From Copyright Witness:

We receive a large number of enquiries and these often highlight a number of common misconceptions and misunderstandings about copyright law. The following attempts to dispel the ‘top 10’ copyright myths.

1. Copyright can protect my ideas

Copyright applies to a recorded work, it cannot apply to something as intangible as an idea. Within certain fields, (such as inventions) it may be possible to apply for a patent.

Because copyright applies to the actual recorded work – documents, music, artwork, etc., if a competitor used your copyright work, (i.e. copied or adapted your promotional literature or stole content from your website to promote their own product), this would be an infringement and you could certainly take action, but there is little you can do to prevent someone else creating their own work based on a similar idea as long as they are not copying your work to do so.

2. I can copyright a name or title

Copyright laws are actually very restrictive, and do not apply to items such as names and titles that may be duplicated coincidentally, or that may be legitimately used in unrelated instances.

From a copyright perspective, there is no reason why two works cannot have the same title. As long as the content of works themselves are not copied or adapted, no infringement has occurred.

This does NOT mean that there is no protection on the name, as it may be covered by other legislation: If the name was a trademark, or if it could be proved that that use of the title misleads or confuses the public, (this is know as ‘passing off’), then there can be issues.

While copyright will apply from the point a work is created, ‘passing off’ is based on the public perception of what the name implies, (i.e. you have a very clear idea of what you expect to be given if you ask for a ‘Coca-Cola’).

For further reading on this subject please see our fact sheet: P-18: Names, titles and copyright

3. I can simply post a copy to myself as proof of copyright

This method (sometimes called ‘poor man’s copyright’), may help in some cases, but it is extremely poor evidence as it is very easy to fake – for example by replacing the actual materials inside at a later date.

The main problem if you send your work to yourself via courier or the postal service (including recorded/tracked and signed for services) or use any other system which requires you to store the work yourself, is that there is no verifiable evidence to say that the contents have not been swapped.

For more on this, our page dealing with poor man‘s copyright and other ‘alternatives’ may be worth a look.

Link to the rest at m Copyright Witness

From The Economist:

More than six years ago I published an analysis arguing that training generative ai on copyrighted works could break American law. Since then many others have suggested the same. The issue has already boiled over in Britain, where this month talks between the ai industry and creative organisations over a new code of practice broke down. Now, lawsuits by artists, writers and the New York Times are testing our theory against defendants such as Openai, Meta and Stability ai.

The ai industry’s defence rests on “fair use”, a doctrine that permits the use of copyrighted material without its owner’s permission in certain circumstances. If this argument prevails, the industry will receive carte blanche to exploit copyrighted works without compensating authors—all while the law continues to stifle humans’ access to those works. ai will “learn” from pirated textbooks free of charge, while students pay extravagant prices. How perverse.

The purpose of copyright is to stimulate creativity and thereby encourage the creation of more expressive works for the public good, not just to promote a particular technology. Yet, curiously, many “free culture” activists support the ai companies. These activists’ worldview crystallised around the early 2000s, when copyright protections expanded and record labels pursued exorbitant judgments against people who shared music online. In response to this grab by major rights-holders, the copyright decelerationists, as I call them, vowed to halt copyright’s expansion.

I believe that the decelerationists’ premise remains as correct today as it was then: ever-stronger copyright protection has withheld incalculable amounts of culture from the public domain. But we won’t repair that damage with exceptions tailor-made to benefit the giants of ai. A better strategy is to enforce copyright just as harshly on ai learners as we enforce it on humans. This may seem paradoxical, but I believe it will highlight the law’s disregard for learning and could ultimately lead to copyright regulation being relaxed for humans. Thus, we should become copyright accelerationists.

Accelerationism can be used as a tactic to destabilise: Karl Marx delivered an accelerationist call-to-arms when he endorsed free trade, believing it would heighten capitalism’s contradictions and hasten the social revolution. In the context of copyright, accelerationism aims to upend the legal rules that hinder ordinary people from engaging with creative works. For example, there are millions of in-copyright works with no identifiable owner. But because using these “orphan works” remains legally risky, libraries, archives and people who want to use them for their own creative ends hesitate to touch them.

. . . .

This cultural tragedy is the result of a dramatic expansion of copyright’s reach over the past 50 years. Copyright’s term was lengthened, keeping creative works out of the public domain long after their creators had earned a fair return and stifling new generations. “Steamboat Willie”, Mickey Mouse’s 1928 debut, did not enter the public domain until January 1st this year because rights-holders had successfully lobbied for a 20-year copyright extension without any rational economic justification. America’s Congress abolished “formalities”—requirements that authors register and renew their copyrights and place notices in published works, or risk forfeiting those copyrights. Courts chipped away at the required level of creativity for copyright to be established.

