THE COPYKAT

COPYRIGHT IN GEORGIA’S LEGAL CODE: THE WAY FORWARD?  In 2018 The 11^th Circuit had held that the statutory legal code of Georgia is not protected by copyright law. An important decision propagating the norm of open access to legal documents and rules was given by this court. The prime reason for this action of review is to reaffirm this ruling and set it as a binding precedent even beyond the precedential scope of 11^th Circuit. As open records activist Carl Malamud said "Access to the law is a fundamental aspect of our system of democracy, an essential element of due process, equal protection, and access to justice". The Eleventh Circuit's ruling is persuasive authority, that could be used elsewhere, and this petition has been filed to convert it to a completely binding precedent by the hands of the US Supreme Court. The core reason for this action of review is to bring in efficiency in copyright implementation by ruling the 11^th Circuit’s decision as the law of the land. The critical need for public’s access to law needs to be ultimately recognized. A meaningful access for the purpose of public accountability, learning, teaching etc, is imperative and copyrighting the same would involve inclusion of subscription and other commercial mechanisms to access the content of law. “An intrinsically public domain material, which belongs to the public” cannot be allowed to be curbed from open access. Analyzing another jurisdiction, it is worthy to be noted that the Indian Supreme Court has also gone on to hold that court Judgments and orders are public documents and the text thereof cannot be monopolized by the instrument of Copyright. 

BATISTE v. MACKLEMORE COPYRIGHT INFRINGEMENT SUIT DISMISSED. in another music industry plagiarism case,  Paul Batiste of the Batiste Brothers Band had, in 2017, filed an infringement suit against Macklemore and Lewis, arguing that a number of Macklemore’s songs lincluding “Can’t Hold Us”, “Same Love”, and “Thrift Shop”  had (and in an unauthorized manner) copied and sampled certain original elements of eleven of his songs. Now in Louisiana a Federal Judge has reached a decision on the matter which  reinforces the test for determining copyright infringement in musical works - whilst applying the same to the facts of this case and ruling against infringement (Judge Martin L.C. Feldman in a summary decision). Judge Feldman reiterated that there are three elements that need to be fulfilled to determine copyright infringement in a musical work. These are: (i) Ownership of a valid copyright, (ii) factual copying and (iii) substantial similarity. Factual copying needs to be established through circumstantial evidence, wherein the factor of “access” (reasonable opportunity to view) to original works can be claimed while proving such infringement. In the case at hand, neither factual striking similarity was established nor was access proven satisfactorily for an action of infringement to succeed. No evidence which could show that the defendants had even heard of Batiste was adduced before the court. Mere wide dissemination does not fulfill the threshold required to prove conclusive possibility of access.

NORA ROBERTS ALLEGES MULTI-PLAGARISM AGAINST A BRAZILIAN INDEPENDENT AUTHOR  A copyright infringement case has been filed in the Rio Court by Nora Roberts on the issue of plagiarism. She has reportedly claimed 3,000 times the value of the highest sale of the books alleged to infringe written by  Cristiane Serruya. The court filing alleges that the infringing books to convey practically identical 'emotions' to Nora’s books and that Serruya has committed “multi-plagiarism” on a “rare and scandalous” level. Nora has released a statement saying, “If you take my work, you will pay for it!” Further, Roberts has acknowledged the issue of funds to pursue such infringement litigation by writers who have their works plagiarized and profited upon.  The position of the defendant has constantly been that she is innocent of the allegations say8ng that  she uses ghostwriters for her books and further a plagiarism checker tool - to check against such unauthorized copying. The decision is pending.

FORTNITE SUED AGAIN!! And thus time it's for some signature “Phone It In” moves:  saxophonist Leo Pellegrino has alleged Fortnite to have misappropriated his likeness without permission involving a saxophone dance in the game. He has alleged that Epic (Fortnite developers) has, without permission, used certain moves which have become inseperable from his persona. The claim focuses on  the likeness of the character performing such moves in the game with Leo including the use of “outward pointing feet” used specifically by Pellegrino while playing the Saxophone and the striking similarity with the pose and the 'passion'. It must be noted that Fortnite has also been sued with respect to certain dance moves which has brought in the contentious issue of whether dance moves can be copyrighted. Another instance wherein Fortnite has been in news is the claim of royalties being brought in by the music industry against this inline gaming platform, wherein a virtual concert of DJ Marshmellow was shown. Post the EU Copyright Directive being signed, tech companies are to seek licenses from music industry before hosting any of their content online. Such digital royalty claims of usage of music in gaming platforms has been made possible post the signing of the new EU Copyright provisions.

