Copyright/Intellectual Property

From Above the Law:

Back in 2019, Techdirt wrote about a fascinating case involving a bogus CC license on a 3D scan of a 3000-year-old bust of Nefertiti. The person at the heart of the saga was the artist and open access activist Cosmo Wenman. His web site has some background on what he calls his “freedom of information projects“:

For more than a decade, museums around the world have been making high-quality 3D scans of important sculptures and ancient artifacts. Many institutions freely share those 3D scans with the public, allowing us to view, copy, adapt, and experiment with the underlying works in ways that have never before been possible. But some keep their scans out of public view, and I’ve been trying to help them see the light.

Following his success in liberating the 3D scan of Nefertiti, Wenman is now trying to do the same with 3D scans of the works of the great French sculptor Auguste Rodin. Many of these scans have been created by the Musée Rodin in Paris. There is a long and entertaining article (in the original French and an English translation – pdf) about Wenman’s pursuit of the 3D scans, and of the Musée Rodin’s refusal to share them. Wenman took an interesting tack, claiming that the museum’s 3D scans were documents subject to France’s freedom of information (FOIA) laws. It worked:

In late 2018 I sent a formal demand to Musée Rodin for access to all its 3D scans, citing French freedom of information laws. When the museum refused to comply, I brought the matter before the French government.

In June of 2019 the French government agency that oversees FOIA matters announced its first-of-its-kind opinion, in my favor; 3D scans produced by French national museums are in fact administrative documents and are subject to public disclosure. Musée Rodin is required by law to give the public access to its 3D scans of Rodin’s works.

Another victory for Wenman, then, but rather a hollow one. Despite the French government agency’s ruling, Musée Rodin continues to withhold the 3D scans. Wenman went on to file a suit against the museum in the Administrative Tribunal of Paris. Wenman wants the court to compel the museum to comply with the law, and to impose “significant” financial penalties for any delay. After more than a year with no response, the court directed the museum to present a defense. At the time of writing, Wenman is still waiting. However, given the unequivocal nature of the rulings against the Musée Rodin, he is confident:

Musée Rodin is going to fight, but I expect to win. The outcome will affect every national museum in France, inform policies at institutions around the world, and have interesting effects on the art market.

I’m shooting for a victory for open access, and freedom and innovation in the arts.

The knock-on effects of one person’s dogged pursuit of a few computer files could have a major impact on the wider availability of 3D scans of sculptures and ancient artifacts — a real win for the public domain.

Link to the rest at Above the Law

First, the application to authors – the 3D scans are a species of intellectual property, just like an author’s intellectual property interest in a story he/she creates.

The major difference is that, if the 3D model had been created from a scan of an original physical work made by or licensed from the creator of that work or as an original digitally-created work rather than one derived from a pre-existing physical object, the creator would have a protectable intellectual property interest in resulting model, the file created and, likely physical instantiations of that creation.

In this case, the scan was made from an original work created by Rodin, not by The Musée Rodin. Since Rodin’s original copyright interest in the original work expired a long time ago, absent some meaningful additional artistic contribution by someone during the 3D scan or with the resulting file, the scan is not a new protectible creation.

If PG goes to a museum and takes an iPhone photo of a 200-year-old painting, he hasn’t created anything new. (Whether he could post-process the photo into something creatively different from the original is a matter of degree. Enough post-processing and it might be a new creation. If PG just tweaked it so it looked a bit better than what the iPhone had produced on its own, probably not.)

Intellectual property experts are free, as usual, to criticize, supplement, etc., PG’s simplified description of the IP interests and their protectability under IP law in the comments below.

It may be obvious to many from the OP, but allow PG to summarize:

• The Musée Rodin houses a large collection of artworks created by by famous French sculptor August Rodin (1840-1917) at locations in Paris and Meudon, where Rodin lived and worked during the last twenty years of his life.
• Rodin’s best-known sculpture is The Thinker.

Under the supervision of the Ministry of Culture and Communication, the Musée Rodin is a non-subsidized national museum, a status that is quite unique on the French museum scene. The collections and works of art originating from the Auguste Rodin Donation, as well the acquisitions made by the museum, are the French State’s inalienable property. The Musée Rodin is administered by a board of trustees. The museum’s task is to make Rodin’s work known worldwide and to ensure that the moral right attached to it is respected.

Musée Rodin Public Establishment

It has become common for museums to perform in situ high-resolution 3-D computer scans of, at least, some of their most well-known sculptures. The result of the scan is a digital file that depicts every portion of the sculpture in great detail.

These scans can be easily shared throughout the world for, among other things, detailed examinations and analyses of the sculpture by experts everywhere without the necessity of interfering with the opportunity for the general public to view the original sculpture or risking any sort of damage to or loss of the sculpture by removing it from its current location for such examination. Like any other digital file, exact duplicates can be created at very little cost.

For purposes of a freedom of information request (which is governed by the laws of the country in question), a digital file is, absent special treatment under the law, a document like any other that a government (including government agencies) is required to produce if a FOIA request if filed in proper form.

In the US, per the US Health and Human Services you can file a FOIA request as follows:

Cosmo Wenman filed a freedom of information suit in France against the Musée Rodin when the museum apparently objected to his request for a copy of the 3D file of the Rodin statue.

Ultimately, the CADA AKA Commission D’Accès Aux Documents Administratifs (Commission for Access to Administrative Documents) ruled, in part:

the scans of works for which the Rodin Museum ensures the conservation, for purposes of both study and commercial exploitation, constitute administrative documents within the meaning of the aforementioned provisions, as soon as they have been elaborated and are held in the framework of the public service mission entrusted to this establishment. They are therefore, in principle, communicable to anyone who requests it.

The scans are administrative documents and Wenman was entitled to them.

One fact noted in a commentary PG read – The Musée Rodin receives over half of its annual revenue from its commercial activities, selling large and small reproductions of Rodin’s sculptures, printed copies of artworks, mugs, stationery, jewelry, t-shirts, lapel pins, tote bags, etc., with images derived from Rodin’s artworks, etc., as opposed to entrance fees paid by patrons.

So much for the museum’s laser focus on steadfastly protecting the artistic heritage of Rodin.

Once Mr. Wenman has a copies of the digital scans of the artworks in The Musée Rodin, you can expect him to make them widely available for anyone to download at no charge.

Mr. Wenman has been down this road before with the three-thousand-year-old Bust of Nefertiti, held by the Egyptian Museum and Papyrus Collection in Berlin.

You can download the 3-D digital file of the scan at the MakerBot Thingiverse.

Following are two videos that show/explain the 3-D printing process.

The first video is short, depicting the printing process for a smaller-than-life-size copy of the original.

The second video is longer, but more detailed, because the artist/mechanic used a home-sized printer to create a full-sized copy of the original.

From Hyperallergic:

Cerulean, azure, navy, royal … Much has been written about the color blue, the first human-made pigment. “Because blue contracts, retreats, it is the color of transcendence, leading us away in pursuit of the infinite,” wrote William Gass in his book On Being Blue: A Philosophical Inquiry. Wassily Kandinsky once mused: “The power of profound meaning is found in blue, and first in its physical movements of retreat from the spectator, of turning in upon its own center […] Blue is the typical heavenly color.”

And now, for the first time in two centuries, a new chemically-made pigment of the celebrated color is available for artists — YInMn Blue. It’s named after its components — Yttrium, Indium, and Manganese — and its luminous, vivid pigment never fades, even if mixed with oil and water.

Like all good discoveries, the new inorganic pigment was identified by coincidence. A team of chemists at Oregon State University (OSU), led by Mas Subramanian, was experimenting with rare earth elements while developing materials for use in electronics in 2009 when the pigment was accidentally created.

Andrew Smith, a graduate student at the time, mixed Yttrium, Indium, Manganese, and Oxygen at about 2000 °F. What emerged from the furnace was a never-before-seen brilliant blue compound. Subramanian understood immediately that his team stumbled on a major discovery.

“People have been looking for a good, durable blue color for a couple of centuries,” the researcher told NPR in 2016.

. . . .

OSU patented the color in 2012, but it took five more years until the United States Environmental Protection Agency (EPA) approved YInMn, at first only for use in industrial coatings and plastics. Last May, the government agency officially approved the new pigment for commercial use, making it available to all.

The vibrant pigment caught attention long before the EPA’s official approval last year. In 2016, Shepherd Color Company acquired the license to sell the pigment commercially for exterior applications. A year later, YInMn Blue inspired a new shade of Crayola crayon called Bluetiful. The pigment has also been popular on Etsy, although the quality and authenticity of these offerings are not guaranteed.

Link to the rest at Hyperallergic

A couple of clarifications concerning the OP:

1. As a general proposition, you can’t “patent” a color.
2. The YInMn Blue patent as described in the OP is what is generically called a “Chemical Patent.”
3. A Chemical Patent protects the use of specific chemicals, molecules, compounds, etc., in experimentation and product development.
4. The YInMn Blue patent, as issued, protects a complex chemical formula, with variations.
5. The patent also protects any paint, ink, glass, plastic, or decorative cosmetic preparation composed with the a material created with that chemical formula.

PG will happily accept clarifications by visitors more knowledgeable than he concerning patent law, chemistry or a great many other topics (a low hurdle), but it seems to him that, when it comes to protecting a color during a digital age, chemistry may not provide a comprehensive solution.

What humans perceive as color in the physical world is light that is reflected off of a colored object. One can affect the color perceived by humans by changing the color temperature of the light being directed to the object.

Sunlight has a different color temperature than moon light which has a different color temperature than fluorescent light, for example. While the human brain can make adjustments to modify perceptions to make them seem different than the eye can see, an object will be a measurably different color when observed under direct sunlight at noon than it will under the light of a full moon at midnight. Similarly an object will reflect a different color when observed under sunlight near sunset than under sunlight at noon.

Since we look at screens quite a lot these days, a computer screen is capable of producing the appearance of YInMn Blue without the use of the chemical formula which is protected by the OSU patent.

In fact, the following image of YInMn Blue was presented to PG’s eyes on his computer screen via the OP and is delivered to those who see this post without PG (or PG’s computer) using the protected chemical formula.

{In case you were wondering, Mrs. PG has observed manifestations of OCD (which PG attributes to a lengthy Covid lockdown) in recent weeks. Perhaps visitors to TPV have just observed a similar manifestation themselves.}

And here’s Bluetiful!, a new YInMn-ish Crayola color. Although you might not have thought so, colors can have genders. Bluetiful! is female. She is interested in STEAM (Science, Technology, Engineering, the Arts and Mathematics) education.

From The New York Times:

For months, the entertainment industry’s legal calendar had an intriguing item on the horizon: a copyright trial pitting Tracy Chapman, the revered and reclusive singer-songwriter, against the firebrand rapper Nicki Minaj.

