Tag: Internet Archive

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Copyright

Publishers prevail in lawsuit against Internet Archive

a gavel lying on a table in front of books on a shelfOn Friday the Federal Court for the Southern District of New York (SDNY) ruled in favor of Hachette and other major book publishers, and against Internet Archive (IA) in a lawsuit considering IA’s Controlled Digital Lending (CDL) program, under which IA scanned books and “loaned” digital copies of copyrighted works over the internet.  The court found that the activities were clearly infringing (PP. 14-15) and also that

Each enumerated fair use factor favors the Publishers, and although these factors are not exclusive, IA has identified no additional relevant considerations. At bottom, IA’s fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book. But no case or legal principle supports that notion. Every authority points the other direction. (P. 45).

C-IP2’s Sr. Scholar & Senior Fellow for Copyright Research & Policy Prof. Sandra Aistars drafted and filed a successful amicus brief supporting the publishers in the case.  She was joined by twelve other scholars. You can read the court’s Order here and the Copyright Scholars’ brief here.

Considering the fair use factors in turn, on factor one — focusing in this instance on transformative use — the court noted that the HathiTrust and Google Books decisions had foreshadowed the ruling. (P. 19).  Those cases delineated the outside boundaries of the fair use/transformative use doctrine by allowing the scanning of entire databases of books in their entirety, but making them available only in limited ways and for limited purposes that added transformative purpose, meaning or message to the works. (PP. 19-20).  The court explained:

Importantly, the database did not “allow users to view any portion of the books they [were] searching” and therefore, unlike IA’s Website, “d[id] not add into circulation any new, human-readable copies of any books” or “merely repackage or republish the originals.” [Authors Guild v. HathiTrust, 755 F. 3d, 87, 97 (2d Cir. 2014)].

Google Books similarly found transformative use in Google’s scanning of copyrighted books to create a database that included a “snippet view” search function that allowed readers to view a few lines of text containing searched-for terms. [Authors Guild v. Google, Inc., 804 F.3d, 202, 208 (2d Cir. 2015)]. The snippet view showed the searcher “just enough context surrounding the searched term” to help the searcher evaluate whether the book fell within the scope of the searcher’s interest “without revealing so much as to threaten the author’s copyright interests.” Id. at 208, 216. But the Court of Appeals cautioned that “[i]f Plaintiffs’ claim were based on Google’s converting their books into a digitized form and making that digitized version accessible to the public,” precisely what the Publishers allege in this case, the “claim [for copyright infringement] would be strong.” Id. at 225. If HathiTrust and Google Books demarcated the boundaries of fair use, this case shows what conduct remains squarely beyond fair use. (P. 20).

The court likewise rejected arguments under the first fair use factor that IA expands the utility of the Works in Suit in any way recognized in the Second Circuit: e.g., by using technology to “improv[e] the efficiency of delivering content” to “one entitled to receive the content” in a way that does not “unreasonably encroach[] on the commercial entitlements of the rights holder.” [Capitol Recs., LLC v. ReDigi Inc., 910 F.3d 649, 661] (citing Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984)); see also [Fox News Network, LLC v. TVEyes, Inc., 883 F.3d 169, 177 (2d Cir. 2018)].” (P. 22). The court noted that to accept IA’s expanded utility argument would be to “ignore the teachings of the Court of Appeals for the Second Circuit in Google Books that there would be a ‘strong’ claim for copyright infringement if Google had distributed digitized copies of complete books.” (P. 24).

The court also found unpersuasive IA’s suggestion that it is a non-commercial user. (P. 26).  It explained that the facts (including how “every single page of the Archive is monetized” (P. 27)) demonstrate how “IA stands to profit from its non-transformative exploitation of the Works in Suit.  The commercial-noncommercial distinction, like the transformativeness inquiry, therefore counsels against a finding of fair use.“ (P. 28).

The SDNY was utterly unconvinced by IA’s attempts to bootstrap its faulty first sale arguments into its equally faulty fair use arguments, hopeful that two wrongs might together make an exception. (PP. 29-31). The court saw through this charade and rightly pointed out that [i]n ReDigi, the Court of Appeals plainly held that the first sale doctrine has now been codified in Section 109(a), that it does not include a right of reproduction, and that any broader scope of the first sale doctrine should be sought from Congress, not the courts. Id.” (P. 31).  It is also worth noting that it did not escape the SDNY’s notice that the IA and its collaborators do not even follow the CDL lending rules they outline for themselves. (PP. 31-32).

The court found that since the works at issue were original works of authorship (including fiction and non-fiction works that were “far removed from the . . . factual or descriptive work more amenable to fair use” (Pg. 35)), the second factor favored the Publishers. (PP. 34-36). The third factor likewise favored the publishers because IA copied the works in their entirety without a transformative purpose and for a purpose that directly competed with licensed eBooks. (P. 37).

Regarding the fourth factor – marketplace harm – evidence that IA pitches its offerings to libraries to supplant licenses from publishers could not be denied. (P. 39).  IA offered weak arguments the court did not find persuasive that Publisher profits had increased during the time of the COVID lockdown while IA was pursuing its Emergency Digital Library initiative, but the metrics suggested by IA were at best weakly correlative in nature in the court’s opinion. (P. 43).

Finally, the court considered whether any other public benefits could flow from IA’s services. (PP. 44-45). It rejected the suggestion that any alleged public benefit created by easier access to works outweighed market harm to publishers. (P. 44).  While “any copyright infringer may claim to benefit the public by increasing public access to the copyrighted work,” the Works in Suit are already accessible by readers through libraries in a free library lending model supported by widespread legitimate commercial licensing models deploying a variety of lending/licensing options. (PP. 44-45).

While the court’s decision is a resounding indictment of IA’s business model and CDL programs, it should not be read in any way to tarnish the profile or work of libraries.  Libraries performed especially important work during the COVID-19 pandemic, and remain bastions of democracy by promoting free thought and learning.  It is important that libraries continue to disseminate works to communities that may otherwise lack easy access to them by using a variety of licensed tools and authorized exceptions under the Copyright Act. Should additional exceptions be needed they should be sought (as the court noted on page 31) from Congress, not the courts.

 

Thanks for C-IP2 Research Assistant Cala Coffman, a 2L at Scalia Law, for her editing assistance.

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Conferences Copyright

C-IP2 2022 Fall Conference Panel Discusses Copyright Under Pressure

The following post comes from Cala Coffman, a 2L at Scalia Law and Research Assistant at C-IP2.

At the recent C-IP2 conference entitled IP on the Wane: IP on the Wane: Examining the Impacts as IP Rights Are Reduced, one panel discussed the current state of copyright law, the pressures it has come under in recent years, and their differing perspectives on how the digital world is shaping copyright. Topics of discussion included enforcement techniques, trends in fair use, and the impact of evolving technology on copyright.