These changes had predictable consequences: innumerable works were withheld from the public and a small group of rights-holders was enriched. But technological changes triggered unanticipated consequences. Each of us now accumulates dozens of copyrights every day. Thanks to rock-bottom originality requirements and the elimination of formalities, all but our most mindless emails, text messages and photos automatically count as intellectual property until 70 years after we die. Nearly all valuable ai training data is owned by someone and will be for decades. These legal rules, long the enemy of free culture, are now the enemy of powerful technology companies, too.

The ai industry claims training ai on copyrighted works is excused by the fair-use doctrine because rights-holders cannot prevent others from copying their works to learn from them. But that argument would fail if made by a human. Could you imagine a file-sharing defendant arguing that downloading a Beatles album was fair use because she wanted to learn the Lennon-McCartney songwriting style? She would be laughed out of court, even if she wrote nothing that resembled a Beatles tune.

The decelerationists and I agree that copyright’s routine thwarting of human learning and creativity is tragic. But carrying the ai industry’s water won’t repair that tragedy. Decelerationists must realise that even if the industry wins, all the cases denying fair use for activities like artistic pastiche, fan fiction and the publication of personal letters in a biography will remain binding precedents (for humans, that is).

Link to the rest at The Economist

From Reuters:

Cox Communications, the cable television and internet service provider, convinced a U.S. appeals court to throw out a $1 billion jury verdict in favor of several major record labels that had accused it of failing to curb user piracy, setting the stage for a new trial on the matter.

The 4th U.S. Circuit Court of Appeals in Richmond, Virginia, ruled on Tuesday that the amount of damages was not justified and that a federal district court should hold a new trial to determine the appropriate amount.

. . . .

A Virginia jury in 2019 found Cox, the largest unit of privately-owned Cox Enterprises, liable for its customers’ violations of over 10,000 copyrights belonging to labels including Sony Music Entertainment, Warner Music Group and Universal Music Group.

. . . .

A spokesperson for Cox said that the company was pleased with the decision to set aside the verdict but disagreed with the ruling that it still infringed.

“Providing homes and businesses with the broadband service that so many depend on in their daily lives should not be a violation of copyright law,” the spokesperson said.

. . . .

More than 50 labels teamed up to sue Cox in 2018, in what was seen as a test of the obligations of internet service providers (ISPs) to thwart piracy.

The labels accused Cox of failing to address thousands of infringement notices, cut off access for repeat infringers, or take reasonable measures to deter pirates.

Atlanta-based Cox had told the 4th Circuit that upholding the verdict would force ISPs to boot households or businesses based on “isolated and potentially inaccurate allegations,” or require intrusive oversight of customers’ internet usage.

Link to the rest at Reuters

PG hasn’t read more than the summary of the case as reported by Reuters, but is surprised there was no mention of The Digital Millenium Copyright Act in the OP.

He’ll be doing a bit of poking about to determine how the DMCA worked or didn’t work for Cox.

From The Wall Street Journal:

Every three months, the Performing Rights Society of Britain sends me royalties on “Caught Steelin’,” a country-funk instrumental I co-wrote and recorded 20 years ago. Whenever it appears on the soundtrack of, say, a daytime TV show about antiques, I receive about 12.5% of the royalty pie. I receive thinner slices from sales of the books I have written; the typical royalty on paperbacks is 8%. When the painter Walter Sickert defined genius as the “instinct of self-preservation in a talent,” what he might have meant was: Always keep your copyrights, for some day they may keep you.

Copyright law began in London in 1710, with the Act for the Encouragement of Learning (known, after the queen of the day, as the “Statute of Anne”). This fixed into law an ancient moral principle: Plato was outraged when a student named Hermodorus published his lecture notes in Sicily without permission—perhaps history’s first bootleg recording. Pliny the Elder compared unattributed copying to theft (“plagiarism” comes from a Latin word for “kidnapping”). This moral sense endures in university honor codes; former Harvard president Claudine Gay, see me after class.

Authors of books still claim the “moral right” to be named as the perpetrator of the work. But the creator is also often the little guy, deprived of his moral right by legal maneuvers. Richard Berry, who wrote the much-covered R&B hit “Louie Louie” in 1955, once told me that he saw no royalties until he lawyered up in the 1980s.

In “Who Owns This Sentence?” David Bellos and Alexandre Montagu explain how copyright became an invisible economic architecture that governs not just vital matters such as royalties, but also ephemera such as commercial trademarks and medical patents. Mr. Bellos is a professor of French and comparative literature at Princeton, and Mr. Montagu is the founder of an intellectual-property law firm in London. They ask whether the invisible hand has now bent the little guy’s arm so far back that copyright has changed from a means to incentivize creativity to an “engine of inequality.”

Before 1710, British printing had been regulated by the Licensing of the Press Act (1662). The act granted a print monopoly to the Stationers’ Co. The Stationers bought the rights to authors’ work (the “buy-out,” as it’s known) took all the profits; it was also effectively the censor on behalf of the state. The 1662 law expired in 1695, and 15 years of debate and lobbying began. John Locke called it “absurd” that the work of Julius Caesar or Livy could be copyrighted. The printers protested a “notorious invasion of the property of the rightful proprietors.” In 1710, Parliament proposed a compromise. The printers retained “right of copy” (the right to print and sell) for 21 years. The authors, or their assignees, retained ownership of the contents. The book business was born.

