Tag: infringement

Copyright Roundup, Part III

Continuing in our copyright roundup series, we will review some of the most recent legal cases and developments in copyright law and policy.

More Fair Use Victories:

Cambridge University Press v. Becker

Fair use has once again prevailed in the most recent decision of the Georgia State e-reserves case. The case, originally filed in 2008, involves Georgia State University’s electronic reserve system, a system through which professors made small excerpts of copyrighted books available to their students for free. Shortly after the lawsuit was filed, GSU modified their policy to provide professors with a fair use checklist to assist in selecting excerpts. In 2012, the district court found most of the uses in question to be fair uses. On appeal, the Eleventh Circuit held the district court erred by adopting an arithmetic approach to their fair use analysis.  The 2012 trial court ruling was vacated and sent back to the district court with instructions for a more holistic approach to fair use.

On March 31, 2016, the most recent decision from the district court was published, again finding the majority of claims (44 out of the 48) to be fair uses. The court’s analysis was specific to instances of nontransformative and nonprofit educational purposes of teaching. For an analysis of the decision and what it may mean for libraries going forward, see Krista Cox’s post “A Deeper Dive Into the New Georgia State Decision.”

Oracle v. Google

Oracle, owners of the Java programming language, sought $9.3 billion in damages for Google’s reproduction of the structure, sequence, and organization of 37 packages in the Java application programming interface (API) within Google’s Android operating system.[1] After three days of deliberation, a jury found Google’s use of Java APIs to be a fair use, notwithstanding Google’s commercial nature and evidence of internal emails questioning the need to obtain a license.

But what exactly is an API? Defining “API” has been a challenge for both sides throughout the litigation. Google received attention for wheeling in a physical file cabinet labelled “java.lang” in their opening arguments during May’s jury trial, while Oracle previously took the approach of constructing a hypothetical situation referencing Harry Potter. Earlier in its 2012 opinion, the district court outlined the package-class-method hierarchy of the Java programming language, analogizing APIs to a library.  In this analogy, Google replicated the names and functions of the API packages (bookshelves in the library) but wrote their own code to replicate the classes (books on the bookshelves) and methods (how-to chapters of the books).

Terry Reese, Head of Digital Initiatives at University Libraries provides clarification on what exactly an API is and how the restrictions on the use and reproduction of APIs may impact the Libraries. Terry shares, “APIs act as a common language between developers enabling faster and more efficient development.  In essence, they are the bridges between systems and services that allow the tools and technology that we use to simply work.  Take for example, the simple task of printing this blog post.  Think about what’s really happening.  The application (your browser) is communicating with the operating system, which in turn, communicates with a printer device driver to pass the data to the printer.  Very likely, the browser, the operating system, the printer — these are all created by different developers and different companies.  However, the applications and services can communicate together due to the utilization of a common set of APIs.”

The use and reproducibility of APIs supports interoperability between programs and services, and as Terry notes, the fair use of APIs is “hugely important for the long-term health of IT and open development.  Within today’s technology environment, integration between services, applications, standards, etc. drive innovation and integration.  This integration is possible due to the availability of common APIs.”

Oracle has stated their intention to appeal the decision.[2]

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Copyright Roundup, Part II

In Copyright Roundup Part I we discussed the fair use of an “aesthetically displeasing” photograph, copyright protection for cheerleading uniforms, and copyright ownership for non-human authors. In this post we will discuss the latest development in the Google Books litigation, fair use considerations in issuing DMCA takedown notices, and the public domain status of Happy Birthday to You.

Another fair use win for Google in most recent Google Books lawsuit.

Many of our readers are familiar with the Google Books litigation which began in 2005 when a number of publishers and the Authors Guild brought separate lawsuits against Google for Google’s Library Project.[1]  As part of the project, Google partners with research libraries to digitize works in the participating libraries’ collections. Digital scans of books are indexed and added to Google Books, providing the public with the ability to do full-text searches of terms within the books. Users can use the full-text search function in Google Books to determine how many times a particular term appears in any book within the Google Book collection. Absent an agreement with the copyright owner, Google does not provide the full scans to the public. Users can, however, see snippets of text containing the searched-for terms. Additionally, Google provides a digital copy of the scanned book back to the submitting library.