But that trial is not to be. Late last month, the parties agreed to a judgment of copyright infringement against Minaj, and a payment of $450,000 to Chapman, according to documents made public on Thursday in federal court in California, where the case was being adjudicated.

Chapman sued Minaj for copyright infringement in late 2018 over a song called “Sorry,” which borrowed heavily from Chapman’s “Baby Can I Hold You,” released in 1988. The aspect of the case that drew the attention of legal scholars and entertainment litigators was that Minaj’s song, which she recorded with the rapper Nas, was never officially released, although it had been played on the radio by Funkmaster Flex, a celebrity D.J. on the New York radio station Hot 97.

Chapman accused Minaj of using “Baby Can I Hold You” without permission, which she said Minaj had asked for but was denied. Yet Minaj argued that her creation of “Sorry,” even without a license from Chapman, was protected by the doctrine of “fair use” — an exception to copyright law that lets creators borrow copyrighted material under certain conditions.

Their dispute raised thorny questions for musicians and the companies behind them: Can artists be held liable for copyright infringement for works in progress? Do artists need permission even to experiment in the studio?

. . . .

In September, Judge Virginia A. Phillips, of United States District Court in Los Angeles, sided with Minaj on the question of fair use. In a summary judgment decision, Judge Phillips wrote that “uprooting” the common practice of letting artists experiment privately “would limit creativity and stifle innovation within the music industry.”

But the judge allowed the case to go to trial over the question of how the song made its way to Funkmaster Flex. Chapman’s side alleged that Minaj had leaked it, and pointed to substantial correspondence between the two. Minaj said she did not send the track, and Funkmaster Flex said that he had gotten it “from one of his bloggers,” according to the judge’s ruling.

If Minaj had leaked the song herself, or authorized its release through intermediaries, she may have been liable for significant penalties. Court papers show that Minaj’s lawyers made their offer of $450,000, “inclusive of all costs and attorney fees incurred to date,” on Dec. 17, and that Chapman’s team accepted it on Dec. 30.

Link to the rest at The New York Times thanks to B. for the tip.

PG hasn’t been following the case except at a distance, but suspects that a lot of the $450K will go to Chapman’s attorneys.

PG hasn’t seen anything about whether Chapman is going after or plans to go after Funkmaster Flex or Hot 97.

From The United States Copyright Office:

Section 407 of the Copyright Act generally requires the owner of the copyright in a work published in the United States to deposit two copies with the Copyright Office for use by the Library of Congress. The Register of Copyrights is authorized to exempt certain classes of works from this mandatory deposit requirement. In a 2010 interim rule, the Office codified its longstanding practice of exempting all electronic works that are not available in a physical format. The 2010 interim rule created one exception to this general rule, providing that electronic-only serials published in the United States are subject to mandatory deposit if they are affirmatively demanded by the Office.

In 2018, the Office issued a proposed rule that would make the interim rule final and would make electronic-only books subject to mandatory deposit by way of the same demand process. An “electronic-only book” was defined as electronic literary work published in one volume or a finite number of volumes published in the United States and available only online, with some exclusions for specific types of works such as serials, audiobooks, websites, blogs, and emails.

In June 2020, the Office updated the 2018 proposed rule in response to public comments. The update clarified the scope of material subject to demand and adjusted the provisions governing the use of technological protection measures on deposited material. The Office also provided additional information on the Library’s digital collection strategy and information technology practices.

In November 2020, the Office issued a final rule, to take effect on December 14, 2020. The final rule largely adopts the language set forth in the June 2020 proposed rule, with one additional clarification regarding the rule’s applicability to print-on-demand books.

Link to the rest at The United States Copyright Office

PG notes that the statement above is included in a press release (in typical government-style prose) describing the new rule for copyright registration of digital and print-on-demand books. The complete rule, including more commentary and additional background and explanation of the purpose of the rule is set forth in the embedded PDF below.

[Thanks to Ryan for pointing out some typos in the above paragraph so PG could fix them.]

For eons (in internet time), the US Copyright Office has required that a copyright registrant send two physical copies of printed books to the Copyright office to be transmitted to the Library of Congress.

OTOH, more recently, the Copyright Office has also permitted the registering of a claim of copyright electronically. Such an electronic registration can also include submission of an electronic copy of the work/book for registration purposes in lieu of depositing two physical copies of the “best edition” of the work to be registered with some limitations. (see https://www.copyright.gov/eco/faq.html for more information).

This more recent (in relative terms) rule clarified the right of Microsoft, for an example, to submit an electronic copy of the computer code for Microsoft Office without also sending two copies of a zillion-page printout of that code, likely the only two printed copies in existence, to the Copyright Office with its copyright registration application. (Computer programs have been exempt from physical deposits for some time, but this illustrates PG’s overall point.)

This latest rule change recognizes that, if a registrant is registering a copyright for a book that will exist only in ebook or print-on-demand format, the registrant doesn’t have to send two copies of the printed version of the book to the Copyright Office.

It appears to PG that the Copyright Office has finally come to the conclusion that maintaining electronic records of books to be copyrighted may be just a touch easier and more convenient than sending more and more dead trees to fill up space in Washington.

Of course, as the discussion of the rule indicates, US government computing and electronic data storage systems are way behind the times and have required changes in order to store copies of ebooks in a manner that will allow access to such stored copies for those required to have access or who are entitled to such access under various laws and regulations.

Please note that this is PG’s sarcastic summary of legal stuff to help make it understandable by mere non-lawyers. If PG were writing about this topic for lawyers, it would take a lot more time for him to do so and 99% of the visitors to TPV (including more than a few lawyers) would not get to the end of PG’s bloviations.

From The Verge:

The estate of Sir Arthur Conan Doyle has sued Netflix over its upcoming film Enola Holmes, arguing that the movie’s depiction of public domain character Sherlock Holmes having emotions and respecting women violates Doyle’s copyright.

Enola Holmes is based on a series of novels by Nancy Springer starring a newly created teenage sister of the famous detective. They feature many elements from Doyle’s Sherlock Holmes stories, and most of these elements aren’t covered by copyright, thanks to a series of court rulings in the early 2010s. Details from 10 stories, however, are still owned by Doyle’s estate. The estate argues that Springer’s books — and by extension Netflix’s adaptation — draw key elements from those stories. It’s suing not only Netflix, but Springer, her publisher Penguin Random House, and the film’s production company for unspecified financial damages.

. . . .

The Doyle estate made a similar argument five years ago in a lawsuit against Miramax for its film Mr. Holmes — among other things, it claimed Mr. Holmes included plot details about Holmes’ retirement, which only happens in the final stories. But its new argument is a lot more abstract: basically, if this movie wants Sherlock Holmes to express emotions, its creators need to pay up.

The complaint alleges that in the public domain stories, Holmes is famously “aloof and unemotional.” Then, that changed because of his creator’s life experiences:

After the stories that are now in the public domain, and before the Copyrighted Stories, the Great War happened. In World War I Conan Doyle lost his eldest son, Arthur Alleyne Kingsley. Four months later he lost his brother, Brigadier-general Innes Doyle. When Conan Doyle came back to Holmes in the Copyrighted Stories between 1923 and 1927, it was no longer enough that the Holmes character was the most brilliant rational and analytical mind. Holmes needed to be human. The character needed to develop human connection and empathy.

Conan Doyle made the surprising artistic decision to have his most famous character—known around the world as a brain without a heart—develop into a character with a heart. Holmes became warmer. He became capable of friendship. He could express emotion. He began to respect women.

He also starts liking dogs, which a judge actually has described as a potentially protected trait.

The Hollywood Reporter notes that Doyle’s estate fought the partial public domain ruling by unsuccessfully arguing that Sherlock Holmes slowly became a complex figure who needed full copyright protection to remain coherent. The estate claimed that losing copyright to some of the stories gave Holmes “multiple personalities.”

So the estate now says Springer and Netflix are basing Enola Holmes on the personality that’s still protected. And the new personality’s key traits include relating to other people and reacting with “warmth and emotion” to a female character who happens to be his immediate family — in other words, some of the most basic updates any author might make to a century-old character.

Link to the rest at The Verge

PG was about to write some comments about showbiz lawsuits and California courts and lawyers.

(PG is a long-time member of The State Bar of California and one of more than 266,000 attorneys licensed to practice law in California, although PG no longer lives in that state. He will attest that there are some very good lawyers in California, there are some very inept lawyers in California and there are some very crazy lawyers in California.)

However, when PG examined the complaint in the Conan Doyle lawsuit, he was surprised to discover that it was filed in the United States District Court for the District of New Mexico by a law firm that appears to be comprised of five attorneys located in Santa Fe, New Mexico, population: 85,000.

There is definitely an interesting story about how a UK corporation created by the heirs of Arthur Conan Doyle connected with a five-attorney firm in Santa Fe.

As mentioned, Plaintiff is a UK corporation.

Defendants are:

• a Delaware corporation,
• a UK corporation,
• limited liabilities formed in
  • Delaware,
  • Georgia and
  • California,
• two residents of London
• a resident of Florida.

As it happens, the Santiago E. Campos Federal Courthouse is located in Santa Fe, likely a short walk from the offices of the attorneys representing the Conan Doyle Estate and not a short walk for any of the parties to the lawsuit or their preferred defense attorneys.

There are a total of five permanent Federal District Court judges and one temporary District Court judge in New Mexico. For comparison, California has 60 permanent Federal District Court Judge positions, New York has 52. (per https://www.uscourts.gov/)

PG doesn’t know how busy these New Mexico judges are, but expects none of them wished for a complex copyright lawsuit involving parties from all over the place to land on her/his docket.

Most Federal District Judges in New Mexico and elsewhere are current on the rules of criminal procedure and how to try a drug case. Copyright infringement? Not so much.

PG is pretty certain there are not enough qualified intellectual property trial attorneys with offices in Santa Fe to represent each of the defendants.

The Santa Fe airport boasts daily flights to to Denver, Dallas and Phoenix, so IP trial attorneys located in Los Angeles, New York or London won’t have an easy time getting to court.

PG hasn’t considered the question of federal jurisdiction and venue for a lawsuit involving as many parties from as many places as the Conan Doyle suit includes, but suspects that New Mexico federal courts could probably hear this case.

This case was filed at the end of June. PG hasn’t checked the court records to see if all the defendants have been served with papers and what has happened since the suit was filed.

However, PG will predict that the first response of the defendants has been/will be to strenuously attempt to have the case transferred to someplace with a lot more qualified attorneys and much better air access than Santa Fe.

He also suspects that a more than a few of the defendants had no idea where Santa Fe was when they were served with court papers.

PG is certain that this will be an entertaining (at least for him) case to follow.

[Let PG know in the comments or via the Contact Link if you are not seeing an embedded copy of the Complaint filed in this case and want to see it. When PG tested this post, he could usually see the PDF, but sometimes received an error message.]

