How Will the Copyright Claims Board Work?

The creation of the Copyright Claims Board (the “Board”) under the Copyright Alternative in Small-Claims Enforcement Act of 2019 (the “CASE Act” or “Act”)) is one of the unexpected byproducts of the Consolidated Appropriations Act of 2021. What follows is a brief summary of the major points of the Act. 

There were advocates on both sides of this legislation. Supporting the legislation was Copyright Alliance. Opposing the legislation was the Electronic Frontier Foundation.

As of right now, until the Board is firing on all cylinders, the only way to prosecute a copyright infringement claim is to file a lawsuit in the US District Court. A claimant should be represented by legal counsel who can navigate the federal rules of civil procedure and move the matter forward. 

It would seem logical to think that a purpose behind the CASE Act is to create an alternative dispute resolution system for copyright claims to be resolved outside of the federal court system. On the surface, it sounds like a reasonable idea. So far, so good. However, like everything else, the devil is in the details.

You can read my detailed analysis over at Tuk’s Copyright Law Reporter.

For the relevant statutory language, please see below:

Federal Court Denies PA Governor Wolf's Motion for Stay; Restrictions Are Unconstitutional

Since the Governor has unilaterally ruled that gatherings are banned indefinitely, legal challenges in court have followed all over the Commonwealth. While the Pennsylvania state courts have upheld the Governor’s authority, the legal challenges in federal court have focused on constitutional questions.

One restriction in particular that has drawn legal scrutiny is the restriction on gatherings of more than 250. The first Amendment of the Constitution guarantees the right of the people to peaceably assemble. This was an issue in the case of County of Butler, et al. v. Thomas W. Wolf et al. (USDC W.D. Pa., Docket 2:20-cv-00677), in which Judge William S. Stickman ruled recently that the Governor’s open ended restriction on gatherings was unconstitutional.

The Governor’s legal team filed a motion for a stay of Judge Stickman’s order. That motion was denied this afternoon. What this means is that the Governor’s restrictions are, as of this minute, unconstitutional and should not be enforced in my personal opinion. This decision will be appealed by the Governor to the US Court of Appeals for the Third Circuit.

That doesn’t mean that the covid risk has gone away, but what it means is that people and businesses have to exercise their own restraint, versus being dictated to by Harrisburg.

More analysis on this to follow.

PA Governor Executive Order to Temporarily Suspend Evictions and Foreclosures

Today, the Pennsylvania Governor issued an executive order which purports to suspend all evictions and mortgage foreclosure actions until July 7, 2020. This is following an order from the PA Supreme Court which previously extended such a moratorium to June 1, 2020. Query why the Supreme Court did not take this action.

Needless to say, this is an absolutely monumental exertion of executive authority, completely unlike anything I have seen in my career or lifetime. With the stroke of a pen, the Governor for the moment has intervened in the administration of every residential lease and mortgage transaction in the Commonwealth.

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Copyright Update for Photographers & Content Creators

Professional photographers and content creators on Instagram: your professional lives just got more difficult.

Did you know that when you post your photographs on Instagram, under Instagram’s Terms of Service, you “grant[ed] to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to the content that [he/she] post[s] on or through [Instagram]”? According to the District Court for the Southern District of New York, you are doing exactly that.

As the old saying goes, the devil is in the details: Instagram’s Terms of Use.

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Pennsylvania Supreme Court Pauses Evictions and Foreclosures Through April 30

We are living in extraordinary times. The wheels of justice are, for a time, pausing. On April 1, 2020, the Pennsylvania Supreme Court issued the Second Supplemental Order (“Order”) relating to judicial operations as affected by the coronavirus crisis through April 30th. This Order affects every landlord, mortgage holder and taxing authority in Pennsylvania.

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Second Session Announced: Videoconference Exploring the Ninth Circuit’s Ruling in Tresona v. Burbank High School Music Boosters

Due to demand, On Friday, April 3rd at 3:30pm eastern, there will be a second videoconference on the Ninth Circuit’s decision, which I broke down initially here. The videoconference will be interactive, and will address questions from music educators about how the field of copyright law has significantly shifted this this court ruling.