2021 Year in Review: Copyright Law

Here’s a look back at some of the significant copyright law developments in 2021.

Google vs. Oracle

The most important copyright decision of the year, which some have called the “copyright case of the decade,” was the US Supreme Court’s decision in Google v. Oracle, which we discussed here.

The case involved Google’s copying of thousands of lines of computer code from Oracle’s Java platform for use on its competing Android platform.

The Court held that

Google’s copying of the Java SE API, which included only those lines of code that were needed to allow programmers to put their accrued talents to work in a new and transformative program, was a fair use of that material as a matter of law.

Copyright Small Claims Court

As we discussed in this blog, the Copyright Alternative in Small-Claims Enforcement Act (“CASE Act”) created a Copyright Claims Board (CCB) – a sort of “small claims court” for relatively small copyright disputes.

The CCB can award up to $15,000 in statuary damages per copyrighted work, no more than $30,000 in total actual or statutory damages, and no more than $5,000 in attorney’s fees in cases of bad faith, unless a party can show unusual circumstances.

The Court is expected to start hearing claims by spring of 2022.

NFTs and IP

Non-Fungible Tokens (NFTs) really took off in 2021 and we covered it extensively here and here.

An NFT doesn’t fall into any of the existing categories of IP. It’s not subject to copyright – even though the underlying artwork can be. It’s not patentable. It’s not a trademark.

An NFT is closest to a form of deed, or receipt, or certificate of authenticity. It merely verifies that the owner of the NFT owns the “original” of something that may have an infinite number of digital copies. But what “original” means in this context is somewhat unclear.

Disney vs. the Comic Book Creators

As we discussed here, Disney is engaged in litigation with the owners and estates of creators of iconic comic book characters.

The dispute involves a little-known part of US copyright law called “copyright termination.”

This permits authors or their heirs, under certain circumstances, to terminate the exclusive or nonexclusive grant of a transfer or license of an author’s copyright in a work or of any right under a copyright.

Site Not Liable for Copyright Infringement by Clients

As we discussed in this blog, a federal judge in California ruled that Cloudflare, a cybersecurity company, wasn’t liable for copyright infringement by websites that use its services.

In 2018, Mon Cheri Bridals and Maggie Sottero Designs, two wedding dress manufacturers and sellers, sued Cloudflare, alleging that it was liable for copyright infringement because it didn’t terminate websites that infringed the plaintiffs’ copyrighted designs.

As the court noted,

A party is liable for contributory copyright infringement where it “(1) has knowledge of another’s infringement and (2) either (a) materially contributes to or (b) induces that infringement.”

However, “Simply providing services to a copyright infringer does not qualify as a ‘material contribution.’”