Panelists were Clark Asay (Professor of Law at Brigham Young University J. Reuben Clark Law School), Orit Fischman-Afori (Professor of Law at The Haim Striks School of Law, College of Management Academic Studies (COLMAN)), Terry Hart (General Counsel, Association of American Publishers (AAP)), and Karyn A. Temple (Senior Executive Vice President & Global General Counsel, (Motion Picture Association)), and the session was moderated by Sandra Aistars (Clinical Professor, George Mason University, Antonin Scalia Law School; Senior Fellow for Copyright Research and Policy; and Senior Scholar at C-IP2).

Professor Fischman opened the panel by proposing a reconsideration of criminal enforcement for copyright claims. After reviewing current avenues for civil copyright enforcement, including the newly established Copyright Claims Board in the Copyright Office, Digital Millennium Copyright Act, and civil enforcement in federal court including the opportunity for statutory damages, Professor Fischman suggested that criminal copyright enforcement actions seem to be on the decline and should not be a focus of enforcement efforts. Rather, greater attention should be devoted to civil enforcement. Recently, the U.S. Sentencing Commission reported that criminal Copyright and Trademark cases have dropped from 475 cases in 2015 to 137 cases in 2021.

Over the past two decades, several enforcement mechanisms have been introduced to address the challenges authors face enforcing their copyrights in the digital world. These include the Digital Millennium Copyright Act in 1998, the Digital Theft Deterrence Act of 1999, and the Copyright Alternatives in Small-Claims Enforcement Act of 2020, which improved access to enforcement for small creators by creating a new administrative forum with simplified proceedings in the Copyright Office. Small copyright claims can be pursued there with or without the assistance of counsel. While these civil enforcement mechanisms are effective, they have not been without criticism.

Ultimately, Professor Fischman argued that the combination of civil and criminal enforcement frameworks creates a powerful enforcement mechanism for author’s rights. As we consider the current state of IP rights, criminal enforcement is becoming less meaningful overall, in her opinion.

Next, Professor Asay presented three recent empirical studies examining trends in copyright litigation.

The first study indexed fair use cases from 1991 to 2017. In this study, Professor Asay examines the scope of fair use analysis in copyright infringement cases and finds a “steady progression of both appellate and district courts adopting the transformative use paradigm, with modern courts relying on it nearly ninety percent of the time.” The study finds that at the Federal Circuit Court level, in cases where transformative use was asserted, 48% were found to be transformative, and 91% of transformative uses were found to be fair use. Professor Asay states that “fair use is copyright law’s most important defense to claims of copyright infringement,” but as courts increasingly apply transformative use doctrine, he finds that “it is, in fact, eating the world of fair use.”

The second study Professor Asay presented analyzed over 1000 court opinions from between 1978 and 2020 that used a substantial similarity analysis. In this study, Professor Asay finds first that courts rely on opinions from the Second and Ninth circuits “more than any other source in interpreting and applying the substantial similarity standard.” The study also breaks down trends within the two-step substantial similarity analysis. On the first step, Professor Asay finds that “courts mostly decide this first prong . . . as a matter of whether defendant’s had access to the plaintiff’s work, and they mostly favor plaintiffs.” On the second step, he finds “significant heterogeneity” in analyzing improper appropriation of a plaintiff’s work. He states that “no dominant means exist for resolving this question” and “the data also suggest that one of the keys to winning, for either defendants or plaintiffs, is the extent to which the court engages with and discusses copyright limitations.”

The third study, which is forthcoming, examines DMCA Section 1201 litigation. DMCA Section 1201 prohibits attempts to circumvent technological measures used to control access to a copyrighted work.17 U.S.C. § 1201. This study encompasses 205 cases and 209 opinions, and Professor Asay said during the panel that “the most interesting finding in this study is that there’s not much section 1201 litigation.” Although the DMCA has been in force for nearly twenty-five years, less than one appellate decision is made per year on average. The study also finds that “the most litigated subject matter” (over every other subject matter the study coded for) is software.

Ms. Temple discussed how new technologies, techniques, and distribution methods are constantly requiring courts to re-evaluate how authorship rights function in a digital landscape. She likewise commented on the challenges courts seem to face in appropriately drawing distinctions between derivative uses of copyrighted works that should require a license from the author, and transformative uses that are permissible under the affirmative defense of fair use.

Ms. Temple cited the numerous briefs in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith (including the Motion Picture Association’s) that note that the transformative use test is becoming the sole criteria courts use to determine fair use. Indeed, the MPA’s brief cited to Professor Asay’s study on transformative use (Is Transformative Use Eating the World?) to support the petitioner’s assertion that “in practice, the transformativeness inquiry is virtually always dispositive of the fair use question.” In closing, Ms. Temple stated that although we may be “waning” in how courts see fair use, Warhol presents a chance to correct the fair use analysis and steer it away from infringing on the derivative work rights of authors.

Finally, Mr. Hart presented on potential threats to authorship rights and the concomitant harms to consumer interests in the e-book arena. Mr. Hart’s perspective was that as businesses, copyright industries legitimately have profit-motivated goals, but happily, their ability to meet these goals is directly tied to the “ultimate goal” of promoting science and the useful arts and thus is beneficial to society as a whole. Mr. Hart stated that “the good news, if we think copyright [protections are] waxing, is that . . . the legal framework both in the United States and internationally recognizes [the] principles” that allow copyright owners to take advantage of and divide their exclusive rights. However, digitization may pose a threat to the ability to license rights as the copyright owner desires, as digital copying and transmission greatly increases risk of infringement of e-books.

The e-book market is unique, according to Mr. Hart, in that authors may be particularly vulnerable to digital threats when “digital copies are completely indistinguishable from the originals, and so they would be competing directly with the copyright owner’s primary markets.” Furthermore, he stated that “threats to the ability of copyright owners . . . to pursue rational choices in how they market and distribute their works can be just as harmful as straight up piracy.”

Mr. Hart characterized the e-book market as a thriving, sustainable economy. E-books have been popular for over a decade now, and there are a “variety of licensing models [available] . . . that continue to evolve to meet both the needs of publishers and libraries.” Mr. Hart stated, “the evidence shows that this is a well-functioning market.” He said that “Overdrive, which is the largest e-book aggregator, reported that in 2021 there was over half a billion check-outs of library e-books worldwide, and the pricing is, in my view, fair and sustainable.” Additionally, Mr. Hart said, “Overdrive also reported . . .  that the average cost per title for libraries declined in 2021, and libraries have been able to significantly grow their e-book collections . . . with collection budgets that, when you’ve adjusted for inflation, have essentially been flat the entire time.”

