Internet Archive Responds To Publishers Lawsuit: Libraries Lend Books, That’s What We Do

3 06 2021

Tech Dirt
Mike Masnick
Jul 31st 2020
Last month, we wrote about the big publishers suing the Internet Archive over its Controlled Digital Lending (CDL) program, as well as its National Emergency Library (NEL). As we’ve explained over and over again, the Internet Archive is doing exactly what libraries have always done: lending books. The CDL program was structured to mimic exactly how a traditional library works, with a 1-to-1 relationship between physical books owned by the library and digital copies that can be lent out.

While some struggled with the concept of the NEL since it was basically just the CDL, but without the 1-to-1 relationship (and thus, without wait lists), it seemed reasonably defensible: nearly all public libraries at the time had shut down entirely due to the COVID-19 pandemic, and the NEL was helping people who otherwise would never have had access to the books that were sitting inside libraries, collecting dust on the inaccessible shelves. Indeed, plenty of teachers and schools thanked the Internet Archive for making it possible for students to still read books that were stuck inside locked up classrooms. But, again, this lawsuit wasn’t just about the NEL at all, but about the whole CDL program. The publishers have been whining about the CDL for a while, but hadn’t sued until now.

Of course, the reality is that the big publishers see digital ebooks as an opportunity to craft a new business model. With traditional books, libraries buy the books, just like anyone else, and then lend them out. But thanks to a strained interpretation of copyright law, when it came to ebooks, the publishers jacked up the price for libraries to insane levels and kept putting more and more conditions on them. For example, Macmillan, for a while, was charging $60 per book — with a limit of 52 lends or two years of lending, whichever came first. And then you’d have to renew.

Basically, publishers were abusing copyright law to try to jam down an awful and awfully expensive model on libraries — exposing how much publishers really hate libraries, while pretending otherwise.

Anyway, the Internet Archive has filed its response to the lawsuit,

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Print-on-Demand Vendor Doesn’t Qualify for DMCA Safe Harbor–Feingold v. RageOn

2 06 2021

Technology & Marketing Law Blog
Eric Goldman
July 24, 2020

This case involves two copyright-protected photos that users submitted to the RageOn print-on-demand service. Among other defenses, RageOn invoked the DMCA safe harbor. The Greg Young v. Zazzle case held that Zazzle qualified for the 512(c) safe harbor for displaying user-supplied photo on its site, but not for manufacturing and shipping the physical items contain the photos. This court says that RageOn disqualified for several of the DMCA safe harbor’s elements.

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The content in this post was found at https://blog.ericgoldman.org/archives/2020/07/print-on-demand-vendor-doesnt-qualify-for-dmca-safe-harbor-feingold-v-rageon.htm Clicking the title link will take you to the source of the post and was not authored by the moderators of freeforafee.com

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Twitch Faces Sudden Stream of DMCA Notices Over Background Music

1 06 2021

Tech Dirt
Timothy Geigner
Jul 10th 2020

There is obviously a great deal of action going on currently in the streaming world, spurred on in part by the COVID-19 crises that has many people at home looking for fresh content. Between the attempts to respond to social movements and tamp down “hateful” content to changes to the competitive landscape, streaming services are having themselves a moment. But with the sudden uptick in popularity comes a new spotlight painting a target on streaming platforms for everyone from scammers to intellectual property maximilists.

Twitch has recently found itself a target for the latter, suddenly getting slammed with a wave of DMCA notices that appear to focus mostly on background music.

Copyright strikes are an occupational hazard for many Twitch streamers and content creators, but a recent surge of DMCA takedown requests has overwhelmed the community. Now, Twitch support staff has responded to complaints, stating that the claims are focused on clips with background music from 2017 to 2019, and recommending that streamers remove them. The tweets also state that this is the first time that Twitch has received mass DMCA claims against clips.

