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A couple months ago, I wrote a post about a lawsuit involving PETA, a macaque, and a selfie. If you don’t recall, PETA argued on behalf of a primate named Naruto that a selfie the monkey took deserved copyright protection. At that time, PETA was appealing a ruling from the Northern District in California that the monkey was not, in fact, a copyright holder. Well, now the case is over, and the 9th Circuit (unsurprisingly) did not grant a copyright to Naruto. Instead, the parties withdrew the case, and settled out of court.

Even though, PETA did not win a copyright for Naruto, settlement still strikes me as a win for the animal rights organization. if I had to guess, I’d say that PETA didn’t really think it would get a court to agree that animals can have copyrights. Sure, it would be great if the 9th Circuit issued such a decision, but it seems unlikely. Instead, I’d bet PETA’s primary goal was to raise public awareness of the ideas that animals have more agency and personality than people often recognize and that maybe we should give animals copyright author status.

So, if my guesses are true, then PETA came away with what they hoped for and more. Not only have a number of news articles been written about this case, across a variety of well know publications like the New York Times and the Washington Post. What is more, they got David Slater, the photographer, to issue a joint statement with them saying that “this case raises important, cutting-edge issues about expanding legal rights for nonhuman animals, a goal that they both support, and they will continue their respective work to achieve this goal.” Moreover, Slater agreed to donate 25% of all earnings from the selfies to charities in Indonesia that protect macaques. So PETA got public awareness, a statement from the defendant almost saying that they were right, and money for animals. Even though, as many people point, the selfies may not earn any money since they are in the public domain, I still say WOW!

Nevertheless, we still don’t have a firm judgement on copyright law as it applies to animals, so who knows what this settlement actually settles. While I’d argue that animals certainly aren’t authors under copyright law, it would be nice to have a court weigh in on this. And it sure seems likely to me that if/when this issue comes back up, PETA will be at the 9th Circuit once again to make their point. But for now, nothing has changed with respect to copyrights for nonhumans.


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A recent post over at the Trademark and Copyright Law Blog (a great blog which I highly suggest you read) discussed a case from the Southern District of New York that addressed de minimis copying in copyright. And after reading it, I decided that we should touch on this defense here, because I think too often people don’t realize that some copies can be too small to be infringement.

So often when considering whether it is acceptable to use a copyrighted work, we focus on fair use alone. And certainly this makes some sense; fair use is the broadest exception to copyright, it has significant support both in statutory and case law, and people talk about it relatively frequently, especially compared to copyright’s other exceptions. However, it’s certainly not the only exception to copyright. Indeed, there are many other ways to use copyrighted works without violating the law.

The de minimis defense is the idea that some issues are too insignificant for courts to spend time on. Instead, courts should focus on the more substantive issues. the full phrase is “de minimis non curat lex” or “the law does not concern itself with trifles. In copyright, courts have said that we shouldn’t worry too much about tiny infringements. Even though it may definitely be a copy, and there is no other defense available, a little copy doesn’t deserve to constitute copyright infringement, because it’s so small.

Recently, there has been a question whether the de minimis defense should be used at all in copyright, at least when it comes to music sampling. Samples are often just tiny little bits of songs, taken and put together, to create new works. Consider for example, an album like Paul’s Boutique by the Beastie Boys. Working with the Dust Brothers as producers, the Beastie Boys cut, manipulated, and pasted a wide variety of samples from Johnny Cash to the Beatles, to create one of the best records of all time. Quality aside, however, people often say that this album could never have been made today, because of how difficult and expensive it would be to get the rights to use all of the samples in it. But maybe the de minimis defense is perfect for this kind of music. Many of the samples on the record are pretty short — maybe too small for a court to worry about.

However, there has been debate in the courts over whether the de minimis defense is available for this kind of copying. In 2004, the Beasties were sued over a sample from a different record, Check Your Head. In that case, the 9th Circuit found that a 3 second sample was de minimis and too insignificant to trigger copyright infringement of the underlying musical work from the sample. Meanwhile, a year later, the 6th Circuit found that a 2 second sample infringed of a sound recording. As the court wrote in that case “Get a license or do not sample.” There was no room for argument no matter how short the sample was.