One of the major threats to authorship rights in the e-book market, in Mr. Hart’s view, is the rise of Controlled Digital Lending (CDL). While this theory is currently being litigated in Hachette Book Group v. Internet Archive, Mr. Hart posits that we are only a few steps from a full-blown digital first-sale doctrine, which could have widespread harms throughout copyright for many types of authors. Many amicus briefs in the Internet Archive case have identified this potential harm, as well. According to Hart, the Copyright Alliance brief, for example, stated that a ruling in favor of CDL would have extremely widespread economic harms for authors.

The second threat Mr. Hart identified comes from recent propositions at the state level that would introduce compulsory licenses for e-books. These proposed laws would outlaw limitations on e-book licenses offered to libraries and allow states to dictate what states believe are “reasonable” pricing for e-book licenses. A flaw in both the arguments for CDL and for compulsory e-book licensing, as Mr. Hart sees it, is that both approaches treat the mere exercise of a copyright owner’s exclusive right as unfair and, if accepted, would be dangerous encroachments on authorship rights.

Ultimately, while the panelists identified significant concerns in the existing copyright regime, they were hopeful about the future of authorship rights, reflecting that even if the protections for copyright law had “waned” in certain respects in recent years, and certain rights remain in peril, there are opportunities for education as courts confront the significant changes that accompany an increasingly digital landscape.

Categories
Copyright

Copyright Notebook: The Importance of Artists’ Agency

the word "copyright" typed on a typewriterI am looking forward to hosting a keynote conversation with Grammy-winning composer, performer, songwriter, best-selling author, and essayist Rosanne Cash this week at CPIP’s The Evolving Music Ecosystem conference. One part of Rosanne Cash’s “music ecosystem” is the Artist Rights Alliance (ARA), where she serves as a member of the board. Preparing for that conversation, I am thinking a lot about the importance of artists’ agency. Over the summer, the ARA “rebooted,” relaunching itself with a powerhouse music council of artists and experts. The ARA is “an alliance of working musicians, performers, and songwriters fighting for a healthy creative economy and fair treatment for all creators in the digital world. [They] work to defend and protect artists, guided by [their] Artists’ Bill of Rights, which outlines fundamental principles for today’s music economy.”

Those principles:

The Right to Control Our Work
The Right to Economic and Artistic Freedom
The Right to Attribution and Acknowledgment
The Right to a Music Community
The Right to Competitive Platforms
The Right to Information and Platform Transparency
The Right to Political Participation

 

All share one core attribute—an artist’s agency—over their work, their livelihood, their community, themselves. That the ARA found it necessary to relaunch this summer is not surprising. The triple threat of a pandemic decimating artists’ livelihoods, the surging power of technology platforms, and the challenges of ensuring one’s work is not distorted by others or used to send disagreeable political messages has heightened awareness among artists about the issues for which ARA stands.

Several notable lawsuits have also brought these issues to the forefront this summer that may shape the nature of artists’ agency over their work for years to come. Here are some thoughts about why they are significant and some issues you may not have noticed.

Hachette Book Group et al. v. Internet Archive

On June 1, 2020, four of the world’s preeminent publishing houses sued Internet Archive (IA) for willful mass copyright infringement. The IA styles itself an online library, open to anyone to borrow books, music, and other works. It scans millions of copyrighted as well as public domain works and makes them available to “borrowers” for free. It had previously operated under an already controversial policy of “controlled digital lending” (more on that below), but in response to the COVID-19 pandemic, dropped even these minimal restrictions on its distribution of works. As the Authors Guild put it in an open letter to the IA:

[B]y declaring a spurious “copyright emergency” and making a massive trove of copyrighted books available for free without any restrictions, Internet Archive has demonstrated a shocking disrespect for the rule of law—the cornerstone of our civil, democratic society—at a time when we most need it to prevail. You cloak your illegal scanning and distribution of books behind the pretense of magnanimously giving people access to them. But giving away what is not yours is simply stealing, and there is nothing magnanimous about that. Authors and publishers—the rights owners who legally can give their books away—are already working to provide electronic access to books to libraries and the people who need them. We do not need Internet Archive to give our works away for us.

 

In their complaint, the publishers argue that IA’s assertion that it should not be liable for infringement is based on “an invented theory called ‘Controlled Digital Lending’ (‘CDL’)—the rules of which have been concocted from whole cloth and continue to get worse.” As the complaint sets forth:

[A]t first, under this theory IA claimed to limit the number of scanned copies of a title available for free download at any one time to the number of print books of that title in its collection—though no provision under copyright law offers a colorable defense to the systematic copying and distribution of digital book files simply because the actor collects corresponding physical copies. Then, in the face of the COVID-19 pandemic, IA opportunistically seized upon the global health crisis to further enlarge its cause, announcing with great fanfare that it would remove these already deficient limitations that were purportedly in place. Today, IA offers an enormous universe of scanned books to an unlimited number of individuals simultaneously in its “National Emergency Library.” IA’s blatant, willful infringement is all the more egregious for its timing, which comes at the very moment that many authors, publishers, and independent bookstores, not to mention libraries, are both struggling to survive amidst economic uncertainty, and planning deliberatively for future, changing markets.

 

The publishers’ lawsuit is important because it is the first “live” judicial challenge to the legal theory of “controlled digital lending”—a legal theory which was announced by certain academics and internet advocates in 2018. They argue that it should be fair use for libraries to scan or obtain scans of physical books they own and lend them electronically, provided certain restrictions are applied, such as limitations that attempt to emulate the limitations of lending in the physical world (e.g., limits on lending periods and on numbers of copies that can be loaned at a given time).

I refer to this as the first “live” judicial challenge because, while it is the first time CDL has been challenged in the courts, the supporters of CDL sought and failed to receive the blessing of the Second Circuit for IA’s original Open Library service when that court was reviewing the decision in Capitol Records v ReDigi. Unsurprisingly, the court declined to do so. In an opinion written by Judge Leval, the Second Circuit rejected ReDigi’s and its amici’s fair use argument because market harm would be likely since the sales of ReDigi’s digital files would compete directly with those of Capitol Records. Because “used” digital files do not deteriorate like used physical media, there would be no reason for customers to buy new licenses from Capitol Records if they could obtain the files from ReDigi at a lower price.

One imagines that the impact of free CDL on e-book sales would only be worse—first, because it is free, rather than merely a reduced price for “used” files, and second, because it would be usurping a valuable market authors and publishers have continued to actively develop and license for several years since the ReDigi decision. This includes licensing to libraries for free lending via services like OverDrive. It is likewise significant that the “Emergency Library” at issue in the publishers’ case against IA is far less restricted than the version of IA’s “Open Library” the amici sought and failed to have blessed by the Second Circuit in ReDigi.

