Copyright Fair Use: How Much Copying is Too Much Copying?; Lexology, August 15, 2022

Goodell DeVries Leech & Dann LLP - Jim Astrachan, Lexology; Copyright Fair Use: How Much Copying is Too Much Copying?

"...no plagiarist can excuse the wrong by showing how much of his work he did not pirate.” These words were written by Judge Learned Hand in 1936. His point was that a taking of someone else’s expression will not be excused merely because it is insubstantial in quantity when held up for comparison to the infringing work.

Years back a copyright defendant client related copyright lore as a defense to his actions. He swore up and down that copying was permissible as long as not more than 10 percent of the source work was taken. Many times that belief has been mistakenly repeated. Many of the older, bedrock, principles of copyright practice are worth repeating. Perhaps this repetition comes from being the teacher that I suspect is part of my DNA.

The “ancient” case of Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) should absolutely disabuse anyone of this silly notion." 

Reforming Digital Lending Libraries and the End of the Internet Archive; Jurist, July 20, 2020

Binit Agrawal, Jurist; Reforming Digital Lending Libraries and the End of the Internet Archive

"The lack of certainty relating to the legality of CDL as fair use is hampering its growth by creating a chilling effect. Libraries are under the fear of costly litigations. IA itself is under the risk of bankruptcy, as the publishers are not inclined to take back their suit, even after IA stopped ELP. This is the very problem section 108 intended to resolve. Hence, it is pertinent that the section is amended to meet the needs of the digital age and provide certainty in this regard. Some countries have already moved in this direction. While Canada has permitted a limited right to provide digitized copies to patrons of other libraries, the EU has been considering proposals to allow digitization of cultural heritage institutions, including libraries."

American Girl Walks Back Threat to Sue 'Karen' Doll Parody Meme; Comic Book Resources, July 8, 2020

Kelvin Childs, Comic Book Resources; American Girl Walks Back Threat to Sue 'Karen' Doll Parody Meme

"American Girl has walked back its previous assertion that it would take legal action against a spoof ad for a "Karen 2020 Girl of the Year" doll.

On Twitter, the company said, "American Girl has no intention of censoring this parody meme and anything shared to the contrary was in error. We apologize for any misunderstanding.""

The Copyright Lawsuit in Tiger King Is an Outrage; Slate, May 7, 2020

Joshua Lamel, Slate; The Copyright Lawsuit in Tiger King Is an Outrage

"Copyright is the perfect vehicle for SLAPP suits. First of all, copyright is a government-granted, exclusive right to speech. There is no better way to prevent someone from publicly criticizing you than to use copyright law. Copyright lawsuits are expensive and place enormous costs on defendants. Fair use has to be raised once you are sued, so defendants will likely have to spend more. The potential damages are extreme: For every violation of a copyright, you can get $150,000 in statutory damages. Additionally, copyright law has injunctive relief—you can actually stop the speech from happening.

One would think that Congress would recognize this and specifically include copyright in federal anti-SLAPP efforts. But that is not happening anytime soon. Instead, thanks to their lobbying and fundraising, copyright holders have been successful in convincing senior members of Congress in both parties to exclude copyright. These members have told federal anti-SLAPP advocates that they need to be willing to give up copyright for a chance of being successful. There is not a single good policy argument to exclude copyright. Copyright litigation abuse is exactly what anti-SLAPP legislation should be designed to prevent. This type of abuse is the reason we need a federal fix.

In my dream world, the saturation of Joe Exotic’s story will help everyday Americans understand the relevance of copyright law in our daily lives—maybe even spur federal lawmakers to introduce and pass anti-SLAPP law without a special carve-out for copyright."

University libraries offer online “lending” of scanned in-copyright books; Ars Technica, April 7, 2020

Timothy B. Lee, Ars Technica; University libraries offer online “lending” of scanned in-copyright books

"A consortium of university libraries called HathiTrust recently announced a solution to this problem, called the Emergency Temporary Access Service. It allows participating HathiTrust member libraries to offer their patrons digital scans of books that they can "check out" and read online.