In 1774, a new law affirmed that publishers only had limited rights to dead authors’ work, after which it entered the public domain. The printers were still in charge, and authors had yet to receive royalties, but competition now gave the public more and cheaper books. Then as now, publishers gambled on living writers, but found the dead more dependable earners.

Meanwhile, copyright began to be applied to other media. In 1735, Parliament approved a petition from William Hogarth and his club, the Sublime Society of Beefsteaks, that engravings should be considered printed matter. In 1777, the publisher Longman was caught stealing the sonatas of Johann Christian Bach, the youngest son of Johann Sebastian. Lord Mansfield, bless him, ruled that music was one of the “other writings” covered by the Statute of Anne. These precedents would shape American and global jurisprudence as copyright spread around the world.

While the British argued over commercial rights, the French discovered that copyright, like the rights of man, was inalienable. Denis Diderot argued in 1761 that a book expressed the “spirit of the man of letters.” In 1777, a French law granted authors lifetime rights of property in their works. The philosopher and mathematician Nicolas de Condorcet, notably, rejected the claim that copyright encouraged “learning,” and asked why he could freely print a “general theory of mechanics” but would be breaking the law if he reprinted a “pretty poem” without permission.

The treatment of copyrights and practical intellectual property, such as patents, remains unequal. “Why should Donald Duck belong exclusively to Disney for nearly a century,” the authors ask, “but a miracle cure belong to the company that created it for twenty years at most?” Copyright law is a jerry-built skyscraper. Condorcet died late enough to benefit from the French law of 1793, which extended his exclusive rights 10 years after his death. The American copyright law of 1790, by contrast, was closer to the British law: 28 years from publication, plus another 14 if you were still alive, but nothing posthumously for your heirs.

. . . .

In any case, the American law had, the authors write, “minimal effect.” Piracy of imported literature was the norm in the United States throughout the 19th century. That changed because of a dispute over a staple of the American printing industry, circus posters. When the Wallace Circus ordered nearly identical promotional posters from the rival printing firms of Bleistein and Donaldson, Bleistein sued Donaldson for infringement. In 1903, the Supreme Court ruled in favor of Bleistein. The real loser was the unknown artist who created the posters for the Wallace Circus and was paid $100.

“The word author,” the U.S. Copyright Reform Act of 1909 confirmed, “shall include an employer in case of works made for hire.” Messrs. Bellos and Montagu call this definition of employer as author an “offence to common sense.” The author and employer are supposed to be different parties to the transaction, they insist. They argue that the 1909 act discreetly restored the “feudal” pre-1710 system of buy-outs by giving employer-owners an incentive to buy up and exploit authors’ rights (soon to be known as intellectual property, or IP”).

Thanks to Johann Christian Bach’s precedent, the Summy Co. and Warner/Chappell Music raked in around $2 million between 1949 and 2016 from the rights to “Happy Birthday to You.” In 1996, the American Society of Composers, Authors and Publishers even tried to shake down the Girl Scouts for singing “God Bless America” around the campfire. By then, the United States had turned from pirate to international IP policeman, pushing the expansion of copyright across the world.

Fifty years ago, the authors write, the value of cross-border copyright licensing was less than a billion dollars. By 2021, it was $508 billion. The wealth of 16 of the world’s 50 richest people, they claim, derives “in whole or part from copyright industries.” While copyright law has spread across the globe, copyright ownership has centralized. The capital valuations of Microsoft, Apple, Alphabet, Amazon, Meta and Disney are, the authors write, “almost entirely constituted” by the ownership and sale of copyright material. The income of musicians and writers, meanwhile, has declined.

To the authors, it is as if intellectual property were back in the hands of a “small cartel of wealthy printers.” As copyright spreads, the “tax on reading” once paid by 17th-century Londoners has become a global levy on everything from phone apps to Mickey Mouse plushies. They estimate that the U.S., heartland of an “empire of I.P.,” extracts a “net tribute” of $80 billion from the rest of the world. “There is probably no way of computing,” the authors assert, “what share of your expenditure trickles upwards through retailers and distributors and manufacturers to the ultimate owner of the almost everlasting rent-generating monopolies.”

. . . .

Immanuel Kant thought writing could no more be owned than a “puff of hot air,” but the philosophers at the Walt Disney Co. proved otherwise. The initial copyright on Mickey Mouse was set to expire in 1984 until Disney’s lobbying secured a 20-year extension in the Copyright Act of 1976. Disney obtained a further extension in the Sonny Bono Copyright Term Extension Act of 1998. Though Mickey’s earliest incarnations entered the public domain on Jan. 1, his earning potential is regularly refreshed by tweaks to his design.

