Depending on whom you ask, Internet Archives’ Great 78 Project” is either an attempt to digitize and preserve old vinyl records from the early to mid-20th century’s iconic artists or it is “blatant copyright infringement” and the “wholesale theft of generations of music.” It looks like the courts will have the final say.

In a complaint filed August 11th in Manhattan federal court, Universal Music, Sony Music , and Concord are suing the Internet Archive, its founder, Brewster Kahle, and George Blood, an audio engineer who worked on the Great 78 Project, for copyright infringement of songs that the project digitized and stored on the site. The plaintiffs are asking for statutory damages that could amount to $412 million.

At the heart of this complaint are pre-1972 songs, which were previously not covered by federal sound recording copyrights until Congress passed the Music Modernization Act of 2018 that extended the copyright protection for these recordings.

Calling it a “massive, unauthorized, digital record store of recordings,” attorneys for the plaintiffs claim that hundreds of thousands of songs have been copied illegally, however, the suit specifically is about 2,749 iconic songs – maybe most notably Bing Crosby’s “White Christmas,” but also well-known recordings by Frank Sinatra, Ella Fitzgerald, Duke Ellington and others.

The plaintiffs claim Internet Archive did not need to preserve these iconic recordings because they are widely available on streaming sites that have obtained rights to the songs legally.

In a statement, Kahle said that they are reviewing the lawsuit with legal counsel but defended the project by saying it had “preserved hundreds of thousands of recordings that are stored on shellac resin, an obsolete and brittle medium.” Kahle went on to say that he saw no reason why sites like Spotify, that sell recordings to consumers, and the library of music on Internet Archive should not be able to co-exist.

Understandably, attorneys for the plaintiffs argued that when Internet Archives “exploits Plaintiffs’ sound recordings without authorization, neither Plaintiffs nor their artists see a dime. Not only does this harm Plaintiffs and the artists or their heirs by depriving them of compensation, but it undermines the value of the music.”

Internet Archives is no stranger to copyright litigation. The non-profit recently lost a case filed against it by book publishers regarding its “National Emergency Library” where it published “vast troves” of digital books during the COVID pandemic without owning the rights to the same.

Plaintiffs argue in the present case that this history of opposing copyright laws under “the ill-fitting mantle of fair use” demonstrates that Internet Archives “willfully disobeys the copyright laws of which it is acutely aware.” They have demanded a jury trial.

Andy Warhol, Pittsburgh native, died in 1987 and the rock musician Prince died in 2016, but they were at the center of a recent U.S. Supreme Court case, where the court upheld, by a 7-2 vote, the copyright claim of photographer Lynn Goldsmith.

The events that precipitated the disputed case began in 2016, but the history goes back to 1981, when Goldsmith took a photo of Prince. Three years later, the magazine Vanity Fair commissioned Andy Warhol to make a series of silk screen prints of Goldsmith’s original photograph and paid the photographer a one-time usage fee of $400 plus a photo credit to permit Warhol to make the prints. So far so good.

After Prince’s death in 2016, the Andy Warhol Foundation licensed one of Warhol’s silk screens of Goldsmith’s photograph to Vanity Fair for use with an article they were going to publish about the musician. Goldsmith sued saying that the silk screen print violated her copyright. The foundation’s defense was that Warhol’s print was considered “fair use,” meaning Warhol had transformed Goldsmith’s original image enough that it couldn’t be considered copyright infringement.

The case was brought to federal district court, which ruled in favor of the foundation. That ruling was overturned by the U.S. Court of Appeals, and the case was appealed to the Supreme Court.

Writing for the majority, Justice Sonia Sotomayor wrote, “Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists…Such protection includes the right to prepare derivative works that transform the original.”

She added, “The use of a copyrighted work may nevertheless be fair if, among other things, the use has a purpose and character that is sufficiently distinct from the original. In this case, however, Goldsmith’s original photograph of Prince, and AWF’s copying use of that photograph in an image licensed to a special edition magazine devoted to Prince, share substantially the same purpose, and the use is of a commercial nature.”

The dissenting opinion, written by Justice Elena Kagan and joined by Chief Justice John Roberts, lamented that the court’s decision would “stifle creativity of every sort.”

Whether the ruling does or doesn’t stifle future creativity, most observers feel, including our copyright practice team, that the Court’s decision reconfigured the fair-use test, but with less clarity and more uncertainty than many had hoped. Fair use traditionally is invoked to allow the unauthorized use of copyright protected works under certain circumstances. Those circumstances usually apply to artistic expression in the interest of parody, education, and criticism, to name just a few.

