Mid-Year Copyright Review (Part 1 of 2)

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It’s July, which means it’s time for our mid-year copyright review in which we look at the progress of copyright issues in Congress, the Courts, the Copyright Office, and abroad.

This is the first part of a two-part blog. In this first part, we will explore copyright issues in Congress, and the Courts.

Legislation

Usually by this time of the year there have been several copyright bills that have been introduced and are at different stages of consideration. That is not the case this year. This year, both the House and Senate seem to be focusing their collective support on one bill.  That bill is…

The Copyright Alternative in Small-Claims Enforcement Act of 2019 (CASE) Act: The CASE Act was introduced on May 1 in the House (H.R. 2426) by Representatives Hakeem Jeffries (D-NY) and Doug Collins (R-GA), and in the Senate (S. 1273) by Senators John Kennedy (R-LA), Thom Tillis (R-NC), Dick Durbin (D-IL), and Mazie Hirono (D-HI). The original House co-sponsors include: House Judiciary Committee (HJC) Chairman Jerry Nadler (D-NY) and HJC Intellectual Property Subcommittee Chairman Hank Johnson (D-GA), as well as Martha Roby (R-AL), Judy Chu (D-CA), Ben Cline (R-VA), Ted Lieu (D-CA), and Brian Fitzpatrick (R-PA). The legislation, which is based on the 2013 recommendations of the U.S. Copyright Office, would create a voluntary small claims board within the Copyright Office that will provide copyright owners with an alternative to the expensive process of bringing copyright claims, including infringement and misrepresentation under 512(f), in federal court. This new board, called the Copyright Claims Board, would allow recovery in each case of up to $30,000 in damages total, with a cap of $15,000 in statutory damages per work infringed. At the end of June, the bill was supported by over 40 national groups representing creators of photographs, music, literary works, software and other works, and hundreds of regional groups across the country, and was co-sponsored by close to 50 Representatives and Senators, which is over triple the number of co-sponsors the bill had all last session. The bill has not been considered by either the House or Senate Judiciary Committees yet, but that may happen soon. More information about the bill is available on the Copyright Alliance’s compilation page here.

Other copyright legislation that is also likely to be re-introduced and considered later this year includes the Register of Copyrights Selection and Accountability Act and the American Royalties Too (ART) Act.

The Courts

Without a doubt, most of the copyright-related activities taking place this year have been in the courts. The Supreme Court decided two copyright cases – unanimously and on the same day –and decided to take on two more, which will be heard next session.

The most impactful of the two copyright cases decided by the Court was…

Fourth Estate v. Wall-Street.com, a case determining whether the registration requirement for initiating an infringement suit in federal court in Section 411 of the Copyright Act is satisfied by the “application approach” or “certificate approach.” The Court heard oral arguments (transcript, audio) on January 8, 2019, and then on March 4, the Court issued a unanimous decision holding that registration, under section 411 of the Copyright Act, occurs when the Register acts to either complete a registration or refuse it. What this means is that copyright owners must wait for Copyright Office action before filing a lawsuit for copyright infringement. The opinion, authored by Justice Ginsburg, does note that “the statutory scheme has not worked as Congress likely envisioned. Registration processing times have increased from one or two weeks in 1956 to many months today,” which is “attributable, in large measure, to staffing and budgetary shortages that Congress can alleviate, but courts cannot cure.” This statement has caught the eye of Congress, which may be looking for ways to help the Office reduce application processing times.

The second case was…

Rimini Street v. Oracle. On March 4, the Supreme Court held that the Copyright Act’s allowance of “full costs” to a prevailing party as provided in section 505 of the Copyright Act is limited to taxable costs under 28 U.S.C. §§ 1920 and 1821. On April 16, the Ninth Circuit on remand then vacated the award of $12.8 million to Oracle in non-taxable costs.

The two cases the Court decided to hear in the upcoming term are:

Allen v. Cooper, in which the Court will decide whether a state entity is shielded from liability for copyright infringement by sovereign immunity. The Court of Appeals for the Fourth Circuit issued a decision on July 10, 2018, reversing the district court’s decision that the state entity was not protected by sovereign immunity and holding that Congress did not validly abrogate Eleventh Amendment immunity when it enacted the Copyright Remedy Clarification Act (CRCA).

The other case the Court will decide is Code Revision Commission v. Public.Resource.org. The issue in this case is whether the Official Code of Georgia Annotated (OCGA) is eligible for copyright protection. The Court of Appeals for the Eleventh Circuit held that “where the official who created the work is entrusted with delegated sovereign authority, where the work carries authoritative weight, and where the work was created through the procedural channels in which sovereign power ordinarily flows – it follows that the work would be attributable to the constructive authorship of the People, and therefore uncopyrightable,” finding the OCGA uncopyrightable as a result. This case has often been incorrectly portrayed as being about whether the law itself is protected by copyright, when in fact the case is about annotations to the law (such as cross references, commentaries, and case notations.)