HathiTrust has a history of pushing the boundaries of copyright. It was the defendant in a landmark 2014 ruling that established the legality of library book scanning. At the time, HathiTrust was only allowing people with print disabilities to access the full text of scanned books. Now HathiTrust is expanding access to more people—though still with significant limits...

These limits distinguish HathiTrust's service from another recently announced "emergency library." Two weeks ago, the Internet Archive announced it was offering the general public the opportunity to check out 1.4 million scanned books. During the pandemic, the Internet Archive isn't limiting the number of people who can "borrow" a book simultaneously.

Cornell University legal scholar James Grimmelmann tells Ars that the limits on the HathiTrust program will put the group in a stronger position if it is ever challenged in court. The same fair use doctrine that allows HathiTrust to scan books in the first place might also justify what the organization is doing now—though that's far from certain."

Dr. Drew apologizes for being a COVID-19 denier after copyright silliness; Ars Technica, April 6, 2020

Kate Cox, Ars Technica; Dr. Drew apologizes for being a COVID-19 denier after copyright silliness

Dr. Drew coronavirus supercut restored to YouTube after copyright takedown.

"Bharara, a former US attorney, and Boutrous, a high-profile attorney, were among the many who replied to defend or amplify Ali.

"You are safe from any 'copywrite' lawsuit, @yashar," Bharara tweeted. "Know your writes."

"Truth and fair use got you," Boutrous added in a tweet that quoted Pinsky's now-deleted threat.

It appears that either Pinsky or YouTube was inclined to agree. Sometime around noon Monday, give or take an hour, the YouTube video listing very quietly started working once again. Similarly, every message on Pinsky's @drdrew Twitter account relating to the video has been deleted."

It’s Copyright Week 2020: Stand Up for Copyright Laws That Actually Serve Us All; Electronic Frontier Foundation (EFF), January 20, 2020

Katharine Trendacosta, Electronic Frontier Foundation (EFF); It’s Copyright Week 2020: Stand Up for Copyright Laws That Actually Serve Us All

"We're taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of copyright law and policy, addressing what's at stake and what we need to do to make sure that copyright promotes creativity and innovation...

We continue to fight for a version of copyright that does what it is supposed to. And so, every year, EFF and a number of diverse organizations participate in Copyright Week. Each year, we pick five copyright issues to highlight and advocate a set of principles of copyright law. This year’s issues are:

• Monday: Fair Use and Creativity
  Copyright policy should encourage creativity, not hamper it. Fair use makes it possible for us to comment, criticize, and rework our common culture.
• Tuesday: Copyright and Competition
  Copyright should not be used to control knowledge, creativity, or the ability to tinker with or repair your own devices. Copyright should encourage more people to share, make, or repair things, rather than concentrate that power in only a few players.
• Wednesday: Remedies
  Copyright claims should not raise the specter of huge, unpredictable judgments that discourage important uses of creative work. Copyright should have balanced remedies that also provide a real path for deterring bad-faith claims.
• Thursday: The Public Domain
  The public domain is our cultural commons and a crucial resource for innovation and access to knowledge. Copyright should strive to promote, and not diminish, a robust, accessible public domain.
• Friday: Copyright and Democracy
  Copyright must be set through a participatory, democratic, and transparent process. It should not be decided through back-room deals, secret international agreements, unaccountable bureaucracies, or unilateral attempts to apply national laws extraterritorially.

Every day this week, we’ll be sharing links to blog posts and actions on these topics at https://www.eff.org/copyrightweek and at #CopyrightWeek on Twitter.

As we said last year, and the year before that, if you too stand behind these principles, please join us by supporting them, sharing them, and telling your lawmakers you want to see copyright law reflect them."

