The 1709 Blog

Grooveshark employees settle labels' action

2013-05-22T07:21:00.000+01:00

Four former and one current employee of the controversial streaming music service Grooveshark have signed agreements with the major music companies, led by Universal, who are suing the site and a number of individuals, agreeing in a consent judgment that they will never again infringe the labels' copyrights, or to work for a company that "systematically infringes" copyrights. Those individuals who had been targeted for infringement will now be removed from the lawsuit.

Grooveshark lets users upload music into its libraries, meaning tracks are routinely available on the streaming service without the permission of relevant copyright owners. Because Grooveshark has a takedown system, removing infringing copyright material if made aware of it, the company argues it is operating within the US's DCMA ' safe harbor' provisions, even if taken-down tracks are soon replaced by users.

Grooveshark itself is far from out of the water regarding the copyright infringement case: TorrentFreak has published the relevant court documents, and points out that Grooveshark’s co-founders Sam Tarantino and Josh Greenberg have not yet signed similar agreements and the label's case has focused on the question of whether the company’s own employees were involved in reuploading tracks taken down through that “strict compliance” policy. Tarantino recently described himself as “literally broke” and said 2012 was “a year of getting punched in the face 10,000 times”.

For their part, Grooveshark owners Escape Media welcomed the development, telling reporters: "We are pleased that the case between Universal Music and Escape Media has been narrowed and simplified by the removal of some individual defendants from the case upon their stipulation to simply obey the law - something Escape Media does every day through its active licensing of millions of tracks and its strict compliance with the Digital Millennium Copyright Act. Escape Media Group will continue to deliver innovative new solutions and services that revolutionise music consumption for its growing audience of 30 million plus fans around the world".

Last month UMG secured a judgment in the New York State appellate court that held that the DCMA "safe harbor" defence did NOT apply to pre-1972 sound recordings.

http://musically.com/2013/05/20/grooveshark-copyright-case-moves-on-with-individual-settlements/

Six Striker Struck Down

2013-05-22T07:18:00.005+01:00

The Center for Copyright Information, the organisation which administer the USA's voluntary “six strikes” graduated response scheme, has come up against a significant problem: According to the Columbia Department of Consumer and Regulatory Affairs (DCRA), the company has had it's status revoked. The revocation means that CCI’s articles of organization are void, most likely according to reports, because the company forgot to file the proper paperwork or pay releveant fees. However it seems that whilst the status was actually revoked last year, The CCI has now filed the proper paperwork, although the Copykat imagines there are some very red faces: One blogger commented "It does raise the question of who, precisely, is running this show and why they’d make such an egregious error with something taken so seriously. But we’re sure that this won’t end with the CCI shutting down the Internet of some grandmother and going down in flames due to the bad publicity. This will not happen. Surely not."

The CCI's founder members are five major ISPs (AT&T, Cablevision, Comcast, Time Warner Cable and Verizon) and four rights owners organisations - AIM (independent music), MPAA (motion pictures), RIAA (sound recordings) and ITFA (film and TV).

http://www.uproxx.com/technology/2013/05/the-center-for-copyright-information-gets-its-status-revoked/

http://en.wikipedia.org/wiki/Center_for_Copyright_Information

Building models for architectural infringement in Houston homes

2013-05-22T07:17:00.000+01:00

Of course I used a set square!

Although when I have taught copyright law, I have always mentioned architecture and the fact that architectural designs, drawings and blueprints can be protected in British law as a artistic work, I rarely see any relevant case law. In fact my trusted copy of Cornish has just five lines on the subsistence of copyright architectural works and models. But now comes news that a federal District Court in the USA has awarded $1.3 million to a Texas design firm in an architectural copyright case, finding that Houston-based Hewlett Custom Home Designs, Inc. had a valid claim against Frontier Custom Builders, Inc. in federal law. The jury in the U.S. District Court in Houston found that Frontier had infringed Hewlett's copyrights in designing, constructing and marketing 19 houses, and Frontier's owner, Ronald Wayne Bopp, was also held personally liable for Frontier's activities.

The damages were based on the profits Frontier had earned from the sales of houses and the court also ordered the destruction of infringing materials in Frontier's possession. Shane Hewlett, the principal of Hewlett Custom Home Design Inc., said, "I am extremely gratified that the jury vindicated our position and acted to help protect our intellectual property and the designs we proudly provide to clients."

Louis Bonham of Osha Liang LLP, who acted for Hewlett, said "Misappropriation of copyrighted building designs is a serious problem in the homebuilding industry and has been for many years. I hope the jury's message will be heard by those in the industry who do not take this issue seriously."

Reports say that this is the second seven-figure judgment in an architectural copyright case entered by a Houston federal court. In 2012, the court awarded $3.2 million to an Austin architecture firm, Kipp Flores Architects, in a similar case against Hallmark Design Homes. Kipp had previously secured a third multi million dollar award back in 2001, in Norfolk Va.

Hewlett Custom Home Design, Inc. v. Frontier Custom Builders, Inc. and Ronald W. Bopp Case 4:10-cv-04837; U.S. District Court for the Southern District of Texas, Houston Division.

and the CopyKat found this news story in the Sacramento Bee here http://www.sacbee.com/2013/05/20/5434324/osha-liang-llp-home-design-firm.html

More on the subsistence of copyright in architectural works, drawings, plans, designs and models here

http://en.wikipedia.org/wiki/Copyright_in_architecture_in_the_United_States

Lescure Report on Cultural Exception in France - The Way Forward?

2013-05-20T17:13:00.000+01:00

On Monday May 13th, Pierre Lescure issued his long-awaited report to the French government on Act II of the Cultural Exception. Highlights include the following recommendations:

- Creation of an obligation to digitally exploit copyright protected works (incumbent upon assignees and licensees of such works).

- Adapt the so-called media chronology rules (windowing) so that SVOD services can offer films 18 months after their release.

- Harmonize VAT rules so that no distinction is made between physical copies and intangible electronic versions of cultural products.

- Implement mandatory collective management of producers' neighbouring rights in sound recordings in the field of on-line music services (in the event that a last-ditch attempt at negotiations fails).

- Implement a 1% tax on connected devices (which will initially complement but utlimately merge with the private copy levy).

- Transfer HADOPI's graduated-response powers in the realm of P2P piracy to the CSA (French audio-visual watchdog) and abolish the final third strike of internet access being cut off (to be replaced with fines). On Sunday May 19th the Minister of Culture confirmed that she was adopting this recommendation.

