Posts in Copyright

Creative people need a quick, efficient and inexpensive way to recover damages for copyright infringement. They need a place to submit their charge of infringement and collect damages. Until recently, their only option was to bring a lawsuit in a federal district court; a process that is complicated, expensive and time-consuming. The Copyright Alternative in Small Claims Enforcement Act of 2020 (CASE Act) gives them another option, but it is problematic. It is also a problem for small businesses, which are at a disadvantage because the act benefits copyright trolls. It creates a new efficient vehicle for copyright trolls to prey on your clients.

On Tuesday, February 23, the United States Copyright Office issued a final rule that creates a new “group” registration option for albums of music and works related to that music. The new option, or  Group Registration for Works on an Album of Music (GRAM) allows applicants to register either a group of up to 20 musical works or a group of up to 20 sound recordings and associated literary, pictorial, or graphic works contained on an album of music. An “album” is defined as “a single physical or electronic unit of distribution containing at least two musical works and/or sound recordings embodied in phonorecords…” Artists can take advantage of the copyright rule to protect their original music beyond the basic protections automatically bestowed to them once it is fixed in a format in which others can hear it.

On February 16, the Mechanical Licensing Collective (MLC) – a nonprofit organization designated by the U.S. Copyright Office to administer blanket mechanical licenses to eligible streaming and download services in the United States –announced that it had received a total of $424.4 million in unmatched royalties accrued by 20 digital service providers (DSPs), including Spotify and Apple Music, during a three-year transition period under the terms of the Music Modernization Act (MMA). The transfer of unmatched royalties enables these DSPs to qualify for limited liability provisions under the MMA. At the same time, usage data submitted by DSPs associated with the accrued unmatched royalties is expected to help the MLC identify copyright owners for distributing royalty payments, the first of which are expected to be distributed this April.

The actor Meghan Markle gained fame playing a paralegal in the TV show Suits. Now, as Her Royal Highness, The Duchess of Sussex, she is starring in her own legal drama in London’s High Court. On February 11, Mr. Justice Warby granted summary judgment in favor of the Duchess on most of the issues in her privacy and copyright case brought against Associated Publishers, which publishes the tabloid Mail on Sunday newspaper and MailOnline website in the U.K. The Duchess brought the action over the publication in February 2019 of five articles that included 88 quotations from a letter she had sent to her father, in which she discussed their relationship. She claimed that the publication of the articles involved (1) a misuse of her private information, (2) a breach of the defendants’ duties under data protection law and (3) an infringement of her copyright in the letter.

The U.S. Library of Congress, in a February 3 Federal Register Notice, responded to a December 2019 request by members of Congress to establish an advisory committee focused on copyright modernization efforts. The Notice announced the creation of the Copyright Public Modernization Committee and urged interested stakeholders to apply as volunteer members.

The ipAwarenessAssessment (the Tool) is engineered for both business owners and inventors so that they can comprehensively value their intellectual property (IP) and manage their IP portfolios accordingly. Developed as a joint effort by the United States Patent and Trademark Office (USPTO) and the National Institute of Standards and Technology/Manufacturing Extending Partnership (NIST/MEP), the Tool allows a participant to asses their overall IP awareness, usage, and maintenance. The Tool itself is comprised of online multiple choice questionnaires where the pre-assessment contains five questions covering various types of IP; a customized assessment based on the answers provided during the pre-assessment that ranges from five to ten categories only relevant to the pre-assessment answers; and the full assessment which contains 10 categories and over 60 questions. These categories span a comprehensive spectrum of many aspects of IP and the individual questions are engineered to discover the user’s overall IP awareness.

On January 14, the U.S. Copyright Office published in the Federal Register an update to the agency’s Third Edition of the Compendium of U.S. Copyright Office Practices. The updates to the draft revision, which was first released in May 2019, include several changes based on public comments asking for clarification on several points of legal interpretation as well as major copyright decisions issued by the U.S. Supreme Court since the Third Edition’s last revision in 2017. Since issuing the public draft in May 2019, the Copyright Office received 24 public comments and the focus of most of these comments seems to have been aimed at language in the Third Edition’s 2019 draft giving greater discretion to agency examiners regarding registration refusals due to application deficiencies. Some commenters were concerned that this additional discretion would result in fewer opportunities for applicants to cure defects in their applications for copyright registration. Several changes in the recent Compendium update are intended to address these concerns, including the replacement of references to “deficiencies” with “variances,” which is defined as conflicting information pre

As we thankfully see 2020 fading into the rear-view mirror and all look forward to a hopefully much better 2021, we want to take a moment to reflect on what the past year brought us and how the stage is set for another very fluid and consequential year for intellectual property policy. In times like these, it is clear that leadership matters more than ever. During some of the most challenging times our country has faced, there were a number of places where we saw strong leadership result in tangible progress. This year has already shown us a dramatic first few days. Beyond the tragic events in the U.S. Capitol, we saw the somewhat unexpected shift of power in the Senate to Democratic control based on the election of both Rev. Raphael Warnock and John Ossoff in Georgia. It is clear that the new Congress and the new Biden Administration will face huge challenges before we approach anything close to “normal” in any sense. That said, when it comes to IP, what can we expect?