Supreme Court hands Fox News another win in copyright case against TVEyes monitoring service; The Washington Post, December 3, 2018

Erik Wemple, The Washington Post; Supreme Court hands Fox News another win in copyright case against TVEyes monitoring service

"The Supreme Court’s decision not to hear the case could leave media critics scrambling. How to fact-check the latest gaffe on “Hannity”? Did Brian Kilmeade really say that? To be sure, cable-news watchers commonly post the most extravagant cable-news moments on Twitter and other social media — a democratic activity that lies outside of the TVEyes ruling, because it’s not a money-making thing. Yet Fox News watchdogs use TVEyes and other services to soak in the full context surrounding those widely circulated clips, and that task is due to get more complicated. That said, services may still provide transcripts without infringing the Fox News copyright."

The Demise Of Copyright Toleration; Techdirt, May 24, 2018

Robert S. Schwartz, Techdirt; The Demise Of Copyright Toleration

"Although denying fair use, these content owners were acknowledging a larger truth about copyright, the Internet, and even the law in general: It works largely due to toleration. Not every case is clear; not every outcome can be enforced; and not every potential legal outcome can be endured. Instead, “grey area” conduct must be impliedly licensed, or at least tolerated.

Counsel then or now could not have cited a single court holding on whether the private, noncommercial recording of a song is a lawful fair use. Long before the Supreme Court in Sony Corp. of America v. Universal City Studios, Inc. said that video home recording from broadcasts as a fair use, the music industry could have pursued consumers for home audio recording from vinyl records. But the risk of losing and establishing a bad precedent was too great.

Toleration endured because fair use, and the practicalities of enforcement, had to be endured by content owners. They recognized that their own creative members also relied on fair use in adapting and building on the works of contemporaries as well as earlier generations. They also realized that offending consumers by suing them might not be a good idea – a reason (in addition to the possibility of losing) why the Sony plaintiffs dropped the individual consumer defendants they had originally named."

Why Every Media Company Fears Richard Liebowitz; Slate, May 24, 2018

Justin Peters, Slate; Why Every Media Company Fears Richard Liebowitz

"Key to Liebowitz’s strategy is the pursuit of statutory damages. Under the Copyright Act of 1976, federal plaintiffs can be awarded statutory damages if they can prove “willful” infringement, a term that is not explicitly defined in the text of the bill. (“What is willful infringement? It’s what the courts say it is,” explained Adwar. Welcome to the wonderfully vague world of copyright law!) If a plaintiff had registered the work in question with the Copyright Office before the infringement occurred or up to three months after the work was initially published, then he or she can sue for statutory damages, which can be as high as $150,000 per work infringed. That’s a pretty hefty potential fine for the unauthorized use of a photograph that, if it had been licensed prior to use, might not have earned the photographer enough for a crosstown taxi.

“Photographers are basically small businesses. They’re little men. But you have this powerful tool, which is copyright law,” said Kim, the freelance photographer. The question that copyright attorneys, media executives, and federal judges have been asking themselves for 2½ years is this: Is Richard Liebowitz wielding that tool responsibly? “He offers [his clients] nirvana, basically. He essentially offers them: I will sue for you, I don’t care how innocuous the infringement, I don’t care how innocuous the photograph, I will bring that lawsuit for you and get you money,” said attorney Kenneth Norwick. And the law allows him to do it. So is Liebowitz gaming the system by filing hundreds of “strike suits” to compel quick settlements? Or is he an avenging angel for photographers who have seen their livelihoods fade in the internet age? “They can call Richard Liebowitz a troll,” said Kim. “Better to be a troll than a thief.”...

Over the past 2½ years, Liebowitz has attained boogeyman status in the C-suites of major media organizations around the country. Like the villain in a very boring horror movie featuring content management systems and starring bloggers, his unrelenting litigiousness has inspired great frustration amongst editors and media lawyers fearful that they will be the next to fall victim to the aggravating time-suck known as a Richard Liebowitz lawsuit. And he is probably all of the things his detractors say he is: a troll, an opportunist, a guy on the make taking advantage of the system. He is also a creature of the media industry’s own making, and the best way to stop him and his disciples is for media companies to stop using photographers’ pictures without paying for them—and to minimize the sorts of editorial mistakes borne out of ignorance of or indifference to federal copyright law. “People should realize—and hopefully will continue to realize,” said Liebowitz, “that photographers need to be respected and get paid for their work.”"

