Supreme Court asks for Biden administration's views in Google copyright case; December 12, 2022

Blake Brittain, Reuters ; Supreme Court asks for Biden administration's views in Google copyright case

"The U.S. Supreme Court on Monday asked the Biden administration to weigh in on song-lyric website Genius' attempt to revive a lawsuit over Google's alleged theft of its work.

The justices are considering whether to hear ML Genius Holdings LLC's bid to overturn a U.S. appeals court's ruling that its case against Google LLC was preempted by federal copyright law.

The Supreme Court often asks for the solicitor general's input on cases in which the U.S. government may have an interest."

Explainer: The Supreme Court, Fair Use and the Future of Protected Artistic Expression; Jurist, December 1, 2022

 Jaimee Francis | Boston University School of Law, Jurist; Explainer: The Supreme Court, Fair Use and the Future of Protected Artistic Expression

"What’s at stake here?

The decision of the current Supreme Court case can shape the future of what does and does not constitute fair use. Goldsmith claimed that Warhol’s images based upon her copyrighted photographs constituted a derivative work. Thus, Goldsmith argued that the Warhol Foundation infringed her exclusive right to prepare derivative works and is therefore liable to her. The Warhol Foundation, however, argued that Warhol’s images were sufficiently transformative and thus constituted fair use. As such, the Warhol Foundation argued that it did not infringe Goldsmith’s copyright and is therefore not liable for its use of Goldsmith’s work in the Prince illustrations.

By finding in favor of Goldsmith, who owns copyright in the Prince photographs, the applicability of fair use may be limited. In this scenario, future content creators may face increased liability when creating new content based on copyrighted work. Because creativity is often inspired by some underlying work, such a decision may stifle creativity. As the Acuff-Rose case highlights, for example, works like parodies of a copyrighted work would constitute infringement without fair use. On the other hand, by finding in favor of the Warhol Foundation, which used Goldsmith’s copyrighted work in its work, future copyright owners may be denied a remedy when a user has unfairly used their creative work. Because the copyright regime has historically protected a creator’s financial incentive, such a decision may stifle creativity. In either scenario, creativity may be stifled: over-protecting a work may prevent others from using that work in their creative process, while under-protecting a work may prevent creators from entering the market without an assurance of monetary gain. As the Gerald Ford case highlights, for example, some uses may unfairly exploit the initial creator’s work. As the Supreme Court noted in that case, quoting in part an earlier decision, “The challenge of copyright is to strike the ‘difficult balance between the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society’s competing interest in the free flow of ideas, information, and commerce on the other hand.'”"

May ‘Bad Spaniels’ Mock Jack Daniel’s? The Supreme Court Will Decide.; The New York Times, December 5, 2022

  Adam Liptak, The New York Times; May ‘Bad Spaniels’ Mock Jack Daniel’s? The Supreme Court Will Decide.

"The justices agreed last month to decide the fate of the Bad Spaniels Silly Squeaker dog toy, which looks a lot like a bottle of Jack Daniel’s but with, as an appeals court judge put it, “lighthearted, dog-related alterations.”

The jokes are scatological. The words “Old No. 7 Brand Tennessee Sour Mash Whiskey” on the bottle are replaced on the toy by “the Old No. 2, on your Tennessee carpet.” Where Jack Daniel’s says its product is 40 percent alcohol by volume, Bad Spaniels’s is said to be “43 percent poo.”

A tag attached to the toy says it is “not affiliated with Jack Daniel Distillery.”

Trademark cases generally turn on whether the public is likely to be confused about a product’s source. In the Bad Spaniels case, a unanimous three-judge panel of the Court of Appeals for the Ninth Circuit, in San Francisco, said the First Amendment requires a more demanding test when the challenged product is expressing an idea or point of view."

The Supreme Court meets Andy Warhol, Prince and a case that could threaten creativity; NPR, October 12, 2022

Nina Totenberg, NPR ; The Supreme Court meets Andy Warhol, Prince and a case that could threaten creativity

"You know all those famous Andy Warhol silk screen prints of Marilyn Monroe and Liz Taylor and lots of other glitterati? Now one of the most famous of these, the Prince series, is at the heart of a case the Supreme Court will examine on Wednesday. And it is a case of enormous importance to all manner of artists...