On October 16, 2015, the Second Circuit affirmed the lower court’s decision, holding Google’s digitization activities to be a transformative fair use. In analyzing the fair use factors, the court identified Google’s new purpose in providing otherwise unavailable information about the books, allowing users to identify works that include (and do not include) terms of interest. The court also found the snippet view to add important value to the search function, providing users with the context necessary to determine if the book fell within their scope of interest. While Google is a for-profit company, the Google Books project is provided as a free service without advertising. The court found Google’s ultimate profit motivation was not enough to deny a fair use finding in light of other factors, including its transformative purpose in using the works.

The court held that use of the entire work was reasonably appropriate to achieve the transformative purpose of enabling a full-text search function. For the snippet view feature, Google had a blacklisting process in place to permanently block about 22% of a book’s text from snippet view. In addition, researchers for Authors Guild were only able to access an aggregate of 16% of a text. The fragmented and scattered nature of the snippets results in an insubstantial amount of the work being displayed.

The court held the search and snippet view functions did not serve as a competing substitute for the original works. While snippet view may cause some loss of sales it did not rise to the level of meaningful or significant effect upon the potential market or value of the copyrighted work required to tilt the fourth factor in favor of the Authors Guild.

Finally, the court held that providing library partners with the digital copies of the works in their own collections was not infringing. Whether the libraries would then use the copies for infringing purposes was mere speculation and insufficient to place Google as a contributory infringer.

Why does it matter?

Despite ongoing litigation, Google continued their partnerships with libraries to digitize works in library collections, meaning they faced huge potential costs in damages. Consequently, this decision was a big fair use for Google, partnering libraries, and the public who use Google Books.

In his opinion, Judge Leval emphasized the goal of copyright to expand public knowledge and understanding, making the public, rather than the individual author or creator of a work, the primary beneficiary of copyright. Google’s activities served this goal. Public knowledge was augmented by making available information about the scanned books without serving as a substantial substitute for the copyrighted works.

The Authors Guild has indicated their intention to appeal the ruling but it will be up to the U.S. Supreme Court to decide whether they will hear the case.

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Copyright Roundup, Part I

The past few months have seen a number of interesting trials and developments in copyright law. We are providing a two-part Copyright Roundup to summarize those cases you may have missed and to let you know why they are important. In part I, we discuss embarrassing photos, cheerleading uniforms, and monkey selfies.

Blogger’s use of “aesthetically displeasing” photograph of Miami Heat investor still a fair use.

We first covered the facts in the Katz v. Chevaldina case in our blog post, “Copyright as an Instrument for Censorship?”, noting that Mr. Katz had filed an appeal of the district court’s finding that defendant Irina Chevaldina was entitled to summary judgement based on a fair use defense. On September 17, 2015, the 11th Circuit released their opinion, affirming the lower court’s decision. Analyzing the purpose and character of use, the court found every use of the Mr. Katz photo to be primarily educational, rather than commercial (educating others about the nefariousness of Mr. Katz) and use of the photo to be transformative (Chevaldina used the photo to ridicule and satirize Mr. Katz’s character). When considering the nature of the copyrighted work, the court found the previously published photo to be primarily a factual work (the photo was a candid shot and the court found no evidence to establish that the photographer attempted to “convey ideas, emotions, or influence Katz’s expression or pose”.[1] Finally, the use of the photo would not materially impair Katz’s incentive to publish the work—because Katz obtained ownership to prevent publication, there was no market for the original work.

