Posts in Copyright

Google, the Internet software and services arm of Alphabet Inc. (NASDAG:GOOGL), offers a tremendously valuable portal to the wider Internet through its flagship search engine service. One of the more popular aspects of Google’s search engine is the image search features; as of July 2010, Google’s image search was delivering one billion pageviews per day to the company and 10…

After nearly twenty years with the DMCA, the Copyright Office has launched a new study to examine the impact and effectiveness of this system, and voices on both sides of the debate have filed comments expressing their views. For the most part, frustrated copyright owners report that the DMCA has not successfully stemmed the tide of online infringement, which is completely unsurprising to anyone who spends a few minutes online searching for copyrighted works. Unfortunately, some commentators are also pushing for changes that that would make things even more difficult for copyright owners.

Earlier this week a friend posted a magazine article, “The Rise of Fakes and False Attributions in the Art World,” on social media. The article was about art authentication and due diligence. Before I reached the end of the first paragraph, I realized that I was reading a plagiary of my article, “Purchasing Art in a Market Full of Forgeries: Risks and Legal Remedies for Buyers,” published in the International Journal of Cultural Heritage. The author structured her article on my work, a piece that includes extensive research and that is partially based on experience that I cultivated while working with major art collectors. And rather than just using the outline of my article or presenting some of my arguments, she copied entire sentences. In fact, she went as far as copying entire paragraphs. Shockingly, she even kept the same punctuation, quoting words that I had placed in quotations marks in my article.

I think the long-term benefits to authors are greater than the downsides or the risks. But, like any time there’s a shakeup of an industry, there are short-term and long-term winners and losers. I’ll even use the term “digital disruption,” although it is way overused these days (and too often used as a poor excuse for infringing copyright). Digital technology is disrupting the industry as a whole. We had the same business models for the better part of at least a century, and while things are starting to change, we’re still largely operating as we did in the past, based on old business models with just a few tweaks. We haven’t fully evolved yet, and as a result we’re mostly seeing a little bit of the downside. Whenever there’s a disruption in business models, someone is negatively affected. Unfortunately, here it is the authors, and creators generally. And that’s because creators in these industries tend to have the least bargaining power and they tend to be a line item in a budget where there is some discretion.

One aspect of the recent Lex Machina report that should jump out to anyone who has closely followed the patent litigation sector over the past few years is that the high percentage of all patent cases filed at the U.S. District Court for the Eastern District of Texas (E.D. Tex.) has dropped significantly. During 2015, E.D. Tex. received 43 percent of all patent infringement cases filed in American district courts. This dropped off steeply to 30 percent, or 291 cases filed, during 2016’s first quarter.

As the Library of Congress ushers in a new era with a new Librarian, the time is ripe to ensure that the Copyright Office has the accountability and authority to best serve all of its stakeholders—most of all the American public. The nomination of Dr. Hayden as the next Librarian of Congress provides us with the opportunity to clarify the importance of the roles both the Library of Congress and the U.S. Copyright Office play in creating, cataloging, and administering the systems that preserve and promote our nation’s culture, by ensuring that the two talented leaders have a close partnership and a direct working relationship, with appropriately defined authority and responsibility for their respective areas of expertise.

Halo sued Comptoir for infringing a large number of U.S. design patents, copyrights, and one common-law trademark relating to a number of Halo’s furniture designs. Both companies manufacture and sell furniture. Comptoir is a Canadian company that manufactures furniture in China, Vietnam, and India, and then imports that furniture into the United States for sale. Comptoir moved to dismiss the suit on forum non conveniens grounds, alleging that the Federal Court of Canada would be the appropriate forum for the dispute.

Collectors love eBay because it allows them access to items them may never otherwise be able to purchase. Bargain hunters love eBay for the ability to buy items at a much lower cost than normal retail. But, sometimes costs are lower because the goods infringe on someone’s intellectual property. Section 512(c) of the DMCA provides a safe harbor from liability for “online service providers” (OSP), like eBay, as long as the OSP: (1) does not receive a financial benefit directly attributable to the infringing activity; (2) is not directly or circumstantially aware of the presence of infringing material; and (3) promptly takes steps to remove purported infringing material upon receiving notice from copyright owners. To streamline this process, eBay created the Verified Rights Owner (VeRO) program. It allows intellectual property rights owners to request that eBay remove listings that infringe on their intellectual property rights, including copyrights, trademarks, and patents.

The IPO recently filed an amicus brief at the Supreme Court in Kirtsaeng v. John Wiley & Sons, Inc. supporting a flexible approach to awarding attorneys’ fees. Oral argument is currently scheduled for April 25, 2016. This case presents an important opportunity for the Supreme Court—consistent with its holding in Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994)—to resolve a circuit split regarding how to weigh equitable factors in awarding attorneys’ fees in copyright cases. Attorneys’ fees should be based on a review of all equitable factors and not a product of a formulaic approach that disproportionately weighs certain factors more than others.

According to the Association of American Publishers, the publishing industry as a whole has lost $80 to $100 million dollars to online piracy annually. From 2009 to 2013, the number of e-book Internet piracy alerts that the Authors Guild of America has received from their membership had increased by 300%. During 2014, that number doubled. I’m certain that in 2016, the statistics will go even higher.

There were no topics ruled out of bounds for this 30 minute interview, not even the Supreme Court’s recent decision to accept cert. in Cuozzo, although as an attorney myself I know better than to ask questions that would have certainly provoked a polite “no comment” response in the face of ongoing litigation. Nevertheless, our conversation was wide ranging. We discussed the release of the Copyright White paper, which among other things recommends expanding eligibility for statutory damages in copyright infringement actions. We also discussed Lee’s recent visit to the Consumer Electronics Show (CES), the power outage that brought down USPTO electronic filing systems, the Office’s patent quality initiative, the new patent classification system, the Patent Trial and Appeal Board (PTAB) and more.

Earlier today the U.S. Department of Commerce issued a report titled White Paper on Remixes, First Sale, and Statutory Damages, which recommends amendments to U.S. copyright law that would provide more guidance and greater flexibility to courts in awarding statutory damages. However, the Task Force has found insufficient evidence to show that there is a change in circumstance in the markets or technology that requires action on amending the first sale doctrine.

The United States Copyright Office and George Mason University School of Law announced last Friday that they have formed an academic partnership, working through Mason Law’s recently-launched Arts & Entertainment Advocacy Clinic, directed by Professor Sandra Aistars.

Digital piracy was alive and well in 2015. Not surprisingly, the incredibly popular HBO television series Game of Thrones was the most pirated TV show with 14.4 million downloads, far outpacing its TV viewership of 8.1 million American viewers. Game of Thrones also has the distinction of breaking the all-time record for most simultaneous peer shares via torrent with 258,131 peers engaging in simultaneous shares.

2015 saw the second-most patent infringement cases brought to court, according to Lex Machina’s data. A total of 5,830 patent cases were filed, a 15 percent increase over the 5,070 patent cases which were filed during 2014. 2015 still trailed behind 2013 in terms of patent infringement cases; that year set the high-water mark for patent infringement cases with 6,114 cases filed in that year.