WHAT IF ‘STAR TREK’ WERE FREE? HOW THE STORIED SCI-FI FRANCHISE COULD INSPIRE COPYRIGHT REFORM; Newsweek, March 5, 2018

Andrew Whalen, Newsweek; 

WHAT IF ‘STAR TREK’ WERE FREE? HOW THE STORIED SCI-FI FRANCHISE COULD INSPIRE COPYRIGHT REFORM

"CBS and Paramount are unlikely to see things the same way. While Star Trek: Discovery press releases trumpet the “ideology and hope for the future that inspired a generation of dreamers and doers,” plans for streaming market domination depend upon exclusivity. The metaphor equating artistic expression and property has become so ingrained that companies regularly reduce their consumers to provisional licensees, subject to whatever controls the copyright holder decides upon, even long after the point of purchase.

“Star Trek stands on the shoulders of giants. It exists because they plundered some of the most interesting stories and memes of science fiction, just as all science fiction writers do, to tell their own story. And to argue that when they did it that was the legitimate progress of art and whenever anyone else does it, it's theft, is pretty self-serving and kind of obviously bullshit,” Doctorow said. “It's a ridiculous thing for a law to ban something that ancient and fundamental to how we experience art.”

Countering the monopoly exercised by copyright holders will require a broader social realignment, under which people come to understand art as a shared cultural endowment, rather than product—a mindset beyond capital."

Artist Says Kendrick Lamar Video for ‘Black Panther’ Song Stole Her Work; New York Times, February 11, 2018

Robin Pogrebin, New York Times; Artist Says Kendrick Lamar Video for ‘Black Panther’ Song Stole Her Work

"On Saturday, Christopher Robinson, a lawyer for the artist Lina Iris Viktor, sent a letter to Mr. Lamar’s mentor and label head, Anthony Tiffith at Top Dawg Entertainment, alleging a copyright violation of the 24-karat gold, patterned artworks in her series of paintings “Constellations.” Ms. Viktor had been contacted twice by the film’s creators for permission to feature her work, the letter says, but she decided not to participate.

“The infringement of Ms. Viktor’s rights is willful and egregious,” the letter says, adding that the artist is willing “to discuss a resolution of all her claims, consisting at a minimum of a public apology for the unauthorized use and a license fee.”

In a telephone interview, Ms. Viktor said, “Why would they do this? It’s an ethical issue, because what the whole film purports is that it’s about black empowerment, African excellence — that’s the whole concept of the story. And at the same time they’re stealing from African artists.”"

Theft of intellectual property is a crime; St. Cloud Times, June 17, 2017

Karen Cyson, St. Cloud Times, sctimes.com; Theft of intellectual property is a crime

[Kip Currier: Wow...do we ever need more Intellectual Property education and awareness; lots of misconceptions and confusion out there. (Brief aside: See this story I posted a few days ago highlighting widespread confusion between copyrights and trademarks.)

This Op-Ed by Karen Cyson presents a wildly unbalanced understanding of the checks-and-balances codified within U.S. copyright law; regardless of whether one is or is not swayed by the facts of the alleged infringement. One of the biggest issues I have with this piece is that copyright law is often much more grey, more dependent on the specific facts of each particular case than Cyson makes it out to be:

No mention at all about whether the defense/doctrine of fair use might be applicable.

No acknowledgement of the increasing role of transformativeness within copyright law.

No insights into the downsides of copyright for the quilting community. No benchmarking comparisons made between the fashion industry (where there is no copyright protection for designs, at present, though various bills have been introduced over the past several years) and the quilting community.

And no distinctions between "attribution" and "infringement".