- Shift focus of anti-pracy action to large-scale for-profit piracy, bringing a follow-the-money approach to bear (actions against financial intermediaries).

For the full report see here

BREIN refused access to private banking information for infringement claim

2013-05-19T17:51:00.004+01:00

PC World have run an article reporting that a Dutch court has dismissed a case brought by Dutch anti-piracy group BRIEN, saying that privacy laws protecting bank account holders are more important than providing information to identify potential defendants in an alleged copyright infringement caase. The ruling by the Amsterdam district court favoured ING Bank, saying that that the bank does not have to reveal who has access to a bank account, whose number is posted on the website FTD World

PC World explain

“FTD World, at ftdworld.net, is a Usenet-indexing website that lists links to binary files posted on Usenet. It also provides files in the NZB format listing that allows users to download the posted files more easily. By doing this, the site provides access to copyrighted entertainment files including books, movies, music, games, and software without the permission of the copyright holders, according to Dutch anti-piracy foundation BREIN.”

Unsurprisingly BREIN, which represents authors, artists, publishers, producers and distributors of music, film, games, interactive software and books, wanted the court to force ING to reveal who is behind a bank account and was receiving donations made via the site: BREIN had previously been unable to track down the domain name registrant and had received no reply to a letter sent to the Russian hosting provider. The only information BREIN had was that the bank account number belonged to a woman, identified only as "[F]" by the court, who was born in 1927 (so was an unlikely 90 year old file sharing platform owner) and who had moved to Suriname in 2009. ING admitted that someone else was authorized to use the account on the woman's behalf, but added that Dutch data protection law prevented the bank from revealing this person's or persons' identity. The Bank, however, did reveal that the women's debit card was used for cash withdrawals in the northern part of Amsterdam between February 4 and February 18. BREIN had asked the court to order revelation of any other names, phone numbers, email addresses, and postal addresses linked to the bank account.

In dismissing BREIN's claims, the court noted that ING were not instrumental in the alleged copyright infringement by FTD World, and only provides bank transactions, which are not essential to the potenttail copyright infringements, with Judge Sj.A. Rullmann saying "There is no relationship between ING Bank and copyright infringement" and put the onus on BREIN to so more to trace the person behind the site, noting that BREIN didn't even try to write to the woman attempt to trace her. Judge Rullmann held that all bank clients should be able to trust their banks, and client data should only be communicated in very exceptional circumstances. Further IF that data should be shared, it should be into ‘safe hands’. The Judge did note that BREIN could also have filed a criminal complaint.

BREIN were ordered to pay £1,800 (€2,100) t cover ING's costs (litigation fees).

http://www.anti-piracy.nl/english.php

http://www.pcworld.com/article/2038975/banking-privacy-prevails-over-copyright-enforcement-dutch-court-rules.html

Further UK Site Blocking actions imminent

2013-05-17T09:52:00.001+01:00

According to news first broken by TorrentFreak and subsequently confirmed by MusicWeek, the UK music industry is undertaking a validation exercise prior to issuing the next round of site blocking requests.

As previously observed on this blog, following the landmark "Newsbinz 2" decision, both the record industry and movie industry have used the section 97A injunction route as a way to prevent consumers from accessing illegal file sharing sites.

In this latest move, PPL has written to a number of its members in order to verify that they have not licensed a range of sites, from the blatantly pirate Isohunt to Grooveshark, a site which in the past has at least asserted that it is licensed. This is a pre-cursor to issuing proceedings, as rightsholders are clearly concerned that the section 97A process remains totally rigorous and is not discredited in the manner in which, for example, the Norwich Pharmacal process against file sharers was discredited by ACS and others.

No doubt we will shortly hear that proceedings have actually been filed against at least some of the names on the list.

In the meantime, are the rightsholders concerned that their activities have been leaked? This blogger thinks that is unlikely - most of the sites concerned are unlikely to change their spots ahead of any possible court action and it seems implausible that they did not know that they were unpopular among rightsholders - after all, according to TorrentFreak, some of the sites had been the subject of hundreds of thousands of take-down requests aimed at google and requiring google to remove specific links, while others operate their own DMCA take-down protocols and have received similarly large numbers of requests.

A plague of trolls?

2013-05-17T07:41:00.002+01:00

Can I trade in the club?
I use embarrassing letters now

My oh my, trolls are in the news! I can hardly fight through the blizzard of furious outpourings of bloggers and webactivists rallying against the threat of copyright trolls, whose evil appears to be on a par with some of the worst crimes ever committed in human history and whose menace far surpasses the treats of nuclear war, plague, starvation, global warming and fur balls. Still, it IS an interesting topic. Well, to me it is.

In a blog titled “Welcome no more in U.S. courts, copyright trolls look to Canada” MacLeans.ca looks at the world of Canipre, a Canadian company that seemingly offers to track down people who are illegally downloading copyrighted material on behalf of record companies and film studios, and whose own website says they have issued more than 3,500,000 takedown notices: Jesse Brown's blog says this: “Here’s how it works: you get a threatening letter in the mail from a law firm representing a film production company. It says you illegally downloaded Paparazzi Princess: The Paris Hilton Story. It demands you fork over $2,000, or else be hauled in to court where evidence of your guilt will be presented. You don’t remember downloading Paparazzi Princess: The Paris Hilton Story, but maybe your wife did? Or perhaps your niece … or that houseguest last summer? What about your neighbours: you did give them your WiFi password that one time — You think about hiring a lawyer, but realize legal fees alone will likely top two grand. Instead you visit the website mentioned in the letter, enter your credit card number and pay some stranger a good deal of money to leave you alone.” More at MacLeans here http://www2.macleans.ca/2013/05/13/welcome-no-more-in-u-s-courts-copyright-trolls-look-to-canada/

However it seems Canipre have been caught using third party photographs without permission on their own website – in particular a self-portrait by photographer Steve Houk who is less than amused by the alleged infringement – and the lack of meaningful response from Canipre, who are seemingly blaming a third party web designer. http://www.techdirt.com/articles/20130514/20283923089/canadian-anti-infringement-enforcement-company-caught-using-infringing-photos-its-website.shtml

Trolling tonight?

