Authors Alliance Thanks our research assistant, Derek Chipman, for authoring this blog post.

Today, April 25th, various stakeholders have come together to oppose the SMART Copyright Act of 2022 and as part of the Electronic Frontier Foundation’s (EFF) and Fight for the Future’s day of action for voicing opposition to the SMART Copyright Act. As part of this day of action, this blog post surveys the opposition to the SMART Copyright Act voiced by numerous organizations.

The SMART Copyright Act would empower the Copyright Office to designate standardized protection measures (STMs) which would be required for digital platforms and service providers to implement to monitor and prevent uploads of infringing content. These STMs may be effectively selected by the content industry and could have a disastrous effect on the internet by restricting free speech through mandating upload filters, forcing digital platforms to adopt them at their own expense.  Authors Alliance has previously voiced our opposition to the bill as well as signed on to a letter in opposition with thirty-one other organizations and individuals. Other organizations too have criticized the SMART Copyright Act as inconsistent with free expression and sound information policy online.

Start-up and pro-entrepreneurship organization Engine recently detailed the potential costs of the bill that are adverse to newly formed start-ups, such as the burden of increased litigation due to ambiguous new terms, the complexity of navigating a “complex patchwork of different required technologies,” the cost of endless triennial rulemakings, as well as the error-prone nature of upload filters. The EFF has highlighted these issues as well, calling the legislation an “unmitigated disaster” and giving examples of how current automated upload filters implemented by YouTube, Facebook, and Twitch have led to numerous false positives and unclear policy communication. These issues are given more detail in the EFF’s submitted comment during the Copyright Office’s public consultation on Technical Measures held earlier this year. Similarly, TechDirt writes that a separate letter from internet companies such as Patreon, Etsy, Cloudflare, Pinterest and Reddit urged a shift in focus to “pro-innovation proposals that expand opportunities for us and our users” after raising concerns about costly litigation over using the right technologies, navigating ambiguous terms, and the effects of filters on its users non-infringing posts.

 Other opposing voices include the Wikimedia Foundation, which has concerns that the SMART Act “puts too much faith in artificial intelligence and automated tools as the only solution to infringement,” and that these tools are often flawed and generate false positives. Moreover, the tools tend not to be open source or freely available, which is burdensome for small companies and non-profits. Re: Create believes the bill is not only a waste of resources, but that filtering mandates are outside the scope of U.S. copyright law.  The Library Copyright Alliance wrote in its own letter in opposition, where it also criticized the burdensome framework of the proposed triennial rulemaking and argued that the bill would burden free speech “replaces the notice-and-takedown regime . . . with a notice-and-stay-down regime.” Public Knowledge’s policy counsel Nicholas Garcia stated that SMART “threatens the vibrant, open, and innovative internet in the name of intellectual property protection” and will “force digital platforms and websites to implement technical measures that monitor all content that users upload[.]” 

Now that Congress is back in session, we join our voices with these other organizations in calling on our representatives to not support this flawed proposal. Authors Alliance will continue to monitor the SMART Copyright Act of 2022 and keep our readers apprised of any further updates.

Last week, Judge (soon to be Justice) Ketanji Brown Jackson was confirmed as the newest member of the Supreme Court. Many Americans have have found much to celebrate in Judge Jackson’s confirmation: she is the first Black woman to serve on our nation’s highest court, and her diverse experience as a judge and attorney make her highly qualified for the position in the eyes of many. But how will the Court be affected by Judge Jackson’s views on copyright? Longtime readers may recall that Authors Alliance published a rundown of Justice Barrett’s copyright jurisprudence after her confirmation to the Court in late 2020. In today’s post, we will survey Judge Jackson’s record on copyright to give a preview of how her views might affect the Court’s copyright jurisprudence going forward.

It is worth mentioning that Justice Breyer, whom Judge Jackson will be replacing on the Court, has long been known as the Justice most focused on intellectual property and copyright, and the most liberal Justice on these subjects. Justice Breyer has authored powerful dissents, such as in Eldred v. Ashcroft, where argued that a lengthy extension of copyright duration did not serve the public interest, and majority opinions such as the more recent Google v. Oracle, in which the Court applied a broad interpretation of fair use to software. All of this indicates that Justice Breyer will leave big shoes to fill, making an exploration of Judge Jackson’s copyright jurisprudence more important than ever for authors who care about seeing their works reach broad audiences. 

While Judge Jackson once clerked for Justice Breyer, her judicial record on copyright law is fairly thin. This is perhaps not surprising considering that a bulk of copyright cases are filed in either the Second Circuit (which includes New York) or the Ninth Circuit (which includes California), whereas Justice Jackson has spent the last decade as a judge in the D.C. Circuit and later the U.S. Court of Appeals for the D.C. Circuit.  