From Publishing Perspectives:

Today (June 1), four publisher-members of the Association of American Publishers—including three of the Big Five—have filed a copyright infringement lawsuit against the Internet Archive, in the US District Court for the Southern District of New York.

The suit asks the court to enjoin the archive’s scanning, public display, and distribution of entire literary works—which it offers to the public through what the association terms “global-facing businesses” branded the Open Library and National Emergency Library. These are found at both openlibrary.org and archive.org.

The Internet Archive, the association states in media messaging this morning, “has brazenly reproduced some 1.3 million bootleg scans of print books, including recent works, commercial fiction and non-fiction, thrillers, and children’s books.”

. . . .

In making the announcement of today’s court filing, Maria A. Pallante, president and CEO of the association, says, “Today’s complaint illustrates that the Internet Archive is conducting and promoting copyright infringement on a massive scale. In scanning and distributing literary works to which it has no legal or contractual rights, the archive deliberately misappropriates the intellectual and financial investments of authors and publishers and brazenly ignores the copyright law that Congress enacted.

“IA operates with profound disrespect for the value chain of copyright, in which authors, publishers, bookstores, platforms, educational institutions, and libraries work together for the benefit of society, whether during prosperity or a pandemic.”

. . . .

The American association has had quick support this morning from its counterpart organization in the UK market.

From London, Publishers Association CEO Stephen Lotinga says, “We stand fully in support of this action by the Association of American Publishers, which reflects the very significant concerns held by publishers and authors about this site.

“The Internet Archive purports to be a library but it is not and behind that guise it is facilitating the distribution of millions of pirated books without paying a penny to the authors and publishers who produce them.

“We are living in unprecedented times, and that’s why publishers have gone out of their way to make content accessible to those who need it, but there’s no excuse for anyone to use the current crisis to infringe copyright in this way.”

. . . .

“We offered to work with Internet Archive in 2017 to create a licensing system that would make the ‘Open Library’ compliant with copyright law, and that offer was rejected. The Internet Archives’ unwillingness to work with authors and publishers to make their program legal unfortunately made a lawsuit the only recourse.”

. . . .

“Despite the self-serving library branding of its operations,” the AAP’s staff writes, “the Internet Archive’s conduct bears little resemblance to the trusted role that thousands of American libraries play within their communities and as participants in the lawful copyright marketplace.

“The Internet Archive scans books from cover to cover, posts complete digital files to its Web site, and solicits users to access them free by signing up for Internet Archive accounts. The sheer scale of the Internet Archive’s infringement described in the complaint—and its stated objective to enlarge its illegal trove with abandon—appear to make it one of the largest known book pirate sites in the world.

“The Internet Archive publicly reports millions of dollars in revenue each year, including financial schemes that support its infringement design.

“In willfully ignoring the Copyright Act, the Internet Archive conflates the separate markets and business models made possible by the statute’s incentives and protections, robbing authors and publishers of their ability to control the manner and timing of communicating their works to the public. The Internet Archive not only conflates print books and ebooks, it [also] ignores the well-established channels in which publishers do business with bookstores, e-commerce platforms, and libraries, including for print and ebook lending.

“As detailed in the complaint, the Internet Archive makes no investment in creating the literary works it distributes and appears to give no thought to the impact of its efforts on the quality and vitality of the authorship that fuels the marketplace of ideas.”

Link to the rest at Publishing Perspectives

PG notes that, among its other activities, The Internet Archive hosts a Malware Museum, including code from which the Archive assures its users, it has removed “destructive routines”.

The Internet Archive also includes a Donation Page, which includes the following message:

We need your help to ensure that anyone curious enough to seek knowledge will be able to find it here, for free. We’re an independent, non-profit website that the entire world depends on.

PG is no friend of the large traditional publishers who have filed this suit and does not like many of the things they do.

However, in this matter, PG is not sympathetic with the Internet Archive’s actions with respect to books. The IA provides lots of other useful services, including scanning copies of public documents, including some patent applications, court pleadings, out-of-copyright materials, etc.

However, considering the world-wide reach of IA, it also provides materials, including entire books, that others can download from anywhere in the world, then, among other things, resell on a commercial basis with little fear of discovery by the original author or punishment.

To be clear, if the Internet Archive stopped accepting material protected by copyright tomorrow and removed all such material from its online collection, that would not mean that book piracy would immediately stop. There are other avenues diligent would-be book thieves could pursue, but it would certainly make their work harder and, likely, less-profitable.

From Forbes:

Broadway bootlegs might soon get the boot.

Last week, the U.S. Copyright Office released a report urging federal legislators to change the law in an effort to slow the spread of pirated content like unlicensed recordings of Broadway shows on the Internet. Enforcing Section 512 of the Digital Millennium Copyright Act nowadays has “resulted in an increasing burden on rights-holders to adequately monitor and enforce their rights online, while providing enhanced protections for online service providers in circumstances beyond those originally anticipated by Congress,” stated its spokesperson.

Designed to foster the growth of online commerce in the early days of the Internet, the legislation protects online platforms from being held liable for copyright infringement when their users post copyrighted material without permission, as long as the online platforms meet certain requirements. In addition to having special policies in place, the companies must not receive a financial benefit directly from any pirated content, know about its presence or any red flags that it exists, or allow it to remain on their websites after its presence has been reported.

“As to the development of online services, it is reasonable to state that Section 512 has achieved this purpose,” stated Raza Panjwani, an attorney who worked for the Public Knowledge public interest group. “Online platforms ranging from YouTube, to Facebook, to Tumblr, to Twitter, to Wikipedia, to innumerable subject matter specific discussion forums, have arisen thanks to the legal certainties provided by Section 512,” he said.

However, a lot has changed since the law was introduced in 1998.

When Section 512 was written, the Internet had only recently expanded beyond the closed platform or “walled garden” websites like America Online and Prodigy. “There was no Facebook or YouTube or Twitter; the first MP3 player had just been launched, and Napster, which popularized peer-to-peer file-sharing, would not exist until the following year,” recalled the spokesperson for the Copyright Office.

. . . .

However, with the growth of the Internet, the distribution of Broadway bootlegs has exploded.

Instead of being distributed on dusty VHS tapes like in the 1990’s, bootleg recordings of Broadway shows are now streamed on popular video-sharing platforms like YouTube, stored on foreign file hosting services like Mega, and traded in online communities like LiveJournal. Hundreds of thousands of unlicensed files are floating around the Internet, and one poll found that over 97.9 percent of theatre enthusiasts under the age of 20 have seen a Broadway bootleg.

Many rights-holders believe that the procedures that Section 512 put in place are not effective in combating copyright infringement on the Internet.

“Copyright owners send millions of notifications, yet these collectively have had little impact toward reducing the volume of infringing material available through the numerous sites employing the safe harbors to shield their responsibility for the persistent presence of such material,” argued Allan Robert Adler, the general counsel for the Association of American Publishers trade group. When pirated content is finally removed from a website, it often pops up again somewhere else, requiring rights-holders to spend a ton of time and money monitoring websites and mailing take-down notices. Jeffrey Seller, the lead producer of Hamilton, had to hire someone full-time to search for bootleg recordings of the show, and an executive at the record label Warner Music Group estimated that “it would take at least 20-30 people, at a fully-loaded cost in excess of $2 million per year, and probably the use of an outside content monitoring contractor at additional expense, to meaningfully affect (but not entirely block) just WMG’s top 25 album releases on YouTube.”

. . . .

According to Section 512, in order for an online platform to be shielded from liability, it must have “adopted and reasonably implemented … a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers.” The platforms must have plans for blocking repeat infringers to make sure that they do not continue to post pirated content on their websites.

However, federal judges interpreting the law have not made up their minds over what makes someone a “repeat infringer.” Some judges think that it refers to someone accused of committing copyright infringement, and some judges think that it refers to someone found in court to have committed copyright infringement.

The Copyright Office believes that Congress originally intended the phrase to refer to only someone accused of committing copyright infringement, and it now insists that legislators should update the statute to make the language more clear. Websites should not wait for a court to find the person who shares multiple Broadway bootlegs liable before closing his or her account and putting a stopper on the source of pirated content.

In addition, there has been some confusion over how much Internet platforms must know about the existence of Broadway bootlegs on their websites before they are required to remove them. Other than when the companies receive a take-down notice or actually know that there is copyright infringement, the statute demands them to act whenever they see red flags or are “aware of facts or circumstances from which infringing activity is apparent.”

Some courts have taken the position that red flags exist when Internet platforms are aware of facts that would make a specific instance of copyright infringement “objectively obvious to a reasonable person.” The facts must relate specifically to the pirated content, and general knowledge that most videos on a website contain pirated content would not be considered a red flag.

Link to the rest at Forbes

Following are excerpts from a website called Similar Works. As the website states, the purpose of this site is to help protect authors from plagiarism of their books.

Beginning of Excerpts:

Protect your book from plagiarism

Similar Works is a web application built to protect authors from having their work exploited and their stories taken from them.

Upload your book to Similar Works and we’ll scan the text against other titles and keep monitoring — and alert you when we find any matches.

. . . .

How It Works

The Similar Works system analyzes ebook files and identifies matching text.

Books are submitted by authors and publishers who wish to protect their copyright, or concerned readers who believe they have found a work containing plagiarized material.

Similar Works reviews all books manually before accepting them into the archive.

Once a book is accepted, the system checks that book against all other titles already added.

If we find text matches that look suspicious, we contact the author or publisher and provide information so that they can take further action to protect their copyright.

We continue to check every time a new book is added to the archive.

Our Book List shows titles that have already been added, as well as a summary of similarities that have been detected called the Similarity Band.

. . . .

The Similarity Band

The Similarity Band is a visual representation of the similarities that our system finds in books.

Each Band is a generated watermark which represents the book’s text, from beginning to end, going from left to right. This is the text as it appears inside the digital file which is uploaded into the Similar Works archive, so it includes things like the copyright notice, the table of contents, disclaimers, back matter, and samples of other books.

When every book is run through the master algorithm, the text is split into logical chunks, usually consisting of no more than a sentence or two. The Band is generated by lining up all the chunks in order, and then recording a color depending on whether a similarity has been detected within that chunk or not.

. . . .

The Band can tell you a lot about how books are related to each other! For example, if a book has a lot of stripes on the far right side of the Band, then there are similarities detected near the end of the text. That probably indicates that the same back matter or samples appear in another book. Stripes on the left indicate similarities detected near the start of the text, and they are probably disclaimers or generic copyright notices.

(We do our best to filter out disclaimers and other generic language used by a lot of authors, so hopefully you won’t see too many of those.)

Unfortunately, the algorithm can only identify similarities. It can’t tell us why the similarity exists.

Common Phrases or Quotations

If you see only one or two stripes, then those are likely common phrases. The sensitivity of the master algorithm is carefully tuned to try to avoid this, but it’s not always successful. These can also be quotations.