LA LIGA SUCCESSFUL IN BLOCKING PIRATE CHANNELS IN DENMARK Spain's premier football league La Liga had brought a claim in Denmark to block certain channels which played and streamed its matches in a pirated format. This landmark decision  brings in protection to right holders in a market with suffers from ongoing and widespread piracy issues. Further, acknowledging the risk of getting malware infected due to such illegal streaming, the court, not only concerned its decision with the right holders but also the users of such services. La Liga’s audiovisual director was quoted commenting this to be an important step to fight the peril of broadcast piracy which is rampant around the world, and the commercial gain developed by such illegal advertising on these services, resulting in heavy earnings for those behind developing these unauthorized and illegal methods. He said: “Audio-visual Piracy is illegal and has significant consequences, not only for us, but for the league and the future of the game, so we are very happy that Rettigheds Alliancen has joined us in the fight. We know that Denmark is at the forefront of the development of digital tools to fight online piracy, and this is a big issue for us. We are now looking forward to seeing the effects of the blocking and hope that they can serve as an example for other countries, so that we can stand together in the fight against online piracy.”

INTERNET STREAMING, OUTSIDE THE PURVIEW OF STATUTORY LICENSING UNDER SECTION 31D OF THE COPYRIGHT ACT, IN INDIA. The Bombay High Court has reached an important decision that may well effect the development of the music streaming market in India - not least as Spotify seeks to expand in the Indian market. In the matter of Tips Industries Limited vs Wynk Music Ltd, the single bench of Justice S.J. Kathawalla in the Bombay High Court (judgement dated April 23, 2019) ruled upon many issues with respect to internet streaming on OTT platforms and its implications on the statutory licensing provided under Section 31D of the Indian Copyright Act. Section 31D of the Copyright provides for a statutory licensing scheme, as per which any ‘broadcasting organisation’ desirous of ‘communicating to the public’ any sound recording or its underlying works, may obtain a statutory license to do so, provided they pay the royalty rates to the copyright owners. The core highlight of the judgment includes the point that the services rendered by the Defendants through their download and purchase features amount to commercial rental / sale of the Plaintiff’s (Tips) copyrighted sound recordings. Since the right to commercially rent and sell a sound recording is a separate and distinct right as against the right to communicate the sound recording to the public, the Defendants cannot exercise a Statutory License under Section 31-D in respect of the download and purchase features provided by them. Had the Legislature intended for a statutory license under the said Section 31-D to encompass the sale and/or commercial rental as contemplated under Section 14(1)(e)(ii), The legislature would have employed express language to that effect in Section 31-D of the Act. The absence of such language or even mention of sale and/or commercial rental in Section 31-D of the Act makes the intention of the Legislature crystal clear to exclude the commercial rental/sale of sound recordings from the purview of Section 31-D. It is therefore evident that Section 31-D contemplates communication to the public by way of the broadcast of sound recordings only, and not their commercial rental and/or sale. The grant of Statutory The license under Section 31-D is only restricted to radio and television broadcasting organizations and the Defendants’ on-demand streaming services offered through the internet as an “internet broadcasting organization” do not fall within the purview of Section 31-D of the Act. More here. 

This update from the 1709 Blog intern Akshat Agrawal

Annotated state laws of Georgia on my Mind

An interesting legal scuffle has emerged in the US State of Georgia concerning the copyright claimed in the annotated version of the Georgia State Code, published on behalf of the State by LexisNexis.

The State of Georgia is suing Carl Malamud for re-publishing the Official Code of Georgia Annotated (OCGA) without permission. The State claims that unlike the underlying state law which is in the public domain thanks to §105 of the US Copyright Act 1976, the annotations and aggregation of the relevant caselaw by LexisNexis which, along with the statute law, comprise the OCGA, constitute an original work which is subject to copyright. Indeed according to the State's complaint (pdf) to the District Court for the District of North Georgia, the copyright has been registered with the US Copyright Office.


