The Copyright Top Five of 2020 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 the 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.

Another bill released by Tillis in December, the “Protecting Lawful Streaming Act of 2020”, would punish commercial, for profit streaming piracy services that willfully and for commercial advantage or private financial gain offer to the public illicit services dedicated to illegally streaming copyrighted material. The bill is co-sponsored by Senators Patrick Leahy (D-VT), Marsha Blackburn (R-TN), Mazie Hirono (D-HI), Catherine Cortez Masto (D-NV), John Cornyn (R-TX), Richard Blumenthal (D-CT), Chris Coons (D-DE), Kelly Loeffler (R-GA), and David Perdue (R-GA), and received support from organizations on both sides of the issue, as it is narrowly tailored to target criminals.

Also not mentioned below is that Shira Perlmutter, formerly Chief Policy Officer and Director for International Affairs at the U.S. Patent and Trademark Office (USPTO), was appointed in September by the Librarian of Congress to be the fourteenth U.S. Register of Copyrights. Perlmutter replaced Maria Strong, who had been serving as Acting Register since January 2020.

With Congress pledging to remain focused on copyright issues in the new term, including oversight of social media platforms, and a decision expected in Google v. Oracle, we can bet that 2021 will be another exciting year in this realm of IP.

1. Google v. Oracle(October)

On October 7, the U.S. Supreme Court heard oral arguments in Oracle v. Google, which asks the nation’s highest court to decide issues related to copyright protections for Oracle’s software interface used by Google in its Android mobile OS. Coverage of the arguments published on IPWatchdog indicated that the Supreme Court will likely affirm a ruling that Oracle’s software interface is protectable by copyright.

Last year, the Supreme Court agreed to hear Google’s petition for a writ of certiorari to address 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. In March 2018, the Federal Circuit issued its opinion in favor of Oracle in the case. It found Google’s use of Java application programming interface (‘API packages’) not fair as a matter of law, reversing the district court’s decision on the matter. The ruling resurrected the multi-billion dollar copyright case, which was brought by Oracle Corp against Google and was appealed to the Supreme Court in January 2019, after the Federal Circuit denied rehearing in August 2018.

During the oral hearing, all eight of the Supreme Court justices participated in questioning, including the often-silent Justice Clarence Thomas. In questioning Thomas Goldstein of Goldstein & Russell, who argued for Google, the justices struggled to understand why Google could not have just written its own declaring code, as others, like Apple and Microsoft, have done. For example, Justice Breyer asked Goldstein: “Why is there just one way to do it? If you spent enough time and you had the most brilliant computer programmers, don’t you think they could devise a system of calling up the Java program?” Goldstein responded that such an approach would make computer programming inefficient and result in fewer creative programmers. Goldstein asserted that Google simply had no choice but to copy Google’s code: “We would have happily written our own. We could not write a computer program that would respond to the developers’ instructions without re-using this limited set of instructions.”

Joshua Rosenkranz of Orrick argued for Oracle and primarily focused on the fair use analysis. Rosenkranz warned in his opening argument that “if this Court holds that a jury may conclude that copying declaring code is fair, it will encourage copying, create legal uncertainty, and decimate the business model which a lot of companies depend on, undermining the very incentives copyright was designed to promote.”

Deputy Solicitor General Malcolm Stewart argued on behalf of the U.S. Government in support of Oracle. Chief Justice Roberts asked Stuart for reassurance that a finding for Oracle will not “ruin the tech industry in the United States.”  Noting that there have been no detrimental effects since the Federal Circuit’s 2014 holding in Oracle Am., Inc. v. Google Inc that “declaring code and the structure, sequence, and organization (“SSO”) of the Java API packages are entitled to copyright protection”, Stewart stated that while “it may be that in particular circumstances, particular interfaces can be copied without authorization,” such as in the case of short segments of code, “that’s not a basis for a general rule.”

The overall direction of the questioning at the oral arguments looked “like many of the justices were comfortable enough with Oracle’s code being copyright protectable to suggest a possible affirmance,” Brian Michalek of Saul Ewing Arnstein & Lehr Michalek said.

2. Georgia v. Public.Resource.Org (April)

On April 29, the U.S. Supreme Court ruled in Georgia et al. v. Public.Resource.Org., Inc. that a state code revision commission cannot claim copyright protection over annotated state code. The ruling upheld the U.S. Court of Appeals for the Eleventh Circuit’s 2018 decision in Code Revision Commission v. Public.Resource.Org, Inc., which reversed-in-part, vacated-in-part and remanded a lower court’s ruling in a copyright infringement case involving an annotated version of Georgia’s official state code. Applying Supreme Court case law from the 19th Century, the Eleventh Circuit found that no valid copyright interest can be asserted in any part of the annotated state code. In affirming that holding, the Supreme Court said that the judicially created “edicts doctrine” precluded government officials with the power to speak with the force of the law to be considered “authors” of the works they create for copyright purposes.