Here’s an example of a Similarity Band for The Best of Relations, by Catherine Bilson. You can see that there is a single white stripe indicating a similarity about two-thirds of the way through the book. That similarity was identified as coming from none other than Pride and Prejudice, by Jane Austen – which is not unusual, as The Best of Relations is based on Pride and Prejudice! In this case, it’s a famous line from Jane Austen’s classic that Catherine Bilson added to her novel.

I was given good principles, but left to follow them in pride and conceit.

The Best of Relations/Pride and Prejudice

What Does Plagiarism Look Like?

This is the Similarity Band for Royal Love, a romance novel by Cristiane Serruya. Royal Love is currently part of an ongoing court case filed by famed romance author Nora Roberts against Cristiane Serruya in April 2019, accusing her of plagiarizing lines from as many as forty other romance authors.

The Similar Works system has identified many similarities in Royal Love, spread throughout the book.

In addition to potentially being a great help to authors, PG thinks this is a fascinating field of analysis.

Here’s a link to Similar Works

Note:

Some visitors to TPV have reported difficulties in seeing the embedded PDF documents in this post. PG first observed this problem this morning – Thursday, May 21 – (everything seemed to work as planned for PG yesterday) and managed to get the embedded PDFs to show up after refreshing the screen a couple of times. You may want to try holding down your Shift key when you refresh the screen.

As you can see below, PG has provided an alternate way for you to view the documents if the embeds don’t work/haven’t worked for you. PG apologizes for any aggravation this issue has caused.

Beginning Original Blog Post:

As observant visitors to The Passive Voice have noticed, PG included a post titled Plagiarism 2020 yesterday. Today, we’ll talk a bit more about plagiarism, focusing on filings in an interesting lawsuit pending in the US District Court in the Central District of California.

Here are the principal pleadings to date.

NOTE: If you have difficulty viewing any of these PDF documents in this post, following is a link to a shared Dropbox folder that contains all the documents, numbered in the order in which they were filed with the Court (You don’t need a Dropbox account to access this folder) https://www.dropbox.com/sh/562g9gujbnkapzc/AAAH0VLzlOXC8KS3znDq9kxya?dl=0

PG will provide a bit of explanation and commentary. (You can page through each document by moving your cursor over any page, which will reveal up and down arrows plus a zoom feature.)

If you are easily bored and want to see the most interesting document PG found during his exploration of the Court’s files (which are public records), you can scroll way, way down to the end of this post to view Exhibit C to one of the documents you will read about if you don’t immediately jump to the end.

Exhibit C appears to be the result (perhaps only part of the results) of a computerized analysis comparing the entire text of each of the two books at issue in this case to determine the ways in which they are similar to one another – the core question in a copyright infringement case that does not involve actual copying of all or a substantial portion of a copyright-protected work.

If this type of analysis proves useful and is accepted by courts, the subjective opinions of various “experts” who compare each of the texts by reading them and creating conclusory lists or summaries of similarities or differences may be replaced by something that is more objective and can provide a basis for a more accurate and predictable standard for where the line is between “inspired by” and “copied from” lies.

The Complaint

The Complaint is filed on behalf of Pamela DuMond, an individual author.

The Complaint names four different defendants:

• Farrah Reilly a/k/a Emma Chase (for those visitors to TPV from outside of the United States, AKA stands for “Also Known As”. PG assumes Farrah Reilly is a pen name under which Ms. Chase writes.)
• Emma Chase LLC – It appears that Ms. Chase may operate a limited liability company which may or may not have rights to her book and/or receive proceeds from her book.
• Diversion Publishing Corporation d/b/a (Doing Business As) Everafter Romance
• Simon & Schuster, Inc. (a very large American publisher)

Per a later paragraph in the Complaint, Diversion Publishing published a print version of Ms. Reilly’s book and Simon & Schuster published an audio version of the book.

The Complaint is fairly self-explanatory and what PG would expect to see in a case like this.

Rule 8 of The Federal Rules of Civil Procedure describes what a complaint must contain

(a) Claim for Relief. A pleading that states a claim for relief must contain:

• (1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;
• (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
• (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

PG also notes that the Summons (a court notice to Defendants that they have been sued) was issued in late October, 2019. In November, 2019, two attorneys entered an appearance on behalf of all the defendants except Simon & Schuster.

In January, 2020, these two attorneys withdrew and were replaced by the S&S attorneys, so all the defendants are currently represented by the same attorneys, originally hired by S&S.

The Motion to Dismiss

The second document is a Motion to Dismiss filed by the Defendants.

A few things caught PG’s immediate attention.

• The names of three attorneys appeared on the motion, all from the same firm
• One attorney was from the California office of the firm – the defendants needed an attorney admitted to practice in California to file the response and provide ongoing information about California civil procedure, etc.
• Two attorneys are from the New York office of the firm and were permitted to participate in a California court case pro haec vice – for this case only.
• The defendants’ law firm is one of the 100 largest in the United States, with offices in New York, Anchorage, Bellevue (suburban Seattle), Los Angeles, New York, Portland, San Francisco, Seattle (in addition to the office in Bellevue) and Washington DC.
• PG concludes that Simon & Schuster is completely running the case via the attorneys they originally hired and who, thereafter, in January, 2020, undertook to represent the rest of the defendants..
• A large firm like the one representing the defendants would almost certainly have competent IP litigation attorneys in California, likely in both the LA and San Francisco offices. However, they’re using two New York attorneys, Elizabeth A. McNamara, a full partner with more than 30 years of experience, with lots of litigation, in IP and media matters, and Kathleen Farley, an associate focusing on media in addition to an LA IP associate. PG suspects a 20-minute court hearing in California would generate a significant number of billable hours sitting on an airplane for the New York lawyers.

The Motion to Dismiss is a 28-page document. PG doesn’t know what the current large-firm New York City rule-of-thumb per-page cost for a serious litigation document is, but PG suspects we’re looking at a serious five-figure fee just for drafting this document. If the court sets oral arguments on the motion, PG suspects an additional five figures will be spent by Defendants if the New York lawyers show up.

The biggest question on PG’s mind is, “Why is Simon & Schuster spending so much money defending this case?”

PG doesn’t know how many audiobooks S&S sold before the Summons arrived, but the dollars it has received and would generate if the audiobook continued to be sold would seem to be much less than the costs of defense. PG has no inside knowledge about settlement discussions, if any, but PG bets that S&S could get a release from Pamela DuMond, the author/plaintiff for less than it’s spending on its New York and California lawyers.

However, the fact that S&S offered to have its lawyers represent the rest of the defendants as well is an indication for PG that S&S wanted to control the defense of the case and is likely in the battle for the long haul.

Back to the merits of the Motion to Dismiss.

As PG mentioned much earlier, under the Federal Rules of Civil Procedure, a Plaintiff need only provide a “a short and plain statement of the claim showing that the pleader is entitled to relief;“

After reading the Complaint, PG thinks it’s pretty clear what Ms. DuMond thinks the Defendants did wrong. If the Defendants are seriously confused, the process of discovery – depositions, interrogatories, etc., etc., – will offer plenty of opportunity for Defendants to clear up any questions they may have.

The Defendants argue that the Complaint only mentions a few examples of plagiarism/copyright violations. PG thinks these are clearly identified as just some of the similarities, not all of them.

One thing the Motion to Dismiss does demonstrate is that S&S is going to attempt to make litigation expensive for the Plaintiff.

Plaintiff’s Opposition to Defendants’ Motion to Dismiss

For PG, this is where things became more interesting.

The copying and copyright infringement of the Defendants was
most likely the result of digital text spinning followed by a re-write and polish. Text
spinning — also called automatic paraphrasing — is performed by computer software
containing a built-in thesaurus.

While digital text spinning results in the alteration of the original work, it also results in nonsensical phrases, awkwardly constructed sentences, patterns, repetitions, and other anomalies — all of which exist in the Defendants’ Copy. What else could explain why the very unique word “Rome” occurs at exactly 67% of the way through the digital version of the Work and at exactly 65% of the way through the digital version of the Copy; and the very unique word “Beyoncé” occurs at exactly 95% of the way through the digital version of the Work and at exactly 95% of the way through the digital version of the Copy. Defendants will argue that the exact same word placement is a remarkable coincidence or that the word is not a form of protected expression.

As detailed below, the digital versions of the Work and the Copy show similarities
that are so striking as to preclude the possibility that Ms. DuMond and Defendant
independently arrived at the same result. The Appendix is replete with similarities that
are similarly placed in the Work and the Copy. This Court should employ a digital
analysis of the Work and the Copy, rather than the antiquated paper analysis urged by the Defendants.

But the Work and the Copy share more than striking similarities in names, stock characters, or trope – they share hundreds of copyrighted elements including written dialogue, written plot points,written character traits, and written scenes, to name a few.

Computer Analysis of Similarities of the Two Works

If you’ve made it this far, PG congratulates you and suggests you may wish to apply to law school.

The following document is the one that interested PG the most. It is attached to the Plaintiff’s Opposition to the Defendant’s Motion to Dismiss as Exhibit C and appears to be one of the products of a computer analysis of the two works – Ms. DuMond’s original book and the one she claims violates her copyrights – to determine how similar the two works are.

As with earlier embedded PDF files, if you can’t see this one in your browser, you can access it at the shared Dropbox folder – https://www.dropbox.com/sh/562g9gujbnkapzc/AAAH0VLzlOXC8KS3znDq9kxya?dl=0

From The Authors Guild:

On Monday, March 23, the U.S. Supreme Court held that states are immune from copyright liability. This is troubling because it means that state universities and libraries can abuse copyright as much as they want without liability to publishers or authors. The Court’s decision in Allen v. Cooper invalidated a 1990 amendment to the Copyright Act which had allowed copyright holders to sue states for copyright infringement.

In Allen v. Cooper, plaintiff Allen and his production company were photographers with exclusive rights to document the exploration of the pirate Blackbeard’s shipwrecked vessel, but the state of North Carolina used Allen’s photographs and videos without his consent. Although the parties entered into a settlement agreement requiring the state to compensate Allen, Allen found out that the state had continued to use the copyrighted works after the date of the settlement agreement. The Supreme Court dubbed the alleged copyright infringement “a modern form of piracy.”

. . . .

While it found that states are immune (again) from copyright infringement actions, the Supreme Court nevertheless left a legislative door open: “That conclusion, however, need not prevent Congress from passing a valid copyright abrogation law in the future.” The Court recognized the need to protect the interests of copyright holders—even from the states—saying “That kind of tailored statute can effectively stop States from behaving as copyright pirates. Even while respecting constitutional limits, it can bring digital Blackbeards to justice.”

Link to the rest at The Authors Guild

From World Intellectual Property Review:

Depicting sports stars’ tattoos in video games does not infringe copyright owned by the tattoo artist or their licensee, a US federal court has ruled.

