives Hakeem Jeffries (D-NY), Tom Marino (R-PA), Doug Collins (R-GA), Lamar Smith (R-TX), Judy Chu (D-CA), and Ted Lieu (D-CA). The bill is ready for write-up and we are now awaiting a date for that to happen based on a couple of issues still being worked out, but it looks like it could be as early as next week.

It has come to our attention that so far only about 2200 letters have been received by the Copyright Alliance platform which is less than 5 letters per member of Congress–barely even noticeable. We have been told by the players on the Hill that the passage of this bill will come down to grassroots support and this is a very poor showing. They need to see that we are behind this important bill for creators!

We need every member and their photographers and their adult children, friends and neighbors to send letters to their representatives!

I am asking you to send out a plea to your staff and photographers to help us get this bill passed by contacting their representatives. It is really easy. There are letters ready for them to use here. If we fail and small claims doesn’t make it through this year, it will be very difficult to get it passed in subsequent years. THIS IS OUR CHANCE! Please help all creators protect their copyrights!

Thanks so much for your help!

2018 DMLA Conference Help Wanted

DMLA Conference 2018 Los AngelesDear DMLA Members,

Throughout the years you have been participating in our annual conference as an attendee. This year we are in Los Angeles and as part of the change in locale, I would also like to open to all of  you to the opportunity to participate in the programming for the conference.
Los Angeles is on the Pacific Rim, a city of creativity that is the epicenter of entertainment, music, motion and still and the producers of much of the content for the US and beyond, this opens up many topics for panels and speakers.  What would like to talk about?  What issues do you think are important for this year’s meeting?
We are just beginning our Program Committee’s work and could use a few more volunteers too.
I look forward to working with you all to bring your passion and ideas to our conference October 21-23, 2018.
Please reach out to Cathy Aron at cathy@digitalmedialicensing.org as soon as possible with your suggestions.
All the best,
Ophelia Chong, Stock Pot Images
DMLA Program Chair

Fox News Network, LLC v. TVEyes, Inc.: Second Circuit Rejects Fair Use Defense for Mass Archiving and Re-Distribution of Copyrighted TV Content

By: Scott J. Sholder

A panel of the U.S. Court of Appeals for the Second Circuit today issued its much-anticipated opinion in the TVEyes appeal, reversing the decision of the U.S. District Court for the Southern District of New York, and holding that TVEyes’ copying, storage, and re-distribution for viewing, downloading, and sharing, of massive amounts of copyrighted TV content was not fair use.

Read the entire story here.

Fox News Network, LLC v. TVEyes, Inc.: Second Circuit Rejects Fair Use Defense

By: Scott J. Sholder

A panel of the U.S. Court of Appeals for the Second Circuit today issued its much-anticipated opinion in the TVEyes appeal, reversing the decision of the U.S. District Court for the Southern District of New York, and holding that TVEyes’ copying, storage, and re-distribution for viewing, downloading, and sharing, of massive amounts of copyrighted TV content was not fair use.

TVEyes is a for-profit media company offering a service that allows its clients to “sort through vast quantities of television content in order to find clips that discuss items of interest to them.” TVEyes records 1,400 channels’ worth of TV broadcasts, 24 hours a day, and makes the copied content searchable by also copying the closed-captioned text that accompanies the videos. Clients can search for videos based on keywords and play unlimited video clips, each up to ten minutes in duration, and may archive, download, and share clips by e-mail. Clients pay $500 per month for these services.

The District Court held that the searching, archiving, and watching functions offered by TVEyes constituted fair use, but that the downloading and e-mailing functions did not. Fox only challenged the “watch” function (and its ancillary functions like downloading, archiving, and sharing), but not the search function.

At the outset of its opinion, the Court of Appeals noted the similarities between this case and Authors Guild v. Google, Inc., in which the court held that mass copying of books for purposes of limited text searching was fair use, but it explained that Authors Guild “test[ed] the boundaries of fair use,” and that TVEyes “has exceeded those bounds.” In sum, the court held that TVEyes’ re-distribution of copyrighted content was only modestly transformative under the first fair use factor, but that other fair use factors outweighed any transformative purpose. Despite myriad recent case law holding that transformative use is the most important fair use factor, the TVEyes court seemed to hearken back to a slightly earlier era of fair use and reiterated that the fourth factor – market harm – is “the single most important element.”