Why does it matter? Katz’s conduct in initiating this lawsuit raised some big questions about the role of copyright law in censoring speech. In this case, Katz’s attempt to use copyright law as a shield against unwanted criticism ended up helping to strengthen Chevaldina’s fair use defense. The court’s central question under the fourth fair use factor was whether Chevaldina’s use of the photo would cause substantial economic harm that would impair Katz’s incentive to publish the photo. By obtaining the copyright in the photo and initiating a lawsuit to prevent publication of the photo, however, Katz demonstrated his desire to stop any use of and access to the photograph. The court held that Chevaldina’s use of the photo did not impair Katz’s incentive to publish the photo because Katz had no incentive to publish the photo and the likelihood of Katz changing his mind was “incredibly remote.”

The court also had an interesting analysis of the factual nature of the photograph. For a thoughtful discussion of this point, read Kevin Smith’s post, “Photography, Fair Use and Free Speech.”

Copyright protection for cheerleading uniforms: Varsity Brands v. Star Athletica

Varsity Spirit Corporation and Varsity Spirit Fashions and Supplies, Inc. (Varsity) designs and manufactures cheerleading apparel and accessories, having received copyright registrations for many of their design sketches. These designs included different combinations and arrangements of stripes, zigzags, chevron, and color blocks. The question on appeal was whether these elements were needed to make a cheerleading uniform or whether the design elements could exist separately from the uniform.

On August 19, 2015, the Sixth Circuit reversed the district court’s decision that Varsity’s designs were not physically or conceptually separable from the utilitarian function of the cheerleading uniform, holding that the graphic designs on Varsity’s cheerleading uniforms were separate and therefore copyrightable. The Court distinguished Varsity’s design from dress designs, which typically do not receive copyright protection.

Why does it matter? U.S. copyright does not protect useful articles. Useful articles are articles that have a utilitarian function beyond portraying the appearance of the article or conveying information. To the extent that a work includes a useful function, copyright will only protect those original elements of the work that can be independently separated from the useful function of the work.

Prior to this case, the Sixth Circuit (binding authority for Ohio’s federal district courts) had not adopted an approach for determining separability. After reviewing the approaches taken by other circuits, the Sixth Circuit decided to adopt a hybrid approach to determine if a particular design is a copyrightable pictorial, graphic, or sculptural work. To make this determination, the following questions must be asked:

  1. Is the design a pictorial, graphic, or sculptural work?
  2. If yes, is it a design of a useful article?
  3. If the design is of a useful article, what are the utilitarian aspects of the useful article?
  4. Can the viewer of the design identify pictorial, graphic, or sculptural features separately from the utilitarian aspects of the useful article?
  5. Finally, can the pictorial, graphic, or sculptural features of the design of the useful article exist independently of the utilitarian aspects of the useful article?

In answering these questions, the court identified a utilitarian function of a cheerleading uniform to “cover the body, wick away moisture, and withstand the rigors of athletic movements.”[2] The court found that the top and skirt of the uniform could still be identified as a cheerleading uniform even without stripes, chevrons, color blocks, or zigzags. Finally, the interchangeability of the designs indicates the graphic features can exist separately and independently from the utilitarian features of the uniform.

Can a monkey own a copyright?

The “Monkey Selfie” case has taken an additional twist with a new lawsuit brought on behalf of Naruto, the crested macaque. The monkey selfie case began in 2011 when photographer David Slater took a trip to Indonesia and left his camera unattended. A monkey (Naruto) used the camera to take a number of photos of himself grinning into the camera. One self-portrait was reproduced in publications around the world, eventually being added to Wikimedia Commons under the presumption that the work was in the public domain.[3] This prompted Mr. Slater to issue several DMCA takedown notices.

In 2014, Mr. Slater published a book containing copies of the Monkey Selfies, continuing to assert himself as copyright owner of the photographs. Later that year, the Copyright Office revised the Compendium of U.S. Copyright Office Practices, to clarify that the U.S. Copyright Office would not register works produced by animals, including, for example, “a photograph taken by a monkey.”[4]

On September 21, 2015, PETA filed a copyright lawsuit on behalf of Naruto against Mr. Slater, alleging that Mr. Slater falsely claimed to be the author of the photographs and made unauthorized copies of the works for commercial purposes. The lawsuit seeks an order to permit PETA to administer and protect Naruto’s rights in the photographs, declaring Naruto the author and copyright owner of the works.