In the first written judgment on tattoo copyright in the US, the US District Court for the Southern District of New York yesterday, March 26, ruled that video game developer and publisher Take-Two Interactive was free to reproduce the designs featured in the real-life tattoos of basketball players like LeBron James in its “NBA 2K” series.

Take-Two, and its subsidiary 2K, had been facing copyright infringement claims brought by Solid Oak Sketches, a tattoo licensing firm which purchased the copyright for James’ tattoos, as well as other basketball players Eric Bledsoe and Kenyon Martin.

. . . .

According to the court, when artists tattoo someone, they grant an implied, nonexclusive licence to their work where it can be reasonably expected to become part of a person’s likeness.

In the case of the basketball players, the artists would have known that they were well-known figures and likely to appear in public, on TV, and in the media.

“Defendants’ right to use the tattoos in depicting the players derives from these implied licenses, which predate the licenses that plaintiff obtained from the tattooists,” judge Laura Swain wrote.

. . . .

Irrespective of the implied licence, the reproduction of the tattoos in the “NBA 2K” games qualified as de minimis use, and did not require the consent of any copyright owner, the court concluded.

Judge Swain wrote that “no reasonable trier of fact could find the tattoos as they appear in ‘NBA 2K’ to be substantially similar to the tattoo designs licensed to Solid Oak,” as they cannot be identified or observed during gameplay.

The court found that the tattoos appear only fleetingly and are obscured by the rapid motions of the in-game players. 

Link to the rest at World Intellectual Property Review

From Variety:

A federal judge has handed a big win to Katy Perry, overturning a copyright infringement verdict regarding her hit song “Dark Horse.”

Judge Christina A. Snyder issued a ruling on Tuesday vacating the jury’s verdict, finding that the short musical phrase at issue is not original enough to warrant copyright protection.

The jury had found last July that “Dark Horse” included an eight-note ostinato that was stolen from “Joyful Noise,” a song by the Christian rapper Flame. The jury awarded $2.8 million in damages.

Snyder found that the jury’s verdict was not supported by the weight of the evidence in the case.

“It is undisputed in this case,” Snyder wrote, “that the signature elements of the 8-note ostinato in ‘Joyful Noise’… is not a particularly unique or rare combination.”

Snyder drew on the testimony of the plaintiff’s expert witness, musicologist Todd Decker, in coming to her conclusion that the jury got it wrong.

“A relatively common 8-note combination of unprotected elements that happens to be played in a timbre common to a particular genre of music cannot be so original as to warrant copyright protection,” she wrote.

. . . .

The decision is the second piece of good news in as many weeks for music labels and major acts, which have felt besieged by frivolous copyright litigation over the last few years. Last Monday, the 9th Circuit Court of Appeals upheld a jury verdict finding that Led Zeppelin’s “Stairway to Heaven” did not infringe on an earlier song by the band Spirit.

Link to the rest at Variety

Here’s an earlier video, created prior to yesterday’s reversal of the jury verdict as described in the OP.

From The Biederman Blog:

It may be true, as some songs have averred, that playas gon play, and haters, they gonna hate.

But federal district judges, well, they rule.

And, when asked to decide matters with elements that they may deem legally triflin’, their honors sometimes can just zing parties before them.

That was the case with U.S. District Judge Michael W. Fitzgerald in Los Angeles, as he took up a copyright infringement suit filed by the songwriters of 3LW’s 2001 piece, Playas Gon’ Play.

They asserted that pop diva Taylor Swift  violated their copyright  for Playas with her hit Shake It Off  (to hear it, click on image above), which became a Billboard No. 1 hit in 2014 and stayed on the charts for 50 weeks. In contrast, Playas  “peaked at No. 81 on Billboard’s Hot 100 chart. . . [with] more than 1,000,000 units were sold.”

The judge zeroed in on plaintiff’s claims about infringing lyrics, 3LW having sung: “Playas, they gonna play / And haters, they gonna hate.” Swift, on the other hand, crooned, “Cause the players gonna play, play, play, play, play and the haters gonna hate, hate, hate, hate, hate.”

Fitzgerald, in a rebuke that cuts multiple ways at the creativity of the works before him, found that:

In sum, the lyrics at issue – the only thing that Plaintiffs allege Defendants copied – are too brief, unoriginal, and un-creative to warrant protection under the Copyright Act.

He granted the motion by Swift and other named defendants, tentatively, to dismiss the case, in what might be deemed an artistic Pyrrhic victory. 

Link to the rest at The Biederman Blog

From Artnet News:

In a sweeping 32-page decision eviscerating the legal arguments of a disgruntled Queens real estate developer, a US Appeals Court affirmed the rights and monetary damages awarded to a group of graffiti artists whose works were destroyed without warning or consent in 2013.

The artists sued the developer, Gerald Wolkoff, in 2013 for violating their rights after he whitewashed their work at the famous 5Pointz graffiti art mecca in New York to make way for condos. A jury ruled in favor of the artists in November 2017, but it was up to a judge to determine the extent of the damages.

In February 2018, Brooklyn Supreme Court judge Frederick Block awarded the artists a total $6.75 million in a landmark decision. The sum included $150,000—the maximum legal penalty—for each of the 45 destroyed works at the center of the case.

The trial was a key test of the Visual Artists Rights Act (VARA), which grants visual artists certain “moral rights” for their work. Previous VARA cases rarely made it to trial, and were instead settled privately.

But the act, which was added to copyright laws in 1990, disallows the modification of works in ways that could be considered harmful to artists’ reputations, and grants protections to artworks deemed to be of “recognized stature.”

Link to the rest at Artnet News

Photos of the art prior to destruction are at the OP.

Note from PG: The reason that the following item and the congressional hearings it describes is important for indie authors is that §512 impacts the least-expensive way of dealing with online piracy of an author’s work – DMCA Takedown Notices (go here and here for an overview if you don’t know what those are).

From The Illusion of More:

Early last week, the Senate Judiciary Committee held the first in what will be a year-long series of hearings (roughly one per month) to review the Digital Millennium Copyright Act.  Almost as old as the publicly-available internet itself, the 1998 DMCA expressed the best efforts of Congress to predict how the digital market might evolve and to, therefore, strike a balance between the interests of internet service providers (ISPs) and copyright owners.

Over the intervening twenty-two years, much—MUCH—has been written, debated, shouted, flung wailed, opined, and scorned about the DMCA, specifically Titles I and II of the five-title statute.  If we ask the tech-centric/copyright-skeptics, they are likely to say that Title I (§1201) is a disaster and that Title II (§512) is working just fine; while the creator/copyright proponent will tell us exactly the opposite.

. . . .

What I will reiterate in this post is that the greatest concern to creators of every size is the conditional liability shield (“safe harbor”) provided to web platforms by §512.  It is the foundation of the oft-described “whack-a-mole” problem whereby the independent author attempts to remove infringing uses of her works one-by-one, only to have them reappear on the same platform(s) faster than she can prepare new notices.  (And “whack-a-mole” can be just as big a problem for a small business like an apparel maker as it is for a traditional artist like a musician.)  

In response to this futile battle with online infringement, authors often give up enforcement via the DMCA takedown process (resigned to donating even more revenue to billion-dollar corporations) while they ask as a community why the major platforms in particular cannot do a better job of preventing protected works from being chronically re-uploaded without license.

. . . .

What is “Red Flag” Knowledge?

Unfortunately, you will get different answers depending on whom you ask, including a court split on the matter if you ask either the Second or the Ninth Circuit Court of Appeals.  But in everyday life, “red flag” knowledge is a reasonable, common-sense inference that one can draw from a modest amount of empirical evidence and experience.  If you enter the house to find trash strewn across the floor and a chagrined puppy in the corner, you will not need training in forensic science to have “red flag” knowledge that either the dog has committed a misdemeanor, or he has been artfully framed by the cat.  

That roughly describes the degree of analysis Congress intended ISPs to perform when encountering evidence of copyright infringement on their platforms.  As Professor Aistars noted, “Although Congress did not obligate service providers to actively seek out infringements, it did require them to act expeditiously to remove infringing materials once they have knowledge or awareness of infringing activity on their networks.”

. . . .

For example, let us imagine that the users of a web platform we’ll call Vimeo are making videos using some famous music we’ll call Beatles songs.  Any ordinary observer can reasonably assume that these users probably did not license these sound recordings; yet in the case Capitol Records v. Vimeo, the Second Circuit held, on the issue of “red flag” knowledge, that the platform’s operators would have needed either legal or music-industry expertise in order to discover infringement.

Keeping in mind that voluntary removal of material based on “red flag” knowledge of infringement is a condition of an ISP’s “safe harbor,” decisions like Vimeo do more than erase this part of the statute—they exacerbate a culture of infringement through court-sanctioned willful blindness.  And as Aistars added in her testimony, “Pointedly, this occurred in a case where discovery had revealed emails from managers to employees winkingly encouraging infringement.”  Thus, Aistars is among those who would advocate clarifying the meaning of “red flag” to restore the intent of §512.

The Vimeo emails Aistars mentions are typical of the shoulder shrugs and middle fingers creators are used to receiving from many platform operators, and application of the DMCA to date has unquestionably fostered cultural attitudes anathema to the kind of cooperation between ISPs and rightsholders Congress specifically intended to promote two decades ago.  Further, unintended endorsement of this culture among site operators may be exacerbating a persistent misunderstanding among individual and commercial users that the internet is a realm of automatic immunity.

. . . .

Anticipating the likelihood that, if there is to be any revision to §512 at all, “red flag” will be a major point of debate, Professor Tushnet warned against what she and others see as throwing out the proverbial baby with the bathwater.  “If there is one message I would ask the members of the Committee to take away today,” she stated in her opening testimony, “it is that most beneficiaries of §512 are not Google or Facebook.”  Tushnet cautions that if we were to amend §512 solely as a response to the challenges creators face on very large, commercial platforms like YouTube, we risk simultaneously putting compliant, smaller platforms out of operation and facilitating even greater monopolization by the largest entities.

As a statistical matter, Tushnet is making a “few bad apples” argument, except for the fact that some of the baddest apples in the bunch happen to be the most powerful, wealthiest internet companies in the world.  So, even if we take her premise and data at face value (i.e. that millions of compliant sites rely on §512 to exist), this does not recommend ignoring the catalog of evidence that application of the DMCA has promoted willful blindness among the operators of major ISPs.  Simply put, if twenty-million sites operate without harm while one site does harm to twenty-million creators, we still have a problem if the law shields that one site from liability.  So, the status quo cannot be the final answer.  

As a practical consideration, Tushnet’s argument is based on the assumption that a more clearly defined restoration of the intent of “red flag” knowledge can only be implemented by technological measures, which only the largest ISPs can afford.  

. . . .