Copyright Questions in Confirmation Hearing

Most recently, Judge Jackson was faced with questions about her record and views on copyright during her confirmation hearings. Senator Thom Tillis asked Judge Jackson a number of written questions related to copyright law (among other things), including her opinion on the proper balancing of the four fair use factors. Judge Jackson answered that, in her view, the fourth fair use factor—the effect of the use upon the potential market for the copyrighted work—was most important in fair use analysis, citing Supreme Court precedent in Harper & Row v. Nation Enterprises. It is notable that Judge Jackson did not discuss factor 1—the purpose and character of the use, including whether it is considered “transformative”—as this factor is conventionally held up alongside factor four as the two most important parts of the fair use inquiry. 

The transformativeness doctrine has become incredibly important in recent years, protecting uses such as full-text searchable scans of works in Authors Guild v. Google and reuse of software code in Google v. Oracle. Judge Jackson’s lack of emphasis on transformativeness in her comments related to fair use could indicate that she might give less weight to transformativeness than the market effects of a particular use. In the next term, the Supreme Court will hear Warhol Foundation v. Goldsmith, a fair use case that turned on transformativeness in the lower courts, and Judge Jackson’s deemphasis on transformativeness could foreshadow an inclination on her part to decide the case on other grounds. 

Speaking to the copyright decisions she had made in her capacity as a federal judge, Judge Jackson pointed to the two cases discussed below in her written responses to Senator Tillis’s questions. 

Alliance of Artists & Recording Companies v. General Motors

In 2016, the Alliance of Artists and Recording Companies, a nonprofit organization dedicated to collecting royalties under a provision of copyright law known as the Audio Home Recording Act (“AHRA”), filed a lawsuit against General Motors for failing to comply with the statute by installing recording devices in car dashboards without paying royalties for any recordings made. In the case, Judge Jackson considered whether the recording devices installed by GM constituted “digital audio recording devices” under the AHRA. The case was essentially one of statutory interpretation, a method by which judges examine the language and context of a statute to determine whether and how it applies to the case at hand. 

One challenge present in this case was the fact that the AHRA was passed in 1992, prior to the advent of advanced in-vehicle audio recording devices. Judge Jackson was thus tasked with determining whether the statute should cover a technology that did not exist when the statute was enacted. Over the course of two years and three separate rulings, Judge Jackson ultimately determined that GM’s dashboard recording devices did not qualify as “digital audio recording devices” under the AHRA. In short, this was because the AHRA was directed at music recording, whereas GM’s devices copied and stored a plethora of data, including computer programs and voice recordings in addition to music. Because the statute did not apply to GM’s activities, Judge Jackson ultimately dismissed the case. In the case, Judge Jackson demonstrated an ability to apply a technical and perhaps arcane aspect of copyright law, indicating a willingness to dive into these important issues. 

Buchanan v. Sony Music Entertainment

In 2020, Judge Jackson issued a decision in Buchanan v. Sony, which concerned allegations of copyright infringement in music. In the case, Moreh Buchanan alleged that Sony had improperly taken the “plot, theme, story line, characters, cast, scenes, etc.” for the Fast and Furious film franchise from four songs he claimed to have submitted to Sony between 1992 and 1997. Judge Jackson found for Sony in the case for a number of reasons: Buchanan had failed to register his copyrights in the songs, which is a condition for being able to sue to enforce those rights in court; Buchanan had failed to prove that Sony had access to his recordings; and Buchanan had failed to allege that the his songs and the films were “substantially similar,” which is also needed to support an infringement claim. In her decision, Judge Jackson showed her understanding of the requirements of an infringement claim and the importance of these elements, whatever the facts of the case. The litigant had made allegations that read as fairly bizarre, such as suggesting that his lyric, “I’m on the freeway zooming fast” was the basis for the Fast and Furious films. Nonetheless, Judge Jackson engaged with the claim and carefully laid out the legal justifications for dismissing it.

While Judge Jackson’s record on copyright may be thin, the copyright opinions she did author show her understanding and willingness to engage with copyright issues. Authors Alliance will keep our readers appraised of any copyright developments on the Supreme Court as Judge Jackson joins the bench next term.

Authors Alliance thanks our research assistant, Derek Chipman, for his contributions to this blog post.

Last Monday, the Supreme Court granted certiorari in Warhol Foundation v. Goldsmith, a fair use case involving screen printed images, referred to as the Prince Series, created by the late artist Andy Warhol depicting the late musician Prince. The series is based on a photograph by Lynn Goldsmith, a famed celebrity photographer. Authors Alliance has previously written about the case and its central issue of “transformativeness” last year as part of our update on fair use decisions from 2021. The Supreme Court’s eventual decision could have a large impact on how courts across the country interpret the doctrine of fair use, and consequently, on authors’ ability to rely on this important doctrine. This post is intended to both recap the case and provide context about Supreme Court precedent on fair use and transformativeness to keep our readers informed as the case progresses.

