Posts in Copyright

The U.S. District Court for the Northern District of California this week ruled that the safe harbor provision of the Digital Millennium Copyright Act (DMCA) protects Pinterest from a photographer’s claim that the platform infringed his copyrights by displaying his works alongside advertisements in the form of “promoted pins.” Harold Davis, an artist and professional photographer, claimed that Pinterest infringed 51 of his copyrighted works. In one example, Davis’ work, “Kiss from a Rose,” was displayed next to a promoted Pin for an art print called “White Tea Roses by Neicy Frey,” which Davis contended constituted unauthorized commercial use of his work.

The U.S. Patent and Trademark Office (USPTO) announced today that certain intellectual property (IP)-related transactions are now authorized in Russia, following publication by the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC) of General License No. 31. The authorized transactions include the filing and prosecution of any application to obtain a patent, trademark, or copyright, as well as renewal and maintenance fees.

The rise in the value of crypto currencies in just three years to $3 trillion is vexing to businesses, investors and IP professionals who are struggling to understanding where they fit in. The ascendance of non-fungible tokens (NFTs) as an asset class also has caught practically everyone off-guard. Many intellectual property owners believe that these blockchain-based disruptions have created opportunity, while others see a darker and more impermeant scenario. People want to know if NFTs and distributed ledgers are good for IP rights and creators – a self-proclaimed boon to innovation and access – or are they a passing storm?

The Office of the United States Trade Representative (USTR) released its annual Special 301 Report today, which identified 27 trading partners of the United States as being either on the “Priority Watch List” or “Watch List.” This means that “particular problems exist in that country with respect to IP protection, enforcement, or market access for U.S. persons relying on IP,” according to the Report. While the Priority Watch List is shorter this year, the USTR continues to highlight concerns about China, particularly with respect to recent statements made by Chinese officials about the role of IP in achieving Chinese market dominance.

The Court of Justice of the European Union (CJEU) has rejected a legal challenge to Article 17 of Directive 2019/790 on Copyright in the Digital Single Market. (Case C-401/19 Republic of Poland v. European Parliament and Council, ECLI:EU:C:2022:297.) The challenge was brought by the government of Poland. It argued that Article 17 of the Directive, which concerns the liability of online service providers for copyright-infringing content uploaded by users, infringed the rights to freedom of expression and information. The rights to freedom of expression and information are guaranteed in Article 11 of the Charter of Fundamental Rights of the EU.

Preventing others from copying your robot’s AI-driven face, expressions and vocalizations requires a comprehensive intellectual property strategy. That’s one of the takeaways from a pending dispute between robot makers as described in Digital Dream Labs, LLC v. Living Technology (Shenzhen) Co. (pending in the Western District of Pennsylvania). The case involves plaintiff DDL, which owns registered copyrights in desktop humanoid-vehicle hybrid robots called COZMO and VECTOR (see below left and middle), and defendant Living.AI, whose headphone-wearing, skateboard riding, humanoid robot called EMO (below right) is alleged by DDL to infringe its copyrights. Both companies reportedly deployed AI software on their robots that selects graphical animations and sounds to output based on the robot’s reactions with its environment and user.

On April 6, the UK High Court issued a judgment of non-infringement in favor of artist Ed Sheeran over his 2017 song, “Shape of You.” The court held that Sheeran did not copy a part of Defendant Sami Chokri’s 2015 song called “Oh Why.” The ruling came nearly four years after co-writers Chokri and Ross O’Donoghue (collectively, Defendants) first accused Sheeran and his co-writers, Snow Patrol’s John McDaid and producer Steven McCutcheon (collectively, Plaintiffs) of deliberately and consciously copying from a part of “Oh Why.” Alternatively, the Defendants contended that he did so subconsciously.

The National Academy of Public Administration (NAPA) has agreed to perform a study requested earlier this month by Senator Thom Tillis (R-NC) to explore “whether Congress should create a unified, stand-alone, and independent Intellectual Property Office.” NAPA President and CEO Teresa Gerton said its full-time research staff and Academy Fellows are well-positioned to do the work requested and that NAPA would begin discussions with the U.S. Copyright Office and the U.S. Patent and Trademark Office (USPTO) immediately. However, Gerton expressed some skepticism, cautioning that “our success in these negotiations depends greatly on the willing participation of these two agencies and the level of funding they agree to make available for the work.”