As Tushnet testified, her own Organization for Transformative Works site hosts over “four-million works” yielding 1.2 billion page views per month, while the site receives takedown notices at a rate of less than one per month, most of which are invalid.  Assuming these data are correct, the site to which she refers seems barely relevant as an example. It is a large fanfic platform with what appears to be a vast amount of material—mainly short works of written text—that is highly unlikely to infringe.  No sound recordings.  No photographs.  No film clips.  At most, some fanfic writer could maybe—and I mean maybe—run afoul of a derivative works right. 

From a cursory review of OTW, it is not at all evident that adopting a clearer, statutory definition of “red flag” (in order to hold the majors accountable) would force a site like this one to invest in prohibitively expensive technology in order to remain complaint.  If the platform is indeed receiving takedown notices at a rate of less than one valid notice per month, this is most likely evidence that the site hosts little to no infringing material—and that when notices are received, human review is sufficient to the task.  Further, the fact that the site hosts “fandoms” for a long list of works owned by major motion picture studios indicates that infringement must be very low to near zero if it has not invited the attention of an industry with the resources to send notices in volume.  

Link to the rest at The Illusion of More

From The Journal of Intellectual Property Law and Practice:

Online marketplaces reach potential customers all over the world, but can also be used for goods infringing intellectual property rights. Even when online marketplace operators do not themselves participate in such transactions, they do draw economic benefit therefrom, e.g. by charging a fee per transaction. So, to what extent can they be held liable for the sale of infringing goods through their platforms? 
Whereas such operators qualify as providers of information society services in the sense of the E-Commerce Directive, they are also intermediaries in the sense of Article 11 of the IP Enforcement Directive. And like any economic operator, they must abide by the trade mark laws and other legislation. 
The interpretation of these distinct sets of rules has given rise to a number of decisions of the Court of Justice of the European Union (CJEU). Certain aspects seem to have been settled by now, but many issues remain open. Absent contributory infringement in EU trade mark law, one of the most pressing questions is if, and to what extent online marketplaces can be held liable for direct trade mark infringement.

. . . .

The Coty/Amazon case (C-567/18), currently pending before the CJEU, might shed some light over the first question, namely the liability for direct trade mark infringement of online marketplace operators, especially when they engage in additional services like they often do nowadays. Such additional services can include supplying the goods to buyers, assisting sellers in promoting the sale of their goods. 
The teaching to be expected from the Coty/Amazon judgment will largely depend on how the CJEU will interpret the preliminary referral. If it sticks to the facts as presented to it by the German Supreme Court, then it will probably not go as far in its analysis as did the Advocate General, who opened the door to direct liability for trade mark infringement of online marketplace operators, and by extension, online intermediaries in general. Hence, further guidance might be on its way … or not just yet. 

. . . .

Liability for direct trademark infringement should not be accepted too soon, at least if online marketplace operators clearly communicate their role to the consumer. After all, establishing a direct trade mark infringement requires an adverse effect on one of the functions of the trade mark. At least as far as the essential origin function is concerned, no impairment thereof can be presumed if the advertising is not misleading as to the nature of the operator. As stated by the Advocate General in L’Oréal/eBay, in 2011, and even more so today, consumers are used to the existence of various intermediary economic activities. 
Of course trade mark owners should not be left without ammunition. An equitable balance between the interests of online marketplace operators and the interests of trade mark owners could be found by imposing higher monitoring duties on online marketplace operators assuming an ‘active’ role. Where such ‘active’ intermediaries cannot benefit from the hosting exemption, they can be liable for tort if they have not been sufficiently diligent and a causal link exists between their lack of diligence and the damage suffered. Requiring them to display a higher degree of diligence could therefore solve a lot. It would make sense to have a proactive monitoring duty the extent this is proportionate to the degree of their involvement. 

. . . .

In this area – the prevention of infringements – an important challenge for online marketplace operators lies in setting up more performant technologies to reveal potential trade mark infringement by their customers/vendors. Automated identification and/or enforcement and voluntary, non-judicial takedown mechanisms established between online intermediaries and IP rights owners are bound to become increasingly important.

Link to the rest at The Journal of Intellectual Property Law and Practice

It’s not easy (at least for PG) to discover how many trademarks there are in the world. According to the latest information (2016) he could find from the World Intellectual Property Organization (WIPO), there were an estimated Seven Million trademark applications worldwide just during that single year.

PG downloaded a spreadsheet from WIPO summarizing trademark filings on a country-by-country basis from 1980 to 2018. The spreadsheet was 42 columns wide and 203 lines long. For those who may be arithmetically-impaired (as PG is) that is more than 8,500 separate data points.

These numbers show a total of more than 22 million trademark applications filed during that time.

Some trademarks disappear and others go on and on and one. In the US, trademark rights can last indefinitely as long as the owner continues to use the mark to identify its goods or services. The term of a federal trademark is 10 years, with 10-year renewal terms.

Per Wikipedia, the oldest U.S. registered trademark still in use is trademark reg. no 11210, . . . a depiction of the Biblical figure Samson wrestling a lion, registered in the United States on May 27, 1884 by the J.P. Tolman Company, now Samson Rope Technologies, Inc., a rope-making company.

Additionally, although trademarks are typically issued on a country-by-country basis but international treaties provide that trademarks registered in one nation will be recognized and enforceable in other treaty nations. Under The Madrid System (named after the city where the two underlying treaties were negotiated) is a system for the international registration of marks. It provides a means to seek protection for a trademark simultaneously in a large number of jurisdictions.

One additional complication – trademarks are issued for a particular class of goods/services so different individuals or companies may own identical trademarks that are enforceable for different categories of goods or services. For example, in the US, Ace is a trademark for hair brushes and Ace is also a trademark for stapling machines and The American Council on Education.

So, how does an online marketplace like Amazon build a system that can allow it to determine whether the name of a product sold on its marketplaces around the world infringes the trademark belonging to another individual or company without hiring the largest collection of trademark attorneys in the world?

Multiple countries, lots and lots of different product categories and a legal regimen for enforcing trademarks that may be applied differently in one nation than it is in another.

Here’s a link to a New York Times story about how a trademark can lose its protection if it becomes generic.

From The Art Newspaper:

The Spanish billionaire who tried to smuggle a Picasso painting out of Spain has been sentenced to 18 months in prison and fined €52.4m. Jaime Botin, part of the Santander banking dynasty, was convicted by a court in Madrid earlier this week.

The work, Head of a Young Woman (1906), was seized from Botin’s yacht, known as Adix, off the coast of Corsica, France, in 2015. According to Spain’s strict heritage laws, permits are required for exporting items more than 100 years old, which can be classified as “national treasures”.

. . . .

According to Bloomberg, prosecutors argued that Botin, who bought the work in 1977, was smuggling the painting out of Spain and hoped to sell the piece at a London auction house. But Botin said he was taking the painting to Switzerland for safekeeping.

The work was originally due to be sold at Christie’s London in February 2013, but the Spanish culture ministry subsequently barred the work from being taken abroad. Ownership of the work has since been transferred to the Spanish state.

Link to the rest at The Art Newspaper

From The Illusion of More:

Anyone who is consistently engaged on copyright issues is used to hearing the rhetoric from the major critics, who say things like We support creators while they advocate policies that will further erode authorial rights.  Whether these parties engage in this kind of chicanery in order to sacrifice artists at the altar of Big Tech, or they do it just because they are petty iconoclasts is subject to a case-by-case consideration.  But if that same I care about you message is delivered by a senator to his constituents, it is acutely disappointing when he returns to the cloister of Washington D.C. and totally screws them over.  

The fact that Senator Ron Wyden was going to do exactly this to Oregon’s creative community is prefaced in at least two town hall meetings captured on videos that I have seen.  In one of these clips (which has not been made public), Portland-based photographer Tim Trautmann asks the senator about releasing his one-man hold on the CASE Act.  After assuring the artists, musicians, photographers et al in attendance that he is “very sympathetic” to the need for a small-claim copyright option, Wyden then patronizes his constituents in a rather cloying display in the political art of hokum.  First, by alluding to a mostly-false narrative in which he negotiated the amendments necessary to pass the Music Modernization Act (2018), Wyden then cites this unearned credential to imply that he will likewise help shepherd the CASE Act to passage with a few minor amendments that he personally believes are necessary.

From there, the senator rather predictably aped the tech-industry talking point that “teenagers and grandmothers posting memes could be harmed” by the small-claim copyright process, lapsing into cringy rhetoric, telling the “good people” in the room that he knows they do not want to hurt teenagers and grandmothers.  In a similar video clip captured at Newberg by Trautmann, Wyden does the “grandmothers and teens” spiel along with other familiar, industry talking points, including the fallacious assertion that the small-claim tribunal would provide fresh opportunity for copyright trolls to ply their dark arts. 

. . . .

Presumably the good people in those rooms know that Senator Wyden can read the bill and at least acknowledge its many safeguards designed to alleviate the very concerns the senator pretends that he alone is now raising.  Not the least of these would be the mandate that the small-claim tribunal is VOLUNTARY.

. . . .

So, after blowing all that smoke around various rooms in the state, Senator Wyden returned to D.C. and asked for changes to the CASE Act that would effectively obliterate its whole purpose for existing—a.k.a. poisoned pills.  For instance, his proposal to reduce the damages caps by 95% of their current level is not only too extreme a revision to call a “compromise,” but it shows the senator’s underlying contempt for the bill, for copyright in general, and, by extension, for those constituents he basically blew off in the town hall meetings.  A damages cap as low as $750 for a single claim (Wyden’s proposal) is so low that it barely covers the cost of filing the complaint and is, consequently, no deterrent to the kind of real-world infringements most rights holders have a problem addressing. 

. . . .

On a phone call with several Oregon creators, another Portland-based commercial photographer, Michael Shay, relayed an anecdote about Trautmann that is exemplary of the conflicts the CASE Act was written to resolve.  After a local restaurant used one of Trautmann’s images without permission on its website for promotional purposes, the photographer requested a very reasonable few hundred dollars for the continued commercial use of the photo.  “When the restaurant did not respond to letters and phone calls from his lawyer,” says Shay, “Trautmann expressed frustration about the situation to friends on social media, and that led to resolving the issue.” 

I know.  We can almost hear the chorus of tech-utopians exalting the use of social media pressure as a form of enlightened, DIY justice.  But as Shay observed, social media “shaming” (i.e. a public fight) is not a very healthy solution for anybody involved—neither the copyright owner nor the infringing user—least of all in a relatively small community like Portland.  On the contrary, civil laws exist in part to keep society from devolving to tribes of bullies; and very few copyright owners want to resort to bullying just so they can be fairly compensated for the use of their works.  “I very reluctantly went to social media to talk about this issue at all,” Trautmann later told me.  “I confided my feelings to one friend on Facebook, who then wrote a scathing review of the restaurant on Yelp!, and that resulted in settlement of the infringement matter.” 

