Category Archives: Copyright Office

Case Act Takes Big Step Forward

June 24, 2019 — DMLA board member Rick Gell, spoke briefly with Nancy Wolff, DMLA’s Senior Legal Counsel, who has been in the trenches fighting for the CASE Act on behalf of our content licensing community. The Case Act just took a big step in Congress.

Nancy, briefly, what happened last week?

The Case Act was marked up by the Judiciary Committee of the Senate and will now move to the full Senate. We are still waiting for the House Judiciary Committee to mark up a similar bill.

I know a thing or two about IP Law, but nothing about Small Claims Courts. Can you provide a little background?

Because copyright is a federal law, copyright disputes can only be resolved in federal court, which is an expensive forum for the typical disputes involving the misuse of images and video. Just to start a claim, the filing fee is $400 and you need to use an experienced federal court attorney. Litigation can cost hundreds of thousands of dollars. Small claims courts most people are familiar with cannot be used because they are only for claims that can be brought in state court.

The UK established a copyright Small Claims Court in 2012 which is dedicated only to copyright cases. What is being proposed in Congress is to have claims of relatively lesser value resolved by a special tribunal at the Copyright Office. You would not need to have a lawyer and the claims could primarily be resolved on paper or by telephonic calls, without travel expenses.

So, if I understand this correctly, in a proposed copyright small claims court, both parties agree to appear before this tribunal and wave a trial by jury, therefore it is “voluntary”?

Yes. You can bring a claim in the copyright Small Claims Tribunal, and the other side can agree to use the tribunal or “opt out”. If the other party opts out, it can still be sued in federal court.

It creates a new pathway for those who allege their copyright has been infringed and those who are facing a claim of infringement. If your copyright claim is less than $15,000 for each instance, $30,000 in total – you are eligible.

When did the idea of using a Small Claims Court for IP start?

Many of us, including myself, have worked on enacting a copyright Small Claims Court for over ten years. The Copyright Office began studying this issue, conducted hearings and wrote a report in September 2013 recommending a separate copyright tribunal. The DMLA has been working with a coalition of associations of visual artists for many years, as well as the Copyright Alliance, Songwriters Guild, Authors Guild and many others, meeting with Congress and encouraging grassroots efforts by members to obtain sponsors for the CASE Act in both the House and Senate and to ultimately get this bill passed.

Who will the judges be?

The US Copyright Office will create a panel of three officials, who are experts in copyright law to oversee the process. This should encourage registration as there may finally be an affordable venue for enforcement.

There has been some recent opposition, primarily from the Electronic Frontier Foundation about encouraging copyright trolls. Can you speak to their concern?

The CASE Act in both the House and Senate have precautions against abuse and excessive filings. Creators are entitled to enforce copyright when their works are infringed. The use of the terms copyright troll is often misused and attributed to anyone trying to enforce copyright. Courts have generally reserved this term for attorneys who file a high volume of cases without trying to settle first, in order to obtain higher fees than are reasonable. It is not likely these attorneys will participate in this tribunal. If creators have a viable option, they can bring standard copyright claims in this tribunal without attorneys.

As the tribunal is optional, the EFF should not have any concerns as anyone can elect to opt out. The EFF often portrays copyright infringement as infringing on free speech, without properly recognizing copyright owners legitimate right to control the use of their works. The DMLA and our members are strong supporters of free speech and the Copyright Act provides limited use without permission under the fair use doctrine in keeping with the First Amendment. Copyright enforcement and free speech are not mutually exclusive and copyright infringement is not equivalent to censorship.

What is the next step?

When the full senate returns from vacation, hopefully Mitch McConnell will bring the measure to the floor for a full vote. Then on to the House.

DMLA Legal Update

by Nancy Wolff, DMLA Legal Counsel

On April 8, 2019 I participated in a Copyright Office roundtable on behalf of DMLA  regarding the Copyright Office’s preparation of a Section 512 report, which relates to immunity Internet Service Providers may be entitled to under the Digital Millennium Copyright Act if they comply with various provisions. The roundtable was intended to update the study’s record from 2017 and to review the law, especially the caselaw, that has changed in the intervening years. There were a few cases that looked at whether an ISP would lose the safe harbor immunity based on failure to adopt  a policy for repeat infringers, and further cases that have required actual notice of each URL that contains infringing material, eliminating or narrowing statutory language that includes notice based on facts or circumstances that would make one aware of the infringing activity (known as “red flag” knowledge”).

Participants were divided into four panels, three on domestic issues and one on international developments. Representatives from the Copyright Office asked direct questions on each of the four panels. The last panel on international developments  included comments the new EU directives that appear to require ISPs to take more responsibility in policing for infringements. At the end of the sessions there was an open mike.