In this ruling, the Court focused on whether the licensing of Warhol’s image violated Goldsmith’s copyright, and not with whether Warhol’s art violated Goldsmith’s copyright in the first place. By limiting its ruling, the Court’s decision will no doubt result in additional copyright infringement cases in the coming years.

Thirty-five years after he died, Pittsburgh native Andy Warhol will be at the center of a U.S. Supreme Court case this month to determine if he violated copyright law.

Three years before his death in 1987, Warhol created a painting of the rock star Prince that was based on a photograph taken by Lynn Goldsmith, a renowned photographer in her own right, in 1981.

The question the court will answer is whether Warhol transformed Goldsmith’s original image enough to make his painting distinct from Goldsmith’s photograph, or whether he violated copyright law in using the image without permission.

So far, a federal court in Manhattan decided that Warhol did not violate copyright law, but the U.S. Court of Appeals for the Second Circuit sided with Goldsmith. In its ruling, the appeals court stated the painting was “substantially similar to the Goldsmith photograph as a matter of law.” That ruling was appealed to the U.S. Supreme Court by the Andy Warhol Foundation for the Visual Arts, which argued that the appeals court ruling threatened an entire genre of art and that, if left to stand, would necessitate landmark change in copyright law.

In the simplest terms, copyright, as it applies to artistic work in any form, begins once the artist creates the painting, photograph, story, or musical composition, and protects the artist’s right to make and sell copies of it, distribute those copies, make new works from it, and (when applicable) publicly display or perform the artistic work. Copyright for an artistic work lasts for the life of the author plus an additional 70 years.

Some artists will take the additional step of registering their work through the U.S. Copyright Office, which requires an application, filing fee, and a copy of the artwork. The Copyright Office then reviews the application to ensure that the work is eligible for copyright protection. By registering their work, artists then have a certificate of registration, which is necessary if they wish to sue someone for copyright infringement.

Copyright law also provides for others to use the artwork under certain conditions, known as the “Fair Use” provisions that include uses for criticism, comment, news reporting, teaching, scholarship or research. So, for instance, using the artwork to write a review or criticism of the work is permissible. Where the law gets hazy and becomes harder to judge is when someone takes another person’s work, modifies it in some way, and then displays or sells it as his or her own work. Did the second artist transform the original work enough so that it could be considered a new work of art or is it a violation of the original artist’s copyright? That is the question before the Supreme Court this month, and it will be interesting to see how it decides.

Balancing intellectual property rights concerning the COVID 19 vaccine while serving the public good is the dilemma facing our global population today.  Failure to strike a balance creates a conflict between those living in developing countries and those in high-income nations. 

In response to the current vaccine access problem, South Africa and India have presented a proposal to the World Trade Organization (WTO) to waive intellectual property rights for COVID-19 medical products during the pandemic. While Europeans and North Americans account for over 50% of the administered vaccination population, poorer countries have only been able to vaccinate approximately 1% of their populations.

Proponents believe that temporarily waiving intellectual property rights for COVID-19 vaccines will help  ramp up production. Those countries opposing this concept argue that this would not result in increased production.

Why will an IP rights waiver not increase COVID vaccine production? 

What is involved Patents provide creators of new inventions, including innovative vaccines and medicines, with a limited-term monopoly.  Specifically, patents provide inventors a 20-year window, during which time other companies cannot reproduce the product.  The patent provides an incentive to invent and help recover the costs of research and development.  

It is no secret that vaccines generate enormous revenues.  According to Fierce Pharma, the COVID-19 vaccines should produce $18 billion per quarter for the drug companies.  In the 1950s, Dr. Jonas Salk developed the polio vaccine and was a recipient of the 1954 Nobel Peace Prize as a result.  How much money did Dr. Salk generate from his patent?  When being interviewed, he was asked who owns the patent.  Salk’s reply was, “…the people.  There is no patent.  Can you patent the sun?” He wanted the vaccine readily available to the public, which battled the disease that paralyzed over 35,000 children each year in the early 1950s.

Is this a legal or moral dilemma?

Balancing intellectual property rights is complex. Waiving patent rights during COVID is being addressed on an international level and raises both legal and ethical questions. With questions as complex as the public health questions created by COVID, it is not likely we will see an easy answer soon.