Link to the rest at The Wall Street Journal

From The BBC:

A small garden supply business called L V Bespoke recently won its fight to keep its name against the French luxury fashion house Louis Vuitton. Experts say such cases have increased “hugely” in the past 18 months as major brands seek to protect their intellectual property. But what actually happens when a multi-national firm comes knocking at your door?

Before the Covid-19 pandemic, Victoria Osborne ran a holiday letting business and her husband Lawrence worked in construction.

“When the pandemic arrived, both of our incomes were wiped out literally overnight,” says Mrs Osborne.

Amid what she describes as a “mad panic” the couple, who were renovating their home in Reepham, near Norwich, focused on their garden and began growing their own food while former boat builder Mr Osborne tried his hand at making metal plant supports.

The supports turned out well. So well, in fact, the couple wondered if others would be willing to pay for them. They were.

The business grew from selling the supports on Gumtree and at car boot sales to being featured by the Royal Horticultural Society.

The couple had named the business using their own first initials, and L V Bespoke was born.

The trademark was sent off to the Intellectual Property Office (IPO), which receives more than 150,000 registration requests each year, in December 2021. An examiner carried out initial checks and no issues were raised.

But when the application to register the L V Bespoke trademark was made public, Louis Vuitton Malletier objected in March 2022 via lawyers in London claiming the trademark impinged on its intellectual property.

“We were very shocked and surprised,” says Mrs Osborne. “We thought it was a practical joke by one of our friends.

“It was just ludicrous to think they had the rights to the letters “L” and “V” and there was no comparison to be made between our goods and theirs.”

They sought legal advice almost immediately and decided to stick to their guns.

IPO Tribunal Judge Matthew Williams found in the couple’s favour, deciding Louis Vuitton’s opposition had failed “on all grounds”.

Although Louis Vuitton has not responded to the BBC’s requests for comment on the case, Jamie Muir Wood, who represented the firm during the tribunal told the hearing that Louis Vuitton’s trademark contained the letters “L” and “V” and that it was understood those letters “stand for Louis Vuitton”.

He said the Osborne’s logo “contains the same two letters, in the same order, followed by the word ‘bespoke'”. It also contains some slight figurative decoration.

“Conceptually, we say that there is essentially identity or very high similarity because both signs refer to a brand LV,” he told the hearing.

Melanie Harvey, a legal director at Birketts LLP and a chartered trade mark attorney, says the Osbornes’ case is far from unique.

She says in the past 18 months there has been a “huge” rise big firms seeking to protect their trademarks. She says clothing businesses, champagne makers and high end brands were particularly busy protecting their identities at the moment.

Link to the rest at The BBC and thanks to C. for the tip.

PG was disappointed that the judge didn’t order LV to pay all of the defendant’s legal bills. Awarding attorney’s fees to the winner in a civil lawsuit helps to discourage foolish and overreaching suits, particularly against defendants who are not particularly wealthy.

From The IPKat:

The protection of fictional characters presents various challenges. Their external appearance can be protected by copyright, design, trade mark or unfair competition law, though there are limits. An obvious one is the duration of most IP rights. The US copyright for Winnie the Pooh expired in 2021 and it will expire for the original (‘Steamboat Willie’) Mickey Mouse in 2024. Fortunately, there is no limitation on trade mark renewals. Figurative and three-dimensional trade marks for a character can prove to be an effective tool to prevent third parties from exploiting the reputation of the character’s appearance acquired during the term of copyright protection.

Obtaining trade mark registrations for the names of fictional characters like Mickey Mouse, James Bond or Indiana Jones is quite easy because names are generally considered to be inherently distinctive for any goods and services. If they are well-known, they enjoy a broad scope of protection as a recent decision of the EUIPO’s Opposition Division in a case concerning the famous tomb raider Lara Croft shows

Background

On 12 July 2022, Wuhan Shuncheng Electronic Commerce Co., Ltd. filed an application for EU trade mark no. 18731202 ‘LoraCraft’ covering essentially packaging and stuffing materials as well as ropes in class 22.

Relying on a likelihood of confusion (Art. 8(1)(b) EUTMR) and the protection of a trade mark with a reputation (Art. 8(5) EUTMR), Square Enix Newco Limited (‘Square Enix’) filed an opposition based on EU trade mark no. 549006 ‘LARA CROFT’ registered inter alia for ‘computer games software, computer games’ in class 9. 

. . . .

The EUIPO’s decisions

The Opposition Division briefly denied a likelihood of confusion because the goods are dissimilar (Art. 8(1)(b) EUTMR).