Arts Technica have published an update on one of the early 'trolls', Righthaven, who they say tried to turn newspaper article copyright claims into a business model: We first wrote about Righthaven on the 1709 Blog in November 2011 (see here) and now the US Court of Appeals for the Ninth Circuit has now ruled on the two Righthaven appeals in what appears to be a terminal judgment saying (amongst other things!) which begins with this:

"Abraham Lincoln told a story about a lawyer who tried to establish that a calf had five legs by calling its tail a leg. But the calf had only four legs, Lincoln observed, because calling a tail a leg does not make it so"

http://arstechnica.com/tech-policy/2013/05/copyright-troll-righthaven-finally-completely-dead/

The Electronic Frontier Foundation have filed a brief urging the U.S. District Court of Appeals for the District of Columbia Circuit "to stop a copyright troll's shakedown scheme in a case linked to the notorious Prenda Law firm”. More at http://www.networkworld.com/community/node/83049 and see our previous blogs on Prenda here and here.

And more opinions on Prenda and the business of trolls on Boing Boing here

http://boingboing.net/2013/05/08/welcome-to-the-century-of-the.html

And number of US internet service providers including AT&T, Cox, Bright House and Verizon have filed an appeal in their ongoing battle against "porn copyright troll" AF Holdings whose name first surfaced in the 'Prenda' reports . AF Holdings has accused 1,058 broadband users of illegally sharing adult movies on BitTorrent, and last year won their initial legal attempt to force the ISPs to hand over the identities behind those IP addresses. http://www.dslreports.com/shownews/Cox-ATT-Verizon-Battle-Porn-Copyright-Troll-124231?nocomment=1

Finally on trolls, TorrentFreak says that it has uncovered a new tactic in the supposed war against piracy in the US: the threat of exposure. I am not sure it’s that new, but anyway, they say that a legal entity calling itself the Anti-Piracy Law Group (descried elsewhere as "the latest Prenda reincarnation" ) has sent letters to people suspected of pirating pornographic material that insinuates the group will be interviewing family and neighbours about the downloads saying “ The purpose of this step is to gather evidence about who used your internet account to steal from our client. The list of possible suspects includes you, members of your household, your neighbours (if you maintain an open Wi-Fi connection) and anyone who might have visited your house. In the coming days, we will contact these individuals to investigate whether they have any knowledge of the acts described in my client's prior letter.” The ‘extensive letter’ goes on to detail examples of people who have been fined large amounts for copyright infringement before offering this gently worded (but undeniably intimidating) suggestion that the accused make an out-of-court cash settlement. More on this one here http://www.cnet.com.au/copyright-lawyers-threaten-porn-pirates-with-exposure-339344265.htm and

In related news, Gizmodo are (re)alerting the world to the TPP – the Trans Pacific Agreement – “the biggest global threat to the Internet since ACTA” saying “The United States and ten governments from around the Pacific are meeting yet again to hash out the secret Trans-Pacific Partnership agreement (TPP) on May 15-24 in Lima, Peru. The TPP is one of the worst global threats to the Internet since ACTA. Since the negotiations have been secretive from the beginning, we mainly know what's in the current version of this trade agreement because of a leaked draft from February 2011. Based upon that text, some other leaked notes, and the undemocratic nature of the entire process, we have every reason to be alarmed about the copyright enforcement provisions contained in this multinational trade deal.” Countries involved are the USA, Peru, Chile, Malaysia, Singapore, Vietnam, Brunei, Australian and New Zealand - with Mexico, Japan and Canada in the process of joining the ring of copyright fire.

http://gizmodo.com/what-is-tpp-the-biggest-global-threat-to-the-internet-505873598 and see http://the1709blog.blogspot.co.uk/2012/05/more-on-dajaz1com-and-is-tppa-next-acta.html

You can see a LOT more about copyright trolls at http://fightcopyrighttrolls.com/tag/anti-piracy-law-group/

And in the Autumn of 2013 we can look forward to an article by Brad Greenberg for the University of Colorado Law Review: This article discusses the threat copyright trolls present to speech and innovation, and building on the historical evolution of the Fair Use Doctrine, it argues that a fair use presumption is warranted because: (1) There is no market harm because the troll has no market other than litigation; (2) the secondary use is for a different purpose and thus transformative; and (3) courts may excuse infringements because enforcement would not support the objectives of copyright law. Brad has kindly let the 1709 Blog know that an early draft of the entire article is downloadable (free) at this address: http://ssrn.com/abstract=2229931

Class action against YouTube fails

2013-05-17T07:39:00.002+01:00

A U.S. federal court has denied class-action status to copyright owners suing Google Inc. over the usage of material posted on YouTube. U.S. District Judge Louis Stanton, in the District Court for the Southern District of New York, rejected a motion to approve a worldwide class of copyright owners in a long-running lawsuit over videos and music uploaded on the popular website. In denying class certification Judge Stanton said that that copyright claims have only superficial similarities ruling

Can we all join in? Errrrrr NO!

"The suggestion that a class action of these dimensions can be managed with judicial resourcefulness is flattering, but unrealistic"

The proposed class action lawsuit was filed in 2007 and included as named plaintiffs the English Premier League, the French Tennis Federation, the National Music Publishers' Association (NMPA) and individual music publishers. The NMPA settled with Google in 2011.

In April this year Judge Stanton had dismissed the 2007 copyright infringement complaint by Viacom International and others against YouTube over the Google company's alleged unauthorized hosting on YouTube of clips uploaded by users from "The Daily Show with Jon Stewart", "SpongeBob SquarePants" and ""South Park" stating that YouTube was protected under the safe harbor provisions of the Digital Millennium Copyright Act. Judge Stanton threw Viacom's case out on April 18th, a year after the 2nd U.S. Circuit Court of Appeals reinstated the copyright infringement case. after his initial ruling in favour of YouTube. Viacom has filed a notice of appeal from Stanton's new ruling.

The current case would have allowed a proposed class which could have included any copyright owner whose allegedly infringed videos were on the popular web service, and music publishers whose compositions were allowed to be used on YouTube without proper permission. Judge Stanton said that while the legal analyses he would have had to apply in the case would have been similar for the various plaintiffs, each copyright owner's case would need to be decided based on facts particular to their individual claims commenting

"Generally speaking, copyright claims are poor candidates for class-action treatment" and the case would turn into a "mammoth proceeding", with potentially thousands of plaintiffs worldwide, and that

"Each claim presents particular factual issues of copyright ownership, infringement, fair use, and damages, among others” and

"Plaintiffs offer no explanation of how the worldwide members of this proposed class are to be identified, how they are to prove copyright ownership by themselves or by their authorized agent, or how they will establish that defendants became aware of the specific video clips which allegedly infringed each of the potentially tens of thousands of musical compositions incorporated into specific videos”

Citing the Viacom case, the Judge said that YouTube does not generate infringing material, had a take down system and unless an exception applies, the DMCA requires that YouTube have legal knowledge or awareness of the specific infringement to be liable for it.