Why does it matter? U.S. copyright law does not specify human authorship, though the U.S. Copyright Office has provided guidance on the issue through the Compendium of U.S. Copyright Office Practices. This case raises a number of interesting questions around how we define, or should define, “author.” If non-human authors are recognized as eligible copyright owners, should lines be drawn? Should the law, for example, provide exclusive rights to machines? And if the author can’t communicate their preferences, should we allow someone to speak on their behalf?

***

We will continue our Copyright Roundup in part two, where we will look at some important fair use developments in the Google Books lawsuit and Stephanie Lenz’s “dancing baby” case against Universal Music and answer the question, “is Happy Birthday to You finally in the public domain?”

_____________________________________________________________________________________

By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

 

[1] Katz v. Chevaldina, No. 14-14525 (11th Cir. 2015).

[2] Varsity Brands, Inc. v. Star Athletica, LLC, No. 14-5237 (6th Cir. 2015).

[3] Wikimedia Commons refused to remove the photograph on the basis that Mr. Slater was not the author of the work. Without a human author, Wikimedia Commons argued, the work may not be protected by copyright.

[4] U.S. Copyright Office, Compendium of the U.S. Copyright Office Practices (3d ed. 2014) § 313.2.

Georgia State, A Brief Overview

Georgia State, In Brief:
Almost a year after the trial ended in Cambridge University Press, et al v. Becker, et al (more commonly referred to as the Georgia State case), we have received a judgment from Federal Judge Orinda Evans. The issue at stake was the placement of materials, still under copyright, on Georgia State University’s (GSU) e-reserves/course management system. The Plaintiffs, included Cambridge, Oxford University Press and Sage Publications, brought suit alleging copyright infringement and Georgia State responded that the use was fair under United States Copyright Law. The case experienced many twists and turns, but a decision finally came out on May 11, 2012.

Judge Evans’ 350 page decision shows a painstakingly thorough analysis. I do not want to rehash any of the insights provided in very well written entries that have appeared online over the last week or so – please see the ARL’s Issue Brief by Brandon Butler, and blogs by Kevin Smith and James Grimmelman. What I would like to do is talk about the highlights/interesting findings and to try to answer the “ok, now what?” questions.

Interesting findings for Libraries:

  • Judge Evans found GSU’s 2009 Copyright Policy to be a good faith effort to comply with U.S. Copyright law. She did reveal come criticism in the lack of stated allowable percentages that complied with the Fair Use standard.
  • Of the 74 instances of alleged infringement submitted for review, Judge Evans only found infringement in 5 (or 6% of cases were found to be infringing uses).
  • Under her application of Fair Use, she found that:

On Factors 1 and 2 (purpose and character of the use and the nature of the copyrighted work), libraries will prevail almost every time

On Factor 3 (amount and substantiality of the portion used)- she stated libraries will prevail if “where a book is not divided into chapters or contains fewer than ten chapters, unpaid copying of no more than 10% of the pages in the book is permissible…” (P.88). If the book is over ten chapters then no more than one chapter is permissible. On Repeated use- the court rejected the notion that professors cannot use the same unlicensed material from semester to semester.

On Factor 4 (effect on use on the potential market)- this factor favors content producers, but if no reasonably priced or readily available version (exactly what is being assigned) exists libraries can prevail/their ability to rely on fair use increases

  • De Minimus determination – The court did not review any alleged infringement instances where it was shown that no student had opened or viewed the material. Essentially arguing that since the material was not viewed, there was no real infringement.

What does this all mean?

I’ve been asked, several times, “what, if anything, does this mean for us?” “Do we need to change anything/everything?” “Should we change our policies?”