As LexisNexis, through its subsidiary company Matthew Bender and Co, Inc, was contracted to produce the OCGA, the claimant says it is a work-for-hire, and therefore the State is first owner of the copyright and thus has standing to bring the claim. Carl Malamud is being sued through his corporation Public Resource.Org.

In a somewhat ironic turn of events LexisNexis was itself sued back in 2012 for copyright infringement when it included legal submissions from a lawyer called Edward White in its 'Briefs, Pleadings and Motions' database. (Edward L White v Westlaw and LexisNexis SDNY 12 Civ 1340 (JSR)). On that occasion the use of the attorney's work by Westlaw and LexisNexis in this manner was found to be transformative and therefore fair use.

We don't yet know how Carl Malamud will defend this action. One has to hope he (or more likely his attorney) will do a rather more legally cogent job than the strident argument put forward by Mike Masnick on the TechDirt website. Masnick's comments largely follow those of Malamud himself (see link below) and centre on his assertion that the law should be freely available to the citizens of the State of Georgia (and others) and this move to protect the annotated version of the code somehow violates that principle. However a more considered view shows that the State of Georgia's case has some merit.

Firstly it is settled law that 17 USC §105 (Subject matter of copyright: United States Government works) which denies copyright protection to government works, includes both the statutes and the judicial opinion and rulings of the courts at Federal and State level. This follows a number of landmark cases including Wheaton v Peters 33 US (8 Pet) 591, 668 (1834), Banks & Bros v West Publishing Co 27 F 50 (CCD) Minn, 1886, right up to the case of the State of Georgia v The Harrison Company 548 F Supp 110 (N d Ga 1982). Indeed the last cited case involves many of the same factors as in the current case. Perhaps the best summary of the situation concerning the so-called Edicts of Government can be found in the US Copyright Office's Compendium Section 206.01:

206.01 Edicts of government.

Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments.

It should be noted that although edicts of government include state legislation and court judgments etc, the overall purpose of §105 applies only to the Federal government and not to the States. Thus if the annotations, as opposed to the state code itself, are held to copyrightable in their own right, the State of Georgia is not legally bound to release them into the public domain. §101 of the Copyright Act says this about derivative works:

A “derivative work” is a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”. (my added emphasis)

So far Carl Malamud has not filed his response to the claim with the court, but from a letter he wrote to a number of Georgian politicians about the case, it appears that unless he can come up with a compelling argument that his is fair use, it would seem that all the court needs to decide is whether the annotations provided by LexisNexis amount to an original work of authorship. Given that users need to pay to access the annotated version they publish*, we have to assume that LexisNexis think it is.

* Westlaw also produce their own annotated version of the Georgia State Code which retails at $1,753 for the hardback 3 volume set, in which they claim copyright.

Georgian Authors' Society opts to monitor unauthorised sales

Always a useful source of news from Eastern Europe, the Petosevic newsletter reports ("Georgian Authors Society to Monitor Audio-Video Stores and Piracy Websites", 21 June 2011) that the Georgian Authors’ Society plans to start actively monitoring all stores selling audio and audiovisual material, and all websites offering pirated material in Georgia, with an aim to putting an end to the illegal distribution of music files and computer software in that country.

According to local estimates, unauthorised downloading of movies, games and mp3 tracks has caused a 30-40 percent drop in demand for CDs and DVDs, despite a range of tariffs which is quite steep for local inhabitants, where the average monthly income of a family in 2005 stood at just US$200; fines currently range from  205 euro (US$300) to  1,235 euro (US$1,800) for unlicensed use, rising to between 1,235 euro (US$1,800) and 2,060 euro (US$3,000) for repeat offenders.

The Georgian Authors’ Society Director Giga Kobaladze is quoted as hoping that, within 6-12 months, the majority of illegal discs will disappear from the market, adding that the legislation clearly defines the sanctions against the illegal use of audio and audiovisual material, but that consistent monitoring has never been carried out. It is likely that monitoring will bring some sort of result pretty soon, since it is believed that the vast majority of sales outlets for recorded materials sell unauthorised products.

The National Intellectual Property Centre (SAKPATENTI) welcomes this initiative, noting that there is an urgent need for improving copyright protection.