So, as indicated in my last post on this topic, Senator Wyden might want to look beyond his personal biases about copyright and the CASE Act and take a more holistic view of the community he was elected to serve.  A copyright small-claim board is a civilized, voluntary (did I mention voluntary?) solution to a conflict between two members of a community—the copyright owner and the average commercial infringer like that restaurant—not the least consideration being that the restaurant would lose big in a federal case, if Trautmann had to file a lawsuit. 

Link to the rest at The Illusion of More

From Pirated Thoughts:

Who am I to judge someone’s trademark but this one does not roll off the tongue, at all. Lucasfilm has taken the first step to oppose one long trademark based off of a Star Wars’ quote: GREASE, I AM YOUR FATHER STEAMVADER.

. . . .

A residential professional grease company (who knew this was even a thing, I mean, how many turkeys are you deep frying for Thanksgiving???) has filed a trademark registration application for the phrase GREASE, I AM YOUR FATHER STEAMVADER. The phrase is not explained on the company’s website nor is it very prominent. In fact, in the in use specimen filed with the Trademark Office, the trademark cannot even be seen on it.

. . . .

Nestor Lopez of Lopez & Lopez Contractors, Inc. filed the mark in May 2019. A trademark attorney would probably have told him to expect some pushback from Disney but who needs an attorney. The grease cleaning company faces a pending opposition from Lucasfilm over the trademark. Lucasfilm has taken the first step to oppose the mark and filed a request for an extension of time to oppose. This allows the parties time to discuss settlement and it may scare off people who are not sure about proceeding with the mark.

Link to the rest at Pirated Thoughts

During one of his college summers, PG and a friend who was majoring in electrical engineering traveled to Minneapolis. The friend had a sumer internship in the legal department of a large technology company and PG found a job in a soft drink bottling factory (which demonstrated the varying market value for engineering students and no-idea-for-a-major students).

During the summer, per the OP, PG’s friend told him entertaining stories about various strange patent and trademark applications he came across during his work day. PG discovered that entertaining stories from a bottling factory usually involved exploding bottles when the bottling machine went out of adjustment or a forklift dropping a pallet of root beer.

After graduation, PG’s friend went to law school and became a patent attorney. The last PG heard, his friend had founded what became the largest intellectual property law firm in a major midwestern city.

It would be a nice ending to this story if PG had started what became the largest bottling factory somewhere, but he went to law school instead in order to remove the curse from his frivolous undergraduate major.

From Gizmodo:

Artists on Twitter say that their work is regularly stolen by armies of bots that generate t-shirts from popular designs—and they’ve got the receipts to prove it.

Here’s the scam: Bots linked to popular t-shirt sales platforms appear to be crawling Twitter for replies to artists that mention phrases like “I want that on a t-shirt” or “Can I get that on a t-shirt?” Within hours, vendors on popular t-shirt destinations (including Amazon, A&H Merch, Toucan Style, Moteefe and others, according to Medium) then start offering the original work for sale without seeking the artist’s approval, let alone cutting them in on the take. The only way to have the infringing material removed is for the artist to then contact the platforms and suffer through a slow-moving takedown process. It’s an intractable problem for independent artists who rely on social media platforms for visibility but are having their work stolen en masse.

. . . .

Painter Rob Schamberger highlighted the issue in a Dec. 1 tweet, writing “Never, ever, EVER respond to someone’s art on Twitter saying you want a shirt with that art. Bot accounts will cue into that and then pirate the artwork. This then becomes a nightmare for the artist to get the bootleg merchandise taken down.”

From there, Twitter user and artist @Hannahdouken came up with an idea: the bots doing the pirating may be able to detect when customers may be interested in purchasing a shirt, but they’re not smart enough to discern what the actual content of the shirt is.

@Hannahdouken asked Twitter users to respond to an image stating “This site sells STOLEN artwork, do NOT buy from them!” saying variations on the phrase “I want this on a shirt.” It worked…

. . . .

… after which all hell broke loose, with Twitter users escalating the prank to include terrible memes and intellectual property belonging to the infamously tight-fisted Disney Corporation, like Mickey Mouse. Multiple stores almost immediately ran shirts saying things like “Not licensed by the Walt Disney Company / This is NOT a parody! We committed copyright infringement and want to be sued by Disney. We pay ALL court and tribunal fees.”

. . . .

Another Twitter user was able to trick one of the stores into running a shirt with a picture of Mickey Mouse saying “China must be held accountable for its crimes against Uighur Muslims! Just ask me, Mickey Mouse! IP of the Disney corporation! Ha-ha!”

. . . .

“If you’re an artist and your designs get stolen its extremely frustrating, since the whole process is so automated and quick there’s few things to prevent this, and the process of getting these shops to remove your work is so frustrating and doesn’t stop them from doing it again,” @Hannahdouken told Gizmodo via Twitter DM. “The shirts they sell are extremely cheap as well, so people probably feel more inclined to buy it and less likely to check on the legitimacy of sites, instead of buying from an artists store where they actually get a cut.”

Link to the rest, including images of lots of examples, at Gizmodo

From Publishing Perspectives:

An interesting discussion around copyright is developing with Tuesday’s (December 3) release by the Association of American Publishers (AAP) of a statement on a “copyright restatement project” underway at the American Law Institute (ALI). That comment from the AAP has been followed Wednesday (December 4) by a similar statement from the Copyright Alliance.

And while the core of the argument developing here lies deep in legal assessment—less accessible to many in publishing than the familiar top-level questions of copyright protection for authors and publishers—the occasion is important for just that reason: A quiet but potentially influential reappraisal of copyright law could, as one commentator has put it, “introduce greater confusion into its area of focus.”

At the publishers’ association, president and CEO Maria A. Pallante goes so far as to call the restatement project “a back door effort to circumvent the authority of Congress and undermine the copyright system that fuels our creative economy.”

. . . .

At the Above the Law newsletter, Scott Alan Burroughs of the art law firm Doniger/Burroughs wrote in January both about what has become customary from ALI—and why a copyright restatement is out of character: “The ALI is known for its restatements of laws,” Burroughs wrote, “regarding areas of state law that differ greatly in their application from state to state, such as torts.

“In an unprecedented departure for the organization, it has set now set its sights on federal law promulgated by a federal statute, the Copyright Act.”

Not only is this effort of more than three years by ALI an unusual foray for the organization, Burroughs wrote, but it appears to be a potentially dangerous gravitation toward the support of major tech media companies.

“From a preliminary review of the project’s language,” Burroush wrote, “the copyright law is being ‘restated’ in a manner that greatly favors Big Tech and their confederates in their ongoing campaign to devalue art and content. … If adopted and relied upon, it will make it even easier for Big Tech and other corporate interests to exploit original content without artist compensation or consent (an advantage that they certainly do not need).”

In February, Washington Legal Foundation’s Glenn G. Lammi wrote at Forbes, “ALI has built its reputation in the judicial and legal communities by releasing treatises that add value to an area of law. Re-wording a federal statute and offering commentary on which among many judicial interpretations of that statute’s provisions is ‘right’ doesn’t add such value.”

. . . .

The congressional letter first echoes the surprise of many in the community about the nature of the ALI project: “Throughout its almost 100 years of existence,” the Congress members’ letter reads, “ALI has never chosen to draft a restatement of an area of the law that is almost exclusively federal statutory law—until now. We are deeply concerned by the ALI’s current Copyright Restatement Project.”

The lawmakers note that the US Copyright Office shared its leadership’s concerns with ALI in the same January period in which Burroughs’ and other observers’ articles of alarm were appearing in the news media. Expressions of concern also were registered by the US Patent and Trademark Office and the intellectual property law section of the American Bar Association.

The congressional letter then creates a short list of questions, calling on ALI to state its intentions. Some of the points of inquiry the lawmakers demand answers to are, in essence:

• Why now? What triggers a restatement of federal copyright law, which “has been in existence for more than twice as long” as the American Law Institute has been.”
• How is ALI approaching the restatement process?
• How much weight is given to existing law and legislative history?
• Are recent copyright law changes being taken into account and respected? These include one with which Publishing Perspectives readers are familiar, the CASE Act, which creates a small claims board in the Copyright Office for inexpensive claims of copyright infringement and misrepresentation.

. . . .

In the Association of American Publishers’ statement of support for the lawmakers’ inquiry, the AAP quotes the lawmakers, who note, “Any restatement or other treatise relied on by the courts that attempts to diminish the importance of the statutory text or legislative history relating to that text would warrant concern. Courts should rely on statutory text and legislative history, not restatements that attempt to replace the statutory language and legislative history established by Congress with novel interpretations.”

Link to the rest at Publishing Perspectives

PG is reminded of an old Southern rural saying, “The stuck pig squeals.”

The American Law Institute (“ALI”) is a fusty old institution that belches forth a “restatement of the law” on some legal topic every few years. It has always reminded PG of a high-brow legal Cliff’s Notes which provides a summary of various cases and statutes to make them easier to understand for those who don’t want to actually do the work of researching statutes and case opinions to find out what the law actually is.

PG never tried to cite anything from an ALI Restatement back when he was doing a lot of litigation because he knew most of the judges before whom he appeared would have responded by asking him if he had any actual legal authority in the form of a statutory reference or an opinion of an actual court on the topic and making some sort of sarcastic comment about PG wasting their time.

Back to the stuck pig, the Association of American Publishers is a mouthpiece for all the major publishers in the US together with the owners of those publishers which are mostly located across an ocean. PG generally assumes that if the AAP opposes something, PG will probably support it on behalf of his author clients and Mrs. PG, who never seems to stop writing books.

PG will assure one and all that the depth of knowledge about copyright law held by virtually any United States Senator or Congressional representative can be measured in fractions of an inch. The Washington lobbyists are howling and the large publishers that employ them are promising campaign contributions and lunch with whoever the latest fashionable best-selling author is at the moment to those same elected copyright naifs who are jumping all over the ALI.

From the perspective of the ALI, all this criticism will likely increase sales of their Copyright Restatement when it is finally released. PG doesn’t think anyone he knows will actually buy a copy, but he may traipse to a local law school library to take a look.

From Plagiarism Today:

In what has to be one of the more bizarre plagiarism stories in recent memory, Qatar Airways accused Singapore’s Changi Airport Group of plagiarizing not a paper, an idea or a proposal, but an airport.

The accusation was made by Akbar Al Baker, who is the CEO of both Qatar Airways and Hamad International Airport. In a recent press conference, he claimed that Singapore’s Changi Airport was a plagiarism of a planned expansion of Hamad International Aiport in Doha, Qatar.

According to Al Baker:

“When I show you the images later [of the planned expansion], you will realize that somebody copied our design, which was already on the table nearly six years ago … We had individuals from that country, I will not name it, that took our design and did it.”

Though Al Baker did not name the country by name, most sources indicate that he was referring to Changi Airport in Singapore.

. . . .

Both airports feature large glass ceilings with triangular frames, mammoth indoor waterfalls and lush green spaces for travelers to roam.