But the Supreme Court did not have a monopoly on important copyright cases this year. Other important copyright cases include:

Dr. Seuss Enterprises v. ComicMix. The case involves a copyright infringement lawsuit brought by owners of Dr. Seuss copyrights against publisher of a “mash-up” book, Oh the Places You’ll Boldly Go, which set Seuss’s Oh the Places You’ll Go in the Star Trek Universe. On March 12, in Dr. Seuss Enterprises v. ComicMix, on a motion for summary judgement, the U.S. District Court for the Southern District of California ruled in favor of the defendants, holding that the mash-up, which the court called “highly transformative” and described as furthering the goals of copyright, was permitted by fair use. Plaintiffs filed an appeal to the Ninth Circuit on March 26.  This is an important fair use case that seems to be wrongly decided.

Another fair use case that was wrongly decided by the district court and overturned by the appellate court was Brammer v. Violent Hues Productions. In that well-publicized case, the lower court held that the Northern Virginia Film Festival’s unauthorized use of Brammer’s photo on its website was protected by fair use. The court reasoned that the use was transformative, and thus fair, because “Brammer’s purpose in capturing and publishing the photograph was promotional and expressive, [while the defendant’s] purpose in using the photograph was informational to provide festival attendees with information regarding the local area.” The court also determined that the defendant’s use did not adversely affect the market for the photograph, the fourth fair use factor, because Brammer had licensed the photograph at least two times since the alleged infringement. But, on April 26, the Fourth Circuit reversed the district court, holding that defendant’s copying of a photo only provided minimal changes to the photo’s content and context and was thus not transformative. The Circuit also reversed the district court’s findings on the remaining fair use factors.

Another case worth highlighting is the very recent decision in Green v. Dept of Justice.  On June 27, the District Court of DC issued a long-awaited decision in Green v. DOJ, granting in part and denying in part defendants’ motion to dismiss a challenge brought by security researchers, represented by the Electronic Frontier Foundation (EFF), to Section 1201’s anticircumvention and antitrafficking provisions. The court dismissed the claims that Section 1201 is a facially overbroad First Amendment violation and that it is an unconstitutional prior restraint. It did hold that plaintiffs adequately pled an as-applied First Amendment challenge: the court determined that the anticircumvention and antitrafficking provisions trigger intermediate scrutiny because they are content-neutral, but they burden substantially more speech than is necessary to further the government’s interest. The court noted that it must take the facts alleged by plaintiffs in the complaint as true and construe them in the light most favorable to the plaintiffs; at this juncture, any facts supporting the government’s assertion that “the anti-trafficking restriction in [section] 1201(a)(2) would be less effective if individuals and companies such as [p]laintiffs were allowed to disseminate decryption technologies, even if they intended the dissemination to serve a limited purpose,” and that they “would undermine the effectiveness of access controls, thus interfering with the online market for copyrighted works by deterring copyright owners from making works available online at all” were not in the record. Finally, the court held that the triennial rulemaking process is not subject to the Administrative Procedure Act (APA). The court concluded that while the Copyright Act subjects the Register of Copyrights to the APA, the APA only applies to a “final agency action”, and the triennial rulemaking process is consummated by the Librarian of Congress (based on the recommendation of the Register). The Librarian, the court here held, is not subject to the APA.

There were many other significant copyright cases decided in the first half of 2019, including VHT v. Zillow, BWP Media v. Polyvore, Disney v. VidAngel, and Gold Value International Textile v. Sanctuary Clothing.  For more on these and other important copyright cases please click here.

Keith Kupferschmid

Author: Keith Kupferschmid

Before joining the Copyright Alliance, Keith served as the General Counsel and Senior Vice President for Intellectual Property for the Software & Information Industry Association (SIIA). During his 16 years at SIIA, he represented and advised SIIA member software and content companies on intellectual property (IP) policy, legal and enforcement matters. He has testified before Congress and various federal and state government agencies on IP issues and also supervised SIIA’s Anti-Piracy Division, including working with federal and state government officials on civil and criminal piracy cases. Prior to joining SIIA, Keith worked as an IP attorney at the law firm of Finnegan, Henderson, Farabow, Garrett & Dunner, IP attorney-advisor at the U.S. Patent and Trademark Office (PTO), Director of Intellectual Property at the United States Trade Representative, and Policy Planning Advisor at the U.S. Copyright Office.

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