Notably, these two cases focused on different parts of copyright law as it applies to music — that is, the difference between musical works and sound recordings. But, because the Bridgeport case dealt specifically and resolutely with sound recordings, it lead some people to declare de minimis for sampling basically dead. However, recently the 9th Circuit reignited the debate in a case involving a sample Madonna used in her song, Vogue (yet another great song!). In that case, the court held, in direct opposition to the 6th Circuit, that a sample of a sound recording could, in fact, be too small for copyright to worry about.

The important lesson is this: remember the de minimis defense as well as the other exceptions to copyright. Indeed, there are a number of exceptions within the statute itself beyond fair use, and we need to keep them in mind, as well as any common law defenses, when thinking about whether something is infringement or not. And maybe we should focus on the bigger issues, rather than wasting time worrying about “trifles.”

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Of all the companies that might get into a copyright dispute over a video game, I wouldn’t have guessed it would be Atari vs. Nestle. But 2017 has been a crazy year, and now here it is.

This case concerns a recently launched ad campaign for that delicious chocolate and crispy wafer candy, Kit Kats. Atari claims that these ads improperly used one of its most famous games, Breakout.

If you’re unfamiliar with Breakout by name, you would probably still recognize it by sight. In the game, players move a platform left and right to bounce a ball up toward multi-colored bricks. When the ball hits a brick, the brick breaks, and the ball bounces back down. If players miss the ball on the way back down, they lose a life. And repeat.

As you undoubtedly noticed, Kit Kat bars look a lot like Breakout bricks. Well, someone in Nestlé’s advertisement department clearly noticed this, too. The ad plays with this fact, substituting chocolate-brown Kit Kats for Breakout’s colorful bricks. Nestle even called the campaign “Breakout.”

Wow! that’s pretty blatant.

Atari makes a number of different claims in its complaint before the Northern District Court in California, but they come down to two basic issues: First, Nestle improperly used Atari’s trademark in the name and style of Breakout. And second, Nestle improperly infringed in Atari’s copyright for the design of the game.

This case seems pretty straight forward, and, at least to my eyes, Nestle is in trouble. Of course, Nestle didn’t use the game itself in the ads. But neither trademark infringement nor copyright infringement require an exact copy. Instead, trademark infringement asks whether consumers will be confused about who owns the Breakout mark. Copyright infringement asks if the design of the game in the ad is “substantially similar” to the design of the original game. Here, the candy company created something similar enough to remind you of Breakout that also incorporated Kit Kats into it, so viewers would want to buy the candy, not play the game.

It seems clear to me that Nestle’s is specifically playing off of the popularity and recognizability of Breakout. As such, I think there is a substantial likelihood for consumer confusion, and trademark infringement seem probable. Similarly, the design of the ad is intentionally similar remind you of Breakout. And so, copyright infringement is similarly likely. Nestle has some room to argue against Atari’s claims, but I think it’s going to be hard for the company to avoid fault.

This story reminds me of all those t-shirts you can buy today that use images from famous cartoons, movies, and tv shows that are almost certainly not licensed products. While a cat dressed up like Darth Vader may be funny, it’s not necessarily legally compliant. But I doubt the people who create those shirts ever ask themselves whether it is ok to do so. They just create the shirts and hope they sell. Similarly, I wonder if anyone at Nestle ever asked whether using the design and name of Breakout would be ok. They probably just wanted to create an ad that would appeal to an audience of 30-to-40 somethings who are nostalgic for classic video games. And they probably never expected anyone to complain.

So what’s the moral of the story? I think it’s simple: Think about copyright and trademark before you create something. Stop for a second and consider ahead of time whether what you’re doing is ok, and if the answer is “no” or “maybe not”, be careful. Remember that nearly any creative work you can think of is protected by copyright, and if you use something without securing permission to do so, the owner might try to stop you.


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Though I have doubted in the past (and continue to doubt) that any real, substantive copyright reform will make it through Congress any time soon, there have been a few recent legislative proposals that I want to recognize.