Football Association Premier League Ltd et al v. YouTube Inc et al, U.S. District Court, Southern District of New York, No. 07-03582.

http://www.computerworld.com/s/article/9239276/Copyright_owners_denied_class_status_in_YouTube_suit?taxonomyId=18

Intangibles and exhaustion: ReDigi and UsedSoft revisited

2013-05-14T09:00:00.000+01:00

Last November, New Zealand intellectual property enthusiast and legal consultant Ken Moon (AJ Park Law) wrote a controversial little piece which this blog hosted on Case 128/11 Oracle v UsedSoft. Today the 1709 Blog is pleased to welcome him back. The following piece, which is well described by its title, contrasts critically the legal substance and practical consequences of the rulings in ReDigi in the United States and UsedSoft in Europe. Writes Ken:

Excepting Intangibles from Exhaustion of Distribution Right on First Sale: ReDigi versus UsedSoft

As noted by Ben Challis in the 1709 Blog and by Eleonora Rosati on the IPKat, many commentators believe it wrong that a court could decide that first sale exhaustion of the distribution right only applies to copyright works embodied in physical media. Thus they disagree with the March decision of the US District Court in Capitol Records v ReDigi where online sales of iTunes files were found not to trigger the first sale doctrine and that subsequent resales were infringements of Capitol’s copyright. They unfavourably contrast that outcome with that in Kirtsaeng v John Wiley & Sons where the Supreme Court held the first sale doctrine did apply to copies of textbooks (paper) even when they had been made (lawfully) abroad and suggest this is evidence of copyright law not keeping up with technology. In addition, at least from some European commentators holding this view, there is support for the decision of the CJEU in UsedSoft v Oracle which held that multi-seat enterprise software acquired under licence and delivered by download constituted a sale and fell within the scope of the provision for exhaustion of the distribution right in the EU Software Directive 2009.

In contrast, the present commentator says the analysis of the facts and law by Judge Sullivan in ReDigi was perfectly correct and that the analysis of the facts and law by the CJEU in UsedSoft was totally wrong. In ReDigi the judge was doing what courts should do and that is apply the law as drafted, which he held to be unambiguous. If people consider the result to be wrong on policy or any other grounds then the answer is to persuade the lawmakers to change the law.

On the other hand the CJEU was doing what courts should not do – rewriting the law to align it with what they believed to be EU policy. They did so even in the face of contrary submissions made by the European Commission, the body responsible for drafting the Directives which were considered by the Court. Again, if the result that would have been produced on a more literal interpretation of the law was considered contrary to policy then it is for the lawmakers to change the law, not the Court. Of course, Jeremy has already commented on the IPKat, in his Sandie Shaw post, on the “apparently irreversible shift of legislative power away from the European Council, Commission and Parliament and towards the Court of justice of the European Union”.

The question nobody seems to be asking is whether it is indisputably correct to assert that exhaustion of the distribution right should apply irrespective of whether works are delivered online or on physical media? The CJEU took this as a given and did not cite economic analyses, but as mentioned obiter by Judge Sullivan in ReDigi it may not be so clear cut and there are policy arguments that may justify a distinction between tangible and intangible distribution. He referred to the US Copyright Office’s 2001 report on the Digital Millennium Copyright Act, which said the impact of the first sale doctrine to copyright owners distributing works in physical form was limited, but applying the doctrine to online distribution would have a bigger and unequal impact. It was noted that physical copies degrade and are less desirable than new ones, unlike “used” copies of digital works which suffer no degradation. The need to transport physical copies acted as a natural brake which did not exist in the online world where geography was irrelevant.

Whatever the outcome of such policy arguments may in due course be, legal issues remain to be considered which go to the core of doctrines of exhaustion by first sale.

The first is the nature of the contract between the copyright owner and the first user of a copy of the copyright work in digital form. Is it in fact a sale? In UsedSoft the Oracle contract was drafted as a licence and for the CJEU to find it to be a sale by considering only one term of the contract – the licence was for an unlimited period – is rather unimpressive legal logic, especially as the software was not mass produced for consumer use. In the well-known 2010 US case Vernor v Autodesk, which involved computer software, the Court of Appeals for the 9^th Circuit applied a three limb test to find a licence was not a sale. The reasoning was that the contract (i) expressly granted the user a licence, (ii) it restricted the user’s right to transfer the software and (iii) imposed notable use restrictions . Back in Europe the High Court for England and Wales in London Borough of Southwark v IBM UK Ltd (2011), only one year before UsedSoft, arguably went further than Vernor and quite logically took into account all relevant provisions in the licence before deciding there was no sale.

Surprisingly this licence-versus-sale issue was not considered in ReDigi, where the case was run on the basis that the iTunes transaction between Apple and the downloader was a sale even though Apple’s agreement doesn’t read like a normal sale contract and that Capitol’s own agreement with Apple was a licence.

Whatever the legal situation may be for “content” (such as eBooks, sound recordings and films) why should computer software be treated in the same way? On 2 May the IPKat reported the German Regional Court in Berlin had held that UsedSoft reasoning does not apply to content such as eBooks and audiobooks because the CJEU had anchored their decision on the Software Directive 2009 invoking lex specialis to ignore the InfoSoc Directive 2001 (and the WCT 1996) which clearly was the applicable law for copyright content and does not allow the resale of intangibles .

But there is more to this issue than the CJEU being hoisted by its own petard. It has long ago been argued that software is different from literary, artistic and musical works. It is not for the entertainment or education of humans. It has a silicon readership rather than a human one. Software is not just information, not just functional instructions, but instructions for machines and not humans.

Computer software, unlike content, is digital from creation and is not something analogue in nature which might subsequently be digitised for transport. Further, it is “read” (by computer hardware) in the same digital form without the need for conversion from digital to analogue format for watching, listening or viewing (by humans). The software itself is just as intangible when delivered on a physical medium. The media is not the message. Further, software has always been distributed under a licence contract, unlike content, which always involved a sale until modes of digital distribution were evolved.