Maria Schneider et. al. v. YouTube

Another case to watch is the class action lawsuit filed by composer and jazz performer Maria Schneider against YouTube and its parent companies Google and Alphabet in July. The lawsuit alleges that “YouTube has facilitated and induced [a] hotbed of copyright infringement [on its website] through its development and implementation of a copyright enforcement system that protects only the most powerful copyright owners such as major studios and record labels.” Because members of the class are denied access to the copyright management tool YouTube offers its corporate partners—Content ID—the lawsuit alleges that rather than preventing repeat infringements of works, the tool “actually insulates the vast majority of known and repeated copyright infringers from YouTube’s repeat infringer policy, thereby encouraging its users’ continuing upload of infringing content.”

This is all part of a deliberate strategy, according to the complaint:

Defendants Alphabet, Google, and YouTube reap billions of dollars annually from the online hosting of videos, including millions of works that infringe on the exclusive copyrights of Plaintiffs and the Class. Defendants permit and facilitate this infringement because it furthers their growth and revenue strategies and because they have determined that Plaintiffs and the Class—unlike YouTube’s preferred Content ID partners—lack the resources and leverage necessary to combat copyright infringement on the scale at which it is perpetuated on YouTube.

 

Maria Schneider argues many of the same things she and other artist advocates have asserted before Congress, the U.S. Copyright Office, and the U.S. Patent and Trademark Office in hearings and roundtable proceedings exploring the provisions of Section 512 of the Digital Millennium Copyright Act (DMCA):

Faced with litigation by major music studios and other significant rights holders, Defendants have crafted distinct and disparate systems of copyright “enforcement” on their platform. For those entities with vast stores of copyright material and thus the leverage to require Defendants to appease their copyright management concerns, YouTube created its Content ID program, which allows qualifying copyright owners automatically to identify and manage their content on YouTube. . . . Smaller rights holders, including [Schneider], are, however, denied access to Content ID and thus are relegated to vastly inferior and time-consuming means of trying to police and manage their copyrights such as scanning the entirety of YouTube postings, searching for keywords, titles, and other potential identifiers.

 

They must then send notices identifying infringements URL by URL, filling out cumbersome webforms, often laden with advertising, struggle with captcha codes, and contend with requests for additional information or challenges from employees reviewing the requests.

While many artists have neither the pocketbook nor the backbone to stand up to an adversary like YouTube in federal court, this lawsuit seems particularly well-timed given that the ongoing focus on Section 512 in multiple government venues over the past decade has developed a solid record articulating the scope and the magnitude of the problem, as well as that the complaints against YouTube and other web platforms by individual artists seem to be almost universally shared.

Regardless of Maria Schneider’s lawsuit, the Senate and the U.S. Copyright Office are not done considering the issue. The Copyright Office released its much-anticipated Section 512 Report earlier this May and engaged in a subsequent exchange of letters with Senators Thom Tillis and Patrick Leahy regarding additional statutory clarifications that the Senate might consider and other approaches that could improve the operation of the DMCA without legislative amendment. Among the issues addressed in that letter is a request from the Senators to the Copyright Office to conduct stakeholder meetings to identify and adopt standard technical measures (STMs) as was anticipated in Section 512(i) of the DMCA. It is notable that Maria Schneider has herself been an active participant in the Copyright Office’s Section 512 proceedings, and in February of 2017, she submitted comments to the Copyright Office urging that Content ID be recognized as a STM under the DMCA and that all creators be granted access to it in order to be able to more efficiently police YouTube’s platform. The Copyright Office did not take up her suggestion.

In answer to the Tillis/Leahy request, on June 29, 2020, the Copyright Office responded in part that it will convene virtual meetings in late summer/early fall “focused on identifying any potential obstacles to the identification of potential STMs, as well as the requirements that must be met in order to adopt and implement an STM,” and to “begin identifying the kinds of technologies that may meet the statutory definition. Once the bounds of potential qualifying technologies have been identified, the Office would then convene further discussion to evaluate whether individual technologies meet the other requirements of section 512(i), including discussions to learn more about the terms upon which the technologies are offered in the marketplace.”

To date, hypothetical discussions (as well as lawsuits and licensing) have focused on digital fingerprinting technologies. Such technologies are designed to identify content by taking a “fingerprint” of a file that is being or has been uploaded to a platform and matching it to a database of sample content submitted by copyright owners. Regardless of the technology identified as an STM, the challenge may come not from choosing the technology, but rather in applying it. What one copyright owner is willing to tolerate in the name of marketing and fan word of mouth, another will not be. What a technology platform may set the technology to overlook, a filmmaker on the eve of a festival premiere will consider a “match.” Hence the importance of artists’ agency. Or as the ARA would have it: the right to competitive platforms and the right to information and platform transparency. Unless artists are informed about the STMs platforms apply and how they apply them, and unless they have the ability to keep their work from platforms that don’t meet their requirements, identifying an STM on its own won’t make much of a difference. Without artists’ agency and the right to control what happens to their creative output, we may just have the digital fingerprint version of the notice-and-takedown “whack-a-mole” game.[1]

Neil Young v. Donald J. Trump for President

Musicians have perpetually battled with political campaigns over the unauthorized use of their music at rallies and other campaign events. Given the particularly heated nature of this year’s presidential contest, it is perhaps not surprising that Neil Young has sued the Trump campaign for copyright infringement for publicly performing his musical works Rockin’ in the Free World and Devil’s Sidewalk at numerous campaign rallies and events, including one in Tulsa, Oklahoma. The complaint alleges: “The Campaign has willfully ignored Plaintiff’s telling it not to play the Songs and willfully proceeded to play the Songs despite its lack of a license and despite its knowledge that a license is required to do so.”

Neil Young is not the only musician battling the Trump campaign. Leonard Cohen’s estate is considering whether to file suit for the campaign’s use of Halleluiah during the last night of the Republican National Convention, and the Rolling Stones are working with ASCAP and BMI to persuade the Trump campaign to stop playing You Can’t Always Get What You Want at rallies. Campaigns typically assert that they are permitted to play any songs included in the Performing Rights Organizations’ political entities licenses, from which artists may seek to exclude their works if they object to use at political rallies. The allegations by Neil Young, the Cohen estate, and the Stones seem to be that the particular uses by the Trump campaign have gone beyond what a venue license for a political gathering envisions and that the campaign is instead using the songs to either distort their meaning or suggest an endorsement by the artist.

As the members of the Artist Rights Alliance wrote to all of the Republican and Democratic National Campaign Committees this July: “Like all other citizens, artists have the fundamental right to control their work and make free choices regarding their political expression and participation. Using their work for political purposes without their consent fundamentally breaches those rights—an invasion of the most hallowed, even sacred personal interests.”

