Category Archives: Advocacy

DMLA’s Amicus Brief Supports Argument as Oracle defeats Google Fair Use Argument over Java Code Packets

Last week the U.S. Court of Appeals for the Federal Circuit reversed the U.S. District Court for the Northern District of California’s ruling of fair use in Oracle America, Inc. v. Google LLC, and held that a verbatim and non-transformative taking in the presence of an actual or potential licensing market fatally undermined the defense.

Even in industries unrelated to computers, mobile devices, software, and source code, the court’s broad pronouncement that “[t]here is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform” is both powerful and beneficial to creators and licensors of copyrighted content. DMLA’s amicus brief with the support of the coalition of Visual Artists– and one of many amicus briefs in this hotly contested case– helped explain to the court of appeals the importance of licensing markets in fair use cases in general. Ultimately DMLA supported the winning argument and contributed to the creation of appellate-level precedent that will help image licensors everywhere in responding to many infringement claims, as it turns on harm to the licensing market.

Read the entire article here

Oracle defeats Google Fair Use Argument over Java Code Packets

(ORACLE AM., INC. V. GOOGLE LLC
No. 2017-1118, 2017-1202, 2018 WL 1473875 (Fed. Cir. Mar. 27, 2018)

by Nancy Wolff, DMLA Counsel

Last week the U.S. Court of Appeals for the Federal Circuit reversed the U.S. District Court for the Northern District of California’s ruling of fair use in Oracle America, Inc. v. Google LLC, and held that a verbatim and non-transformative taking in the presence of an actual or potential licensing market fatally undermined the defense. Oracle had sued Google for copyright infringement, alleging that Google had unlawfully used 37 packages of Oracle’s Java application programming interface – “pre-written Java source code programs” that serve as shortcuts for various computer functions to save programming time – in its Android-powered devices. Google copied verbatim 11,500 lines of Oracle’s copyrighted computer code as well as the structure, sequence, and organizing of the packages. After a second jury trial on fair use, Google prevailed on its fair use defense, and Oracle appealed after the district court rejected its post-trial motion for judgment as a matter of law.

The Federal Circuit disagreed with the district court’s assessment, and analyzed each of the four fair use factors in 17 U.S.C. 107. In particular, under the first factor (nature and purpose of the use), the court held that Google’s use of Oracle’s code was both commercial and not “transformative” because the purpose of the software packages in Google’s Android operating system was the same as the purpose of the package in Oracle’s Java platform; Google did not change the expressive content or message of the code; and use of the code in smartphones as opposed to other computer hardware did not constitute “new context.” As many courts do, the Federal Circuit did not pay much heed to the second factor (nature of the copyrighted work), but emphasized under the third factor (amount of the work used), that the taking at issue here was more than was defensible. For instance, there was no dispute that only 170 lines of code were needed to write in Java programming language, but Google copied 11,500 lines.

The court spent considerable time discussing the fourth factor (effect on the potential market), focusing on harm to actual markets for the copyrighted work, as well as the market for potential and derivative uses. The court noted that the record clearly showed actual market harm in that Oracle’s copyrighted works had already been used in mobile devices, that Google directly competed with Oracle using Oracle’s own code, and that the existence of the free Android operating system caused significant damage to Oracle’s negotiating position with third parties like Amazon. The district court also had failed to consider potential market harm, including licensing Java “for smartphones with increased processing capabilities”; importantly, the court observed that just because Oracle had never built its own smartphone device was irrelevant “because potential markets include licensing others to develop derivative works.” Because factors one and four weighed heavily against fair use (factor two weighed in favor, and factor three was likely against), the Federal Circuit reversed and remanded for a trial on damages.

Even in industries unrelated to computers, mobile devices, software, and source code, the court’s broad pronouncement that “[t]here is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform” is both powerful and beneficial to creators and licensors of copyrighted content. DMLA’s amicus brief with the support of the coalition of Visual Artists– and one of many amicus briefs in this hotly contested case– helped explain to the court of appeals the importance of licensing markets in fair use cases in general. Ultimately DMLA supported the winning argument and contributed to the creation of appellate-level precedent that will help image licensors everywhere in responding to many infringement claims, as it turns on harm to the licensing market.

TIME TO CONTACT YOUR CONGRESSIONAL REPRESENTATIVE REGARDING THE SMALL CLAIMS COURT BILL

Ask Your Congressional Representative to Vote in Favor of H.R. 3945 – A Bill to Create a Small Claims Court!