Should computer software therefore, whether distributed online or on physical media (it always has digital format), ever be subject to first sale exhaustion doctrines? There seems to be more logic in removing exhaustion of the distribution right for software while retaining it for content than the somewhat bizarre reverse of this which now exists in Germany as a combined result of the CJEU’s decision and the Regional Court’s decision – exhaustion for licence of software; no exhaustion for licence of content.

Maybe those people who in the 1970s opposed copyright protection for software and favoured sui generis protection such as that proposed in the 1978 WIPO model law (and more recently the 1709 Blog: see Iona Harding's post of 18 March) had a valid point after all.

Berlin and London will be home to the Global Repertoire Database

2013-05-13T18:45:00.000+01:00

The Global Repertoire Database (GRD) – the project that aims to catalogue the world’s music – has announced that it will set up its global headquarters in London and will base its operations centre in Berlin.

The London office, housing corporate functions and business development capabilities is scheduled to open later in 2013, and will work alongside the current London-based project team in the first instance. The Berlin operations centre will provide registrations and data processing facilities, and may provide a template for further operations centres to support the global operation as it grows.

When completed, the main aim will be to create a new and more effective global infrastructure for music rights management, leading to an improved path to music licensing for digital and other music services, and to efficiency benefits for the whole music ecosystem saving extensive costs currently lost to duplication in data processing.

Alfons Karabuda, President of ECSA, the European Composer & Songwriter Alliance, said, ‘We are happy to have a home for the Global Repertoire Database. These two great cities of Berlin and London with their proud heritage and strong support for authors’ rights and for copyright will serve our needs very well. We can now turn our attention to building the world’s first authoritative database of musical works and to creating a completely new system of rights management that will benefit creators globally.’

Kenth Muldin, Chair of CISAC, the organisation representing the world’s copyright management societies, said, ‘The Global Repertoire Database is necessary for the effective functioning of the rights licensing, management and royalty payment systems of musical works in the 21st century. A single, authoritative global view of music ownership in real time will mean that anyone wanting to set up a music service can do so more quickly – and that means more legal choice for music fans and consumers, and a more efficient way of identifying who should be paid royalties for the use of their music.’

The next stage of development in the GRD project is the technical build, during which the systems and processes required for the new database to interact with existing licensing and payment systems will be structured. GRD systems will be fully compliant with existing rights management solutions FastTrack and ICE, who are technology partners in the project.

www.globalrepertoiredatabase.com

The Theft of Creative Content: Copyright in Crisis

2013-05-11T11:26:00.000+01:00

We highlighted last Thursday night's debate at the LSE in our 'Forthcoming Events' column, but in the end and despite a very kind invitation, this CopyKat was unable to attend what looked like a lively night hosted, by PRS for Music under the strapline 'The Theft of Creative Content: Copyright in Crisis'.

Despite a cancellation from headliner Gary Kemp, musician, actor, author and songwriter for Spandau Ballet, the panel remained impressive, featuring Robert Ashcroft, Chief Executive, PRS for Music; Amelia Andersdotter, member of the Pirate Party in the European Parliament and Dr Luke McDonagh, fellow in the Department of Law at LSE along with songwriter Eg White (his smash hot songs include Leave Right Now and Chasing Pavements) in conversation with Ludovic Hunter-Tilney, music critic at the Financial Times, all chaired by the LSE's Professor Andrew Murray.

So whilst this blogger didn't make it - I am glad to say MusicAlly did and they have posted up a fairly detailed and well informed report on their website - so if you want to know what was said ...... here is the link
http://musically.com/2013/05/10/event-report-copyright-in-crisis-ft-prs-for-music-and-pirate-party/

AND you can listen to the podcast here on the LSE's website http://www2.lse.ac.uk/newsAndMedia/videoAndAudio/channels/publicLecturesAndEvents/player.aspx?id=1899

Prenda: copyright trolls and Star Trek references

2013-05-08T19:53:00.002+01:00

US District Judge, Otis D Right II, has handed down his decision in the Prenda copyright troll case, saying that Prenda (a firm that claimed to fight copyright piracy) ran a fraudulent scheme to extort millions of dollars from people who shared pornographic videos online.

As Ben has reported before (here and here) Prenda came to prominence as a "porn troll", filing lawsuits against internet subscribers whom it alleged had downloaded copyright protected X-rated films and then demanding a sum of money to settle the matter.

This blogger is not particularly knowledgeable when it comes to Star Trek, however it is hard to ignore the plethora of references in this decision which opens with a quote:

“The needs of the many outweigh the needs of the few.”

—Spock, Star Trek II: The Wrath of Khan (1982).

Aside from providing an entertaining read (it's not often that judgments are so blatantly and inexplicably littered with Star Trek references) this decision is a salient reminder that the aim of copyright should not be forgotten. As the judge said, "copyright laws originally designed to compensate starving artists allow, starving attorneys in this electronic-media era to plunder the citizenry."

In his decision, the judge condemned Prenda for its "brazen misconduct and relentless fraud," which justified his order for damages of $81,319.72.5. Further he said that some of Prenda's controlling parties (Steele, Hansmeier, Duffy and Gibbs) suffered from "a form of moral turpitude unbecoming of an officer of the court" and that he would therefore refer them to their respective state and federal bars.

Finally, though the claimants "boldly probe the outskirts of law" he said that "the only enterprise they resemble is RICO. The federal agency eleven decks up is familiar with their prime directive and will gladly refit them for their next voyage. The Court will refer this matter to the United States Attorney for the Central District of California. The [he?] will also refer this matter to the Criminal Investigation Division of the Internal Revenue Service and will notify all judges before whom these attorneys have pending cases."
So although the damages awarded were comparatively low, the real damage is to the reputation of Prenda and its associates.

Orphans: Much ado about … what?

2013-05-07T09:02:00.001+01:00

Many of you will know Martin Kretschmer, Director of CREATe and Professor of Intellectual Property Law at the University of Glasgow, and Martin has just published this post on the CREATe blog and I am delighted to say has agreed that we can re-blog his thoughts:

Much ado, even an air of conspiracy, surrounds the passing of the Enterprise and Regulatory Reform Act (EERA) on 25 April. The main focus has been on the Copyright Provisions in Part VI (“Miscellaneous and general“) that will insert a new section 116A into the Copyright, Design and Patent Act 1988, entitled “Orphan works licensing and extended collective licensing”.

The section will enable the government to set up (through the statutory instrument of regulations) a body with the authority to license so-called Orphan works, i.e. those works whose owner of copyright “has not been found after a diligent search made in accordance with the regulations” (s. 116A(3)).