The U.S. Supreme Court today granted cert in Andy Warhol Foundation v. Goldsmith, Lynn, et. al., a case that asks the High Court to review a decision of the U.S. Court of Appeals for the Second Circuit holding  that Andy Warhol’s Prince Series did not constitute fair use of Lynn Goldsmith’s photograph. In its petition for certiorari, filed in December 2021, the Andy Warhol Foundation told the Court that “the Second Circuit’s decision…creates a circuit split and casts a cloud of legal uncertainty over an entire genre of visual art.”

Earlier this month, Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT) introduced the Strengthening Measures to Advance Rights Technologies (SMART) Copyright Act into the U.S. Senate. The bill is designed to address shortcomings with some of the statutory provisions of the Digital Millennium Copyright Act (DMCA) which have failed to incentivize the development of new technical measures for preventing copyright infringement online the way that Congress originally envisioned when passing the DMCA in 1998.

The European Intellectual Property Office (EUIPO) recently published a deep dive report, titled Study on the Impact of Artificial Intelligence on the Infringement and Enforcement of Copyright and Designs. The report is a product of the Impact of Technology Expert Group, which was established in early 2019. They followed an approach based on Lawrence Lessig’s ‘Code and Other Laws of Cyberspace’ also known as the Code Theory. This describes how human online activity is regulated by law, social norms, and the market, taking into consideration the internet’s technical infrastructure. This approach led to a double-edged sword metaphor, in which a particular technology can be used either to infringe IP rights or to protect/enforce them, presenting to some extent the same features in each case.

The U.S. Patent and Trademark Office (USPTO) today released its third in a series of reports quantifying the contributions of IP-intensive industries to the U.S. economy. The report found that, in 2019, IP accounted for 41% of domestic economic activity and that IP-intensive industries accounted for 63 million jobs, or 44% of all U.S. employment. Direct employment accounted for 47.2 million jobs in 2019, or 33% of total U.S. employment. Indirect employment, which includes jobs created in other industries that depend at least partially on final sales in IP-intensive industries, accounted for an additional 11% of U.S. employment.

Russian businesses now hold the key to pilfering, producing and profiting from western technologies. As of Monday, March 7, the Russian government has legalized intellectual property (IP) theft. With this move, businesses in Russia can now violate IP rights, as they no longer need to compensate patent holders from “unfriendly countries.” The list of “unfriendly countries” includes the United States, Canada, Australia, Switzerland, Norway, Iceland, the United Kingdom, Japan, South Korea, New Zealand, Singapore, Taiwan and all 27 European Union (EU) member countries. Russia has faced growing isolation from the Western world following President Vladmir Putin’s invasion of Ukraine. The United States, EU member countries and others recently initiated sanctions against Russia and have enacted crippling trade limitations. Currently, Russia is sufficiently meeting its supply and demand needs for agriculture, energy and natural resources. However, Russia’s isolation and growing lack of skilled producers have led to a stark decrease in technological production and innovation.

In January of this year, Senator Thom Tillis (R-NC) sent a letter to Matthew Wiener, Acting Chairman of the Administrative Conference of the United States (ACUS), and Todd Rubin, ACUS Counsel for Congressional Affairs, asking that the ACUS “conduct a study on whether Congress should create a unified, stand-alone, and independent Intellectual Property Office.” But Wiener replied to Tillis’ letter on March 7, indicating that ACUS “has neither the expertise nor resources to conduct” such a study. Instead, Wiener suggested asking an entity better positioned to undertake the task, such as the National Academy of Public Administration (NAPA), which Tillis wrote to today.

Last week, the U.S. Copyright Office issued a pair of final rules to establish various procedures governing proceedings at the Copyright Claims Board (CCB), a small copyright claims tribunal within the Copyright Office. The CCB was implemented as part of the Copyright Alternative in Small-Claims Enforcement (CASE) Act enacted under a larger omnibus bill on COVID-19 issues in December 2020. The rules establish procedures for designating service agents for receiving notices of initiated proceedings at the CCB, as well as opt-out procedures for libraries, archives and any claimants who are notified of class action litigation filed in U.S. district court covering their own copyright claim.