The screen-printed images at issue in the case were created after a first image was commissioned by Vanity Fair based on the photograph by Goldsmith, authorized pursuant to separate agreements between Vanity Fair and Goldsmith and Vanity Fair and Warhol. The authorized Warhol image appeared in the magazine in 1984 and included credit for both Goldsmith and Warhol. However, Warhol went on to create fourteen additional works of the image in the same style, which are the subject of the litigation.

After learning of the additional images after Prince’s death, Goldsmith sued the Warhol Foundation for infringement in New York district court, alleging that the Prince Series infringed her copyright in the photograph of Prince. In its decision, the district court found for the Warhol Foundation on fair use grounds, focusing on the transformative nature of Warhol’s silkscreen prints which the court stated “transformed Prince from a vulnerable, uncomfortable person” as seen in Goldsmith’s photograph “to an iconic larger-than-life-figure” as depicted in Warhol’s series by changing the original image from a black and white, three-dimensional representation into two dimensional, colorful representations. 

Goldsmith appealed the district court’s ruling to the Second Circuit, which overturned the district court’s finding of fair use, disagreeing that Warhol’s work was transformative. The Second Circuit believed that the district court improperly took the role of “art critic,” making an artistic determination that Warhol’s works were transformative, rather than comparing the elements of the images and their purposes and characters. Under this approach, the Second Circuit concluded that the work retained “essential elements” of Goldsmith’s photograph and was functionally the same work with a new aesthetic. The Second Circuit’s ruling bore factual similarities to its decision in Rogers v. Koons, where the court decided that a celebrated artist’s colorful image based on a black and white photograph was not fair use. 

After the decision was handed down, the Warhol Foundation requested a re-hearing in the Second Circuit, asking the court to consider the impact of Google v. Oracle, a Supreme Court fair use case which was handed down shortly after the original Second Circuit opinion (and which Authors Alliance also covered as part of our fair use in the courts in 2021 update). The Second Circuit granted re-hearing and issued an amended opinion. Unfortunately for the Warhol Foundation, this amended opinion dismissed Google v. Oracle as not applicable to the case at hand, and did not change the essential holding that Warhol’s use of Goldsmith’s photograph was not a fair one.

Then, the Warhol Foundation sought certiorari to the Supreme Court, arguing that the Second Circuit’s ruling had “hollowed out” fair use defenses and would have a chilling effect on artists transforming existing works as well as art galleries displaying works. It further argued that the Second’s Circuit ruling conflicted with a Ninth Circuit standard of transformativeness set forth in Seltzer v. Greenday, which stated that a work can be transformative even if that work “makes few physical changes to the original.” In that case, the Ninth Circuit stated that a work like Warhol’s can be transformative if “new expressive content or [a new message] is apparent.” The Warhol Foundation asked the Supreme Court to hear the issue as it created a different standard of fair use between the two circuits where over half of copyright cases are filed, and hoped the Court would clarify the proper approach and resolve the split. The Warhol Foundation further argued that the Second Circuit’s standard conflicted with the Supreme Court’s own precedent on fair use and transformativeness, particularly Campbell v. Acuff-Rose Music and Google v. Oracle.

The Supreme Court’s precedent under the transformativeness doctrine can be traced to its 1994 decision Campbell v. Acuff-Rose Music, which found that the transformative use of a copyrighted work in sampling a small portion of a song was an important factor in its fair-use analysis. The Court reasoned that if under the first factor, purpose and character, the more transformative the work the less significant the other three factors, thus the less likely it would be found to be infringing. The more recent Google v. Oracle took a broader approach to fair-use than the one recently used by the Second Circuit, where the court found that Google copying a portion of a software code was transformative as it created a new platform offering a “new collection of tasks operating in a distinct and different computing environment.” However, it remains unclear whether this approach would apply to works beyond software interfaces.

Now that the Supreme Court has granted certiorari in Warhol Foundation v. Goldsmith, its ruling could have a large impact on the state of fair use and the transformativeness doctrine. The Court could agree with the broader standard used by the Ninth Circuit or the more restrictive standard of the Second Circuit, it could clarify that its approach in Google applies beyond software, or it could even articulate a different standard that could reshape transformativeness as we know it. Authors Alliance will keep our readers apprised of any updates as this important case moves forward.

Yesterday, Authors Alliance joined 31 other organizations and individuals in alerting members of Congress about serious problems with the new proposed Strengthening Measures to Advance Rights Technologies (SMART) Copyright Act of 2022. Authors Alliance previously voiced our disapproval of the proposal for the simple reason that it would not serve the interests of all authors, including many of our members. In a letter addressed to Senators Patrick Leahy and Thom Tillis, the bills’ sponsors, the signatories explained why the SMART Act is problematic and would not serve the creators that copyright is designed to protect. You can find the full text of the letter here.

