Category Archives: Copyright

Tech Giants Win a Battle Over Copyright Rules in Europe

https://mobile.nytimes.com/2018/07/05/business/eu-parliament-copyright.html

European Parliament lawmakers rejected a bill backed by news outlets and music publishers to restrict the use of their content on platforms like YouTube and Facebook.Frederick Florin/Agence France-Presse — Getty Images

 

It’s a fight nearly as old as the internet.

On one side are news organizations, broadcasters and music companies that want to control how their content spreads across the web, and to be paid more for it. On the other are tech companies such as Facebook and Google, which argue that they funnel viewers and advertising revenue to media outlets, and free-speech advocates, who say that regulating the internet would set a dangerous precedent and limit access to information.

That battle flared up in Europe on Thursday. Two powerful industries faced off — technology against media, platforms against publishers — in an unusually aggressive lobbying campaign in the European Parliament over a bill that would impose some of the world’s strictest copyright laws, which would have required tech companies to filter out unlicensed content and pay for its use.

On this occasion, tech prevailed; the proposal was voted down.

The decision came amid broader efforts in Brussels to rein in tech giants. European regulators have already brought in tough new privacy rules, and are considering enhancing them. They have hit Silicon Valley companies with hefty antitrust fines, and are investigating them over their tax practices and handling of data. And like elsewhere in the world, they are increasingly skeptical of the argument made by internet companies that they are simply impartial platforms that cannot be held responsible for what is posted on their pages.

“Making content available on the internet does not come without responsibility,” said Eleonora Rosati, an associate professor on intellectual property law at the University of Southampton’s law school in England, who has been tracking the bill. “Rights holders want to control how their content is made available, shared and indexed.”

But after a well-coordinated effort by companies including Facebook, Google, Reddit and Wikipedia, as well as a grass-roots campaign by backers of an open internet, the European Parliament on Thursday rejected the proposed copyright law. Though lawmakers can still revise the bill and call another vote, the result is a blow to media companies that had believed that, if ever there was a good time to impose tougher rules on tech giants, this was it.

Media businesses like Axel Springer of Germany have become frustrated because even as their content has spread online, it is platforms like YouTube, owned by Google, and Facebook that have grown into advertising powerhouses on the back of the material.

Those media companies have been seeking a rewrite of Europe’s copyright laws that would give them more power to restrict how their content is distributed. They also cited concerns that Silicon Valley was not playing a strong enough gatekeeper role when it came to curtailing hate speech, violent extremism and fake news.

Supporters of the bill argued that stricter copyright laws would give content creators more leverage against internet behemoths such as Google. Publishers have long complained that such companies profit from the work of others.

“The real issue is Google’s market power,” said Lionel Bently, a law professor at the University of Cambridge who focuses on copyright. “The content industry feels it can’t negotiate on a level playing field.”

Influential policymakers in Brussels such as the president of the European Commission, Jean-Claude Juncker, have seemed receptive to such arguments. A proposal was put forward to require websites to use filtering technology to block unlicensed content from being posted and to obligate them to pay fees for news articles and other material posted online.

The proposed rules would have added up to a sweeping change to copyright law.

Operators of websites have long been protected from liability when unlicensed content is posted by a user. Instead, they are required only to remove infringing material once it is brought to their attention. In effect, if someone posts a movie clip on YouTube, or shares the text of an article on Reddit, those websites are not held legally liable.

The new European proposals would put more responsibility on website owners, creating a potentially costly problem for sites that depend on user-generated material.

The most contentious provision of the plans would require websites to use filtering software to screen such content before it was posted. YouTube already has a system to weed out unlicensed material, but the European rules would have gone further by requiring others to use similar tools. Another requirement, favored by book and news publishers, would prevent websites from using pieces of their content without authorization.

Critics of the bill argued that it would lead to many unforeseen consequences, warning that it could even affect satirical content or the use of images in internet memes. They said it would restrict what was available online, and some described a provision requiring permission before websites used publishers’ content as a “link tax.”

“There’s no way that those algorithmic filters are going to be able to decide that something is fair use, parody, a meme or a mash-up,” said Danny O’Brien, international director of the Electronic Frontier Foundation, a digital rights nonprofit group that opposed the bill.

In defeating the proposal, the technology industry showed that it still held considerable influence, even as it has faced widespread criticism over privacy violations, the spread of misinformation, accusations of anticompetitive business practices and concerns about smartphone overuse.

The coalition against the proposal that came together over the past month was similar to defenders of net neutrality in the United States, a mix of corporate giants and open internet activists. They said the copyright bill would limit the access to information and would overburden operators of websites, especially those without the resources of an American tech giant, with the costly task of screening user-generated content before posting it.

Wikipedia blocked access to articles on its site in many European countries and encouraged its users to call on their representatives in the European Parliament to vote against the proposal. Scientists credited with creating the internet sent a letter urging that it be rejected. Even David Kaye, the United Nations rapporteur on the protection of freedom of expression, raised concerns.

Wikipedia said on its website that the measure “threatens online freedom and creates obstacles to accessing the web, imposing new barriers, filters and restrictions.”

Lobbying ahead of the vote was “extraordinary, something we don’t experience on a normal basis here in the Parliament,” said Umberto Gambini, a senior aide to Ramon Tremosa, a Spanish member of the European Parliament.

Mr. Gambini said he had received hundreds of messages from individuals and organizations attempting to win Mr. Tremosa’s support. There was one from a Polish business group, he said, another from an artists’ organization, and others still from news publishers and associations representing tech companies.

He added that one message had come from the musician Paul McCartney, who wrote to members of the European Parliament in support of the tighter copyright rules.

But Mr. McCartney’s efforts were in vain: Mr. Tremosa ultimately opposed the bill.

BREAKING: High Court To Tackle Copyright Registration Circuit Split

The U.S. Supreme Court on Thursday agreed to resolve a long-simmering circuit split over whether copyright owners must fully register their works before suing.

The justices granted a petition for writ of certiorari in the case of Fourth Estate Public Benefit Corp. v. Wall-Street.com LLC, allowing them to answer a question that has split the circuits: What exactly the Copyright Act means when it says a work must be “registered” prior to the filing an infringement lawsuit.

In several circuits, copyright owners can sue as soon as they file the application paperwork with the U.S. Copyright Office; in others, they can’t sue until the office actually registers or takes action on the application, which can take many months if they don’t pay a significant fee for expedited handling.

Fourth Estate, a journalism collective, sued Wall-Street.com for reposting articles without permission in March 2016. But a federal judge tossed the case two months later, saying Fourth Estate had filed its lawsuit before it had fully registered the copyrights for the articles.

The Eleventh Circuit affirmed that decision in May, telling Fourth Estate that “filing an application does not amount to registration.”

The ruling came after the U.S. solicitor general urged the justices to tackle the issue and affirm the Eleventh Circuit’s position.

“The text, structure, and history of the Copyright Act confirm that the register must have acted on an application for copyright registration — either by approving or refusing registration — before the copyright owner may institute a copyright-infringement suit,” the government wrote. “Petitioner’s contrary arguments are unavailing.”

Keep Fighting for Artists’ Rights!

The letters that are being sent are starting to make a difference so don’t stop!

More members of the House Judiciary Committee need to be paying attention to H.R. 3945 – CASE Act!

Keep up the fight by sending a letter each week! The more we send, the closer we’ll be to getting the copyright protection YOU deserve!

You can find your a sample letter and your representative here.  It’s easy.  Just do it!

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!

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.

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.