Given that Twitch is still most popular as a site for live-streams and let’s-plays of video games, the speculation is that a great deal of this is targeting clips that include video game music. And, as we’ve seen elsewhere, it’s also the case that scammers are currently using game music as a method to try to takedown or monetize the videos of others. Whether or not that’s what is going on here is anyone’s guess, as Twitch is making it fairly clear that the flood of notices is so large that it’s simply taking down content and advising its streamers to proactively take down anything that might include this sort of copyrighted content.

Except that leaves no room for a number of things, including arguments for Fair Use of certain music,

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Fair use case confirms that using short video clips does not insulate from copyright infringement claims.

26 05 2021

LexBlog/99 park row
Steve Vondran
July 6, 2020

Using the “Heart of the Work” is something everyone should consider before relying on the fair use defense

Plaintiff Los Angeles News Service (LANS) licensed its news stories, photographs, audiovisual works, and other services to other news media outlets. While covering the 1992 Los Angeles riots, LANS filmed several segments of nighttime rioting, including the iconic segment titled Beating of Reginald Denny. Although LANS refused to grant defendant Channel 9 television station a license, the station broadcast the footage a number of times on commercially sponsored news programs.

Plaintiff sued the defendant for using an excerpt of its copyrighted videotape of the Reginald Denny beating during the 1992 Los Angeles riot.

The TRIAL court, weighing the statutory factors of 17 U.S.C.S. § 107, found that summary judgment for the defendant under a “fair use” defense was proper.  On appeal, the APPEAL COURT held that summary judgment was improper:  defendant’s use of plaintiff’s copyrighted tape was arguably in the public interest, as a percipient recording of a newsworthy event, defendant’s use was commercial and came in the wake of plaintiff’s refusal to issue a license.

Although the defendant used the tape because it recorded news of considerable significance from the best perspective of any witness, there was no evidence that alternatives were not available.

There was no dispute that the defendant used the “heart” of the tape. Under such circumstances, the court could not say that “fair use” was the only reasonable conclusion a trier of fact could reach.  Summary judgment was thus improper.

Analysis:

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Case citationLos Angeles News Service v. KCAL-TV Channel 9, 108 F. 3d 1119 – Court of Appeals, 9th Circuit

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Suit Takes Aim at Internet Archive, Spurs End of National Emergency Library

26 05 2021

An update from Kaitie Eke, one of the firm’s summer associates:

A copyright infringement lawsuit filed by four major publishing companies against the Internet Archive has prompted early termination of the site’s National Emergency Library, a project that made books available electronically during the COVID-19 pandemic. Although the project’s conclusion may render some of the publishers’ complaints moot, the suit also takes aim at the ongoing operation of the Open Library and larger Controlled Digital Lending (“CDL”) practices.

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The content in this post was found at https://www.lexblog.com/2020/06/30/suit-takes-aim-at-internet-archive-spurs-end-of-national-emergency-library/ Clicking the title link will take you to the source of the post and was not authored by the moderators of freeforafee.com

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Supreme Court Says Georgia’s ‘Official Code’ Is Public Domain — Including Annotations

27 12 2020

Tech Dirt
Mike Masnick
Apr 27th 2020

The long saga of Georgia locking up its laws under copyright is (hopefully) officially over, with a Supreme Court ruling that says pretty explicitly that the law must be in the public domain.

….

Earlier today, the Supreme Court ruled mostly in favor of Carl Malamud and free access to our laws, though there is a bit of weirdness in the overall ruling. The key part is the most important though. You just can’t copyright the law.

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The content in this post was found at https://www.techdirt.com/articles/20200427/11531544387/supreme-court-says-georgias-official-code-is-public-domain-including-annotations.shtml Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

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Publishers And Authors Misguided Freakout Over Internet Archive’s Decision To Enable More Digital Book Checkouts During A Pandemic

18 12 2020

It’s been said many times over that if libraries did not currently exist, there’s no way that publishers would allow them to come into existence today. Libraries are, in fact, a lovely and important artifact of a pre-copyright time when we actually valued knowledge sharing, rather than locking up knowledge behind a paywall. Last week, the Internet Archive announced what it’s calling a National Emergency Library — a very useful and sensible offering, as we’ll explain below. However, publishers and their various organizations freaked out (leading some authors to freak out as well). The freak out is not intellectually honest or consistent, but we’ll get there.