First there is the is the Compensating Legacy Artists for their Songs, Service, and Important contributions to Society (CLASSICS) Act (115th Cong. H.R. 3301), introduced by Rep. Darrell Issa (R-Cali.). Jonathan Bailey wrote a great summary of it at Plagiarism Today, and I encourage you to check it out yourself. In short, this legislation aims to make sense of the copyright regime for sound recordings that were created before 1972. As you may recall from my post about Spotify the other day, music you hear is protected by two different copyrights: the musical work, which covers the notes and lyrics of the song, and the sound recording, which covers the performance of those notes and lyrics. While musical works have been protected by copyright for a very long time, sound recordings didn’t come under federal law until 1972, when the Sound Recording Amendment of 1971 took effect. Notably, though, this act did not apply to any sound recordings that existed before 1972. So, sound recordings made before this time are not protected by federal copyright law, but instead are covered by state common law and/or statute. This is particularly weird because the 1976 Act essentially eliminated all state copyright except for in sound recordings.

Though it’s just a start, the CLASSICS Act addresses at least some of the consequences of this odd duality in copyright for music. It extends to pre-1972 sound recordings the prohibition on unlicensed digital transmission and also makes them subject to the same compulsory license scheme that I mentioned in my Spotify post. Furthermore, it also brings pre-1972 works under safeguards like the DMCA safe harbor. All in all, this act seems like a step in the right direction to modernize copyright with regard to sound recordings.

Second, and most recently, is the Transparency in Music Licensing and Ownership Act (115th Cong. H.R. 3350), introduced by Rep. Sensenbrenner (R-Wisc.), again addressing sound recordings. Interestingly, this act directs the Copyright Office to create a database for nondramatic musical works and sound recordings. It then limits the remedies of copyright owners who do not provide information about their works to the database to actual damages (which are often smaller and harder to prove than statutory damages) and injunctive relief to stop any future or continuing infringement. So, it puts the onus on copyright owners to stake their claims in their works and offers a degree of protection for users of those works if the owners do not take action. Unsurprisingly, this legislation is a bit controversial. Nevertheless, it’s certainly an interesting proposal to deal with sound recordings.

Still, even with these proposals, I’m skeptical that much will actually happen about copyright any time soon. Right now, Congress has more pressing things going on, including trying to pass tax reform. Indeed, consider another recent copyright proposal, the Register of Copyrights Selection and Accountability Act of 2017. As you may already know, this act would make the Register for Copyrights a position appointed by the President with approval by the Senate, rather than appointed by the Librarian of Congress. After easily passing the House 378-48, it has stalled in the Senate. Perhaps this is because of organizations like the Electronic Frontier Foundation fighting against the Act, or perhaps it’s because Congress has other things to focus on. Who knows. Either way, it’s not clear that anything will happen with this — or any other copyright proposal — soon.

Ultimately, I’m hopeful Congress will address at least some of the areas of copyright law that are in desperate need of updates, but I’m not going to hold my breath. Still, it’s important to keep our eyes on what Congress is doing and advocate for the changes that copyright needs to work for the future.


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Today the New York Times has an interesting story about Frank Ocean and the copyrightability of Tweets that I’d like to dig into a little bit further.

The story goes that Frank Ocean performed at the Panorama Music Festival in New York City on July 28, 2017. At the show, he wore a T-shit that read: “Why be racist, sexist, homophobic, or transphobic when you could just be quiet?” It didn’t take long for people to find that this shirt is being produced by a small t-shirt company Green Box Shop that sells a number of shirts with different messages on them. But as it turns out, this phrase was not original to either Frank Ocean or Green Box Shop. Instead, it comes from a tweet from 2015 made by Brandon Male. When Male found out that his tweet had become a t-shirt, he contacted the owner of the company, claiming that he should be properly compensated for the use of his intellectual property — the tweet.

As the article points out but doesn’t go into depth on, however there is a legitimate question whether Male’s tweet is protected by the law at all. Under copyright, it’s well established that things like words, titles, and short phrases are not protected by the law. Indeed, the Copyright Office even has a circular entitled Copyright Protection Not Available for Names, Titles, or Short Phrases. Moreover, the Compendium of Copyright Office Practices, the manual that the Copyright Office follows when making copyrightability determinations, expands on this, explaining that “words and short phrases, such as names, titles, and slogans, are not copyrightable because they contain a de minimis amount of authorship.” Since all tweets are short phrases, due to the 140-character limit, this would seem to mean that they are not the subject of copyright protection.