Regarding claims based on a trade mark with a reputation (Art. 8(5) EUTMR), the EUIPO found that ‘LARA CROFT’ and ‘TOMB RAIDER’ have been used as trade marks since 1996 throughout the world for computer games, computer game services and a wide range of merchandising products. Lara Croft has featured, inter alia, in music videos (e.g. here), car advertisements (here) and Hollywood films. Several Guinness world records are held by and associated with Lara Croft, including best-selling video game heroine. From 1996 to 2023 the total number of worldwide sales of Lara Croft video games amounted to 95 million units. In the EU (without the UK) Square Enix sold 14 different video games with a total of over 7 million units, generating an eight digit US Dollar turnover.

The Opposition Division concluded that the earlier EU trade mark enjoyed a strong reputation in the EU, in particular in Germany and France, for computer games in class 9.

As regards the similarity of signs, the EUIPO held that both signs will be perceived as the first and last name of a female. The signs are visually and phonetically highly similar on account of the coincidence in the letters ‘L*ra Cr*ft’ and the letters ‘o’ and ‘a’ being merely exchanged. Conceptually the signs were considered not to be similar.

On the question whether the relevant public would establish a link between the marks, the Opposition Division found that the goods and their market sector are only remotely connected. Despite the dissimilarity between video games and packaging material etc., the EUIPO held that merchandising of video game characters is a common practice and an important source of income. Hence it is found to be normal that the earlier mark is exploited outside its market sector, for instance, through licensing or merchandising. The contested goods could easily be used for further merchandising the famous Lara Croft trade mark. Considering this and the high visual and phonetic similarity, the Opposition Division concluded that the relevant public would establish a link.

The EUIPO also accepted that the use of ‘LoraCraft’ on the contested goods would take unfair advantage of ‘LARA CROFT’. Trade marks with a strong reputation will be recognized in almost any context. The exchange of the position of two letters will not impede that recognition. The use of ‘LoraCraft’ for the goods in class 22 will benefit from the attention paid to the highly similar and very well-known mark ‘LARA CROFT’ and will become associated with the aura of fame surrounding the latter. Consumers may think that there is a direct connection between the applicant’s goods and the famous Lara Croft character.

Comment

This decision raises the interesting question whether titles of works (such as ‘TOMB RAIDER’ or ‘LARA CROFT’ for video games or a video game character) are perceived as trade marks by the relevant public, i.e. as indications of origin. The answer impacts the questions whether a trade mark for the title of the work (1) is inherently distinctive, (2) can acquire a reputation for specific goods, (3) is genuinely used and (4) can be infringed by third party use of identical or similar signs.

The German Supreme Court held that use of a sign as a title does usually not amount to use as a trade mark. The purpose of a title of a work is generally only to distinguish one work from another but not to indicate the commercial origin. German case law makes exceptions, inter alia, for well-known titles (case Kinderstube at para. 41) and a series of works published under the same title (e.g. Higher Regional Court of Hamburg, case 5 U 147/09). Adding the ® or TM to the title is also considered to be helpful to establish trade mark use.

Link to the rest at The IPKat and thanks to C. for the tip.

PG notes that the OP has plenty of links so anyone can dig into IP law.

Here’s an overview of what is protected by trademark, patent and copyright:

Trademark, patent, or copyright

Trademarks, patents, and copyrights are different types of intellectual property. The USPTO grants patents and registers trademarks. The U.S. Copyright Office at the Library of Congress registers copyrights. Use the IP Identifier to learn what kind of intellectual property you have.

PG felt an urge to meander, but, surprisingly, resisted. Basically, each major branch of intellectual property protection – The Big Three listed above plus Trade Secrets – has developed in its own unique manner and has its own rules.

Plus Patent Prosecution – persuading the government to issue a patent and patent litigation – suing someone who has violated your patent – involve much different typical days at work.

In addition to patent attorneys, there are patent agents, sometimes called patent practitioners – non-lawyers who are licensed by the USPTO to assist inventors in the process of obtaining a patent in the first place. Patent agents typically charge less than patent lawyers do to persuade the USPTO to issue a patent.

If you suspect PG has described what some might regard as one fine mess for people who actually create intellectual property in all its various forms, PG would be inclined to agree with you.

You can theoretically file a patent application by yourself, but you’ll need to climb a long learning curve. Ditto for a trademark. Registering a copyright is a bit easier, but has its own institutional quirks and pitfalls.

No, PG can’t help you with any of this stuff. He is a retired attorney which means he hasn’t kept up with the tasks, quirks and hurdles that an active attorney is required to perform to keep his license fresh and sweet-smelling. PG has no idea where his old and musty license is. He probably tossed it many years ago.

From Fire:

The “chilling effect” refers to a phenomenon where individuals or groups refrain from engaging in expression for fear of running afoul of a law or regulation. Chilling effects generally occur when a law is either too broad or too vague. Individuals steer far clear from the reaches of the law for fear of retaliation, prosecution, or punitive governmental action.  

Chilling Effect in the Courts

Justice Felix Frankfurter referred to the chilling effect in his concurring opinion in Wieman v. Updegraff (1952), a case involving a loyalty oath imposed on teachers. In that opinion, Justice Frankfurter declared:

[The loyalty oath] has an unmistakable tendency to chill that free play of the spirit which all teachers ought especially to cultivate and practice; it makes for caution and timidity in their associations by potential teachers.