For an informative, more balanced look at the issues, read Tech Dirt's Glyn Moody (2012) post What Quilting's Legal Battles Can Teach Us About Copyright  ]

"We all know copying is wrong. If someone else wrote it, designed it, sang it, filmed it, drew it or photographed it, it's wrong to copy their work. It's illegal...

Theft of intellectual property — anyone's — is a crime. You can quote me. With attribution.

This is the opinion of Karen Cyson, a child-care provider in Stearns County and coordinator of Central MN Mensa. Her column is published the third Sunday of the month."

How a rigid fair-use standard would harm free speech and fundamentally undermine the Internet; Los Angeles Times, June 1, 2017

Art Neill, Los Angeles Times; How a rigid fair-use standard would harm free speech and fundamentally undermine the Internet

"In a recent Times op-ed article, Jonathan Taplin of the USC Annenberg Innovation Lab claimed that an “ambiguous“ fair use definition is emboldening users of new technologies to challenge copyright infringement allegations, including takedown notices. He proposes rewriting fair use to limit reuses of audio or video clips to 30 seconds or less, a standard he mysteriously claims is “widely accepted.”

In fact, this is not a widely accepted standard, and weakening fair use in this way will not address copyright infringement concerns on the Internet. It would hurt the music, film and TV industries as much as it would hurt individual creators...

Fair use is inextricably linked to our 1st Amendment right to free speech. We are careful with fair use because it’s the primary way consumers, creators and innovators share new ideas. It’s a good thing, and it is worth protecting."

Fair Use Too Often Goes Unused; Chronicle of Higher Education, May 10, 2017

Noah Berlatsky, Chronicle of Higher Education; 

Fair Use Too Often Goes Unused

"Only if authors can’t track down permissions holders, [Julia] Round [editor of the journal Studies in Comics] said, does the journal consider printing small images under the legal doctrine of fair use.

But while publishers want authors to get permission, the law often does not require it. According to Kyle K. Courtney, copyright adviser for Harvard University in its Office for Scholarly Communication, copyright holders have certain rights — for instance, if you hold rights for a comic book, you determine when and by whom it can be reprinted, which is why I can’t just go out and create my own edition of the first Wonder Woman comic. But notwithstanding those rights, fair use gives others the right to reprint materials in certain situations without consulting the author — or even, in some cases, if the author has refused permission...

Seeking permission may seem safe, but it can have serious ethical and practical downsides."

‘Remix’ or plagiarism? Artists battle over a Chicago mural of Michelle Obama.; Washington Post, April 24, 2017

Derek Hawkins, Washington Post; ‘Remix’ or plagiarism? Artists battle over a Chicago mural of Michelle Obama.

"Devins’s mural had only been up for a matter of hours when word got back to Mesfin. She objected to the use of her work without permission in a widely circulated Instagram post that triggered a wave of outrage online, saying she felt like Devins stole her piece.

“I was very disheartened when he did that,” Mesfin told The Washington Post. “There’s a common code among all artists that you can get inspired by someone’s work but you have to pay homage and you have to give credit for it.”...

Devins said he never intended to take credit for Mesfin’s creation, which itself was based off a portrait in the New York Times by photographer Collier Schorr. Mesfin credited Schorr’s work on her Instagram post...

Devins said he came across Mesfin’s drawing on the sharing site Pinterest and was unable to track down the artist. He explained his decision to use the image without permission in an analogy, saying he was creating a “remix” of a piece of art in the way that a DJ remixes songs."

Torching the Modern-Day Library of Alexandria: "Somewhere at Google there is a database containing 25 million books and nobody is allowed to read them."; The Atlantic, April 20, 2017

James Somers, The Atlantic; Torching the Modern-Day Library of Alexandria: "Somewhere at Google there is a database containing 25 million books and nobody is allowed to read them."

"After the settlement failed, Clancy told me that at Google “there was just this air let out of the balloon.” Despite eventually winning Authors Guild v. Google, and having the courts declare that displaying snippets of copyrighted books was fair use, the company all but shut down its scanning operation.