These lawsuits are interesting because, until now, due to a combination of the veneer of protection offered by the venue licenses, and the time constraints imposed by campaign season, the only viable mechanism for discouraging unwanted uses of an artist’s work by a campaign has been public shaming via social media or statements by the artist publicly disowning and rejecting the candidate. Consequently, neither the moral rights or right of publicity-like qualities of the complaints nor the availability of damages for the infringing use have been explored. Since the Trump campaign is unlikely to settle a lawsuit, this case may define the boundaries of political entities licensed uses or add a new tool to musicians’ arsenals in ensuring they are not unwillingly conscripted into the service of a campaign they do not support.

RIP Matt Herron[2]

A civil rights era photographer I admired and came to know when I was CEO of the Copyright Alliance—Matt Herron—recently passed. Matt was inspiring on many levels. He described himself as an “activist with a camera,” and he covered some of the most meaningful moments in the effort to gain voting rights for Black people in the 1960s—including the Selma to Montgomery march.

“I photograph things I believe in. I try to photograph the things that are important in my life,” said Herron during a panel I moderated in 2011. He felt so strongly about what he saw happening in the 1960s south that he picked up his family and moved from Philadelphia to Mississippi because he thought they could be more relevant there. In doing so, through his photographs, he gave countless generations a front row seat to history. He described the five days he spent documenting the march from Selma to Montgomery:

As photographers, we are mostly voyeurs. We stand a little bit aside from an event. Part of our mind is clicking through F Stops and the rest of it is trying to figure out where images and angles are. But sometimes something happens that sucks us in and we lose that voyeuristic element and become part of the event itself. Certainly for me, the Selma March—five  days of walking in rain and sunshine and all kinds of conditions—was one of those moments. I have no memory of where I slept, what I ate, how I handled any of my basic physical problems. All I remember is the camera, the walking, and the faces.

 

Matt Herron lived by the copyright of his photographs and used them to further education about the social causes he covered. Besides the Selma march, he shot whaling protests by Greenpeace and the AIDS quilt. He explained that copyright laws help him keep collections of his images together and allow him to present them for the benefit of the causes covered:

I’ve put some effort into making not just single photographs but collections. I have historical collections and copyright allows me to decide how these images will be presented and how these historical moments can be disseminated. If I didn’t own the copyright some of these pictures of Martin Luther King might be used to advertise shoes. As it is, I can disseminate these images in ways that add to our national heritage, in educational ways for school children and to preserve a piece of history. Copyright allows me to retain this control not so I can keep them to myself but present them to the world in a way that’s coherent.

 

Matt Herron’s lifetime of work demonstrates in a way that is perhaps clearer this summer than any in recent memory why ensuring that artists are guaranteed agency over their creative output—whether they be photographers chronicling our history, musicians expressing our yearning, or authors giving words to our conscience—is crucial to democracy.

[1] Although it is approximately a decade old, this article, The (Im)possibility of “Standard Technical Measures” for UGC Websites, written by then student, now partner at Wilson Sonsini, Lauren Gallo, is the most thorough, balanced, and articulate examination of the issues the USCO is undertaking to date. Gallo notes that already in 2011 when her note was published, rights owners and UGC service providers were deploying fingerprinting technology to protect copyrighted works on the internet and operate repeat infringer policies. She writes: “In light of the widespread use of this successful technology and Congress’ mandate that ‘standard technical measures’ be developed ‘expeditiously,’ individual or infrequent holdouts should not obstruct the consensus necessary to define the term. . . . [F]ingerprinting technology should qualify as ‘standard technical measures’ under section 512(i), so that right holders and service providers may be on notice of their statutory obligations and may continue to develop ‘best practice’ applications for that technology.”

Ms. Gallo’s current practice focuses on novel legal questions online, involving among other issues, the Digital Millennium Copyright Act, and she has represented Google and YouTube in cases challenging their decisions regarding whether or not to remove or limit access to online content.

[2] Portions of this section appeared as a blog post in June of 2011 on the Copyright Alliance website, when I was CEO of that organization.

Categories
Copyright

Copyright Office Questions Legality of Internet Archive’s National Emergency Library

the word "copyright" typed on a typewriterOn March 24, the Internet Archive (Archive) unveiled what it called the “National Emergency Library” (NEL) in order to “address our unprecedented global and immediate need for access to reading and research materials.” The announcement specified that Archive would suspend the waitlist for 1.4 million books in its unlicensed “lending library” until at least June 30, thus allowing an unlimited number of people to download electronic copies of the same book at the same time. Archive had previously employed a controlled digital lending (CDL) model where the number of downloads was tied to the number of physical copies Archive or its partners possessed. With the waitlist suspended, Archive temporarily abandoned the CDL model that it had relied on since 2011.

Archive’s release of 1.4 million copyrighted works without a license certainly caught people’s attention. The Authors Guild quickly condemned the move, claiming that Archive “has no rights whatsoever to these books, much less to give them away indiscriminately without consent of the publisher or author.” Maria Pallante, President and CEO of the Association of American Publishers, likewise denounced Archive’s announcement: “We are stunned by the Internet Archive’s aggressive, unlawful, and opportunistic attack on the rights of authors and publishers in the midst of the novel coronavirus pandemic.” Archive then responded in a blog post explaining that it had suspended its waitlist due to the “tremendous and historic outage” in the nation’s libraries caused by the pandemic and arguing that fair use is the “legal doctrine underlying” its CDL model “during normal times.”

A couple of weeks later, on April 16, Senator Tom Udall (D-NM) sent a letter to Acting Register of Copyrights Maria Strong asking the Office “to examine the National Emergency Library that has been organized by the Internet Archive which is operating without typical library licenses and is causing authors in New Mexico concern about the integrity of their copyrights.” In particular, Sen. Udall asked the Office to “include a legal analysis of the Internet Archive’s National Emergency Library” under Section 107 and to “recommend any corrective action that you deem necessary to comply with copyright law and protect authors.”

On May 15, Acting Register Strong submitted a detailed response to Sen. Udall, noting that “it is not the Office’s general practice to provide legal advice about specific factual scenarios” and that the “Office is particularly cautious about weighing in on circumstances or disputes between private parties.” Nevertheless, the Office provided a general analysis of how copyright law applies to libraries and then looked at how that analysis applies to “the Internet Archive’s recent activities.” Notably, the Office ultimately concluded that it “would have been beneficial for the Internet Archive to engage with writers and publishers prior to launching the National Emergency Library to discuss the contemplated parameters for the project and determine their willingness to participate.”