Nevertheless, despite the seemingly determinative statements from the Copyright Office, this seems like a pretty narrow understanding of copyright as it applies to tweets. Certainly, some short phrases seem to be creative, original, and have enough substance to qualify for copyright protection. Consider something like a haiku. If you’re unfamiliar, haiku are Japanese poems that follow a 5 syllables/7 syllables/5 syllables pattern. For example:

You don’t need an “s”
to make a plural haiku
trust me on this one.

Like tweets, haiku are necessarily short. In fact, mine is only 65 characters, and could easily be in a tweet. But like any poem, haiku are artistic works that seems to merit copyright protection. If the purpose of copyright is to support the progress of the arts, why would the law want to deprive a certain kind of artists the ability to protect his/her works? This seems foolish.

As such, maybe tweets, too, should qualify for copyright protection, even if they are “short phrases.” Indeed, you don’t have to imagine artists using Twitter as their medium for expression. The easiest example might be comedians, who use Twitter to publish jokes. It seems hard to argue that a comedian couldn’t copyright jokes. After all, if we remember the economic justification to copyright — that is, the idea that we offer authors the ability to protect and exploit their works for money as an incentive for them to create — then short jokes on Twitter deserve copyright. Certainly comedians use their jokes to make money and would be unable to do so if they were unable to profit from them. What is more, people are increasingly publishing tweetstorms, that, when taken together, seem even more obviously deserving of copyright protection. So, we can’t simply say that tweets can’t be protected just because they are short.

Of course, I’m not the first person to think that maybe tweets deserve copyright protection. Indeed, a number of people have considered the same question. WIPO, the World Intellectual Property Organization, has an interesting post on the matter that points out some of the practical problems with copyright over tweets. And as many of these posts mention, it argues that some tweets deserve copyright protection, but probably not all of them.

So, returning to the tweet that started this whole post, while we can’t say for certain that Male’s tweet is copyrighted, at the very least it might be. And perhaps its popularity as a t-shirt proves its value as an original and creative work, despite its brevity. It’s certainly not clear, but Male has a good argument that his tweet deserves protection.

As I’ve said before, I think one lesson we can draw from this is that copyright law desperately needs to be updated. The law is over 40 years old and doesn’t make sense for all the ways that people create and use works today. The law needs to evolve to meet the needs of creators and users for the 21st century.


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Spotify, the digital music streaming giant, is in a bit of hot water for failing to properly pay for many of the songs on the service. Bluewater, a company that manages music publishing rights, and Robert Gaudio, a songwriter and member of Frankie Valli and the Four Seasons, have sued Spotify, claiming that Spotify did not properly license many songs that stream on the service.

In part, the case concerns what are called “compulsory” licenses for musical works under 17 U.S.C.  § 115. Music is a funny thing under US copyright law. Whenever you hear a song, there are two copyrights that protect that piece of music. First, there is the “musical work” which is the composition of the song: that is, the written down notes and any accompanying words. Then, there is the “sound recording” which is the embodiment of those words and notes: that is, the thing you actually listen to. In order to properly use a song you hear, you need to get permission for both the musical work as well as the sound recording. Notably, that could easily be two different people. Say, for instance, I wrote a song and then gave it to a band to record. In this situation, I would own the copyright to just the musical work and the band would own the sound recording.

17 U.S.C § 115 provides a way that people can get licenses to use musical works without directly asking for permission from the owner, if they follow some rules. First, this section only covers works that have previously been legally distributed to the public. So, you can’t get a compulsory license over a work just because it leaks out before it is published by the author. Next, you have to file a notice of your intent to use the musical work with the owner of the copyright. The law doesn’t say exactly what must be in this notice, but it does say you have to do it at least 30 days before you use the work. Finally, you have to pay royalties to the owner for using the work.

Bluewater and Gaudio both claim that, even though Spotify may have locked down some licenses for the sound recordings it streams, it has not properly obtained licenses for many musical works. What is more, they argue that Spotify doesn’t even have a structure in the company to handle these issues. “Spotify’s apparent business model from the outset was to commit willful copyright infringement first, ask questions later, and try to settle on the cheap when inevitably sued.” Ouch. Accordingly, they want maximum damages of $150,000 per infringement.