It was strange to me, the idea that somewhere at Google there is a database containing 25-million books and nobody is allowed to read them. It’s like that scene at the end of the first Indiana Jones movie where they put the Ark of the Covenant back on a shelf somewhere, lost in the chaos of a vast warehouse. It’s there. The books are there. People have been trying to build a library like this for ages—to do so, they’ve said, would be to erect one of the great humanitarian artifacts of all time—and here we’ve done the work to make it real and we were about to give it to the world and now, instead, it’s 50 or 60 petabytes on disk, and the only people who can see it are half a dozen engineers on the project who happen to have access because they’re the ones responsible for locking it up."

EFF Says No to So-Called “Moral Rights” Copyright Expansion; Electronic Frontier Foundation (EFF), March 30, 2017

Kerry Sheehan and Kit Walsh, Electronic Frontier Foundation (EFF): 

EFF Says No to So-Called “Moral Rights” Copyright Expansion

"The fight over moral rights, particularly the right of Integrity, is ultimately one about who gets to control the meaning of a particular work. If an author can prevent a use they perceive as a “prejudicial distortion” of their work, that author has the power to veto others’ attempts to contest, reinterpret, criticize, or draw new meanings from those works...

A statutory right of attribution could also interfere with privacy protective measures employed by online platforms. Many platforms strip identifying metadata from works on their platforms to protect their users' privacy, If doing so were to trigger liability for violating an author’s right of attribution, platforms would likely be chilled from protecting their users’ privacy in this way.

For centuries, American courts have grappled with how to address harm to reputation without impinging on the freedom of speech guaranteed by the First Amendment. And as copyright’s scope has expanded in recent decades, the courts have provided the safeguards that partially mitigate the harm of overly broad speech regulation."

London Book Fair 2017: Judge Pierre Leval Defends Google Books Decision, Fair Use; Publishers Weekly, March 16, 2017

Andrew Albanese, Publishers Weekly; 

London Book Fair 2017: Judge Pierre Leval Defends Google Books Decision, Fair Use

"In a packed room for the LBF’s 2017 Charles Clark Memorial Lecture, Judge Pierre Leval, America’s foremost copyright jurist and a judge on the U.S. Court of Appeals Second Circuit, told attendees that Google’s program to scan tens of millions of library books to create an online index “conferred gigantic benefits to authors and the public equally,” and did not “offer a substitute or interfere with authors’ exclusive rights” to control distribution.

“It was,” Leval concluded, “not a, quote, close case.”

Leval delivered his remarks in what was billed as a debate with intellectual property lawyer and former General Counsel for the U.S. Copyright Office, Jon Baumgarten. But at the outset, both Leval and Baumgarten—long time acquaintances—downplayed the debate aspect. Rather, at a time when proposed exceptions to copyright law have many publishers in the U.K. and Europe on edge, Leval spoke mainly as an ambassador for the American doctrine of fair use...

The key to American fair use, he said, was the flexibility the law gives judges. While he acknowledged there is something to be said for “predictability and bright line rules,” he insisted that hard and fast standards do not best serve the purpose of copyright...

In his portion of the talk, Baumgarten reiterated the publishing community’s main complaints with the decision, and about fair use in the digital age more broadly. Most prominently, that the decision overly expanded the right to freely copy others’ works, which, if widely practiced in the digital age will harm rightsholders. He also bemoaned what he saw as the courts’ expansion of what “transformative” means."

Judge: Annotations to Georgia Law Are Protected by Copyright; Associated Press via U.S. News & World Report, March 28, 2017

Kate Brumback, Associated Press via U.S. News & World Report; 

Judge: Annotations to Georgia Law Are Protected by Copyright

"A federal judge has ruled that annotations to Georgia's legal code can be copyrighted and that a nonprofit organization's copying and distribution of them isn't protected by fair use laws.

The state in July 2015 sued Public.Resource.Org Inc. in federal court in Atlanta. The nonprofit is run by Carl Malamud, an internet public domain advocate who argues for free access to legally obtained files."