On June 1, a couple of weeks after the Office submitted its response to Sen. Udall, four major publishers, including Hachette, HarperCollins, Penguin Random House, and Wiley, filed suit against Archive for copyright infringement in the Southern District of New York. The complaint, which includes 127 works-in-suit, alleges that Archive’s CDL and NEL models infringe on their works, both directly and indirectly. This blog post does not address that dispute, though the publishers do raise many of the same issues in their complaint that the Office raised in its response to Sen. Udall. This blog post merely summarizes the Office’s reasoning on the fair use analysis of Archive’s National Emergency Library. It is worth noting that, even though Archive announced on June 10 that it was shutting down its NEL, the legality of the NEL is still a live issue in the publishers’ lawsuit.

Fair Use Under Section 107

Looking at the first fair use factor under Section 107 generally, the Copyright Office notes that while the “goals of promoting scholarship and education are explicitly identified in the statute as favored purposes,” it “is generally understood that many uses of copyrighted works by schools and universities must be licensed.” Citing Oracle v. Google and Authors Guild v. HathiTrust, the Office points out that “reproducing the text of physical books in digital format is not transformative unless the change in format results in new uses for the work.” Moreover, it explains that using educational materials for educational purposes “would not serve a different purpose than the original.”

Turning to the NEL specifically, the Office takes issue with Archive’s claim that “the vast majority” of the books it makes available “do not have a commercially available ebook” that would be publicly available given that libraries are closed. On the contrary, the Office states that “Archive does not appear to have verified if any of the works in its collection were available to the public in digital formats prior to including those books in its collection or removing its waiting lists” and that the NEL “includes many books for which ebooks are available commercially” at local libraries. Thus, the argument that Archive was making available works that were otherwise unavailable “does not apply to any books that were available in digital formats at the time of the copying.”

The Office notes that the NEL is available to the public for free such that Archive’s use is noncommercial. However, it emphasizes that Archive’s stated purpose of promoting scholarship and education “alone does not establish fair use.” Indeed, the Office points out that “at least some” of the 1.4 million works, such as “Stephen King thrillers and joke books,” are “likely to be accessed for entertainment rather than educational purposes.” Even for the educational books that are not available in digital formats, the Office explains that the noncommercial purpose must be weighed against “the non-transformative nature of the use.” Given that educational works are “originally intended to educate,” Archive’s use of these works “is not transformative.” And given that Archive does not provide “search functionality,” it does not fit within the “digitization cases” that were “deemed transformative,” such as Google Books and HathiTrust.

On the second factor, the Office cites Campbell v. Acuff-Rose for the proposition that “some works are closer to the core of intended copyright protection than others” and Harper & Row v. Nation for the point that the “law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy.” The Office also notes that there may be “more justification” for reproducing previously published works that are “currently unavailable in the marketplace.” Nevertheless, it explains that the existence of organizations to provide copies of such works is relevant to this factor, and it mentions that the case law on a “work’s print status under the second factor is mixed.”

Applying this to the NEL, the Office clarifies that the analysis of the second factor is necessarily “fact-specific” and that each work or category of works “would need to be evaluated independently.” For example, “creative works” would be analyzed differently than “factual or informational works.” And while the unavailability of certain works might favor fair use “in some circumstances,” the Office notes that this does not appear to have been Archive’s focus. Archive instead focused on whether the books were available in digital form, making no “mention of the works’ overall availability.”

The key to the third factor, the Office explains, is “whether the secondary use employs more of the copyrighted work than is necessary, and whether the copying was excessive in relation to any valid purposes asserted under the first factor.” Moreover, while “copying an entire work often weighs against a finding of fair use,” the factor “would not weigh against a finding of fair use” if “it were necessary to copy the entire copyrighted work to achieve the purpose of the secondary use.”

The Office notes that the CDL White Paper, upon which Archive relies, “argues that it is necessary to copy the entire book to achieve the purpose of providing digital access to the work, such that the copying is not excessive in relation to the library’s purpose.” The CDL White Paper also argues that “the library prevents users from making additional copies of or further distributing the book and limits the duration for which a user can access a book.” In response, the Office points out that the courts in Google Books and HathiTrust “emphasized that the defendants had not made the full text of the copied works visible to the public” and how the Office itself (see here, here, and here) has “consistently expressed doubt that providing digital access to complete works can be considered a fair use.”

Quoting Harper & Row, the Office notes that the fourth factor, which is “undoubtedly the single most important element of fair use,” turns on “whether widespread conduct similar to the conduct of the alleged infringer ‘would adversely affect the potential market for the copyrighted work.’” The Office explains that, under Google Books and HathiTrust, the third and fourth factors are linked: “the risk that the digitized version will serve as a market substitute for the original work increases as the amount of the work that is made accessible to the public increases.” In both of those cases, the copying of entire works was permissible because it enabled transformative search functionality without serving as a market substitute by making the entire works available.

Turning to the NEL, the Office acknowledges a “disagreement among stakeholders over whether the analysis of market harm under the fourth fair use factor should consider the Internet Archive’s activities as roughly analogous to physical lending by libraries, or whether the markets for physical lending and ebook licensing to libraries are distinct.” The Office points out that no court has embraced the former approach and that “the Second Circuit squarely rejected it” in Capitol Records v. ReDigi. Moreover, the Office cites its own report noting that there are “significant differences” between lending physical copies and digital ones. And it points out that the NEL “lacks the controls cited by the CDL White Paper as necessary to mitigating market harm” since it allows “an unlimited number of users to borrow any given title simultaneously.”

On the latter approach, which holds that the market for ebook licensing is distinct from that of physical lending, the Office states that there is already “an established market” where “publishers and authors license their works to libraries for the purpose of digitally ‘lending’ them to patrons.” The fourth factor analysis here “might focus on whether the creation and distribution of digital versions of these works would affect this market, and also how, if such conduct became widespread, it would affect this market.” If digital versions of some works were not available in the marketplace, the Office concludes, “this factor might favor fair use for some, but not necessarily all, of the works contained in the National Emergency Library.”

The Office also examines how “exigent circumstances” related to the pandemic may factor into a fair use analysis. The Office notes that there “is undoubtedly a strong public interest in ensuring continued access to educational materials in this unprecedented time, which could weigh in favor of fair use.” However, while Archive’s goal “may be laudable, so is respect for copyright.” The Office states that it “would be imprudent to excuse widespread copying due to a national emergency without considering the possible repercussions on copyright law and copyright owners” since there “is also a strong public interest in ensuring that authors are able to financially survive the coronavirus crisis to be able to continue to produce creative works.” And it concludes by noting that a “court would almost certainly also take into account” Archive’s effect “on writers and publishers.”