Without having seen Spotify’s answer yet, it’s hard to evaluate how bad this case is for the company. Still, Bluewater and Gaudio make compelling arguments that Spotify is up to no good. If nothing else, Spotify could be in for some serious monetary damages, and that is never good. As a Spotify user myself, I’ve always felt good about having a legal way to listen to the music I want to listen to, whenever I want to listen to it. So, I hope the company gets this issue resolved quickly and makes sure artists are getting the money they deserve.

If you want to know more about compulsory licenses, you can check out this helpful circular from the Copyright office.


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There’s a little piece of news from the Copyright Office about supplementary registrations: A new rule on supplementary registration is now in effect.

As you may be aware, copyright law offers optional registration that, while not mandatory, provides some nice benefits for copyright owners. Under the law, you receive a copyright over your original works when they are “fixed in a tangible medium of expression” — basically as soon as they are saved in some way. You don’t need to register your work with the government for your works to be protected by the law.

Yet even though copyright does not make registration mandatory for protection, the government wants to encourage people to register their works to help build the public record of things that have been created in the United States. So, the law offers incentives to encourage registration. These include: allowing you to bring suit in federal court, possibly qualifying you for statutory damages, and providing evidence of the validity of your copyright.

In addition to normal registration, there is also something called “supplementary registration” whereby you can correct or “amplify” (that is, add information to) registrations that you have already made.

Today, most normal registrations are made online through the Copyright Office’s eCO system. Now, with this rule, the Copyright Office has decided that most applicants for supplementary registration must file online, even if the original was done in paper. So while there are some exceptions, you can probably assume for the future that if you want to add information to your copyright registration, you will probably have to do it electronically.

The Copyright Office will be updating its online information in Circular 8 and the Compendium of the U.S. Copyright Office Practices to reflect these changes. Additionally, you can read the new rule on supplementary registrations from the Office, here.


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Did you know that if you transfer your copyright to someone, it may be possible to get it back under your control, at least eventually?

The other day, I read a post from Variety entitled Getting Your Grooves Back: Understanding Copyright Termination. This article makes a great point about how people often don’t know about or forget about powerful right authors have under copyright: the right to terminate licenses and transfers. Unfortunately, however, it is a bit thin on details, and is perhaps not as useful as it could be. So I’m here today to provide a bit more information on how copyright law allows you to end transfers and licenses of your rights after enough time has passed.

There are two sections of copyright law that address the termination of copyright transfers and licenses. First is 17 U.S.C. § 203. This section concerns copyright transfers or licenses of works that have been created since January 1, 1978. Under this section, you can take back your copyright after 35 years, but you have to follow a specific procedure to do so. If you don’t, you will miss your limited opportunity. The law holds that you must give notice to the owner of the transfer or license during a time frame that starts 10 years before when you want to terminate the transfer and ends 2 years before the termination. The termination itself can only take place during a 5 year window, starting 35 years after you made the transfer.

So, how does this work? Well, let’s say that you wrote a song, transferred your copyright to it in 2000, and you have now decided you want to take your copyright back. In this situation, your termination window starts in 2035 and ends in 2040, and you can end the transfer at any point between those dates. Then, to actually do this, you need to send notice to the transferee during a period that starts in 2025 and ends in 2033. Get it?

Then there are §§ 304(c) and (d), that do basically the same thing for transfers of renewal rights that happened before 1978. To provide some context, before the current law took effect in 1978, copyrights had to be renewed with the Copyright Office after a number of years. If they wanted to, copyright holders could transfer that renewal interest to another person. These sections allow people to terminate renewal transfers that were made before 1978. Section 304(c) allows creators to take their rights back from the holder of the renewal 56 years after the transfer. As before, you must give notice to the holder of the renewal rights between 2 and 10 years before you want to terminate the transfer. Section 304(d) — which exists because Congress extended the duration of copyright in 1998 — applies to works in their renewal period in 1998 but whose termination window had already expired. This provides for termination of the grant in a 5 years window 76 years after the transfer date. So, under these two sections, if you transferred your renewal in 1970, then your notice window opens in 2016 and ends in 2029; your termination window begins in 2026 and ends in 2031. Get it?

If you don’t get it, it’s ok; it’s confusing. Fortunately, Creative Commons has created a little tool that can help you make sense of this.