The court held that TVEyes’ copying could be considered transformative in that “it enables TVEyes’s clients to isolate from the vast corpus of Fox’s content the material that is responsive to their interests, and to access that material in a convenient manner.” Similar to the Sony “Betamax” case, the court noted that TVEyes’ watch function was also akin to time- and place-shifting, and “certainly qualifies as technology that achieves the transformative purpose of enhancing efficiency,” and so was “at least somewhat transformative.” However, the transformative character of the use was not enough to outweigh the commercial nature of the services offered because TVEyes “essentially republishes that content unaltered from its original form, with no ‘new expression, meaning or message.’”

The court found the second factor – the nature of the copyrighted works – inconsequential, but placed significant weight on the third factor, which analyses the amount of the copyrighted works made available to the public. This factor weighed in favor of Fox because, unlike in Authors Guild where Google Books made available only snippets, “TVEyes makes available virtually the entirety of the Fox programming that TVEyes users want to see and hear,” and given the brevity of most news reports, at very least copied and distributed “the entirety of the message conveyed by Fox to authorized viewers of the original” content.

Turning to the fourth factor, the Second Circuit agreed with Fox that “TVEyes undercuts Fox’s ability to profit from licensing searchable access to its copyrighted content to third parties.” Consumers were clearly willing to pay for such a service, and TVEyes therefore “deprives Fox of revenue that properly belongs to the copyright holder,” effectively usurping the market for Fox to offer similar aggregation, searching, and licensing services for its own content. This usurpation, combined with the amount of content offered and the modest transformativeness overshadowed by TVEyes’ commercial use of Fox’s content, defeated TVEyes’ fair use defense. The court remanded with instruction to the District Court to amend its permanent injunction accordingly.

Judge Kaplan of the Southern District of New York, sitting by designation, filed a separate concurring opinion to express his disagreement with the majority’s finding that TVEyes’ uses were at all transformative. He opined that the “somewhat transformative” designation was irrelevant given that the other fair use factors outweighed the transformative use, and that issuing such dicta would serve only to confuse the already complicated question of what constitutes transformative purpose. Nonetheless, Judge Kaplan expressed his own views on why TVEyes’ use of Fox’s content was not transformative, including that the mere “enhancing the efficiency with which copies of copyrighted material are delivered to secondary issuers” was not transformative because TVEyes simply repackaged and delivered the original content with no news aesthetics, insights, or understandings.

The Second Circuit’s decision is significant in that it further defines the outer boundaries of fair use by providing a concrete example of what falls outside the doctrine, which is helpful given the arguably expansive implications of the Authors Guild decision, and by distinguishing a facially similar service from the Google Books project it deemed fair use in that case. It also signals a potential shift in focus back to the “market harm” factor of fair use, and away from a strict focus on transformative purpose, but at the same time adds to the growing sense of confusion about what may be considered transformative, or in this case, “somewhat transformative.”

Cowan, DeBaets, Abrahams & Sheppard LLP drafted an amicus brief in this case on behalf of American Photographic Artists, American Society of Media Photographers, Digital Media Licensing Association, National Press Photographers Association, and Professional Photographers of America, in support of Fox News Network.

BlockChain Registration: Proof of Existence Is Not Proof of Ownership

By Joe Naylor, President and CEO of ImageRights

There is a dangerous movement afoot; the idea that registration of your images on the blockchain is a cheap and simple alternative to registration with the United States Copyright Office. It is not.

Those providing copyright registration services based solely on the blockchain will argue that inscribing a hash of your image along with its accompanying metadata creates an immutable record of your copyright ownership. False.

Read the entire article here.

Proof of Existence Is Not Proof of Ownership

By Joe Naylor, President and CEO of ImageRights

 

 

There is a dangerous movement afoot; the idea that registration of your images on the blockchain is a cheap and simple alternative to registration with the United States Copyright Office. It is not.

Those providing copyright registration services based solely on the blockchain will argue that inscribing a hash of your image along with its accompanying metadata creates an immutable record of your copyright ownership. False.

What these services offer is the second largest application of the blockchain after Bitcoin: Proof of Existence.

What these services prove is that your image file with the meta data you input existed at the time that the hash was created and inscribed into the blockchain. However, what they fail to acknowledge is that the information can be easily manipulated. Almost anyone can download an image and edit the metadata, populating the data fields with whatever information they choose.

To emphasize the point, here is an example of a photo that was registered through a blockchain copyright registry service along with its blockchain certificate of registration. The only problem is that this photo was not shot by me nor do I own the copyrights to it, John Smith does.