Campaigning photographers (http://www.stop43.org.uk/) have argued that identifying metadata are routinely removed before images are published online, and a misinformed section of the blogsphere has trumpeted a message of expropriation. Eleonora Rosati of the IP Kat and Ben Challis of the 1709 Blog [see our previous post here] offer a nice range of quotes, including Dominic Young’s assertion that the UK had “abolished copyright”, and the Telegraph’s Instagram Act headline: “social media users lose ownership of their own photos”.

Paul Briden’s KnowYourMobile blog is another typical example:

“Within the new legislation is a change to UK copyright law which will effectively allow companies to use images which don’t include information identifying the owner for commercial gain. In other words, your holiday snap taken on your iPhone which you shared to your public-facing Facebook page, could end up in someone’s glossy brochure and you wouldn’t even get a penny, let alone a note asking if it’s ok.

There’s also no section of the new Act which forbids sub-licensing practices, ie: someone can get your photo and sell it to someone else with little risk of repercussions. This is a very serious problem and I can see it only getting worse.

Interestingly, Instagram tried to enact this kind of commercial sharing approach to users’ content fairly recently but was (quite rightly) shouted down by angry consumers – and yet here it’s happening on a broader scale, by a national government and quietly through the back door.”

There are many misunderstandings in these short paragraphs. Here are three reasons why social media services will not attempt to rely on the Orphans provisions of the ERR Act for the use of digital images.

First, users would have to evidence diligent search (which photographers can pre-empt by registering their images on any public database).

Secondly, users will have to obtain a formal licence from a public body.

Thirdly, user will have to pay a market price for commercial use (and deposit that fee so that it could be claimed by a reappearing author).

Why would a social media service want to jump through these hoops?

Prior to the ERR Act, none of these processes were formalised. The current media practice to strip images of meta data, and even use such images in prominent positions (e.g. on newspaper covers, as is common with Twitter photographs after accidents and atrocities) will now attract greater scrutiny. While these practices may be undesirable (and indeed constitute an infringement under copyright law, both before and after the ERR Act), this a matter for legal remedies (such as the damages available for stripping metadata and indeed for unlawful use). This is where the photographers’ scrutiny should be.

It is misleading to claim that the ERR Act would permit digital images to be used without permission and compensation for the rights holder, and it is surprising that the claim has gained such currency.

The Orphan works provisions of the ERR Act are really designed for the large body of copyright works that lie barren because of the long copyright term. For example, Mulligan and Schultz found that only 2.3% of in-copyright books and 6.8% of in-copyright films released pre-1946 remained commercially available in 2002: Mulligan, D.K. & Schultz, J.M., ‘Neglecting the National Memory: How Copyright Term Extensions Compromise the Development of Digital Archives’, 4(2) Journal of Appellate Practice & Process 451 (2002).

Archives currently run considerable risks making their collections available online. While the intentions of the ERR Act are thus well meaning, and entirely consistent with the overall purpose of copyright law (to release creativity), the details of implementation will matter greatly. I have to declare an interest here, as I am co-author of a study commissioned by the UK IPO which aims to offer a clearer understanding of how Orphan works are regulated and priced in other jurisdictions, and how a pricing system could be structured to ensure that “parents” are fairly remunerated if they re-appear, and users are incentivised to access and exploit registered orphan works.

Our study (with colleagues Favale, Homberg, Mendis and Secchi) simulated the clearance of Orphan works in several jurisdictions which have an operational system for licensing Orphan works (including Canada, Denmark, Hungary, Japan and India). Another example of the bizarre reception of the ERR Act is the Register’s claim that “[f]or the first time anywhere in the world, the Act will permit the widespread commercial exploitation of unidentified work“.

Simply not true. Our study found that in most of these systems in particular non-profit, non-commercial uses do not happen in the way anticipated, i.e. Orphan works are not released, or reunited with their parents, as the legislators claim. (I’ll write another blog once we can reveal the data with the publication of the full study.)

Lastly, I also should put on record that I consider the legislative process of the ERR Act to be problematic (http://www.create.ac.uk/blog/2013/03/17/copyright-in-artistic-designs/). The first version of the ERR Bill (as introduced in May 2012) did not contain any Orphan works provisions at all, and I still do not think the appropriate scope of copyright exceptions should be a matter for secondary legislation.

Martin's original blog can be found here http://www.create.ac.uk/blog/2013/05/06/orphans-much-ado-about-what/

Image: publicity shot for Orphan, the 2009 American psychological horror film directed by Jaume Collet-Serra. (from http://en.wikipedia.org/wiki/Orphan_(film) ).

Harper Lee files action to reclaim To Kill A Mockingbird copyright

2013-05-05T08:32:00.001+01:00

To Kill a Mockingbird is the Pulitzer prize winning book written by Harper Lee. The quasi autobiographical novel is based around the trial on a innocent black American, Tom Robinson, wrongfully accused and then convicted of raping a white woman. Set over three years of the Great Depression in the fictional "tired old town" of Maycomb, Alabama, the novel focuses on six-year-old Scout Finch, who lives with her older brother Jem and their widowed father Atticus, a middle-aged lawyer who defends Tom Robinson. It was made into a motion picture, starring Gregory Peck as Atticus, which won three Academy Awards, quickly grossing more than $20 million from a $2 million budget. Published in 1960, the book is hugely popular and a set text in many US schools, and has been through numerous subsequent printings and became widely available through it's inclusion in the Book of the Month Club and editions released by Reader's Digest Condensed Books. In the years since publication, it has sold over 30 million copies and been translated into over 40 languages.

However, it has now been made clear that Harper Lee, now aged 87, does not own the copyright to her book. That is owned by Samuel Pinkus, the son-in-law of Lee's former literary agent, and a company he allegedly created. The author has now filed a lawsuit in federal court in Manhattan, to re-secure the copyright and claiming unspecified damages: the lawsuit alleges that when her long-time literary agent, Eugene Winick, became ill in 2002, his son-in-law, Pinkus, switched several of Mr Winick's clients, who were with Winick's firm McIntosh and Otis, to his own company. Those authors included Lee.