Copyright Office representatives included Regan Smith, General Counsel, Brad Greenberg, Counsel for Policy & International Affairs, Kevin Amer, Deputy GC, Kimberley Isbell, Senior Counsel for Policy and International Affairs, and Maria Strong, Deputy Director of Policy and International Affairs.

Representatives from the content community including the Copyright Alliance, RIAA, MPAA, Authors Guild AAP, RIAA, NPPA and a few individual creators were in attendance. For the content side representatives of Google, Facebook and Etsy among others were there.  DMLA is a member of the Copyright alliance, whose staff prepared helpful summaries of the relevant cases that have been decided since the last panel

The themes discussed were similar to three years ago. The content industry saw no change in the burden of the notice and take down regime, and many were choosing to give up. The message was that cases have construed the statutory language in such a way that here is little incentive for ISP’s to cooperate in reducing infringing content. The content community was hoping that trends in the EU may spill over and help in the US.  Conversely, the IPS community believed that the statute and court cases struck the right balance.  The next step is for the Copyright Office to prepare a report to Congress. Whether Congress has an appetite to change Section 512 is another question.

United States Copyright Office Updated Draft of Compendium

The U.S. Copyright Office has released a public draft of an updated Compendium of U.S. Copyright Office Practices, Third Edition. On April 10, at 2 p.m. ET, the Office will hold a webinar to review the proposed revisions. The draft as well as the webinar can be accessed here. The updates reflect “changes to the Office’s practices and procedures, as well as recent changes in the law,” including the 2017 Star Athletica decision, the Fourth Estate case, and various rulemakings and proposals. Comments are due by May 14. More information is available here.

Two Unanimous Supreme Court Opinions Regarding the Copyright Act

It was an eventful day for copyright law on Monday, March 4, as the Supreme Court of the United States issued two unanimous opinions, both involving provisions of the Copyright Act.  The decisions were fittingly both issued on the 110th anniversary of the 1909 Copyright Act. The office of our counsel, Nancy Wolff, Cowan, DeBaets, Abrahams & Sheppard LLC,  wrote a review of these decisions and how they will impact copyright infringement cases going forward.

You can read the review of Public Benefit Corp v Wall Street.com and LLC and Rimini Street , Inc v Oracle USA, Inc. here

Supreme Court Hands Down Critical Decisions in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLCand Rimini Street, Inc. v. Oracle USA, Inc.,Resolving Circuit Splits Over Interpretation of Copyright Act Provisions

It was an eventful day for copyright law on Monday, March 4, as the Supreme Court of the United States issued two unanimous opinions, both involving provisions of the Copyright Act.  The decisions were fittingly both issued on the 110th anniversary of the 1909 Copyright Act.

In the first case, Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC,No. 17–571, the Court, in an opinion authored by Justice Ginsburg, resolved a long-standing circuit split over whether a copyright owner can sue in federal court with only a copyright application in hand, or whether a completed registration is necessary.  The Court held that “registration . . . has been made” under Section 411(a) of the Copyright Act—and thus an infringement suit may be instituted—when the Copyright Office grants or denies registration after evaluating the copyright application (coined the “registration approach”) rather than when a copyright owner merely submits the application, materials, and fee required for the registration to begin processing (the “application approach”).

In the second case, Rimini Street, Inc. v. Oracle USA, Inc., No. 17-1625, Justice Kavanaugh delivered the option for the Court, holding that Section 505 of the Copyright Act, which allows a party to recover “full costs,” does not authorize appellate courts to award litigation costs beyond the categories enumerated by Congress in the general costs statute codified at 28 U.S.C. § 1821 and § 1920.  Such “costs” are limited to fees for the clerk and marshal; transcript, copyright, and docketing fees; disbursements for printing and witnesses; and the compensation of court-appointed experts and certain special interpretation services. The Court rejected Oracle’s position that “full costs” under Section 505 included expert witness fees, electronic discovery expenses, and jury consultant fees.

Both of the Court’s determinations are instructive, as they clarify the legal landscape for copyright litigants who have been grappling with inconsistent applications of the Copyright Act for years.

The “registration approach” adopted in Fourth Estateincentivizes copyright owners—more than ever—to register works with the Copyright Office and will likely incite an uptick in registrations. While there were many benefits to registration prior to this decision, now, if a copyright owner fails to register works prior to discovering an infringement, she will have to wait an average of seven months to sue (the Copyright Office’s average processing time), and the work may continue to be infringed without recourse in the interim.  There is, of course, the option of invoking the Copyright Office’s Special Handling process, but it comes with a $800 special handling fee, which may not be an attractive or feasible alternative for some.

