Re:Create Recap – November 3, 2016

SCOTUS Considers Dancing Baby And Cheerleader Uniform Copyright Cases. What do cheerleader uniforms and cute baby videos have in common? The U.S. Supreme Court is looking at copyright cases on these two issues, examining the legal standards for fair use and uniform design copyrights. On October 31, The New York Times reported that the Court heard arguments on whether cheerleader uniform designs can be copyrighted in Star Athletica v. Varsity Brands. Justice Sotomayor commented, “You’re killing knockoffs with copyright.” IP lawyer David Bernstein told the Wall Street Journal the case could “have a bearing on anything from furniture design to wallpaper patterns.” Meanwhile, Reuters reported the Court asked the U.S. Solicitor General to weigh in on the “Dancing Baby” case, which has petitioned for Supreme Court review.

Sued For A Tweet? How The EU Copyright Directive Could Impact Twitter And Facebook Users. Under the EU’s proposed copyright directive, copyright lawyers could sue ordinary Facebook and Twitter users for sharing sentences from news articles on social media, reported Politico’s Chris Spillane on October 26. “[The] wording of the Commission’s proposal is so broad and vague that 1.6 billion Facebook users, 313 million tweeters and even 433 million LinkedIn members could be subject to legal repercussions by publishers,” wrote Spillane.

“Socially Awkward Penguin” Case Sparks Call For A Better Copyright System.
Last year, Getty Images sent a copyright infringement notice to a small German blog over the three-year-old internet meme “Socially Awkward Penguin,” demanding financial compensation and silence on the issue. New Atlas used this instance as a case study to examine how copyright has become “a history lesson in how governments have badly negotiated their relationships in balancing legislation with technological advancements.” From the printing press to the VCR, the article traced how copyright policy has evolved and called for a new system that “[reframes] copyright in a clearer and more straightforward way.”

Tech Community Cheers DMCA Cyber Security Exemption. “This is a tremendously important improvement for consumer protection,” said Andrea Matwyshyn, a professor of law and computer science at Northeastern University, commenting on the new exemption for security research enacted under the Digital Millennium Copyright Act’s triennial rulemaking process. WIRED’s Andy Greenberg explained how the exemption will allow researchers to discover vulnerabilities in consumer devices without penalty. “There’s a universe of security vulnerabilities that the law keeps researchers from figuring out and telling you about, but are nonetheless present in devices you use every day,” said Kit Walsh, an attorney with the Electronic Freedom Foundation. “For the next two years, that threat will be lifted for many forms of security research that are really important.” Walsh’s blog, Why Did We Have to Wait a Year to Fix Our Cars?, highlights how the rulemaking process is flawed and advocates for a better solution.

Expiration Of Safe-Harbor Registration Sets Trap For Service Providers. As part of a multi-year project to modernize the system for registering authorized agents, the Copyright Office recently announced a new rule that requires websites to renew their registered agent every three years. While this rule may seem trivial, Elliot Harmon with the Electronic Frontier Foundation explained how it greatly impacts the small companies and nonprofits that don’t have the resources to comply with the ever-growing list of conditions already imposed by Section 512 of the DMCA. “When website owners inevitably forget to renew, copyright holders will be able to take advantage of that mistake to hold them liable for their users’ infringing activities,” he noted.