Pappa's gonna buy you a mockingbird

The 87-year-old author alleges that in 2007, in a "scheme to dupe”, Pinkus took advantage of her declining hearing and eyesight to get her to assign the book's copyright to him and a company he controlled. Mr Pinkus is alleged to have transferred the rights to secure himself "irrevocable" interest in the income derived from Lee's book. The lawsuit also says that Pinkus sought to avoid paying legal obligations he owed to his father-in-law's company for royalties. Lee also alleges that Pinkus failed to properly protect the copyright of the book and failed to respond to offers on e-book rights and a request for assistance related to the book's 50th anniversary. The lawsuit bids the court to assign any rights in the book owned by Mr Pinkus to Lee and asks that she be returned any commission he took from 2007 onwards saying

"The transfer of ownership of an author's copyright to her agent is incompatible with her agent's duty of loyalty; it is a gross example of self-dealing".

http://online.wsj.com/ and

http://www.guardian.co.uk/books/2013/may/04/harper-lee-kill-mockingbird-copyright

Craigslist's claim for copyright in user listings fails

2013-05-03T09:53:00.001+01:00

Craigslist is the global classified advertisements website with sections devoted to jobs, housing, personals, for sale, items wanted, services, community, gigs, résumés, and discussion forums which began in the USA in 1995 when Craig Newmark started an email distribution list of friends, featuring local events in the San Francisco Bay Area, before becoming a web-based service in 1996 and expanding into other classified categories. It started expanding to other U.S. cities in 2000, and currently covers 50 countries with a search engine, discussion forums, flagging system, self-posting process, homepage design, personals categories and 'best-of-Craigslist' feature. Over 100 million classified ads run on its site each month. Now let’s be clear – postings are usually user generated and the only moderated content was for the now defunct US ‘adult’ section.

So what’s the fuss? Well, back in 2012 mashup sites such as padmapper.com and housingmaps.com began overlaying Craigslist data with additional data such as Google Maps, and adding their own search filters to improve usability. PadMapper took real estate listings and added ‘value’ to them, taking a series of data points such as the cost of apartment, location, size and then allowed the customer to search on that basis. And when the customer found what they wanted, they would then be directed back to Craigslist to read the full posting and complete the transaction .

Despite what might be considered a ‘win win’ situation, Craigslist were not best pleased, and In June 2012, Craigslist changed its terms of service to disallow the practice. In July 2012, Craigslist filed a lawsuit against padmapper.com along and 3taps, who ‘scraped’ the data from Craigslist, and a third defendant, Lovely. The claim was twofold: A copyright claim and then claims relating to the violation of the Craigslist terms of service (ToS) and further claims under the Computer Fraud & Abuse Act (CFAA): Craigslist’s ToS do allow for websites like Google and Bing to “scrape” and index their website, but do not allow for other non-general indexing websites to do so. Some of these latter claims continue – somewhat controversially.

The copyright claim was based on Craigslist argument that (1) Craigslist retained copyright to postings made by its customers and (2) taking these data points of cost and location constituted infringement. US District Judge Charles Breyer has now said that the copyright claim must fail as Craigslist never owned the copyright material, save the Judge allowed the copyright claims to proceed for user-created posts submitted between July 16, 2012 and August 8, 2012 because Craigslist required that users provide the site with “exclusive” rights to their submissions during those weeks. That language was dropped from it's submission form after widespread criticism. Judge Breyer said that although Craigslist posts were “original” enough to warrant copyright protection, save for that short period, the ToS didn’t give Craigslist exclusive rights to the users’ posts.

As an aside, the CFAA claim continues - but to widespread criticism:

“It’s curious that a company that prominently displays opposition to the CFAA and encourages customers to get involved to fix the CFAA, is at the same time suing start-ups for violating the CFAA for precisely the problems for which tech activists have ridiculed the CFAA”.

It’s worth noting In 2005, San Francisco Craigslist's ‘men seeking men’ section was attributed to facilitating sexual encounters and was the second most common correlation to syphilis infections and the company was facing pressure from the San Francisco Department of Public Health, which prompted CEO to say that the site has a very small staff and that the public must "police themselves". However advertisements for "adult" (previously "erotic") services were initially given special treatment, then closed entirely on September 4, 2010. At the time Matt Zimmerman, senior staff attorney for the Electronic Frontier Foundation, said, "Craigslist isn't legally culpable for these posts, but the public pressure has increased and Craigslist is a small company" whilst Brian Carver, attorney and assistant professor at UC Berkeley, said that legal threats could have a chilling effect on online expression. "If you impose liability on Craigslist, YouTube and Facebook for anything their users do, then they're not going to take chances. It would likely result in the takedown of what might otherwise be perfectly legitimate free expression."

So once the darling of the tech world, it's now in the doghouse, accused of bullying and trying to stifle innovation - and competitors - with one commentator saying

“A lawsuit of this nature is much more suited to an old legacy gatekeeper, rather than a company that is supposedly of the internet generation. To say it's disappointing that Craigslist would engage in these kinds of tactics is an understatement”

http://gigaom.com/2013/04/30/court-says-craigslists-hacking-copyright-claims-against-padmapper-and-rivals-hold-up-for-now/

http://www.forbes.com/sites/derekkhanna/2013/04/30/craigslists-allegations-of-copyright-violations-thrown-out/

http://en.wikipedia.org/wiki/Craigslist

SABAM launch pre-emptive strike against ISPs

2013-05-03T09:49:00.000+01:00

SABAM, the Belgian collection society for authors, composers and music publishers, has launched a legal action against the country’s three biggest ISPs, arguing that they should be paying copyright levies for offering access to their members' copyrights. No stranger to the courts, SABAM wants the court to rule that Internet access providers Belgacom, Telenet and Voo should pay 3.4 percent of their turnover in copyright fees for the use of music, because they make substantial profits from offering high speed Internet connections that give users easy access to copyright protected materials – legally and illegally – whilst hiding behind their status as intermediary “without taking responsibility for the information transmitted over their networks”

In a press release, SABAM noted that since 2000, revenues generated from music featured in the physical media (primarily CD sales) have declined by 54 percent, adding that this “huge loss” has not been compensated by collections from online services like iTunes, YouTube and Spotify.

SABAM have been asking for voluntary levies from ISPs since November 2011 and have now launched their claim in the Brussels Court of First Instance.

http://www.pcworld.com/article/2036961/belgian-isps-sued-for-providing-internet-access-without-paying-copyright-levies.html

The Copyright Pentalogy

2013-05-02T15:23:00.002+01:00

The lovely city of Ottawa

A little Canadian news before this blogger heads back to the UK: this week the University of Ottawa Press has published The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law, a book which collates the work of a number of Canada's leading copyright scholars to attempt to examine the implication s of the five copyright decisions handed down by the Supreme Court of Canada last summer (see here and here). The five decisions all touched on different aspects of copyright law and different industries, so this book should provide a pretty comprehensive analysis of the state of copyright law in Canada at the moment.