Vague laws produce chilling effects because individuals do not know exactly when their expressive conduct or speech crosses the line and violates such rules. The Supreme Court explained this when examining the constitutionality of two provisions of the Communications Decency Act (CDA) that criminalized the online transmission of “patently offensive” and “indecent” communications. However, the law failed to define either term, thus creating a chilling effect.   

Writing for the Court in Reno v. ACLU (1997), Justice John Paul Stevens explained:

The vagueness of the CDA is a matter of special concern for two reasons. First, the CDA is a content based regulation of speech. The vagueness of such a regulation raises special First Amendment concerns because of its obvious chilling effect on free speech.

Vague laws are not the only ones that can cause chilling effects. Overbroad laws and laws that impose a prior restraint on expression also can chill expression. Justice William Brennan referred to this in his dissenting opinion in Walker v. City of Birmingham (1967) when he wrote of “our overriding duty to insulate all individuals from the chilling effect upon exercise of First Amendment freedoms generated by vagueness, overbreadth and unbridled discretion to limit their exercise.”  

Laws that chill free expression do not provide the appropriate level of breathing space for First Amendment freedoms. The Court in New York Times Co. v. Sullivan (1964) created a new rule for allegedly defamatory statements about public officials—the actual malice rule—in order to combat the chilling effects that many state libel laws had on free expression.  

A law that made the media and individuals liable for every false statement would have palpable chilling effects and dampen political discourse on important public issues. In his concurring opinion, Justice Arthur Goldberg recognized that “[t]he opinion of the Court conclusively demonstrates the chilling effect of the Alabama libel laws on First Amendment freedoms in the area of race relations.”

Link to the rest at Fire

From Copyright.gov:

Fair use is a longstanding and vital aspect of American copyright law. The goal of the Index is to make the principles and application of fair use more accessible and understandable to the public by presenting a searchable database of court opinions, including by category and type of use (e.g., music, internet/digitization, parody).

The Fair Use Index tracks a variety of judicial decisions to help both lawyers and non-lawyers better understand the types of uses courts have previously determined to be fair—or not fair. The decisions span multiple federal jurisdictions, including the U.S. Supreme Court, circuit courts of appeal, and district courts

. . . .

The Fair Use Index is designed to be user-friendly. For each decision, we have provided a brief summary of the facts, the relevant question(s) presented, and the court’s determination as to whether the contested use was fair. You may browse all of the cases, search for cases involving specific subject matter or categories of work, or review cases from specific courts. The Index ordinarily will reflect only the highest court decision issued in a case. It does not include the court opinions themselves. We have provided the full legal citation, however, allowing those who wish to read the actual decisions to access them through free online resources (such as Google Scholar and Justia)

. . . .

About Fair Use

Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use. Section 107 calls for consideration of the following four factors in evaluating a question of fair use:

1. Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair. This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below. Additionally, “transformative” uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.
2. Nature of the copyrighted work: This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work is less likely to be considered fair.
3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole: Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely. That said, some courts have found use of an entire work to be fair under certain circumstances. And in other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part—or the “heart”—of the work.
4. Effect of the use upon the potential market for or value of the copyrighted work: Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.

In addition to the above, other factors may also be considered by a court in weighing a fair use question, depending upon the circumstances. Courts evaluate fair use claims on a case-bycase basis, and the outcome of any given case depends on a fact-specific inquiry. This means that there is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission.

Link to the rest at Copyright.gov

PG Note: This is a 2018 case that dealt with the first sale doctrine and digital music.

From Loeb & Loeb:

Plaintiffs, record company Capitol Records LLC and others, filed a suit against defendants ReDigi Inc., an online “reseller” of pre-owned digital music files, alleging multiple copyright violations. In a March 2013 memorandum and order, the district court granted summary judgment in favor of Capitol Records and denied summary judgment in favor of ReDigi, finding that ReDigi’s online service infringed Capitol Record’s reproduction and distribution rights and that neither the first sale doctrine nor fair use protected ReDigi from Capitol Record’s claims.

. . . .

In July 2016, defendants appealed, arguing that ReDigi’s online system lawfully enables resales of digital files under the doctrines of first sale and fair use as well as several policy arguments. The Second Circuit rejected these arguments and held that neither fair use nor first sale doctrine defenses protected defendants from liability under 17 U.S.C. § 106(1) (the exclusive right of reproduction) of the Copyright Act. The Second Circuit made no decision on whether defendants also infringed on plaintiffs’ exclusive rights under 17 U.S.C. § 106(3) (the exclusive right of distribution).