In today’s global marketplace, every product has potential global intellectual property issues. Ference & Associates has been managing complex patent and trademark portfolios in over 100 countries for decades. 

A decade-long copyright battle has ended with the Supreme Court landmark ruling in favor of Google. This decision lays a foundation for future software copyright cases, but the decision leaves many asking, “Is cutting and pasting software code actually fair use?”

Google v. Oracle started in 2010 when Oracle filed suit against Google alleging that Google’s unauthorized use of 37 packages of Oracle’s Java application programming interface (API) packages in its Android operating system (OS) infringed Oracle’s patents and copyrights.

• In 2016 a District Court found that Google had not violated copyright laws because of fair use and that the API packages were not copyrightable.
• Oracle appealed this finding, and in 2018 the United States Court of Appeals for the Federal Circuit disagreed with the 2016 ruling, finding that the Java API packages are entitled to copyright protection.
• Google appealed the Federal Circuit decision to the Supreme Court in January 2019.

It is undisputed that Google copied verbatim the declaring code of the 37 Java API packages— 11,500 lines of Oracle’s copyrighted code. It also copied the SSO (Single Sign-on) of the Java API packages. Google then wrote its own implementing code.

The debate centers on:

• Did Google copy others’ original and valuable work as a matter of its own convenience and for financial gain?
• Did Google follow the long-accepted industry practice of re-using software interfaces that provide sets of commands that make it easy to implement common functionality?

The Supreme Court had to address:

1. Does copyright protection extend to a software interface (were the 11,500 lines of software code at issue copyrightable)?
2. Does the use of a software interface in the context of creating a new computer program constitute fair use?

Rather than answer if copyright protection extends to a software interface, the Supreme Court distinguished between declaring code and implementing code.  The Court then applied the Copyright Act’s four guiding factors to assess fair use.

1. The purpose and character of the use. The Court assessed Google’s use as transformative.  Google integrated only selected elements and added its own implementing code.
2. The nature of the copyrighted work. The Court recognized the declaring code and SSO were creative enough to qualify for copyright protection. However, in their words, “they were not highly creative,” and that “functional considerations predominated in their design.”
3. The amount of the portion used in relation to the copyrighted work as a whole. The Court realized Google copied only so much of JAVA code that was reasonably necessary for a transformative use and that the number of lines duplicated amounted to 0.4% of the relevant universe of code.
4. The effect of the use upon the potential market for or value of the copyrighted work. The Court found that declaring lines of code in Android caused no harm to the market for the copyrighted works.

This case took over ten years to reach conclusion with the Supreme Court’s decision, which illustrates the many exceptional characteristics of software copyright protection.  Rather than spend a decade trying to protect your IP, employ the experienced counsel of Ference & Associates to secure copyright protection for your software products.  Reach them today at 412.741.8400 or by email at contact@ferencelaw.com.

Section 512 of Title 17 was enacted in 1998 as part of the Digital Millennium Copyright Act (DMCA).  Since its enactment 22 years ago, there have been dramatic and rapid changes to the internet, but the DMCA has not been changed to accommodate today’s global high-tech advancements.  Section 512 is a key provision of copyright law that guides how copyright and parts of the internet interact with each other.

Creators, independent artists, authors and musicians have suffered during COVID-19 with wide-ranging dependency on an online ecosystem, and with that, a continual rise of online piracy.  Artists face a difficult task in attempting to police the use of their copyrighted content online.  Today’s incalculable rate of infringement leads to questioning whether the balance that Congress sought in 1998 is still being achieved in 2020.

Is Section 512 due for a facelift?  Modernizing the DMCA has been a topic of much discussion and investigation since Sen. Thom Tillis (R-NC), Chairman of the Senate IP Subcommittee announced his initiative on December 17, 2019 (in a letter to The Hill).  The Subcommittee is evaluating the current status of the DMCA and determine how the law should be amended to properly address current issues.  Senator Tillis launched this effort to modernize the DMCA by evaluating the current practices and operations of both platform services and creators.  The Subcommittee is exploring ways to better promote the creative economy in the 21^st century while maintaining these original goals of Section 512: 

• Promoting the growth and innovation of online networks.
• Protecting intellectual property rights and that incentive system for promoting the creation of new expressive works.