Dear Creators and Friends of the Creative Community,

The time is now to support creators and the creator community! In early to mid-April, the House Judiciary Committee will likely consider and vote on H.R. 3945, the Copyright Alternative in Small-Claims Enforcement Act (CASE ACT) of 2017, a bill that will create a copyright small claims court for professional creators and small businesses. Your representative in Congress needs to know that you support the bill. If you haven’t contacted your representative, now is the time to do so. And if you have contacted them, now is the time to remind them that the creative community needs their support.

For many photographers, illustrators, authors, songwriters, and other creators and small businesses that own copyrighted works, enforcing their rights is simply not feasible. Litigation is expensive and most of these creators can’t afford to enforce their rights in federal court. In effect, the U.S. copyright system provides creators with rights but no effective remedies. To address this problem, the U.S. Copyright Office released a study recommending the creation of a simplified process for resolving lower value copyright claims.

On October 4, 2017, Representatives Hakeem Jeffries (D-NY) and Tom Marino (R-PA), as well as Representatives Doug Collins (R-GA), Lamar Smith (R-TX), Judy Chu (D-CA), and Ted Lieu (D-CA), introduced H.R. 3945 to effectuate the Copyright Office’s recommendations. This bipartisan bill would create a voluntary small claims court within the U.S. Copyright Office to provide copyright owners with an alternative to the expensive process of bringing infringement claims in federal court. This new court, called the Copyright Claims Board (CCB) would provide an easy and streamlined process for creators – including the ability to conduct proceedings remotely. Most significantly, participation in the court is 100% voluntary and inexpensive.

Organizations representing individual creators and small businesses have already voiced their support. Now it’s vital that legislators hear directly from creators about the importance of this issue.

Please contact your representative to ask them to support H.R. 3945. We’ve provided a sample letter here that you can send, or feel free to modify it (or use your own letter).
You can also call your representative using the list of phone numbers here.
And you can tag or direct message him/her on Twitter. Please click here, and then click on the twitter icon for your representative.

The important thing is to let your voice be heard on this important issue!

For more information, please see the following:
A copy of the bill can be found here.
A summary of the bill can be found here.
Statements of support and other information about the bill can be found here.

Please join the Copyright Alliance, DMLA and all creative community to support this important bill. Information courtesy of the Copyright Alliance.

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.

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.

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

DMLA JOINS IN AMICUS BRIEF VHT v ZILLOW

DMLA joins in amicus brief in VHT v Zillow, supporting VHT’s award of statutory damages based on number of infringed images under a database group registration of photographs

On Monday December 18, 2017, DMLA joined NPPA, ASMP and GAG in submitting an amicus brief before the Ninth Circuit Court of Appeals in support of VHT, a real estate photography company against Zillow, an online real estate platform on the narrow issue of the proper calculation of statutory damages based on multiple infringed images registered using a database registration consisting predominantly of photographs. The appeal by Zillow argues, among other issues, that the district court erred in awarding statutory damages to VHT based on each image infringed having independent economic value, despite being registered under a single database registration of photographs, which Zillow argues should only entitle VHT to one award of statutory damages regardless of the massive number of images infringed. The relevant question in the Zillow case hinges on what a court considers a “work” under Section 504(c)(1) of the Copyright Act, each separate image filed within the application, or the database as a whole, which would be one work.

The amicus brief supports the view that the independent value test applied by the lower court, and previously adopted by the Ninth Circuit is the correct one. The amicus brief describes the historical background of the various group registration procedures designed by the U.S. Copyright Office, to ease the administrative burden of registration of photographs which has unique challenges given the amount of images a photographer can create in a day.  In particular, the database registration of photographs was developed with input from DMLA and its members (formerly PACA) to protect images distributed through online platforms, which formerly were distributed via published print catalogs. The amici argue that the form of registration should have no impact on whether the independent works covered by the registration should be considered a single work, entitled to a single statutory damage or multiple works entitled to damages for each work infringed. The outcome of the Ninth Circuit’s ruling could have a major impact on the ability of image libraries and their contributing photographers to recover appropriate damages from infringers who use more than one of their photographs without permission, based on group registration, particularly those in the Ninth’s Circuit’s jurisdiction which includes California, Oregon, Washington state, Idaho, Montana, Nevada, Arizona, Alaska and Hawaii.

The brief, which you can find here, was filed by NPPA’s Deputy General Counsel, Alicia Calzada, with support from DMLA’s attorneys Nancy Wolff and Marissa Lewis of Cowan, DeBaets , Abrahams and Sheppard LLP. An amicus brief on another important issue in the case—secondary liability—was filed in support of VHT by the Copyright Alliance (link: http://copyrightalliance.org/wp-content/uploads/2017/12/Copyright-Alliance-VHT-v-Zillow-Amicus-Brief.pdf ), where DMLA is a member.