Posts Tagged: "copyright"

Last week, during the International Trademark Association’s (INTA’s) all-virtual 2020 Annual Meeting & Leadership Meeting, panelists Naomi Jane Gray, Axel Nordemann and Catherine Zaller Rowland discussed perspectives in Copyright Law in a session titled “Hot Topics in Copyright: The New and Controversial Landscape.” In particular, the panelists discussed United States and European perspectives on 1) mash-ups, politics and parody, 2) Liability for Platforms and Service Providers, and 3) Useful Articles.

Recent news reports about choreographer JaQuel Knight’s efforts to copyright some of his iconic dance routines, such as Beyoncé’s “Single Ladies,” are a reminder that such works face steep hurdles when it comes to qualifying for protection. From ballet to breakdance and Swan Lake to Saturday Night Fever, dance is part of every culture—and a surprisingly frequent source of intellectual property conflict. While works of dance clearly are eligible for copyright protection under Section 102(a)(4) of the Copyright Act, determining which dances meet the standard—and which have two left feet—has been tricky and has resulted in a number of high-profile disputes in recent years. However, a recent U.S. Supreme Court ruling in an unrelated copyright dispute may provide important guidance in subsequent dance-related copyright litigation.

On October 30, Michael Skidmore, Trustee for the Randy Craig Wolfe Trust, filed a petition for rehearing of the denial of its August 6 petition for writ of certiorari to the Supreme Court. In the original petition, Skidmore requested that the Supreme Court review a March judgment of the U.S. Court of Appeals for the Ninth Circuit siding with Led Zeppelin in a long-running case examining whether the opening notes of the band’s legendary song “Stairway to Heaven” infringed the song “Taurus,” written by Robert Wolfe of the band Spirit, a contemporary of Led Zeppelin. Skidmore brought the original suit in 2014. In the petition for rehearing, Skidmore claims that the “Ninth Circuit’s en banc opinion herald[ed] the ‘death of music copyright,’ just as happened to literary copyright before it.”

In what many regard as the intellectual property case of the century, the United States Supreme Court has—on October 7, 2020—presided over oral arguments in Google v. Oracle. The decade-long dispute between two of Silicon Valley’s behemoths centers on Google’s unauthorized use of 11,500 lines from Oracle’s Java APIs (Application Programming Interfaces) declaring code in its Android operating system. Given the global ubiquity of smartphones, roughly three-quarters of which use the Android operating system, the financial stakes have never been higher. As we await the outcome of the October 7 proceedings, there are important questions to contemplate, including the uncertain impact of Justice Amy Coney Barrett’s confirmation to the Supreme Court. In particular, can the attorneys for Google convincingly argue that the unauthorized use of the JAVA APIs’ declaring code is justified? It may be justifiable if these particular API packages are not copyrightable. On the other hand, if Google accepts Oracle’s claim of copyright protection, can Google then assert a fair use defense for its use of 11,500 lines of declaring code?  

This week in Washington IP news, the Senate Commerce Committee will be busy with a major hearing on Section 230 liability shields for tech platforms in light of charges of political censorship. Policy institutes hosting innovation-related events this week include the American Enterprise Institute, which kicks off the week with a closer look at the House Antitrust Subcommittee’s recent report on antitrust regulations in digital markets, and the Hudson Institute, which will dissect the oral arguments made in the Google v. Oracle Android software copyright case recently argued that the U.S. Supreme Court. The week will conclude on Friday with the regular quarterly meeting of the Trademark Public Advisory Committee to examine recent trademark operations at the U.S. Patent and Trademark Office.

One of street artist Banksy’s most iconic images—a mural sprayed on a Jerusalem building of a protester preparing to hurl flowers—failed to win trademark approval from the European Union in September because the European Union Intellectual Property Office (EUIPO) doubted the sincerity of his attempt to merchandise the image. Banksy had hoped that the trademark would prevent unauthorized use of the image by a greeting card company, Yorkshire-based Full Colour Black. Famously private, the artist elected the unorthodox strategy of seeking trademark protection. The EUIPO said the artist’s company, Pest Control, had filed the mark in order to avoid using copyright laws, which would have required him to reveal his true identity—something he has managed to keep hidden for more than 15 years. (There are many theories about Banksy, including the possibility that he is a “we,” not a single individual but a team of street artists or artisans assisting him.) A copyright also would have limited the term of coverage.

At the onset of the U.S. COVID-19 pandemic in early March 2020, the legal community immediately became concerned about its economic prospects. Particularly in the intellectual property (IP) legal community, bad memories from the 2007-2009 mortgage crisis and Great Recession surfaced, and fears of losing clients, billable hours, and jobs mounted. However, due to a variety of factors, the legal market has been unexpectedly resilient and, in many ways, has thrived during these extremely uncertain times.