However the Supreme Court rules, its decision will have rippling practical consequences. So it is no surprise that some three dozen friend of the court briefs have been filed arguing on one side or the other, and representing everyone from the American Association of publishers and the Motion Picture Association of America to the Library Futures Institute, the Digital Media Licensing Association, Dr. Seuss Enterprises, the Recording Industry Association of America and even the union that represents NPR's reporters, editors and producers, the Screen Actors Guild-American Federation of Television and Radio Artists.

The outcome could shift the law to favor more control by the original artist, but doing that could also inhibit artists and other content creators who build on existing work in everything from music and posters to AI creations and documentaries."

Stephen G. Breyer may shape tech’s copyright battles for years to come; The Washington Post, January 27, 2022

Cristiano Lima with research by Aaron Schaffer, The Washington Post; Stephen G. Breyer may shape tech’s copyright battles for years to come

"Stephen G. Breyer may shape tech’s copyright battles for years to come

With the looming retirement of Supreme Court Justice Stephen G. Breyer, tech policy wonks say the high court is losing one of the nation’s preeminent thought leaders on intellectual property and copyright.

But while Breyer may be on his way out of federal court, his influence over those standards, and how they map onto emerging technologies, is poised to live on long after.

For decades, Breyer has carved out a unique role on the bench as a copyright specialist, said Meredith Rose, senior policy counsel at consumer group Public Knowledge. And his advocacy for a more limited view of intellectual property rights than some of his colleagues, such as the late Justice Ruth Bader Ginsburg, made him a “rarity” in the space, Rose said. 

“He’s definitely got the biggest depth of experience in copyright issues on the bench currently,” she said. “It was really him and Justice Ginsburg were the two titans of copyright.”

Corynne McSherry, legal director at the Electronic Frontier Foundation, called Breyer “a very strong voice for a balanced intellectual property system” that ensured that copyright and patents are “encouraging innovation, encouraging new creativity … as opposed to thwarting it.”

These traits, they said, were exemplified in one of Breyer’s most recent high-profile copyright cases: the contentious, decade-long Google v. Oracle bout."

Andy Warhol Foundation Asks Supreme Court to Review Prince Pop Art Dispute; The Hollywood Reporter, December 9, 2021

Ashley Cullins, The Hollywood Reporter; Andy Warhol Foundation Asks Supreme Court to Review Prince Pop Art Dispute

"The Warhol Foundation argues that allowing the split to stand would create a “sea-change” in copyright law and lead to “inconsistent results and forum shopping” if the 2nd and 9th Circuits are using different frameworks to analyze fair use.

It argues the decision also chills artistic expression because creating new works as cultural commentary — like Warhol and the larger pop art movement did — could now amount to copyright infringement if the image is deemed too “recognizeable” to be transformative."

Will the Supreme Court Finally Declare Copyright Infringement As “Theft”?; The Hollywood Reporter, November 17, 2021

Eriq Gardner, The Hollywood Reporter; Will the Supreme Court Finally Declare Copyright Infringement As “Theft”?

"For quite some time, there’s been an esoteric debate running in intellectual property circles as to whether copyright infringement is best characterized as thievery. Those arguing against the proposition generally make the point that piracy is not stealing because the owner is not deprived of using the work. Under this view, copyright infringement is more tantamount to trespass. On the other side are those who think it matters not that intellectual property is an intangible something incapable of being physically controlled. To quote President Joe Biden, “Piracy is flat, unadulterated theft, and it should be dealt with accordingly.”"

A Supreme Court Without RBG May Impact Hollywood's Grip on Intellectual Property; Billboard, September 21, 2020

Eriq Gardner, Billboard; A Supreme Court Without RBG May Impact Hollywood's Grip on Intellectual Property

 

[Kip Currier: This is a note I posted for my Intellectual Property and Open Movements course I'm teaching this term...

