HPA Tech Retreat: Jim Burger Presents Washington Update

In what has been an annual presentation at the HPA Tech Retreat, Thompson Coburn attorney Jim Burger delivered his update of legislation and litigation from the nation’s capital. His take on “administrative-legislative developments in copyright” was summed up by a slide of stars and the sounds of crickets, reflecting the government shutdown. Burger first briefly defined copyright as “an original expression in a fixed tangible medium,” and described the four-factor test that defines non-exclusivity.

Those factors are the kind of use (commercial, educational, transformative); nature of work (fiction is more protected than fact); amount used and the effect on the value of the copyrighted work including potential market. Burger noted that the first and fourth factors are given more weight than the others.

Oracle v. Google is a long-running $8.8 billion lawsuit, whereby Google copied 37 Java APIs to make it easier for Java programmers to copy code for Android. An earlier jury at district court found it was a fair use, but the federal circuit court decided the use was commercial but not transformative, and that fair use wasn’t an important factor.

“Google copied far more than was necessary and in doing so devastated the Java SE mobile phone market,” said Burger, who added that, “as a matter of law, no reasonable jury could find for fair use.” The issue may go before the Supreme Court.

He revisited the case of the “monkey selfie,” in which a nature photographer’s camera was commandeered by a monkey that took some selfies. When the photographer used those monkey selfies, PETA sued him on behalf of the monkey. That case has settled, with the 9th Circuit court refusing PETA’s request to dismiss the case and vacate the decision, saying “there is nothing in copyright act allowing animals to hold a copyright.”

In Rearden v. The Walt Disney Company, Rearden, which creates a product for facial capture that outputs CGI images using actors’ expressions, sued a Disney’s subcontractor that didn’t have the rights to use it. Rearden also sued Disney, asking for the copyright to the film in question. “The judge found that copyright may extend to output if the [AI] program does the lion’s share of the work and the user’s role was marginal,” said Burger. “But the judges also said the actors’ creative input is not marginal. This is a major AI issue that is worth watching.”

Burger also described a trialogue between the European Council, European Commission and European Parliament members, on the EU Copyright Directive, specifically on two contentious articles: Article 11 states that websites have to pay publishers fees for linking to a news site or use snippets linking to their website and Article 13 states that online content sharing entities need to get a license or, in cooperation with rights holders, use technical measures to filter content. The three parties must finish their work by May.

“It’s been said that the Europeans want to completely overthrow the Internet and remake it in a way they want,” noted Burger.