First, the letter explains that the changes the bill would make to the Digital Millennium Copyright Act (“DMCA”) would narrow the scope of “safe harbors,” which limit an online service provider’s copyright liability for the infringing activity of users. This is because standard technical measures could be required under the SMART Copyright Act in order for online service providers to maintain this limitation on liability. DMCA safe harbors are considered by many to be essential for fostering innovation and creativity online, and eroding these safe harbors threatens to “inject uncertainty into a law that has . . . supported creators, rightsholders, consumers, and online service providers of all kinds.”

Second, the letter points out that mandating designated technical protection measures for online service providers, as the bill contemplates, is beyond the Copyright Office’s expertise, as it would “transform[] [the Office] into an Internet regulator with responsibility for overseeing an elaborate, multi-agency bureaucratic process.” The Copyright Office as reimagined by the SMART Act would have very broad authority over online speech, an area that is also not within its traditional sphere of expertise. While the SMART Copyright Act would also add a new “Chief Technology Advisor” to the Copyright Office, this is not enough to overcome the Office’s limited expertise in this area.

Lastly, the letter argued that mandating designated technical protection measures is not needed to combat copyright infringement online. Digital service providers are already “fine tuning their voluntary efforts to combat infringement online . . . and they have done so with tremendous success.” The SMART Copyright Act would have the effect of “freez[ing] these efforts” for years at a time because it envisions a triennial process, similar to the triennial rulemaking for exemptions to the DMCA’s prohibition on breaking digital locks. Malicious infringers could quickly find workarounds for the mandated designated technical protection measures, and service providers would be unable to alter their technical protection measures to prevent such infringement if these were government mandated, as the SMART Act proposes.

Authors Alliance will be monitoring the progress of the SMART Copyright Act of 2022 and will keep our readers appraised of any new developments.

Last week, Senators Thom Tillis and Patrick Leahy introduced new legislation regarding technical protection measures used to protect copyrighted works online, entitled the Strengthening Measures to Advance Rights Technologies (SMART) Copyright Act of 2022. This new legislative proposal represents the latest in a multi-pronged effort to fortify protections for copyrighted works online (coming on the heels of the Copyright Office’s recent notice of inquiry about the development of technical protection measures, about which Authors Alliance submitted a comment). If passed, the SMART Copyright Act of 2022 would establish a procedure for the Librarian of Congress to designate standardized protection measures (“STMs”) to be adopted by online service providers. 

Authors Alliance strongly opposes the SMART Copyright Act of 2022. By requiring that digital platforms and service providers implement technical protection measures which could monitor content uploaded by users, the SMART Copyright Act of 2022 could lead to content “filtering mandate[s]” interfering with authors’ and other creators’ abilities to speak freely online. Authors and creators are the parties that copyright law is designed to protect, making the proposal one that is inconsistent with the very purposes of copyright. 

The SMART Copyright Act of 2022 would enable the Librarian of Congress to designate STMs to be implemented across industries, supposedly based on input from a diverse group of stakeholders. While the bill’s sponsors claim that the legislation “ensures that any designation of existing measures requires input from all stakeholders and assessment of public interest considerations,” it is telling that groups representing the content industry have praised the proposed legislation, while proponents of fair use and the free exchange of knowledge have opposed it. Even if the Copyright Office were to develop STMs that reflect a broad consensus across a diverse group of stakeholders, this would leave out the stakeholders who do not favor the widespread implementation of STMs in the first place (like Authors Alliance). Mandating that service providers use content moderating technology would impede the free flow of information and would not serve the interests of authors and creators who prioritize seeing their works reach wide audiences. 

To make matters worse, it is unclear that the Copyright Office possesses the technical expertise to evaluate and implement STMs. While the bill contemplates a new Chief Technology Officer within the Copyright Office to help develop such expertise, historically, the Copyright Office has not demonstrated that it has the technical expertise to wade into and settle questions about technical, complicated matters such as STMs. 

In the words of Public Knowledge policy counsel, Nicholas Garcia, “this proposal ​​would be disastrous for a free, creative, and culturally rich internet. Unfortunately, the SMART Act is anything but.” Because 2022 is an election year, it has been speculated that the SMART Act of 2022 is unlikely to pass during this legislative session. And Senator Leahy is planning to retire at the end of his term, meaning that Senator Tillis would need to find a new co-sponsor for the bill in future legislative sessions were to be reintroduced. Authors Alliance will be monitoring the bill’s progress, and will keep our readers informed about any further updates.