Timely and fascinating article regarding the recent passing of U.S. Supreme Court Justice Ruth Bader Ginsburg and her "copyright hawk" impact on many landmark Intellectual Property cases, like some we have already examined this term, e.g. Golan v. Holder (public domain) and Eldred v. Ashcroft (20 year extension of U.S. copyright protection period to Life of the Author plus 70 years.) In noting Ginsburg's judicial philosophy that tended to favor copyright maximalism, while a staunch civil rights defender and advocate for the equal rights of marginalized persons to the end, this article reminds us that people are often much more complex and less easily-defined than the boundaried labels that are often ascribed to them. And Justices are no different in that regard.]

 

 "Ginsburg gravitated to intellectual property disputes almost from the moment the Brooklyn, NY-born attorney was appointed to the Supreme Court by President Bill Clinton in 1993. More often than not, when a big ruling on the subject was on the table, it was she who carried the big pen. Notably, in 2003, Ginsburg wrote the majority opinion in Eldred v. Ashcroft that blessed an extension of the copyright term over a free speech challenge. Almost a decade later, she reached a similar conclusion in Golan v. Holder, which dealt with works taken from the public domain to comply with an international treaty. Ginsburg also shaped who could sue for copyright infringement — and when — with her majority opinions in Petrella v. MGM (2013) and Fourth Estate Pub. Benefit Corp. v. Wall-Street.com (2019). She also wrote a concurring opinion in MGM Studios v. Grokster, the case which apportioned secondary copyright liability in the file-sharing age.

Ginsburg was certainly hawkish when it came to copyright. And her view can be most sharply contrasted with those of Justice Stephen Breyer, demonstrating that there's more to judicial philosophy than a conservative-liberal divide...

Now comes Google v. Oracle, which has been hailed for good reason as the "copyright case of the century." It concerns Oracle's efforts to punish Google for allegedly infringing computer code to build the Android operating system. At issue in the case is the scope of copyright. Does the structure, sequence, and organization of application programming interfaces get protected? And separately, does Google have fair use to whatever is copyrighted? The movie industry is backing Oracle in the case —and the high court's conclusions will surely have an outsized influence both on the development of technology as well as how future copyright cases get adjudicated. Ginsburg's passing is probably bad news for Oracle's chances here. Of all the justices, she was least likely to read limits to copyright protection."

Google v. Oracle: Fair Use and the Seventh Amendment; JD Supra, September 15, 2020

 Dorsey & Whitney LLP, JD Supra; Google v. Oracle: Fair Use and the Seventh Amendment

"On August 7, 2020, Google and Oracle submitted their final written arguments to the Supreme Court regarding their decade-long copyright battle over the source code animating the Android platform. Now, we focus on the second question presented to the Supreme Court: whether Google’s copying of Oracle’s Java source code is a non-infringing fair use.

Recall that in December 2019 we introduced “the copyright lawsuit of the decade.” In March 2020, we covered the first of two questions presented to the Supreme Court: whether Java software interfaces are protected by copyright. Before we could address the second question presented, however, the Supreme Court delayed oral arguments on the matter to the October 2020 term due to the COVID-19 pandemic. The Supreme Court also requested that Google and Oracle submit supplemental briefs addressing the standard of review relating to the fair use defense—i.e., whether the Federal Circuit gave the proper deference to the jury’s finding of fair use when it reviewed it de novo and reversed it...

Conclusion

The Supreme Court is finally set to resolve important questions regarding the scope of copyright protection and the fair use doctrine that could have huge ramifications for the software industry … or is it? As detailed above, the Supreme Court may lean on the standard of review applied by the Federal Circuit to delay further comment on whether Google’s copying constituted fair use. We will update you again after oral argument, which is scheduled for October 7, 2020."

Will the Supreme Court Provide the Fair Use Clarity that IP Law Needs?; IP Watchdog, August 18, 2020

Terry Campo ,  IP Watchdog; Will the Supreme Court Provide the Fair Use Clarity that IP Law Needs?

"As reported in IP Watchdog on August 4 by lawyer and professional lecturer Steven Tepp, the high court will hear Google v. Oracle, a landmark copyright case, in October. Legal experts have labeled it “the copyright case of the century,” and for good reason. Since the case revolves around fair use, it will allow the nine justices to provide judicial clarity over the doctrine the nation’s innovators have desperately needed for decades."