The U.S. Copyright Office is also studying how the DMCA can be amended to be effective in today’s modern data and advertising platforms environment. On May 21, the copyright office published a report that suggests Congress address notice-and-takedown challenges and solutions, the Red Flag Knowledge Standard, the Willful Blindness Standard, and the Safe Harbor provisions. 

The Safe Harbor terms enacted as part of the DMCA have allowed online service providers to operate tech platforms without facing liability for infringing content posted on those platforms, however, in exchange for limited liability, online platforms were meant to take steps to curb piracy. Granting immunity to new, emerging platforms in exchange for reasonable enforcement efforts and quickly taking down copyrighted materials was designed to ensure everyone had an equal share in both the growth of the internet and the health of our country’s creative economy.  However, technology has advanced faster than we can consume, understand, and address.  While artists send takedown notices, their efforts remain unsuccessful as they see infringing content reappear on the same web sites.  The processes outlined in 1998’s Section 512 have not stood the test of time.    

While the efficacy of Section 512 is being evaluated, the first step in protecting your business is to register your intellectual property. The legal team of Ference & Associates is experienced intellectual property law and ready to help you.  Contact them at 412.741.8400 for all of your IP needs. 

Is copyright looting justified? Rakuten Kobo Inc., a Canadian company that sells e-books, audiobooks, e-readers, and tablet computers, has signed up 2 million new users during the past three months, illustrating the rise in e-book adoption. The global coronavirus pandemic and the necessary home quarantines have made individuals dependent upon e-commerce platforms to purchase essential items.  Students are reliant on digital classroom materials as schools and universities implement virtual learning models. Libraries have closed their doors but have expanded access to their digital resources including e-books.  Book sales have surged as readers seek escapism, and the ease and immediacy in which digital books can be purchased and downloaded have made e-books a popular choice nowadays.

On March 24, 2020, to offset the inability to visit brick and mortar bookstores, and public and college libraries, the Internet Archive (IA), a non-profit online library of digital books, music, films, and other content, launched the National Emergency Library.  The emergency library is designed to assist “displaced learners” including university students and individuals who cannot physically access their local libraries due to closure, to continue to read and learn during COVID-19. This had to an outflow of copyright looting.

This program appears to be a valuable solution to increased demand for digital materials created by the coronavirus, however, not everyone supports this endeavor. The Authors Guild stated, “the IA has no right whatsoever to these books, much less to give them away indiscriminately without the consent of the publisher or author.”

The Copyright Alliance has also criticized the emergency library, noting that while projects have been set up to help those in the creative industry including authors and artists, IA’s project makes things much worse for a population that is among the hardest hit at present.  Copyright Alliance CEO Keith Kupferschmid said, “The coronavirus has given authors enough to deal with – let’s not add copyright looting to the list of challenges.”

The legal framework for lending physical books is different than that of e-books.  Under current law, a library may generally lend a physical copy of a book in any manner it chooses but may only lend an e-book in the manner approved by the copyright holder, also known as the publisher.  The publisher may limit the length of time the library may lend the book, the number of times the e-book may be checked out, or both.  These restrictions affect the ability of a library to appropriately meet patrons’ current demands.

Before March 24, the IA allowed readers to borrow books for only two weeks and disabled access unless it was checked out again.  The Internet Archive also implemented the technical protections that publishers use on their e-book offerings to prevent additional copies from being made or redistributed.  If all scans of physical books owned by the IA were checked out, users would have to join a waitlist.  However, the IA suspended waitlists for over 1.4 million books in their library.  The Copyright Alliance claims this is a scheme at denying authors their copyright protection and subsequent payments.  

While copyright gives its owner the exclusive right to take or authorize certain actions involving the work, it does not allow the copyright owner to control how others, after purchasing a lawfully made copy of the work, distribute that copy. According to 17 U.S.C. § 109, the “first sale doctrine,” the owner of a lawfully made copy may sell or otherwise dispose of the possession of that copy without the authority of the copyright owner.  This protects libraries from infringement liability for lending physical books.

E-books are governed differently because a user typically does not own an e-book, but instead receives a limited license to use the e-book.  The payment to access an e-book does not transfer ownership, therefore, the first sale doctrine does not apply.

The legality of unrestricted digital lending is one of many copyright issues impacted by the coronavirus pandemic, and the professionals at Ference & Associates are positioned to help you with your immediate copyright needs and concerns. Quality legal guidance is crucial during these uncertain times and is available by calling us at 412.741.8100.