Jay-Z recently tried to have a YouTube video removed for copyright violations. When YouTuber Voice Synthesis used an open-source program, Tacotron 2, to digitally impersonate Jay-Z’s iconic voice saying different things or singing songs, his entertainment agency Roc Nation LLC claimed that the YouTuber “unlawfully uses an AI to impersonate our client’s voice” and infringe on Jay-Z’s copyright. Roc Nation’s assertion of copyright protection via YouTube’s copyright strike system begs the question: with ever-evolving AI, are voices copyrightable? 

Google and Oracle each got to have their say in U.S. Supreme Court today, when eight justices heard oral argument in the closely-watched battle between the two tech giants. The questioning revealed some strong skepticism of Google’s arguments, but also potent fear that a ruling for either side might upend industry practices in computer programming. Both sides claim that a ruling for the other will harm innovation.  The High Court agreed to hear Google’s petition for a writ of certiorari last year. The Court is considering the questions: 1) Whether copyright protection extends to a software interface; and 2) Whether Google’s use of a software interface in the context of creating a new computer program constitutes fair use.

Yesterday, the U.S. House of Representatives Committee on the Judiciary held a hearing titled “Copyright and the Internet in 2020: Reactions to the Copyright Office’s Report on the Efficacy of 17 U.S.C. § 512 After Two Decades.” House Judiciary Chairman Jerrold Nadler (D-NY) began by explaining that the purpose of the hearing was to examine whether Section 512, a key provision of copyright law that guides how copyright and parts of the internet interact with each other, has fared well in today’s digital age. Six witnesses at the hearing presented the Committee with their views on the Copyright Office’s report and recommendations, and the majority concluded that Section 512 is out of balance. The topic is one that the U.S. Senate Judiciary Committee, Subcommittee on Intellectual Property has been examining all year.

In a ruling earlier this month, U.S. District Judge Virginia A. Phillips of the Central District of California granted partial summary judgment in favor of Onika Tanya Maraj, who performs rap under the stage name Nicki Minaj, resolving a copyright infringement dispute originally filed in 2018 by singer-songwriter Tracy Chapman over Minaj’s unauthorized use of Chapman’s 1988 single “Baby Can I Hold You.” In ruling that Minaj had established a fair use defense to Chapman’s copyright infringement claims, Judge Phillips affirmed the important role of experimenting with copyrighted works prior to licensing as a common practice within the recording industry.

This week in Washington IP events, the House Judiciary Committee will hold a hearing at noon on Wednesday to explore the findings of the Copyright Office’s report on Section 512’s safe harbor provisions under the DMCA, released this May. Over in the Senate, the Senate Commerce Committee will discuss authorizing a series of subpoenas for big tech CEOs at Google, Facebook and Twitter, while the Senate Judiciary Committee will discuss a proposed bill to create a framework for alternative dispute resolution of copyright small claims. Elsewhere, New America will focus on the ways that national governments have splintered the worldwide web, while the Center for Strategic & International Studies will explore advances in low-carbon fuels for the transportation sector. 

Google has admitted it copied over 11,000 lines of Oracle’s creative Java code to build its Android smartphone platform, that it makes commercial use of the code it copied, and that it uses the code for the same purpose as Oracle and those who license its products. Now, Google wants the Supreme Court to hold that this is fair use under American copyright law. Stripping away the diversions that Google and its amici offer the Court, these are the core facts which show how extreme Google’s invocation of fair use in this case truly is…. As the October 7 oral argument date nears in Google v. Oracle, I’d like to build on the fair use discussion by Washington, D.C. attorney Terry Campo published in August to further analyze Google’s claims of fair use to excuse its copying. The company’s claims aren’t just insufficient, they’re undermined by Google’s own arguments.

On September 16, the Senate Judiciary Committee’s Subcommittee on Intellectual Property held a hearing titled “Are Reforms to Section 1201 Needed and Warranted?”, which continued the Subcommittee’s year-long series of hearings on the Digital Millennium Copyright Act (DMCA). Chairman Thom Tillis (D-NC) began by explaining that section 1201 was Enacted in 1998 as part of the DMCA to protect against the circumvention of technological protection measures used by copyright owners to prevent unauthorized access to or use of their works, but the “tradeoff has been that consumers have to worry about violating section 1201 when they repair their devices…whether farm equipment, or cars or iPads that happen to rely on software for their operation.” Tillis said Congress needs to ensure that the “correct balance is still being struck.”

The U.S. Patent and Trademark Office (USPTO) announced today that Shira Perlmutter, the Office’s Chief Policy Officer and Director for International Affairs, has been chosen by Librarian of Congress Carla Hayden to be the 14th U.S. Register of Copyrights. Maria Strong has been serving as Acting Register since January 2020, after former Register Karyn Temple left the position in December 2019. Temple had been promoted to Register in March 2019 following two and a half years serving as Acting Register. Maria Pallante, the 12th Register of Copyrights, had been fired from the position in 2016.