Supreme Court Copyright Ruling Could Shake Up Legal Publishing; Publishers weekly, April 27, 2020

Andrew Albanese, Publishers Weekly; Supreme Court Copyright Ruling Could Shake Up Legal Publishing

In a 5-4 decision, the U.S. Supreme Court this week held that legislators "cannot be the authors of—and therefore cannot copyright—the works they create in the course of their official duties."

"In upholding the appeals court reversal, the Supreme Court held that the annotations amended to the state of Georgia’s legal code were “ineligible for copyright protection” under the “government edicts doctrine,” a legal regime developed from a trio of 19th-century Supreme Court decisions.

“The animating principle behind the government edicts doctrine is that no one can own the law,” Roberts wrote. “Over a century ago, we recognized a limitation on copyright protection for certain government work product, rooted in the Copyright Act’s ‘authorship’ requirement. Under what has been dubbed the government edicts doctrine, officials empowered to speak with the force of law cannot be the authors of—and therefore cannot copyright—the works they create in the course of their official duties.”"

Georgia Can’t Copyright Its Entire State Code, the Supreme Court Rules; The New York Times, April 27, 2020

Adam Liptak, The New York Times; Georgia Can’t Copyright Its Entire State Code, the Supreme Court Rules

In a 5-to-4 ruling with unusual alliances, the court said that annotations cannot be copyrighted if they are the official work of state lawmakers.

"Georgia may not copyright its entire official code, which includes both the state’s laws and annotations interpreting them, the Supreme Court ruled on Monday. The 5-to-4 decision featured unusual alliances and would most likely be widely felt, as about 20 other states have claimed that parts of similar annotated codes are copyrighted."

A Cosmic Copyright Conundrum: ‘Star Trek,’ Space Force, SCOTUS and Blackbeard’s Shipwreck: IPWatchdog, March 28, 2020

 Yitzchak Besser, IPWatchdog; A Cosmic Copyright Conundrum: ‘Star Trek,’ Space Force, SCOTUS and Blackbeard’s Shipwreck

"A Cosmic Conundrum

To unpack the result of this decision, let’s return to space. In a hypothetical scenario in which a private citizen infringed on the Star Trek copyrights, ViacomCBS could easily bring a lawsuit against them. If ViacomCBS believes that the Space Force seal infringes on its copyrights, then it can sue the U.S. government. But if a hypothetical North Carolina Space Force decided to use the Starfleet seal without permission, then ViacomCBS would be left without recourse against the state government.

To paraphrase Justice Breyer, something certainly seems “amiss” about this disparity. As he suggested in his concurrence, this case creates the potential for quite the cosmic copyright conundrum."

Supreme Court rules states are immune from copyright law; Ars Technica, March 24, 2020

Timothy B. Lee, Ars Technica; Supreme Court rules states are immune from copyright law

"A state government that infringes someone's copyright doesn't have to worry about getting sued, the Supreme Court ruled on Monday. The high court held that federalism trumps copyright law, effectively giving states a free pass."

2020 Intellectual Property Primer: Cases to Watch this Year; Lexology, Janaury 27, 2020

Vorys Sater Seymour and Pease LLP - Michael J. Garvin, William H. Oldach III and Aaron M. Williams, Lexology; 2020 Intellectual Property Primer: Cases to Watch this Year

"2020 is likely to be a busy and influential year for intellectual property cases before the United States Supreme Court. The Court is expected to make a number of rulings and decisions that are likely to impact the future landscape of copyright, patent, and trademark law.

Copyright’s Fair Use Doctrine: In what is shaping up to be the main event of this year’s Supreme Court calendar—at least for intellectual property practitioners—the Court will hear oral argument in Google v. Oracle later this year. The case is the culmination of a decade’s worth of litigation involving two of world’s largest tech companies.

Oracle has accused Google of stealing copyrighted pieces of Java source code for use in Google’s Android smartphones. Google has argued that the Java software language Oracle accuses it of stealing is: (1) too functional to be protected by copyright law; and (2) is subject to copyright’s fair use doctrine.