Conclusion

The Copyright Office ultimately suggests that Archive may wish to “explore opportunities for collaboration with writers and publishers” such as by “allowing them to opt into making digital versions of their works publicly available.” While the Office never explicitly says that any particular work is being infringed, its analysis does indicate that, in its opinion, Archive cannot claim that it is engaging in fair use for all of the works made available with its National Emergency Library. Furthermore, the Office explains why other statutory limitations, such as the first sale doctrine under Section 109, would not apply to Archive’s activities. All in all, it seems clear that the Office is quite skeptical of the NEL’s legality under the fair use doctrine. Though, it remains to be seen whether the Southern District of New York will agree with the Office’s analysis.

Categories
Copyright

Copyright Notebook: Observations on Copyright in the Time of COVID-19

the word "copyright" typed on a typewriterThe Indomitable Spirit of Artists

Heroes are everywhere. We all give thanks for the selfless efforts of medical professionals, first responders, delivery drivers, gig economy workers, grocery and pharmacy staff, and the many other individuals who daily place themselves at the center of the coronavirus pandemic in order to make our quarantined lives safe and manageable. Now with working-from-home days blurring into nights and weeks rolling by in an undifferentiated haze, artists, scholars, and the industries that work with them are taking unprecedented steps to bring color, life, and knowledge to our circumscribed lives. Theatrical release movies are streaming to homes, operas and Broadway productions are available on the websites of shuttered arts venues to enjoy for free, bands are playing online gigs, authors have devised ways to make their works available for online enjoyment and distance learning in a myriad of settings, and scholarly publishers and newspapers are making relevant news reporting and research about the coronavirus free to users.

This should not be terribly surprising. Authors and artists of all varieties have always nurtured deep community roots. They are the very types of entrepreneurs and independent businesses who–alongside shop owners and local services–undergird our towns and cities and contribute to our well-being not only through their creativity, but also through their generosity when neighbors seek support. Writing in the New York Times, author David Sax said about the importance of small local businesses:

These are the entrepreneurs who matter now, more than ever. Not the ones on the covers of magazines, not the billionaires and recipients of venture capital checks, whose products we may use, but whose lives are distant and entirely removed from the day-to-day of our communities. If Casper, WeWork or some celebrity’s makeup company doesn’t survive this crisis, the impact on our lives will be negligible. Elon Musk will be fine. But if we lose our barber, the fruit store on the corner or the plumber who saved us in a flood, we will have lost a piece of ourselves.

 

This is the mindset with which I am approaching copyright in the time of COVID-19.

The National Emergency Library

Sadly, unprecedented moves by artists to share their work with the world on lockdown have not dissuaded opportunistic behavior online. Capitalizing on the shutdown, multi-millionaire Brewster Kahle of the Internet Archive, who has long argued for expanding rights to copy and make copyrighted works digitally available without the permission of authors, announced an “emergency” free library of copyrighted works, available to readers without a waiting list. While Kahle’s Internet Archive has been controversial since its inception, this new iteration apparently removes all limits on the number of users who can check out a work simultaneously – essentially turning it into an all-you-can-read free e-book service. This goes beyond even the limitations applicable to brick-and-mortar libraries that offer electronic lending.

Kahle’s opportunistic move did not pass unnoticed, however. Senator Thom Tillis, who as head of the Senate Subcommittee on Intellectual Property is deeply engaged in reviewing and updating U.S. intellectual property policy, promptly penned a letter to Kahle noting:

I am not aware of any measure under copyright law that permits a user of copyrighted works to unilaterally create an emergency copyright act.

 

Tillis is right – making the 1.4 million books Kahle has scanned into his database freely available to an unlimited number of users is inconsistent with current copyright law. Moreover, it is a step towards “losing a part of ourselves,” as Sax so aptly puts it. According to the Authors Guild, the mean income for a professional author is $20,300 annually. Authors are the epitome of the types of breadwinners various government programs should currently be trying to prop up, rather than barons of industry who should be taxed for the welfare of others.

While the Internet Archive has reportedly reached an agreement with the University of North Carolina Press and Duke University Press in the past weeks, this agreement is too little, too late, and it represents a pernicious trend among internet industry advocates to infringe first, seek agreement later. Terms like “efficient infringement” have emerged to describe such behavior.

Internet Archive’s behavior threatens to upend the promise of copyright protection as an invitation to a business negotiation between authors and larger, better resourced associates who wish to acquire rights in their works. Practitioners of so-called “efficient infringement” or “permissionless innovation” blatantly challenge individual authors to sue infringers if they dare, or otherwise to take whatever the infringer is willing to offer. The music industry has called this negotiating-with-a-gun-to-one’s-head approach the reason for the “value gap,” which is seen when comparing license terms among internet services that rely on protections like the Digital Millennium Copyright Act (DMCA) safe harbors to avoid liability for infringement and those services that negotiate for rights in the free marketplace. It is not surprising that lopsided business terms result in cases where infringers are empowered by circumstances or the law to adopt a “sue me” approach instead of negotiating in good faith.

Google v. Oracle

Another example of the “efficient infringement” approach to acquiring intellectual property is seen in Google v. Oracle. This long-litigated case will bring a Supreme Court holding on whether companies can slavishly copy the software code of others in order to save R&D and marketing costs. While this is a battle between industry behemoths, the outcome is important to anyone who relies on copyright protection because Google adopted the “sue me if you dare” approach and is effectively arguing that the bounds of fair use should incorporate instances of intellectual property appropriation to avoid business inconvenience.

This case has cost countless millions of dollars to litigate through two jury trials and two federal appeals and is now before the Supreme Court. If this is the path to enforcing one’s rights, it is clear that individuals and small businesses effectively own rights with no remedies should an infringer with deeper pockets emerge. The case likewise demonstrates how litigation can be inefficient and ill-suited to establishing business norms.

Despite the lengthy record, the case is quite straightforward. As Oracle so plainly put it in its brief:

Google has a problem. It committed an egregious act of plagiarism and now needs to rewrite copyright law to justify it. It cannot.

Java SE was one of the most creative and intricately designed works of software ever written. Its elegance attracted a wide audience of developers. Manufacturers of all sorts of devices and competing platform makers clamored to license the Java SE platform. Innovation flourished, just as the Framers imagined, and just as the rest of the American software industry thrived under those same constitutional incentives.

Google wanted its own platform. Given its vast resources, it could certainly have written one. But with a looming existential crisis, there was no time to innovate. Google could have taken any of the several Java SE licenses Oracle offered, but Google rejected Oracle’s compatibility imperative as inconsistent with its commercial objectives.

So Google opted to plagiarize and take the risk. Google copied 11,330 lines of computer code from Java SE, as well as the intricate organization and relationships among the lines of code. Google put the code in its competing product, Android, and successfully pitched it to Oracle’s customers, generating billions of dollars in revenue.

