Copyright Updates (August 14, 2014)

Copyright Updates

August 14, 2014

Fair Use Cases

Authors Guild v. HathiTrust (2d Cir. June 10, 2014)

The Second Circuit, also known as the “copyright circuit”, handed down a significant victory for HathiTrust on June 10, 2014.  The short version is that the Second Circuit found that

a)     full-text indexing is “quintessentially transformative”, hence presenting a strong case for fair use and

b)    provision of copies to persons with disabilities, although not transformative, is a strongly protected “purpose”.


The holding that library replacement copies are fair use was overturned, but only because the Second Circuit questioned whether the Authors Guild or any plaintiffs even had standing to challenge HathiTrust on these grounds.


The Authors Guild has until September 9 to ask the Supreme Court for review. The Court is unlike to take the case because it meets none of the traditional standards for Supreme Court review (split among the Circuits, far out of line with existing law, unique question of high importance).


Detailed memo available at


Authors Guild v. Google (pending 2d Cir.)

This case, which was a strong fair use victory at the lower court in November 2013, is on appeal in Second Circuit; briefing is set for this summer and fall.  However, the Court already signaled this use is likely fair use, when it remanded the case to the lower court to consider fair use.   


Cambridge University Press v. Becker  (pending 11th Cir.)

We are still waiting for the appellate decision in the Georgia State University ereserves case. The oral arguments (November 2013) were worrisome, because the Appeals Court

a)     appeared confused about some basic points of copyright law and fair use and

b)    used the central metaphor of the plaintiff publishers that electronic reserves is a type of coursepack.


White v. West (SDNY July 3, 2014) 

In July 2014, the Southern District Court of New York (the same court looking at the Google Books and HathiTrust cases) held that WestLaw was making a fair use when it digitized and indexed the full text of legal materials for its databases.




American Institute of Physics v. Schwegman (D.Minn. 2013) and Wiley v. Winstead (N.D. Tex. 2013) 

Wiley, the American Institute of Physics, and Blackwell Publishing filed a series of suits arguing that “prior art” demonstrations required by the Patent Office infringed their copyrights. Courts decided two of the cases last year, finding fair use; plaintiffs filed to dismiss a third after the PTO intervened on the side of the defendants, and the two other fair use decisions. A fourth law firm defendant signed a CCC license without waiting for the fair use decisions.


Bouchat v. Baltimore Ravens (4th Cir. Dec. 13, 2013)

A long-running copyright infringement case in the Fourth Circuit over a Baltimore Ravens logo, created by Frederick Bouchat and used in a film production about the Ravens, was found to be fair use. 


Swatch v. Bloomberg (2d Cir. rev. op. May 30, 2014) 

Another fair use finding in the Second Circuit, this time for Bloomberg’s dissemination to subscribers of the full recording of an unauthorized recording of a conference call.

NB: The May 30, 2014 opinion was significantly revised to suggest that the use was “arguably transformative” in purpose.




Other Copyright Issues

ABC v. Aereo (Supreme Court 2014)

US Supreme Court held that online recordings of broadcast TV were copyright infringements of the sort that Congress treated as cable retransmissions. Subsequently the Copyright Office refused to register Aereo as a cable company.


Coyle v. University of Kentucky (6th Cir. 2014)

Sovereign immunity protects state agencies from copyright liability. Every court to have looked at this question has found that state agencies have sovereign immunity in copyright cases, notwithstanding the CRCA (Copyright Remedy Clarification Act).





Pending Cases to Watch

Diversey v. Schmidly

In a case involving an odd dissertation problem, the 10th Circuit made a statute of limitations holding that treats library circulation as distribution for the purposes of statute of limitation claims.


Capitol Records v. Vimeo

Pre-1972 sound recordings are subject to various state copyright laws but not federal copyright law. Are they then subject to US Copyright Act notice and takedown provisions? Two prior cases, and Grooveshark have conflicting holdings on this question. 

Briefing for the appeal is happening this summer and fall.


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