As you may or may not know, for a while now, the Internet Archive and many other libraries have been using a system called Controlled Digital Lending, which was put together to enable digital checkouts of books for which there may not be any ebooks available. Basically, the Archive helped a bunch of libraries scan a ton of books, and the libraries lend them out just as if they were lending out regular books. They keep the physical copy on the shelf and will not lend out more copies of the digital book than the physical copies they hold — basically doing exactly what a library does. There are strong arguments for why this is clearly legal. Scanning a book you own is legal. Lending out books is legal.
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Court Manages To Get NBA2K Tattoo Copyright, Trademark Case Exactly Right

14 04 2020

Tech Dirt
Timothy Geigner
April 1, 2020

Somehow, it’s been nearly four years since a tattoo company, Solid Oak Sketches, decided to sue 2K Sports, the studio behind the renowned NBA 2K franchise, claiming that the game’s faithful representation of several stars’ tattoos was copyright infringement. The company claimed to own the copyright on the design of several players’ tattoos, including most famously LeBron James, Kobe Bryant, and DeAndre Jordan. The claim in the suit was that 2K’s faithful depiction of the players, whom had collectively licensed their likenesses via the NBAPA, somehow violated Solid Oak’s IP rights.

Put another way, it could be said that by branding the player with Solid Oak’s designs, the company seems to think it can control the players’ ability to profit off of their own likenesses. That this draws the mind to very uncomfortable historical parallels apparently was of no issue to Solid Oak.

Well, while 2K Sports failed to get the court to dismiss the case back in 2018, it has more recently won the case on summary judgement, with the court quite helpfully getting everything right and declaring the depiction of tattoos in video games in this manner to be Fair Use.

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7th Circuit Upholds Trademark ‘Fair Use’ Doctrine

14 04 2020

LexBlog
John Mueller
April 11, 2020

[ed: this is not a new media case. However, it clarifies aspects of fair use as they relate to trademark, so is included here]

In an August 2019 decision, the 7th U.S. Circuit Court of Appeals upheld the earlier finding by the Northern District of Illinois of summary judgment that PepsiCo’s Gatorade division’s use of the phrase “Gatorade The Sports Fuel Company” on its Gatorade family of products did not infringe SportFuel Inc.’s SPORTFUEL trademark because the use of the “Sports Fuel” term by Gatorade was descriptive, not used in a source-indicative manner and thus a “fair use” of that term.

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Copyright Defenses When a Copyright Infringement Claim Gets Under Your Skin

10 04 2020

LexBlog
Joseph Grasser & Raisa Dyadkina
April 6, 2020

On March 26, a federal district court in New York held that the publishers of the popular NBA 2K videogame did not infringe on plaintiff’s tattoo copyrights when the publishers depicted those tattoos on basketball players in NBA 2K. The publishers, 2K Games and Take-Two Interactive Software, were successful in asserting multiple copyright defenses, including implied license, fair use, and the rarely successful de minimis use.

The decision was issued in Solid Oak Sketches, LLC v. 2K Games, Inc., 1:16-CR-00724-LTS-SDA (S.D.N.Y. March 26, 2020). Solid Oak Sketches sued 2K Games and Take-Two Interactive Software (“Take-Two”) over the use of tattoo designs for which Solid Oak owned licenses. Solid Oak alleged copyright infringement based on Take-Two’s use of the tattoo designs, as depicted on three basketball players, in its NBA 2K videogames. However, the court ruled that Take-Two did not infringe on Solid Oak Sketches’s rights based on the three independent copyright defenses.

De Minimis Use Defense.

Implied License Defense.

Fair Use Defense.

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The content in this post was found at https://www.lexblog.com/2020/04/06/copyright-defenses-when-a-copyright-infringement-claim-gets-under-your-skin/ Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

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