 

As I (together with other copyright scholars) argued in an amicus brief to the Court:

Congress has addressed the protection of computer software through the Copyright Act, including the code at issue in this appeal. In its 1980 amendments to the Copyright Act, Congress adopted the recommendations of the National Commission on New Technological Uses of Copyrighted Works (CONTU) and recognized computer programs as “literary works” enjoying the full extent of protection under the statute. Even at that relatively early stage in the development of the computer software industry, Congress considered versions of many of the arguments and issues present in this litigation, including whether computer code should be protected as a literary work, the degree to which computer programs can be considered “functional” or necessary “machine-controlled elements” (as opposed to expressive works protectable under the Copyright Act), and the interests of protecting and incentivizing innovation. After careful analysis and debate, CONTU recommended to Congress, and Congress legislated, that computer programs are protected under the Copyright Act with no qualifications that would differentiate software from any other type of literary work under the statute.

Since 1980, software development has grown exponentially, and its application continues to expand into new industries. Congress has amended the Copyright Act to address issues raised by technological advances in particular industries, by enacting, for example, the Computer Software Rental Amendments Act in 1990, the Digital Millennium Copyright Act in 1998, and the Music Modernization Act in 2018. Congress has not, however, amended the Copyright Act to decrease the scope of protection for computer programs or altered the statutory standard for fair use. Because the statutory protections for computer software remain the same as for all other creative works, adopting Google’s position would amount to a judicially created, software-specific amendment. It would also result in singling-out the protections afforded to computer programs, which contradicts the plain text of the Copyright Act.

Google and its amici try to characterize this as “efficient infringement,” or “permission-less innovation.” Yet its conduct is entirely contrary to the goals of copyright law as expressed in the Copyright Act or the Constitution. As a result, there is no reason to incorporate these considerations into fair use. It is clear that purposeful copying to avoid business inconvenience is not fair use, either in the statute as enacted or as interpreted by courts. Although Google casts its theory as “software-specific,” there is no reason why infringing parties could not regularly use it to justify copying any kind of protectable expression. Thus, to expand the fair use doctrine in the way Google advocates would set a dangerous precedent not limited to the software industry.

 

The Court has announced that it will begin hearing certain oral arguments by phone during the pandemic shutdown, but Google v. Oracle is not (yet) among those cases. As of April 13, 2020, the case was postponed to the October term.

One final (but somewhat different because it involves a state) recent example of an entity acting on the principle of “efficient infringement” occurs in the case of Allen v. Cooper. This case raises state sovereign immunity as a defense, but the underlying fact pattern is hauntingly similar.

Allen v. Cooper

The Supreme Court ruled in Allen v. Cooper that it violates state sovereign immunity to expose state entities to liability for alleged copyright infringement, absent the state’s consent.

As covered by Devlin Hartline here on the CPIP blog, the case involved “both actual and metaphorical pirates.” The actual pirate was Blackbeard, whose ship went down near the North Carolina coast in the 1700s. The metaphorical pirates are the government of the state of North Carolina, which allegedly infringed, then settled, then allegedly infringed again, the copyrighted photos and videos of the wreck shot by underwater photographer Rick Allen. Not content to repeatedly infringe Allen’s work, the state Legislature additionally passed a law deeming all photographs and videos made of North Carolina shipwrecks to be a matter of public record, and thus free for public use. Although Allen claimed that the state had committed willful infringement, the Supreme Court ultimately sided with North Carolina in ruling the Copyright Remedies Clarification Act of 1990 unconstitutional and holding that the Eleventh Amendment prohibits private actions against the state without the state’s consent.

As it stands, this case bodes ill for anyone who makes their living in the knowledge economy. If you create, research, code, write, document, interpret, or otherwise create intellectual work product that a state or state employee deems of value, the state apparently can take your work without permission. Although this is a more definitive statement of the lay of the land than was previously clear (since earlier case law had considered patent infringement, which differs in some relevant ways from copyrights), it is not altogether unexpected. Nevertheless, state infringements of copyright have been a growing problem. In the twenty years since the Fifth Circuit opined in Chavez v Arte Publico Press that there was no significant problem of copyright infringement by the states enabled by the Eleventh Amendment, more than 150 copyright infringement cases have been filed against states.

Unfortunately, the Court ruled that the CRCA was unconstitutional in its abrogation of state sovereign immunity because it did not properly link the CRCA to the prevention of unconstitutional injuries like the deprivation of property under Section 5 of the Fourteenth Amendment of the U.S. Constitution. Although Allen lost his appeal, the Supreme Court all but invited new legislation by Congress:

Congress likely did not appreciate the importance of linking the scope of its abrogation [of state sovereign immunity rights when it passed the CRCA] to the redress or prevention of unconstitutional injuries—and of creating a legislative record to back up that connection. But going forward, Congress will know those rules. And under them, if it detects violations of due process, then it may enact a proportionate response. 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.

 

Until Congress returns to normal business and can take this matter up, there are a few issues any potential drafters of new legislation should bear in mind.

First, as the Court explained, it will be important to link any new statute abrogating state sovereign immunity to the redress or prevention of unconstitutional deprivations under Section 5 of the Fourteenth Amendment. This means limiting any new legislation to violations of the Due Process Clauses of the Constitution. Next, it will be important to create a legislative record noting the scope of the problem justifying the proposal, given the Fifth Circuit’s comments in Chavez, which failed to recognize the volume of lawsuits being filed against states for copyright infringement.

It is also wise to articulate some of the numerous reasons why state remedies are inadequate to deal with the infringements of copyright by states or their instrumentalities. Because federal copyright law preempts state law, and copyright matters are tried only in federal courts, there are no plausible avenues for states to create novel, recognizable causes of action for infringement under their own laws. Moreover, in addition to the federal doctrine of state sovereign immunity, states are typically also immune from suit in their own jurisdictions; thus, there are not likely to be any state common law-created remedies. Because states are in the best position to articulate and demonstrate the adequacy of state remedies, if any, the burden of doing so should rest with the state.

Finally, it is worth considering that only federal law can provide the uniform protection against state infringements that authors require in order to publish their works. Thus, Congress should not delay acting to take up the Court’s invitation to bring state digital Blackbeards to justice.

Reflecting on the above cases and controversies as I cozy up to my laptop or sign into a virtual meeting, I am at once thankful for the technology that allows me to connect to others and to keep working, and fearful for my friends and clinic clients who are facing existential challenges to their livelihoods. These cases, similar to many before them, illustrate how intertwined we all are as users and creators of works. It is my hope that we all will use this quieter time to contemplate how interconnected we truly are, and that we will emerge from quarantine to embrace the spirit of the oft-heard virus slogan “we are all in this together.”