Defendants argued that technically ReDigi’s process is not a “reproduction,” since the ReDigi system copies data for the purchasing user as it deletes the equivalent on the selling user’s device, so the amount of data extant in the transfer process remains constant. The Second Circuit affirmed the district court’s reasoning, similarly concluding that in the course of transferring digital files on ReDigi, new phonorecords are created, thus violating plaintiffs’ exclusive control of reproduction underSection 106(1). The court reached this conclusion by determining that the phonorecord was the physical medium on which the file was located, e.g., the computer hard drive, rather than the digital file itself. The court also found the fact that the amount of data extant in the transfer process remained constant to be immaterial. 

Second, the Second Circuit analyzed whether ReDigi’s online system lawfully enables the resale of its users’ digital files under the fair use doctrine. The Second Circuit evaluated ReDigi’s fair use defense by weighing the four statutory factors in 17 U.S.C. §107.

Factor one favors secondary uses that are “transformative,” meaning that the use “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message, rather than merely superseding the original work.” The Second Circuit found that factor one weighed in favor of plaintiffs given that defendants made no change to the copyrighted digital files and also because defendants have a commercial motivation. Factor two concerns “the nature of the copyrighted work.” The court glossed over factor two, simply concluding then when looking to the nature of plaintiffs’ copyrighted works, there existed no substantial reason for favoring or disfavoring fair use. Factor three concerns “the amount and substantiality of the portion of the original used in relation to the copyrighted work as a whole.” Since ReDigi’s system makes identical copies of plaintiffs’ copyrighted sound recordings, this disfavors a finding of fair use, weighing factor three in favor of plaintiffs. Factor four, which the court said was “the single most important element of fair use,” focuses on whether the copy competes with the original in the marketplace so as to deprive the original copyright holder of significant revenue because purchasers prefer the copy rather than the original. The digital files resold by the ReDigi system are lower in price than the original, thus competing directly with the original copyright holders. Further, there is no physical deterioration in a digital file, unlike with a used book. For this reason, the Second Circuit weighed factor four in favor of plaintiffs. After collectively weighing all four factors, the Second Circuit found no fair use justification because defendants’ system inflicts substantial harm on the value of plaintiffs’ copyrights by acting as a direct competitor in the marketplace.

Third, the Second Circuit addressed defendants’ policy arguments. Defendants argued that (1) the ReDigi system allows for an economically beneficial practice, authorized by courts in the common law development of copyright and also endorsed by Congress, and (2) the court should read Section 109(a) to accommodate digital resales because the first sale doctrine protects such action regardless of the technological medium. In advancing these two policy arguments, defendants relied on an “equal treatment principle” and a “principle of technological neutrality,” arguing that purchasers of digital works should not be at a disadvantage when compared with purchasers of physical copyrighted works. The Second Circuit rejected both policy arguments, finding that the economic benefits were inconsequential and also that a broad reading of Section 109(a) would “exceed the proper exercise of [its] authority” given that Congress has already ordered that 109(a) be read narrowly. 

Link to the rest at Loeb & Loeb

PG Note: This was published in 2013. PG chose to post this because he suspects that Artificial Intelligence is going to raise some First Sale issues at some time in the future.

From Brookings:

On March 19, the Supreme Court issued its decision in Kirtsaeng v. John Wiley & Sons, a landmark copyright case examining the reach of the “first sale” doctrine. Under that doctrine, the owner of a copy of a work that was “lawfully made” in accordance with U.S. copyright law “is entitled, without the authority of the copyright owner, to sell or otherwise dispose” of it. For instance, if you purchase a lawfully produced music CD or movie DVD in the United States, you are free to later sell it at a garage sale, donate it to a library or loan it to a friend.

But what about goods made and sold overseas and then imported for resale? After all, there is another provision of copyright law that prohibits the importation into the United States, without the authority of the copyright owner, of copies of a work “acquired outside the United States.”

These two potentially contradictory features of copyright law were tested by Supap Kirtsaeng, who built a business around importing textbooks that had been lawfully made and sold overseas and then reselling them at a profit in the United States. After publisher John Wiley & Sons filed suit against Kirtsaeng in 2008, a federal district court found that his actions infringed Wiley’s copyrights, and the Second Circuit affirmed. However, the Supreme Court reversed these decisions on March 19, holding that the first sale doctrine “applies to copies of a copyrighted work lawfully made abroad.” The ruling will make it very difficult for sellers of physical goods like music CDs to price the same products differently in different markets.

Link to the rest at Brookings

UK authors, illustrators protest mooted copyright changes

From Books+Publishing:

In the UK, over 2600 authors and illustrators have signed an open letter to protest the government’s reconsideration of copyright and trade laws, reports Publishing Perspectives.

The letter comes after publishing industry organisations launched the Save our Books campaign in June, protesting the mooted changes to copyright laws which they claim would lead to a flood of cheap copies of UK books coming back into the home market.

Signatories to the letter, which was published as an open letter to the editor in the Sunday Times, include Hilary Mantel, Kazuo Ishiguro, Philip Pullman, Maggie O’Farrell and Bernardine Evaristo.