3. Allen et al. v. Cooper, Governor of North Carolina, et al. (March)

On March 23, the U.S. Supreme Court unanimously ruled in Allen v. Cooper, that North Carolina’s display of copyrighted footage showing recovery of a legendary pirate’s ship was not subject to a copyright infringement action brought by the content creator. In particular, the Court held that “Congress lacked authority to abrogate the States’ immunity from copyright infringement suits in the [Copyright Remedy Clarification Act] CRCA”, and, therefore, CRCA lacked a valid constitutional basis.

Following the decision in Allen, there has been concern from copyright owners that they may not be able to seek the remedies provided by the Copyright Act if they suffer infringement by state entities. Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT) sent a letter to the Copyright Office noting that Allen ‘‘created a situation in which copyright owners are without remedy if a State infringes their copyright and claims State sovereign immunity.”  The Senators also expressed concern “about the impact this may have on American creators and innovators.’’

On June 3, the U.S. Copyright Office publishedFederal Register notice regarding a study it is initiating to “evaluate the degree to which copyright owners are experiencing infringement by state entities without adequate remedies under state law, as well as the extent to which such infringements appear to be based on intentional or reckless conduct.” The Office requested public input in the form of written comments on or before August 3, 2020 to assist the Office in preparing a report to Congress on the study.

4. Skidmore v. Led Zeppelin (March)

On March 9, the U.S. Court of Appeals for the Ninth Circuit has ultimately sided 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. Michael Skidmore, Trustee for Wolfe’s estate, brought the original suit in 2014. The Court notably struck down its own “inverse ratio rule,” which dictates that there is “a lower standard of proof of substantial similarity when a high degree of access is shown,” as set out in the 2000 case of Three Boys Music Corp. v. Bolton.

In August, Skidmore filed a petition for a writ of certiorari with the Supreme Court requesting review of the March judgment. The Supreme Court denied the petition and Skidmore filed a petition for rehearing on October 30. 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.”

5. DMCA Review (All Year)

Several hearings were held this year by the Senate Judiciary Committee’s Subcommittee on Intellectual Property as part of a year-long series of hearings on the topic of updating and modernizing the Digital Millennium Copyright Act (DMCA). In February, the Subcommittee held the first in a series of eight tentative hearings, wherein Tillis’ noted that his goal was to address changes to the internet since the DMCA was passed in 1998, and by December 2020 to release draft text of a reform bill for stakeholder comment. The panelists mainly focused on how the most controversial provisions—Section 512, “Limitations on liability relating to material online,” and Section 1201, “Circumvention of copyright protection systems”—came to be, and the context in which the drafters were viewing the problems they sought to address. In March, a hearing titled “Copyright Law in Foreign Jurisdictions: How are other countries handling digital piracy?” was held to examine foreign copyright laws in order to consider what may or may not be beneficial if adopted by the United States.

Then, in May, the U.S. Copyright Office published a report on Section 512 of Title 17 of the U.S. Code, which governs limitations on copyright liability to materials published online. The report explained that, while the Copyright Office acknowledged that the careful balance intended to be struck by Section 512 has become unbalanced, Congress should only fine-tune certain aspects of Section 512 to restore this balance of competing interests.

In June, a two-panel hearing focused on practical challenges and solutions—specifically, the DMCA’s notice-and-takedown provisions, codified in Section 512. The next hearing took place in July, wherein the Subcommittee focused on the questions The Senate Judiciary Committee’s Subcommittee on Intellectual Property on Tuesday continued its year-long series of hearings on the Digital Millennium Copyright Act (DMCA), this time focusing on the question, “How Does the DMCA Contemplate Limitations and Exceptions Like Fair Use?”

The final subcommittee hearing of 2020 took place on December 15 and included representatives of YouTube and Facebook, while Twitter refused to participate. Tillis recently published a letter to Twitter CEO Jack Dorsey expressing his disappointment with Twitter’s decision. Tillis noted that, while reforming the DMCA will be one of his top priorities in the new term, it will likely not happen quickly. Thus, he asked the panelists to describe ways that platforms and rightsholders might cooperate directly now.

The U.S. House of Representatives Committee on the Judiciary also held a hearing in October 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.

In the final Senate IP Subcommittee hearing in December, Tillis warned that any DMCA reform legislation would likely take at least all of his next term to pass, and urged private stakeholders to come to consensus on faster ways to solve some of the key problems. The discussion draft released on December 22 is detailed here.

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