Last week, documents were filed confirming that singer-songwriter Tracy Chapman accepted Onika Tanya Maraj’s (who performs rap under the stage name Nicki Minaj) Rule 68 Offer of Judgment, dated December 17, 2020, in the amount of $450,000, inclusive of all costs and attorney fees. In September 2020, the U.S. District Court of the Central District of California granted partial summary judgment in favor of Minaj, resolving a copyright infringement dispute originally filed in 2018 by Chapman over Minaj’s unauthorized use of Chapman’s 1988 single, “Baby Can I Hold You.” While the district court’s partial summary judgment ruling for Minaj said that Minaj had established a fair use defense to Chapman’s copyright infringement claims, it also said Chapman’s distribution claim should be tried and resolved by a jury, so the case moved forward.

From the Google v. Oracle arguments to Congress’ year-long discussion around reform of the Digital Millennium Copyright Act (DMCA), 2020 was a big one for copyright law. A discussion draft of the DMCA reform bill was released on December 22 by Chairman of the Senate Judiciary Committee’s Subcommittee on Intellectual Property, Thom Tillis (R-NC), and was meant to solicit comments from stakeholders and other interested parties. Chances the bill will be signed into law anytime soon are slim, but proposed changes such as lowering the specificity with which copyright owners must identify infringing material in certain cases and replacing the notice-and-takedown system in existing law with a “notice-and-staydown” system, would mark a new era in the U.S. copyright regime.

On December 28, Senator Thom Tillis (R-NC), Chair of the Senate IP Subcommittee, and Senator Chris Coons (D-DE), Ranking Member of the Senate IP Subcommittee, sent another letter to Twitter CEO Jack Dorsey expressing disappointment over the company’s continued refusal to cooperate on hearings around copyright reform. Tillis and Coons were joined by Senator Mazie Hirono (D-HI), as they often are on IP issues. The letter reiterated the senators’ frustration that Twitter refused to provide a witness for the IP Subcommittee hearing on December 15 focused on the role existing technology plays in curbing online piracy. In an all too kind characterization, the letter sent by Senators Tillis, Coons and Hirono also expressed disappointment with the “incomplete responses to written questions sent by Chairman Tillis in advance of the hearing.” Frankly, the “answers” to the questions presented by Chairman Tillis by Dorsey for the record were completely non-responsive. Indeed, Dorsey demonstrated complete disinterest in substantive engagement, an absolute lack of good faith, and conscious disregard—near contempt really—for the duty of candor owed by witnesses to the Subcommittee.

In a previous piece, we covered the top five patent developments of the year in Europe. Here, we review some of the key cases and legislation that shaped 2020 in other areas of IP, including trademarks, copyright, design and legislative actions. At number one, in its judgment in Sky v SkyKick (Case C-371/18) in January, the CJEU said that an EU trademark cannot be invalidated for lack of clarity and precision, and provided guidance on what constitutes bad faith. The decision reassured owners of trademarks in Europe, who had feared that many marks would be invalidated if the Advocate General’s Opinion were followed.

Late Monday evening, Congress passed a massive omnibus budget bill to avert a federal government shutdown and provide critical COVID-19 relief.  But that is not all – much to the surprise of the intellectual property world, the last-minute bill included several pieces of legislation, previously thought to be sidetracked in light of the current lame duck administration, that will alter the landscape of trademark, copyright and patent law as we know it. The changes include a Trademark Modernization Act that restores the rebuttable presumption of irreparable harm when a Lanham Act violation has been proven, allowing brand owners to more easily obtain injunctions, and the creation of a copyright small claims tribunal within the Copyright Office.

Senator Thom Tillis (R-NC), the Chair of the Senate Judiciary Committee’s Subcommittee on Intellectual Property released a discussion draft copyright reform bill titled the ‘Digital Copyright Act of 2021’ (the discussion draft). The discussion draft, which is intended to bring revolutionary changes to online copyright law, was developed based on recommendations in six hearings of the Subcommittee on Intellectual Property focused on reforming copyright law in the digital environment, two staff briefings, and four extensive Copyright Office studies. This proposed DMCA reform was released in order to solicit comments from stakeholders and other interested parties.

The Senate Judiciary Committee’s Subcommittee on Intellectual Property held its last hearing of the year on reforms to the Digital Millennium Copyright Act (DMCA) today, three days before Subcommittee Chairman Thom Tillis (R-NC) is set to release a discussion draft of a DMCA reform bill he has said will contain “revolutionary changes to online copyright law.” Tuesday’s hearing included representatives of YouTube and Facebook; Twitter refused to participate, and Tillis recently published a letter to Twitter CEO Jack Dorsey expressing his disappointment with the decision.