So why do I think this matters? Why is this worthy of this blog post? Well, the Variety article correctly raises this as a significant power of creators that doesn’t get enough attention. It seems like it’s pretty easy to for creators to find themselves in situations where they transfer their rights under copyright and later regret those decisions. Because of these provisions of copyright law, all hope is not lost. Sure, you need to wait 35 years to get your rights back, but at least this is available to you. So we need to make sure people know about these parts of the law.

However, maybe this issue will get more attention in the next few years. 2013 was the first year for termination of transfers for works produced since 1978, so people have just recently been able to take advantage of these provisions. As more famous works become available for transfer termination, people may start talking about sections 203 and 304 more. Then who knows what’ll happen.


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Back in 2011, British photographer, David Slater, set out to Indonesia to photograph the endangered macaque. While he was trying to get his shots, one wily primate snagged his camera and took hundreds of selfies. A few years later, when one particularly great picture appeared on the Wikimedia multimedia repository, Slater sent a takedown notice to the organization, claiming ownership over the photo. Wikimedia disagreed, arguing that no one owned the photo. Since the monkey took it, not Slater, Wikimedia was free to use the image as it wanted.

Fast-forward to 2015 when PETA — People for the Ethical Treatment of Animals — filed a lawsuit in the Northern District of California against Slater, claiming that Naruto — the selfie-taking macaque — deserved the money Slater made off of the photo, because the primate was the true owner of the copyright to the photo.

PETA’s argument here was simple: Naruto is the author of the photographs because he took the photos, through “his independent, autonomous actions” and “understanding the cause-and-effect relationship between pressing the shutter release, the noise off the shutter, and the change to his reflection in the camera lenses.” As the author, then, Naruto owns the copyright and Slater improperly profited off the photo.

Even though this argument may be easy to understand, it is nevertheless entirely wrong. Simply stated, animals can’t be authors under copyright law, and thus Naruto can’t own the copyright to the photo. The 3rd Edition of the Compendium of Copyright Office Practices, the manual that the copyright office uses to make decisions regarding copyright registrations, states that “to qualify as a work of ‘authorship’ a work must be created by a human being.” Full stop; case closed; end of story, right?

Unsurprisingly the district court disagreed with PETA and sided with the copyright office. Since animals can’t be authors, the court dismissed the case for failing to state an actual claim and because Naruto does not have standing to bring this case. Removing the legal jargon, this means that Naruto can’t bring a lawsuit because it doesn’t hold any rights to the photo. As such, the case must be dismissed.

Now PETA is back, appealing to the 9th Circuit Court of Appeals, to overturn this order. The organization will almost certainly lose this case on the same grounds as the order from the district court. While PETA may be taking up this case simply to take a stand about the agency of animals, this case seems a bit foolish. It’s very unlikely the court finds in their favor, and it could close the door to the issue forever.

Yet even though this will probably be an easy case for the Court of Appeals to decide, it still raises some interesting questions to consider as we contemplate what we want the future of copyright law to look like. With the continual development of automation and AI technology, should we consider vesting copyright in those machines or in their creators for these works?

Recently, in fact, there has been some real development in this area. Here are just two examples: First, Google AI researchers created a digital synthesizer program that they hope will create its own music. And Second, Microsoft created an AI program that created a painting mimicking the style of Rembrandt, but what was actually an original work by the AI.

We can probably assume the work that either AI system produces will not be copyrighted. In the same section that deals with animal authorship, the Copyright Compendium holds that “the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from human author.” And practically this makes sense. There is a serious slippery slope if non-human creation can be copyrighted and the issues it could be difficult to resolve.

However, as we see more AI systems being able to independently create art, and as we see automation take over so many things, there’s an important question of who owns the IP for those creations. Right now, the answer has to be “no one” but you can imagine that not satisfying the potential owners. Consider if someone created a successful AI robot pop star that was able to create its own music. Someone would want to control the rights to the songs, because otherwise everyone would be free to copy them. Currently, the programmers could control the patent and the copyright to the software, but not the original music it produces. Sure this is nearly the plot of a William Gibson novel, but it doesn’t seem that far-fetched, any more.