And now let’s imagine the worst-case:

  1. John Smith takes a photo, posts it to his website and inscribes the JPEG file with a blockchain copyright registry service.
  2. I download the image from his site and change the EXIF metadata of the file to my name, thereby creating a twin-JPEG with 100% identical image content, but different bytes.
  3. I register my file with another blockchain copyright registry, which works even if both registries are on the same blockchain because the bytes are different due to the different name I entered in the EXIF meta data.
  4. John Smith’s registry shuts down (e.g. goes bankrupt, management decides it’s not a profitable business unit, etc.). The blockchain still contains the inscribed hash for John Smith’s file; but nobody can find John Smith’s inscription unless they have a bit-identical copy of the image file John Smith registered.
  5. I start licensing the copy John Smith’s image that contains my name in the EXIF data to unsuspecting buyers.

The messaging from the blockchain copyright registration services is extremely harmful to both the creators and users of the photographs. Many users searching the blockchain may take their claims as reliable and fail to perform their due diligence to verify the information provided on the blockchain.

If my image is viewed as authentic, solely because the work is inscribed on the blockchain under my name and falsified copyright information, then I can steal potential sales from the original photographer. Some may even try to go as far as pursuing copyright infringement claims for images they do not actually own the copyright to.

Essentially, these blockchain copyright registration services are proving that you had a specific file at a specific time; but, they cannot make any guarantees about the creation of the file, the content in those files, or the true copyright ownership of those files.

Whatever your position ideologically, the law states that you can’t file a copyright infringement complaint in US federal court if you haven’t registered the image with the US Copyright Office (USCO). Without a timely registration, meaning the image was registered within three months of publication or before the start date of the infringement, you are unable to seek statutory damages of up to $150,000 per infringed work or attorney’s fees. If this crucial step is missed and the copyright information is only inscribed to the blockchain, without a USCO registration, there are potentially hundreds of thousands of dollars that could be lost in a copyright infringement case.

It is also important to know that a major differentiator between a blockchain registration and USCO registration is that the U.S Copyright Office Certificate of Registration serves as prima facie evidence that you are the copyright owner of the image. Prima facie is Latin for “at first look,” or “on its face,” referring to a lawsuit or criminal prosecution in which the evidence before trial is sufficient to prove the case unless there is substantial contradictory evidence presented at trial. Blockchain registration certificates do not carry this legal weight.

Furthermore, when you register works with the USCO, you must acknowledge and agree to the following:

17 USC 506(e): Any person who knowingly makes a false representation of a material fact in the application for copyright registration provided by section 409, or in any written statement filed with the application, shall be fined not more than $2500.

*I certify that I am the author, copyright claimant, or owner of exclusive rights, or the authorized agent of the author, copyright claimant, or owner of exclusive rights of this work and that the information given in this application is correct to the best of my knowledge.

Currently, there are not any blockchain registration services that require such an agreement or that can impose such fines by statute for fraudulently misrepresenting copyright ownership information.

While registration with the US Copyright Office can be expensive, don’t be deluded into thinking that the blockchain is some cheap cure-all for legally protecting your copyrighted work. The blockchain is not a government registry, but rather by definition is a distributed ledger without any central authority. Anyone can inscribe whatever they want in the blockchain without any legal recourse. That’s not quite the case with the United States Copyright Office. Proof of Existence is not Proof of Ownership.

 

 

 

Goldman v. Breitbart News, LLC: The Embedding Balance Has Tipped

On February 16, Judge Forrest of the U.S. District Court for the Southern District of New York in Goldman v. Breitbart News, LLC – one of a pair of cases pending in Manhattan federal court concerning the practice of “embedding” copyrighted content – issued a ruling in favor of the plaintiff, photographer Justin Goldman, holding that embedding (or framing) content from another website does not immunize content users from copyright infringement claims.

Read the entire article here.

SAVE THE DATE: DMLA 2018 ANNUAL CONFERENCE

The DMLA Executive Board is pleased to announce that the 2018 Annual Conference will be held on October 21-23, 2018 at the Marriott Marina Del Rey Hotel in beautiful Marina Del Rey, California.  The hotel is walking distance to Venice Beach (a quick 10 minutes) and a short drive to Santa Monica Beach.

We’re excited to bring the conference to some California sunshine and to look at the future of licensing content in streaming online shows and television.  With companies like Buzzfeed, Hulu, Amazon and Snapchat located on the west coast, we’re looking to have some lively sessions.

Mark your calendars and look for more information to follow.

 

DMLA signs on to 2nd letter regarding NAFTA

DMLA signed on to a second letter to Ambassador Lighthizer, co-ordinated by the Copyright Alliance, in regards to the “modernization” of NAFTA.  We are thrilled that 34 other organizations opted in to bring attention to the policies by some internet platforms that promote theft of American creativity and innovation.

Read the letter here