The Supreme Court will consider both issues. The case is particularly noteworthy because the Court has never issued binding precedent related to the copyrightability of software and it has not issued a fair use decision in over twenty-five years."

America’s Innovators Need Clear Patent Laws; Wall Street Journal, January 23, 2020

Paul R. Michel and Matthew J. Dowd, Wall Street Journal;

America’s Innovators Need Clear Patent Laws

The Supreme Court has muddled the standards for intellectual property, so Congress may have to act.

"America is the world’s leader in technological innovation, and that’s unlikely to change. But in the global economy, information and investments flow instantaneously, and America’s most important asset--intellectual property--is easily copied and counterfeited.

Making matters worse, a string of court decisions have weakened U.S. intellectual property rights."

Here’s How The Supreme Court Can Stop Google From Stealing People’s Ideas; The Federalist, January 17, 2020

David Hogberg, The Federalist;

Here’s How The Supreme Court Can Stop Google From Stealing People’s Ideas

The Supreme Court will rule this year on Google v. Oracle, and when it does, it can rein in both Google and the legal doctrine of 'transformative use,' an abuse of the 'fair use' exceptions to copyright laws.

"Google has long abused intellectual property protections and thus far managed to skirt any severe negative repercussions for it. But the tech giant may soon be held responsible for its borderline illegal behavior.

The Supreme Court will rule this year on Google v. Oracle, a case some say is the copyright case of the century. When it does, it will have the opportunity to rein in both Google and the legal doctrine of “transformative use,” an abuse of the “fair use” exceptions to copyright laws."

EFF Asks Supreme Court To Reverse Dangerous Rulings About API Copyrightability and Fair Use; Electronic Frontier Foundation (EFF), January 13, 2020

Press Release, Electronic Frontier Foundation (EFF);

EFF Asks Supreme Court To Reverse Dangerous Rulings About API Copyrightability and Fair Use

"The Electronic Frontier Foundation (EFF) today asked the U.S. Supreme Court to rule that functional aspects of Oracle’s Java programming language are not copyrightable, and even if they were, employing them to create new computer code falls under fair use protections.

The court is reviewing a long-running lawsuit Oracle filed against Google, which claimed that Google’s use of certain Java application programming interfaces (APIs) in its Android operating system violated Oracle’s copyrights. The case has far-reaching implications for innovation in software development, competition, and interoperability.

In a brief filed today, EFF argues that the Federal Circuit, in ruling APIs were copyrightable, ignored clear and specific language in the copyright statute that excludes copyright protection for procedures, processes, and methods of operation."

Who owns the law in Georgia?; The Atlanta Journal-Constitution, November 29, 2019

Bill Rankin, Atlanta Journal Constitution; Who owns the law in Georgia?

"“If the (appeals court’s) decision is affirmed, publishers will no longer be able to rely on sales of copyrighted works to recoup their costs for preparing annotations,” said Johnson, also a Washington attorney. “Therefore, states will either need to use taxpayer dollars to pay the publishers or stop offering annotated versions of their official codes.”

Thirteen states and the District of Columbia offered similar sentiments in a legal brief filed with the high court...

Malamud’s case has received support in friend-of-the-court briefs filed by a wide variety of groups, including the American Library Association, the American Civil Liberties Union, the Intellectual Property Association and the Reporters Committee for Freedom of the Press, which was joined by Gannett Co., the Los Angeles Times and The New York Times.

“If the First Amendment requires public access to criminal trials so that citizens may oversee and participate in government, then citizens must also have access to the laws that organize their society (and that form the basis of those criminal trials),” the media organizations said.""

Should You Be Allowed to Copyright a Law? We're Going to Find Out; Gizmodo, December 4, 2019

Whitney Kimball, Gizmodo; Should You Be Allowed to Copyright a Law? We're Going to Find Out


"Copyright law, boring on its face, has posed various unprecedented threats to intellectual freedoms in recent internet history. It threatens to kill our links, kill our news, kill our memes, kill our precious videos of babies dancing to Prince. And yesterday, the Supreme Court considered the momentously stupid question: should you be able to paywall a law?"