‘The Intellectual Property Office is currently consulting on the UK’s future exhaustion regime,’ the letter reads. ‘If they decide to introduce an international exhaustion framework, authors will be unable to limit foreign editions of their books being sold into the UK—undercutting their domestic sales.’

In a statement, Publishers Association CEO Stephen Lotinga said the letter ‘is a clear and urgent call from authors to avoid an outcome that weakens our copyright laws’.

‘Britain is a world leader in publishing and currently exports more books than any other country in the world,’ said Lotinga. ‘The wrong outcome would jeopardize the whole books industry and vandalize the UK’s cultural landscape. It would mean fewer books, by fewer authors, for fewer readers.’

Prior to Brexit, the UK fell under the EU’s copyright agreement, meaning books could be sold freely in Europe but not reimported to the domestic market. The Intellectual Property Office has since launched a consultation ‘which considers a weakening of copyright rules crucial for exporting books around the world and ensuring that UK authors benefit financially from the sales’. Author royalties on export sales are much lower than in the UK market, so if authors can’t prevent their copies from around the world being sold back into the UK, export sales risk eroding domestic sales.

Link to the rest at Books+Publishing

Save Our Books campaign launches – June 2021

From the Publishers Association:

An alliance of organisations has launched the Save Our Books campaign in the face of a potentially devastating change to the UK’s copyright laws which could result in fewer books, by fewer authors, for fewer readers.

Save Our Books is a joint campaign from the Publishers Association, the Society of Authors, the Association of Authors’ Agents and the Authors’ Licensing and Collecting Society.

The government is reconsidering the UK’s approach to copyright and trade following Brexit. The Intellectual Property Office launched a consultation today (Monday 7^th June 2021) which considers a weakening of copyright rules crucial for exporting books around the world and ensuring UK authors benefit financially from those sales.

Changing the way these rules, known as ‘copyright exhaustion’, work would present serious dangers for the health of the books industry, including: 

• Significantly impacting authors’ livelihoods. Author royalties on export sales are much lower than what authors can earn from UK sales of books published for the UK market. If authors cannot prevent their copies from around the world being sold back into the UK, then an export sale risks eroding the corresponding domestic sale. Approximately two-thirds of authors’ incomes could be at risk on the sale of a book in this scenario. This would threaten the sustainability and diversity of UK authorship.
• Destroying creative export markets. The potential loss of up to 25% of the UK publishing industry’s revenue – almost £1bn – which would harm investment and could lead to publishing job losses.
• Damaging the already suffering British high street and further supporting online retail giants.

For the continued success of the publishing industry, the UK must ensure authors and publishers have control over the resale of their global products. The government must avoid an ‘international exhaustion framework’ and find a solution that allows UK authors and publishers to ensure different markets can access versions of a book best suited to their needs.

Link to the rest at Publishers Association

A bit more explanation in the event some visitors to TPV aren’t certain what this is all about.

1. In the US (and many other countries), the author of a book (or creator of a painting, etc.) may, under copyright law, prevent anyone from making, printing, selling, etc., the book without the author’s permission.
2. If the author publishes a printed book, either directly or through a publisher, and offers it for sale, the author receives some or all of the price a reader pays to purchase the book. This is the “First Sale” of the book.
3. Under US law, after the First Sale of the physical book, the purchaser can do whatever he/she wants with that physical copy, including reselling it as a used book, to anyone else without any obligation to make any further royalty payment to the author.
4. The term, “copyright exhaustion” is used to describe this limited right to control/be compensated for the first sale of the book. Under copyright law author has no further control over or right to receive payment from future sales of that copy of the book. This doesn’t mean that someone who purchases a physical book can make copies of the book to resell or anything like that. The author’s copyright is “exhausted” only for that particular copy of the book.
5. Thus, when a used bookstore resells a physical book that has been sold or given to the store, neither the author or the publisher receives any additional payment for this “second sale”.

(Note: Ebooks are licensed, not sold. The license agreement could effectively control this sort of problem for ebooks without all the issues involved with printed books. Most ebook, software, etc., licenses prohibit transfer, resale, etc.)

Based upon the two articles PG has read concerning the problem described in the OP, the problem seems to be that, if proposed changes are made in British copyright law, new physical British books sold to buyers other countries (European) could then be sent back to Britain as new books and sold without the author receiving the much higher royalties he/she would normally receive from the sale of a new physical book in Britain.

As a hypothetical example, a shipload of new books could be sent across the English Channel to France to a French buyer (generating a much smaller export royalty for the author), then sent right back to Britain and sold as new books (boxes never opened, in exactly the same condition they were when they left the printer) without the author receiving the much higher royalties that would have resulted if the publisher had sold the books to British book distributors and British bookstores before the round-trip to France and back.

(PG notes that the previous paragraph definitely qualifies as a run-on sentence for which one of PG’s beloved elementary school teachers, Mrs. Lascelles, would have lowered PG’s grade.)