For universities not in the 11th Circuit, where this decision came down, the ruling can be found to be persuasive but not binding for other jurisdictions. Additionally, it’s important to note that this case may be appealed. Both the plaintiffs and the defendants may present reasons to appeal the decision. The publishers may determine that they have grounds for appeal based on what they may consider erroneous legal rationale used by the Judge Evans. For GSU, the judge found infringement in five cases, so they may consider appealing to argue the point that the uses were fair in those cases as well.

There are many positive things for libraries to take away from the decision. However, as others have pointed out, Judge Evans’ suggested percentage/on chapter provision may cause more harm than good, with the creation of an artificial delineation to an area that has operated without concrete boundaries.

Regarding the question of what libraries should do now, it would be a good idea to review current policy and procedures in regards to copyright law and fair use. While a complete overhaul may not be in order, it may be a good idea to tweak and refine some policies and procedures. It will also be a good idea to conduct seminars and presentations for faculty, staff and students on copyright basics and what fair use means for them as users and creators of scholarly work.

Is there a concrete victory for libraries in this case? Arguably yes. But many issues remain that will have to be navigated, negotiated and re-negotiated. These negotiations will have to happen between and among libraries, faculty, and publishers. It remains to be seen whether or not easier days are ahead.

What is a DMCA Exemption? Can It Be Appealed?

The exemptions to the Digital Millennium Copyright Act (DMCA) that the Register of Copyrights announced last month have garnered much publicity, especially the one that dealt with jailbreaking iPhones.  In the university community, the exemption that deals with educational video has also gotten some press.  But what is a DMCA exemption anyway?  And, as one of my first correspondents on this subject asked, is there an appeals process once an exemption is issued.

The DMCA, which was passed in 1998 and became part of various sections of the federal copyright law, contains provisions that address issues of copyright in the digital age, and, in some instances, brought us into line with international intellectual property treaties.  Some of its most notable sections are the anti-circumvention provisions, which forbid breaking copy-protection mechanisms on digital media.  These provisions are in force non-infringing uses, such as those allowed under fair use.  However, the law also allows the Register of Copyrights to recommend that the Librarian of Congress issue exemptions to the anti-circumvention statutes every three years.  Exemptions stay in force for the next three years and must be renewed in order to continue beyond that period.

Can an exemption be appealed?  There is no precedent one way or another.   Some observers believe that, rather than litigate, Apple’s way of dealing with the jailbreaking exemption will be a patent application for systems and methods that will allow the company to detect whether an unknown third party has tampered with a device and take corrective action in response.

Copyright and Football

Now there’s a combination most people don’t think about together.

Recently the NFL sent cease-and-desist letters to a number of New Orleans t-shirt manufacturers, claiming that the shirts, which depicted the New Orleans Saints “Who Dat” slogan and the team’s fleur-de-lis emblem, violated the league’s copyright and trademarks.  Irate fans and merchants protested. Louisiana politicians got in on the act.  Sen. David Vitter notified the NFL that he intended to print “Who Dat” t-shirts himself and Rep. Charlie Melancon, who is running for Vitter’s seat,  issued a petition in support of the beleaguered merchants.

Now the Louisiana Attorney General has brought an end to the controversy.  Fans can use the “Who Dat” slogan and the fleu-de-lis as along as items are not represented as NFL-licensed merchandise.

Here at OSU, contact Ohio State University Trademark and Licensing if you have questions about using Buckeye logos or emblems.

Copyright Criminals Airs January 19

Copyright Criminals, a documentary on sampling and copyright law, airs January 19 at 10:00 p.m. on WOSU, the PBS station in Columbus.


Interesting quotes from the trailer:

  • “I’ve sued and been sued.  That’s the nature of the business.”
  • “If you sample one note of a sound recording, it’s copyright infringement.”
  • “We felt that you couldn’t copyright a sound.”
  • “You’re either rich enough to afford the law, or you’re a complete outlaw. “

The intention of the film is to look at both sides of these complex issues.  Background information is available here.