However, the Changi Airport Group has responded to the allegations saying that they began the competitive process for the redesign and awarded it in May 2013. According to them, the company that won has never done any business in Qatar and its CEO has never traveled to Qatar.

Though Al Baker has not responded to the rebuttal, it appears that actual plagiarism is at best highly unlikely if not completely impossible. Basically, two airports had similar designs and that led to some allegations of plagiarism. But what does the law say about this and could it ever happen?

Not only could it happen, it very likely has.

. . . .

To be clear, Al Baker and Hamad International never had a very strong case. They were accusing a Singapore airport that opened in April of this year of being a plagiarism of a project that they haven’t even broken ground on.

Given how much time, energy and resources go into designing and renovating an airport, the dates were never going to line up. When your airport isn’t going to be completed until 2022, it’s tough to claim that an already-open airport plagiarized it.

But this isn’t the first allegation of airport plagiarism. In 2018, architect Duangrit Bunnag was accused of plagiarizing their design for an airport terminal in Bangkok, Thailand. Bunrag won a contest for the job after the original winner was disqualified for failing to file the needed paperwork.

In this case, Bunrag was accused of plagiarizing not another airport but another architect, Kengo Kuma. Bunrag flatly denied the allegations saying that his design was inspired by the Thai forest and others noted that the elements that were alleged to be copied predated Kuma and were parts of traditional building techniques in the region.

. . . .

Though the United States isn’t relevant to these cases, it is the easiest for us to examine. Here, the law here is pretty clear. Architectural works are protected under copyright and have been since December 1, 1990. Likewise, three-dimensional artwork such as sculptures can be protected as well as other artistic elements that are not simply useful articles.

This means that building a substantially similar building without a license could be a copyright infringement. Even if the plans themselves were not copied, even an attempt to mimic another architectural work could be an infringement.

But while it’s certainly possible that a claim of copyright infringement could come from this kind of plagiarism, Al Baker would likely have an uphill battle proving it.

First, he would have to show that the architects of Changi Airport had access to his plans. If infringement is not physically possible, then no infringement took place, it’s that simple. That’s a huge hurdle in this case with the timing of everything. Proving that an already-completed airport infringed on one that hasn’t broken ground is going to be, at best, difficult.

But, even if that hurdle can be crossed, it’s still an uphill battle. Not all inspiration is infringement. Al Baker would still have to prove that the elements that were copied can be protected by copyright and are unique to his work. Elements such as indoor waterfalls and glass ceilings are hardly unique to any one architectural work.

Link to the rest at Plagiarism Today

From Jotwell:

For all the justifiable concern in recent years directed toward the prospect of autonomous weapons, other military uses of automation may be more imminent and more widespread. In Predicting Enemies, Ashley Deeks highlights how the U.S. military may deploy algorithms in armed conflicts to determine who should be detained and for how long, and who may be targeted. Part of the reason Deeks predicts these near-term uses of algorithms is that the military has models: algorithms and machine-learning applications currently used in the domestic criminal justice and policing contexts. The idea of such algorithms being employed as blueprints may cause heartburn. Their use domestically has prompted multiple lines of critique about, for example, biases in data and lack of transparency. Deeks recognizes those concerns and even intensifies them. She argues that concerns about the use of algorithms are exacerbated in the military context because of the “double black box”—“an ‘algorithmic black box’ inside what many in the public conceive of as the ‘operational black box’ of the military” (P. 1537)—that hampers oversight.

Predicting Enemies makes an important contribution by combining the identification of likely military uses of algorithms with trenchant critiques drawn from the same sphere as the algorithmic models themselves. Deeks is persuasive in her arguments about the problems associated with military deployment of algorithms, but she doesn’t rest there. She argues that the U.S. military should learn from the blowback it suffered after trying to maintain secrecy over post-9/11 operations, and instead pursue “strategic transparency” about its use of algorithms. (P. 1587.) Strategic transparency, as she envisions it, is an important and achievable step, though likely still insufficient to remedy all of the concerns with military deployment of algorithms.

Deeks highlights several kinds of algorithms used domestically and explains how they might parallel military applications. Domestic decision-makers use algorithms to assess risks individuals pose in order to determine, for example, whether to grant bail, impose a prison sentence, or allow release on parole. Even more controversially, police departments use algorithms to “identif[y] people who are most likely to be party to a violent incident” in the future (P. 1543, emphasis omitted), as well as to pinpoint geographic locations where crimes are likely to occur.

. . . .

As compared with domestic police departments or judicial officials, militaries using algorithms early in a particular conflict are likely to have far less and less granular information about the population with which to train their algorithms. And algorithms trained for one conflict may not be transferable to different conflicts in different locations involving different populations, meaning that the same problems with lack of data would recur at the start of each new conflict. There’s also the problem of applying algorithms “cross-culturally” in the military context, rather than “within a single society” as is the case when they are used domestically (P. 1565), and the related possibility of exacerbating biases embedded in the data. With bad or insufficient data come inaccurate algorithmic outcomes.

. . . .

Deeks argues that the military should “fight its institutional instincts” (P. 1576) to hide behind classification and limited oversight from Congress and the public and instead deploy a lesson from the war on terror—that “there are advantages to be gained by publicly confronting the fact that new tools pose difficult challenges and tradeoffs, by giving reasons for their use, and by clarifying how the tools are used, by whom, and pursuant to what legal rules.” (P. 1583.) Specifically, Deeks argues that in pursuing transparency, the military should explain when and how it uses algorithms and machine learning, articulate how such tools comply with its international law obligations, and engage in a public discussion of costs and benefits of using algorithms. (Pp. 1588-89.)

Link to the rest at Jotwell

PG notes the original article was published in The Virginia Law Review and is available here.

PG is inclined to think there is virtue in secrecy for algorithms used in military conflicts. At a minimum, disclosure provides a headstart for those who may be future opponents in developing the same sort of artificial intelligence. Additionally, there is a possibility of providing assistance to a future enemy in its development of counter-weapons to defeat or reduce the effectiveness of the original algorithms.

From The Fashion Law:

Supreme is being sued for allegedly jacking another company’s camouflage print for a range of its ultra-hot-selling wares. According to the complaint that ASAT Outdoors LLC filed in a New York federal court this week, Supreme’s corporate entity Chapter 4 Corp. is on the hook for copyright infringement for its “unauthorized reproduction and public display” of a copyright-protected camo design that is “owned and registered by” Stevensville, Montana-based ASAT.

Apparel company ASAT asserts in the newly-filed lawsuit that Supreme – which maintains the title of one of the buzzy streetwear brands in the world – “copied [its camo] design and created derivative works of [it] and placed [them] on their apparel, such as hats, pants and jackets to sell on their website and in stores.” The problem with that, ASAT argues in its suit as first reported by WWD: “Chapter 4 did not license the design from [ASAT] for its apparel, nor did Chapter 4 have [ASAT’s] permission or consent to use or sell the design on its apparel,” such as its $218 “work” jackets and $145 cargo pants.

As such, ASAT claims that the New York-based streetwear brand has “willfully, intentionally, and purposefully, in disregard of and indifference to [ASAT’s] rights” infringed upon its exclusive right as the copyright holder to reproduce, copy, display, and make derivate works of – i.e., works based on or derived from an existing copyright-protected work – its protected camo print, thereby, running afoul of federal copyright law.

Link to the rest at The Fashion Law

Following are copies of a couple of exhibits from the Plaintiff’s Complaint, downloaded from the court’s file.

From The Copyright Alliance:

The U.S. Copyright Act is a strict liability statute. In other words, following a “rule” that you believe to be true but which turns out to be a myth will not excuse you from liability for infringement. Under certain circumstances, it is possible to plead “innocent infringement,” but even that only serves to reduce the amount of damages you may owe and does not excuse your infringement.

Here are four of the most common copyright myths—debunked.

Myth #1: Public Access = Public Domain

The first myth is that anything to which the public has access, or that is publicly available, is in the public domain; i.e., if it’s on the Internet, it can be used without a license or other permission. This is far from the truth.

Contrary to popular belief, whether a book, work of art, lyrics, sound recording, or other copyrightable work is in the public domain does not depend on where the work can be found. Instead, determining if a work is in the public domain depends on when the term of copyright protection for that work expired— or if it existed in the first place.

. . . .

Myth #2: The Poor Man’s Copyright

The second myth is a “theory” that has endured for a very long time and remains surprisingly popular with freelance writers. Instead of registering the copyrights in a work with the U.S. Copyright Office, the myth is that the protection of a “poor man’s copyright” exists when an author mails himself or herself a copy of a work and then preserves the unopened envelope when he or she receives it in the mail. A variation of the theory is having the work notarized.

Mailing yourself a copy of your work or having it notarized has no legal effect. While it may serve as evidence that the work is in your possession as of the date it was mailed or notarized, it in no way proves that you are the author who created that work or holds the rights in it. The only way to register a copyright and to have documentation of your ownership in a copyrightable work is to file an application with the Copyright Office, which leads us to the next myth.

Myth #3: Registration Isn’t Necessary

Unlike the first two debunked myths, there is some element of truth to the third myth, that registration with the Copyright Office is not necessary for a work to be eligible for copyright protection. But not registering the copyright in a work would be shortsighted and not recommended for anyone wanting to be able to enforce his or her copyrights.

Under current law, registration with the Copyright Office is not required for works created after January 1, 1978.9 Provided a work is sufficiently creative and falls into certain enumerated categories, an author’s work is protected by federal copyright law as soon as it is “fixed in a tangible medium of expression.”10 Copyright protection does not cover ideas, only the expression of those ideas. In other words, telling one or more friends about your idea for the next great American novel or of a portrait you wish to paint does not guarantee any rights under U.S. copyright law. But as soon as the idea is expressed tangibly—for example, by writing the novel or painting the portrait—the work is protected by copyright law. Then, if someone copies the novel, painting, or other work of authorship without getting permission, the author can assert infringement.

An author cannot bring a lawsuit for copyright infringement, however, without a certificate of registration from the Copyright Office.

. . . .

Myth #4: The 30 Seconds/500 Copies/Two-Thirds/200 Words Rule

The final myth is that permission or a license is not needed if only a certain number of copies are made or a certain amount or percentage of the work is used, and that sticking to these arbitrary numbers automatically qualifies the unauthorized use as “fair use” under the Copyright Act.

With acknowledgments for creativity, there is no bright-line rule that making fewer than a certain number of copies or using less than a certain amount of a work somehow makes copyright infringement permissible under copyright law. Unless a use falls explicitly under one of the enumerated limitations on a copyright holder’s exclusive rights set forth in the Copyright Act,17 permission must be sought from the rights holder to reproduce, distribute, publicly perform, publicly display, and/or create derivative works of a copyrightable work—whether or not it is registered with the Copyright Office.

Link to the rest at The Copyright Alliance