Book publishers Elsevier and Hachette, the American Society of Journalists and Authors (ASJA), a group of writers and the Copyright Alliance were among parties filing amicus briefs supporting the Authors Guild’s petition to the Supreme Court for a writ of certiorari seeking review of the 2nd U.S. Circuit Court of Appeals’ ruling in the Google Books case, the guild said Tuesday. It petitioned the Supreme Court in December to review the 2nd Circuit’s ruling that the Google Books project to digitize portions of the world’s books is a “transformative” example of fair use, saying the 2nd Circuit’s ruling “fundamentally remakes” the fair use doctrine and conflicts with other courts’ fair use rulings. Copyright legal experts have told us they believe the Supreme Court is unlikely to grant the petition (see 1601040063). Elsevier and Hachette jointly argued in their brief that the 2nd Circuit took an “overly expansive view of the meaning and consequences of transformativeness, which displaces the statutory full factorial analysis Congress intended.” The 2nd Circuit’s ruling also “infringes and jeopardizes” authors’ exclusive rights to control their right to reproduce their copyrighted works, Elsevier and Hachette said. ASJA’s brief argued, as expected, that the 2nd Circuit failed to do a required “qualitative analysis of the portions of a work used by the defendant ... and instead it opted in favor of a quantitative analysis that makes no sense in the context of Google’s ‘snippet view’ product.” The 2nd Circuit also “erred by considering ‘transformativeness’ in a manner completely detached from ‘justification’ or fairness,” ASJA said. The Copyright Alliance said the 2nd Circuit’s ruling “employed a fair use analysis that is far removed from” the existing fair use precedent in Campbell v. Acuff-Rose Music, which found commercial parody to be fair use. The ruling also “necessarily ignored numerous important interests and considerations, many of which were reflected” in the Copyright Office’s 2011 mass digitization study, the Copyright Alliance said. Stephen Sondheim and a coalition of other major authors and dramatists jointly argued that the fair use doctrine wasn’t intended “to permit a wealthy for-profit entity to digitize millions of works and to cut off authors’ licensing of their reproduction, distribution, and public display rights.” Google’s deadline for filing its opposition brief to the Supreme Court is March 1.
The Center for Democracy and Technology and Computer & Communications Industry Association were among a coalition of almost 30 industry and consumer groups that raised concerns about the European Commission’s approach to consulting on copyright issues, in a letter to EC leaders Tuesday. The EC is to adopt a communication Dec. 9 on its vision for an EU copyright law revamp. The copyright communication’s anticipated adoption would be before the Dec. 30 close of the EC’s larger online platforms consultation, meaning stakeholder comments on that consultation wouldn’t be factored into the copyright communication, the groups said in separate letters to EC First Vice President Frans Timmermans and European Parliament members (here and here). The online platforms consultation “includes some questions on copyright, which had not previously been the subject of consultation,” the groups said in the letters. “However, critical questions dealing with the creation of new, controversial copyrights for publishers are only open to right holders to answer, denying European citizens and relevant stakeholders the right to be heard.” The groups urged the EC and EP to ensure that the copyright communication isn’t released before the end of the online platforms consultations and “that detailed impact assessments are published before legislative proposals.”
The Electronic Frontier Foundation praised Senate Judiciary Committee leaders Friday for requesting a Copyright Office study of the role of copyright law on the use of “software-enabled devices.” EFF said that issue is “crucial because technology and the law have evolved in a way that no one could have intended when Congress wrote the present copyright laws.” Senate Judiciary Chairman Chuck Grassley, R-Iowa, and ranking member Patrick Leahy, D-Vt., told Register of Copyrights Maria Pallante in a letter Thursday that “this is a complex field, and how we interact with software in our products touches on numerous important policy arenas, including intellectual property, privacy, consumer protection, public safety, cybersecurity, competition, and the evolution of the digital marketplace.” The CO should “undertake a comprehensive review of the role of copyright in the complex set of relationships at the heart of these issues,” Grassley and Leahy wrote. That review should examine how legitimate usage of software-enabled products is affected by existing copyright law, how innovation is affected by those provisions and what changes to copyright law would affect the creation and use of software-enabled products, Grassley and Leahy said. The CO said Friday it’s “pleased” to have received Senate Judiciary’s study request and “will ask for public input to ensure that the Office’s report considers the views of all in the copyright community, including copyright owners and public interest groups.” The CO is expected Wednesday to release its ruling on proposed exemptions to the Digital Millennium Copyright Act Section 1201’s ban on the circumvention of technological protection measures. EFF, which has advocated for several of the 27 proposed exemptions under review as part of CO’s triennial Section 1201 exemptions rulemaking process, said it believes Section 1201 “has restricted customers’ freedoms to repair, understand, and improve on the devices they buy.” EFF said it believes “there is already an extensive record establishing the need to rein in Section 1201, to protect device owners from copyright abuse enabled by end-user license ‘agreements,’ and to pass other reforms that would generally improve copyright law such as reducing statutory damages and the length of time that copyrights remain in force.”