So nope, neither monkeys nor computers can be authors and they can’t own copyrights, at least right now. And PETA, you’re probably going to lose again. But maybe this isn’t the best answer for the future.


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In 1998, The United States passed one of the most important amendments to copyright law, Digital Millennium Copyright Act (DMCA). Responding to burgeoning copyright concerns at the dawn of the internet age, the DMCA added several provisions to the law that have proven to be both very important and quite controversial at the same time. One part of the law that people have taken issue with is its “anti-circumvention” provisions, codified at 17 U.S.C. §§ 1201 – 1205. These provisions prohibit “circumventing” Digital Rights Management (DRM) used to protect copyrighted works. Notably, this holds true even if what you intend to do with the work would be a fair use. This means, for example, if a DVD has DRM on it, and you break those protections, you have violated the DMCA, even if you want to create something like a parody that would otherwise be within your rights.

Recognizing that the progress of technology could change the DMCA’s impact, Congress built into the law a provision whereby the Librarian of Congress and the Register of Copyrights can review the law and propose temporary exceptions to it every three years. Since its passage, the Copyright Office has explored several such exceptions, including exceptions to permit circumvention of video for educational purposes, to preserve video games, and to “jailbreak” cell phones.

Now, in a very lengthy report, the Copyright Office has proposed substantive changes to copyright law to incorporate some of these exceptions permanently. Unsurprisingly, these suggestions are quite modest. In general, the report reaffirms the fundamentals of the DMCA and most of its provisions. It then goes on to suggest a few permanent exemptions, including exemptions for legitimate security research and testing, to enable blind or visually impaired people to use assistive technologies, to diagnose and repair computer programs, and to permit the unlocking of mobile devices.

Unfortunately, however, the Copyright Office does not go any further than these proposals. For example, it does not recommend exemptions for things like preservation by libraries and archives or for educational and derivative uses. As such, it only begins to address the concerns raised by critics of the DMCA, and does not really cure the problem that the law prohibits otherwise legitimate fair uses of copyrighted works. As such, the video parody mentioned above would still be blocked by the law.

The Electronic Frontier Foundation (EFF) has been frustrated by the DMCA for a long time. In response to the new report, EFF argues that the agency doesn’t go nearly far enough. “[I]f a Section 1201 violation can happen without any connection to copyright infringement, then Section 1201 gives copyright holders (and DRM vendors) vast control over technology users, beyond what copyright law already gave them.” Moreover, the EFF points out that there is no evidence that a ban on breaking DRM is necessary at all. “[T]he Internet contains many lifetimes worth of amazing creative works of all kinds, made available by creatives without any DRM.” So, it’s not clear DRM and the DMCA’s anti-circumvention provisions actually serve their intended function — to encourage creators to create without worry of massive digital piracy.

So why should you care about this? From an academic standpoint, it is certainly disappointing that the Copyright Office does not want to extend the DMCA’s exemptions to make room for educational and preservation uses. Sure, the agency has addressed these issues on temporary bases, but a permanent exemption seems to make sense. Does it really discourage creation by allow students and professors to circumvent DRM for their academic work? Does it really discourage creation to permit schools to circumvent DRM to archive video games? Without evidence, I doubt it does.

But I think the bigger issue this report raises, and the reason I think we should pay attention to it, is something that should be uncontroversial: it is far past time we seriously consider broad-scale copyright reform. Our current copyright law is now 41 years old, and though it has been amended many times since 1976, it clearly shows signs of age. Simply stated, the law was designed for the analog world and doesn’t always mesh with our new digital reality. Indeed, former register of copyrights Maria Pallente herself said as much in a paper she wrote in 2013 entitled The Next Great Copyright Act. These exemptions to the DMCA are a step in the right direction, but they do not solve the more fundamental question of whether the copyright law as it currently stands makes sense in 2017. Indeed, the DMCA specifically acknowledges that we should look at how at least part of the law is working at least every three years. Now, it’s time to look at how the law is working more broadly.

Of course, with all the animosity in Washington, it seems doubtful that major copyright reform will happen anytime soon. So, perhaps the Copyright Office’s modest proposals are the best we can hope for at the moment. Still, we should reassess whether copyright law continues to ensure the balance between authors and the public that the Constitution calls for, and to make the changes necessary to create a law that works for today and the future.