Furthermore, creators who have yet to register works and are running up against the three-year statute of limitations for infringement may be out of luck if they file an application and the Copyright Office does not process it in time.  The best practice for content owners is to apply for registration as soon as possible, even before infringement is anticipated or suspected.  Those who have filed lawsuits based on applications that have not yet been processed should take advantage of the Special Handling process, if possible, otherwise the claim may ultimately be dismissed as untimely.

The limitation on recoverable fees fashioned by the Rimini Street decision may also have far-reaching implications, especially for individual creators and litigants who cannot bear high litigation costs without the chance for recovery.  The ruling sounded a death knell for a copyright litigant’s ability to recover fees for expert witnesses, electronic discovery platforms, and jury consultants, which have become increasingly prevalent in copyright cases in the digital age.

For example, while music and software cases have almost always involved experts, matters involving “viral” infringements often call for specialized experts to address novel copyright issues.  In such highly technical cases, retention of a knowledgeable expert may make or break the case, making the choice of whether to hire without the option for recovery of those fees all the more difficult, especially for those unable to afford the costs.  Additionally, as the use of e-discovery platforms has become nearly ubiquitous, payment for such services has become a necessity for a litigant to maintain an equal footing with their opponent.

The Rimini Street ruling will certainly force copyright litigants to face difficult decisions in how they want to proceed with their case, especially if they are facing an opponent with deep pockets who can afford to hire numerous experts, pay for e-discovery platforms, and retain jury consultants.  Clients should discuss their financial limitations with counsel before deciding to commence a copyright action or how to defend against a copyright action, as they may have to bear the burden of certain unrecoverable costs to prevail.

 

Copyright Office Releases “Copyright and Visual Works: The Legal Landscape of Opportunities and Challenges”

The U.S. Copyright Office has submitted a letter to Congress detailing the results of the Office’s public inquiry on how certain visual works, particularly photographs, graphic artworks, and illustrations, are registered, monetized, and enforced under the Copyright Act of 1976. The Office sought commentary on the marketplace for these visual works, as well as observations regarding the real or potential obstacles that creators and users of visual works face when navigating the digital landscape. A number of stakeholders raised specific issues they face on a regular basis regarding current copyright law and practices that fall within three general categories: (1) difficulties with the registration process; (2) challenges with licensing generally and monetizing visual works online; and (3) general enforcement obstacles.

The Copyright Office takes these concerns seriously and has already taken steps to address them where it can, most notably with the ongoing Office modernization efforts in preparation for a wholesale technological upgrade to the Office’s systems. In other areas, the Office finds that legislative action is the best solution. The Office continues to strongly support the idea of a small copyright claims tribunal, as well as a legislative solution to the orphan works conundrum. Congress’ action in these two areas would go far to alleviate several important concerns raised by visual artists.

The letter, public comments, and background material are available on the Copyright Office website here

Copyright Office Fee Increase Survey

Dear DMLA Members and Friends of DMLA:

The U.S. Copyright Office has released a Notice of Proposed Rulemaking announcing fee increases for copyright registration and other services. The proposed fee increases are based on a Study Report released by the U.S. Copyright office. Fee increases for services will be implemented as the U.S. Copyright Office moves forward with their plans for IT modernization.

Visual creators’ professional organizations and advocates are concerned about how these fee increases will affect visual creators, licensing agents, and related professionals. We will be submitting a Comment Letter to the U.S. Copyright Office about the proposed fee increases. We have created a survey to gather information and feedback from creators who will be impacted by registration fee increases. We will be submitting the survey results to the Copyright Office. The survey is completely anonymous.

We need your help by taking 15 minutes for a short survey. The survey is anonymous and all responses are confidential. We will use this data to support our response to proposed changes in U.S. copyright registration.

The survey will close at midnight on September 7, 2018.

 2018 Copyright Office Proposed Registration Fee Increase survey LINK https://www.surveymonkey.com/r/GGV59XY

Survey link for social media https://www.surveymonkey.com/r/WY67XHK

Please pass this along to other artists, photographers, and related professionals you know and urge them to take the survey, too!

Sincerely,

The Coalition of Visual Artists:

American Photographic Artists

American Society of Media Photographers

Digital Media Licensing Association

Graphic Artists Guild

National Press Photographers Association

North American Nature Photography Association

Professional Photographers of America

PLUS Coalition

American Society for Collective Rights Licensing

Eugene Mopsik

Shaftel & Schmelzer

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.”

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!

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.