Aerosmith lead singer Steven Tyler urged the House Wednesday to move forward on Copyright Act revamp legislation, saying in a Huffington Post blog post that lawmakers should support “the effort to reform outdated copyright laws, do away with [the] government standard for artist compensation, and make sure creators are paid fairly when other business[es] use our work.” More than 1,650 musicians and songwriters affiliated with the Recording Academy-backed Grammy Creators Alliance were to visit House members’ home district offices Wednesday to advocate for copyright legislation, Tyler wrote. Tyler co-founded the Grammy Creators Alliance earlier this year (see 1502090051) and has previously met with House Judiciary Committee Chairman Bob Goodlatte, R-Va., about the committee’s ongoing Copyright Act review. Goodlatte “really believes that the laws need to change so that songwriters and artists are paid fairly, and he is doing something about it,” Tyler said. “Big changes are happening right now in copyright reform as a result of massive technology changes and with the way fans pay for music and consume music. These changes can be a good thing for songwriters and up-and-coming artists, if we are paid fairly by those who make money using our work.” Tyler also attracted the attention of copyright stakeholders earlier this week when he sent a cease-and-desist letter to the campaign of Republican presidential candidate Donald Trump urging the Trump campaign to stop using Aerosmith’s “Dream On” at campaign events. Trump’s campaign has agreed to stop using the song. “My intent was not to make a political statement, but to make one about the rights of my fellow music creators,” Tyler said.
Congress should ensure that any legislation that revamps portions of the Copyright Act maintains robust fair use and first sale doctrine protections because those exemptions are “as important” to the Copyright Act as the ownership rights the statute creates, said Computer & Communications Industry Association Vice President-Law and Policy Matthew Schruers during a CCIA webcast Tuesday. CCIA officially released a white paper Tuesday detailing its recommendations to the House Judiciary Committee on the contours of possible legislation to address issues the committee has explored in its ongoing Copyright Act review. The CCIA paper said new copyright bills should accommodate innovation in the tech sector and provide certainty to noncontent businesses affected by the Copyright Act, as expected (see 1508240041). CCIA took “no stated opinion” about whether the Copyright Office should be moved from the Library of Congress to another federal agency or become an independent agency, Schruers said. Efforts to concentrate legislative effort on the CO’s future status “in my view is putting the cart before the horse,” he said: “The question we should be asking is what do we need to ensure that the office better executes” its mission. “Where [the CO] belongs is really a secondary consideration that should be driven by how we’re going to modernize,” Schruers said. It’s unclear what revamp legislation is likeliest to emerge from House Judiciary’s work, he said, saying the 1976 Copyright Act revamp took more than 10 years but more targeted legislation has “happened faster than that.”
CEA, the Computer & Communications Industry Association and eight other groups jointly urged the Department of Justice Monday to require the Society of European Stage Authors and Composers (SESAC) to abide by the same rules that the American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI) face in their existing consent decrees. “Without the protections of the consent decrees, licensees would be subject to individual negotiations with potentially hundreds of thousands of licensors, almost all of which possess significant market power over non-substitutable musical works,” the groups said in a letter to Justice. “This would harm all stakeholders involved, including not only consumers, but also the individual songwriters who benefit from the efficient and competitive marketplace that the consent decrees ensure.” The groups also urged Justice to maintain the current ASCAP and BMI consent decrees, saying any weakening in those rules would hurt consumers and artists. SESAC reached a settlement last month with the Radio Music License Committee to end nearly three years of antitrust litigation between the groups (see 1507240049).
AMC Theatres will begin showing the Motion Picture Association of America’s “I Make Movies” videos at the movie theater chain’s more than 300 U.S. locations to promote legitimate content viewing, the association said Friday. MPAA CEO Chris Dodd has been encouraging theater owners to show the videos since their release earlier this year. “This latest effort will help inform those movie-goers that watching films in theaters and through legitimate online services is important for supporting the kind of creativity exhibited by the nearly 2 million American men and women that work in our industry,” Dodd said in a news release. Several independent theaters agreed to begin showing the MPAA videos, said the group.
Pandora's deal to buy a "small station in South Dakota" shows the company "has declared war on songwriters," said National Music Publishers’ Association CEO David Israelite of the firm's attempt to lower its royalty rate through the acquisition. "In the history of the struggle between creators and those who try to profit off of their work without paying them fairly, this move by Pandora ranks as the most cynical and shameless." The station "has become a pawn in Pandora's game to pay the creators on which it built its business even less," Israelite said in a news release Tuesday. The FCC said the previous day that Pandora could be up to 49.99 percent foreign owned, paving the way for the company to get agency approval for its $600,000 planned buy of KXMZ(FM), Box Elder, South Dakota, from Connoisseur Media (see 1505050049), a deal that NMPA has criticized (see report in the June 17, 2013, issue). A representative of the station had no immediate comment Wednesday, and Pandora declined to comment. "Pandora is radio," and buying KXMZ would qualify the company for the same Radio Music License Committee license "under the same terms as our competitors," the company said Monday when it got the FCC foreign ownership declaratory ruling. "This move makes sense to us beyond the licensing parity alone."
SiriusXM’s Q3 earnings of $136 million make clear that the company should pay pre-1972 public performance royalties, said the musicFIRST Coalition in a blog post Friday. SiriusXM “pleads poverty to Congress and runs to the courts to avoid paying pre-72 royalties while gorging on profits that would make Scrooge McDuck blush,” it said. The digital streaming company didn’t comment. SiriusXM has lost two recent California court battles on the issue of pre-1972 performance royalties. Like U.S. District Court in Los Angeles Judge Philip Gutierrez in September (see 1409240079), Los Angeles Superior Court Judge Mary Strobel handed down a decision in October in favor of plaintiffs Flo & Eddie, who own the sound recordings of The Turtles, a 1960’s music group (see 1410160001). SiriusXM is appealing those rulings, said musicFIRST. Public performance royalties are expected to play a key role in music licensing debates on Capitol Hill next year (see 1410090092).