The book is for sale, but the great (and unusual, for an academic work) news, is that it is also available as a free download under a Creative Commons licence. The book can be downloaded in its entirety or each of the 14 chapters can be downloaded individually. This is the first of a new collection from the UOP on law, technology and society, of which Michael Geist is the editor, that will be part of the UOP's open access collection.

In analysing the five decisions, this book covers fair dealing, technological neutrality, the scope of copyright law (in particular the establishment of a new "right" associated with user generated content) and the implications of the decisions for copyright collective management.

For those looking for more detail, editor Michael Geist will be writing more about the individual contributions on his blog in the days ahead and will provide more information on the plans for a conference on the copyright pentalogy being planned for autumn.

The Content Map: can you spread the word?

2013-05-01T22:27:00.000+01:00

From our friend Désirée Fields (Associate, McDermott Will & Emery UK LLP) comes news of a project that ran out of funds just at the wrong time:

"The MarkMonitor Spring Symposium, which took place on 23 April 2013 at BAFTA, was an enlightening day with presentations about developments in the area of online brand protection.

Richard Mollet of the Publishers Association spoke about digital publishing and infringements and various initiatives to combat the illegal downloading of digital content. One of the key developments that Mr Mollet was keen to highlight was “The Content Map”.

The Content Map was developed by members of the Alliance for Intellectual Property and is funded by the BPI (The Recorded Music Industry), Industry Trust for IP Awareness, Premier League, Publishers Association and UK Interactive Entertainment. The website – www.thecontentmap.com – went live in November 2012.

According to its website,

“The Content Map is a site designed to showcase the wealth of legal services available to consumers, across films and tv, ebooks, music, games and sports sectors.”

In essence, it is a tool which allows consumers to find out where they can legally acquire digital content and to help consumers weed out the illegal sites from those which are legal. In addition, the site contains a useful section in which FAQs are answered as well as a section explaining the jargon around online downloading and copyright. Helpfully, The Content Map also explains to consumers that just because a website charges for accessing digital content does not necessarily mean that it is legal.

The Content Map does not contain every website which offers legal content from these various industries. However, it is intended to be updated on a regular basis by representatives from each of the various sectors.

So you never heard of The Content Map? According to Mr Mollet, this is due to the fact that the entire budget which was allocated to the project was consumed in the creation of the actual website so that there were no longer any funds available to promote and raise consumer awareness of The Content Map. This is rather unfortunate given the brilliant concept behind the project. Luckily, in the days of social media and blogging, there are certainly other avenues to spread the word"

Photographs in focus as smudgers vent their fury at ERR

2013-05-01T10:34:00.000+01:00

Beyonce by Denis O'Regan (c) Glastonbury Festivals Ltd 2011

Photographs are in the news in the UK as the snapper community in the UK digests the ramifications of the Enterprise and Regulatory Reform Bill which received Royal Assent last week. The Telegraph leads with the headline that the 'Instagram Act' could see 'social media users lose ownership of their own photos' comparing the provisions of the Act that relate to orphan works with Instagram's hastily withdrawn privacy policy that caused such a stir back in December last. As many images available online have been stripped of all data, photographers fear that their images, however commercially valuable, will simply be deemed as orphan works when a 'diligent search' is made relating to the image by the new user uncovers no metadata. Dominic Young wrote that the UK had 'abolished copyright' saying that UK copyright owners no longer control the right to copy their work

Eleonora has just posted up a blog on the IPKat on the ramifications of the Act under the headline 'The end of copyright as we know it?' and it's well worth a read.

In other snapper news, and with a very dfferent approach to controlling images, Beyonce has reportedly banned professional photographers from her entire 'Mrs Carter Show' world tour, which began in Serbia earlier in April. Purportingto be taken from information for media outlets wishing to cover the shows, Facebook page Music Photographers has posted a paragraph of text saying: "There are no photo credentials for this show. Local news outlets, including print and online, will be given a link to download photos from every show. They will need to register to access the photos" for media use. Those official photos are apparently all taken by one photographer, Frank Micelotta for Associated Press. The move seemingly stems from the incident this year in which Buzzfeed posted, and then refused to take down, photographs from Beyonce's Super Bowl performance, which Beyonce’s PR team deemed to be "unflattering". The star has asked fans for no flash photography and not to post photos online either. The Huffington Post says that 'B' has failed here, with fans posting thousands of images on Instagram, Facebook and Twitter - and with fan shots possibly replacing snaps by professionals in the media - which may not quite be what was intended by Mrs Carter's minders ........

http://ipkitten.blogspot.co.uk/2013/04/the-end-of-copyright-as-we-know-it.html

No Performers in Reality-TV Show

2013-04-29T14:55:00.001+01:00

In the midst of a public relations debacle in connection with "Koh-Lanta" (the French version of "Survivors") relating to the untimely death of a participant and subsequent suicide of the show's MD, French broadcaster TF1 received a little bit of good news in its long-running legal battle against participants in another reality-TV program called "L'île de la tentation" ("Temptation Island").

Over a series of decisions working their way up to the Supreme Court (and then back to appellate courts after remand), participants in this adventure have successfully challenged the legal characterization of their contract with the production company (a subsidiary of TF1). While ostensibly labelled a "rulebook for participants", the courts have agreed with the participants that their proper legal characterization is as employment contracts. This was once again re-affirmed by the Supreme Court in its recent April 24, 2013 ruling.

The piece of good news for TF1 lay in the Court's refusal to go along with participants' other argument to the effect that they were also performers within the meaning of intellectual property law. The Court held:

"...the court of appeal did not contradict itself in finding that the participants had no role to play nor any text to say, that all that was asked of them was that they be themselves and express their reactions to situations they encountered and that the artificial nature of these situations and the way they unfolded did not suffice to make them actors; having determined that their work involved no interpretation, the court correctly held that the status of performer did not apply to them."

The reasoning brings to mind another ruling involving the well-known documentary "Etre et avoir" where it was similarly held that the fact that one was being asked to be oneself in the context of a documentary (no screenplay or script) precluded treating that person as a performer or actor.

Info re Koh-Lanta scandal here

Supreme Court Ruling of April 24, 2013 (L'île de la tentation): here

Supreme Court Ruling November 13, 2008 (Etre et avoir): here

Cariou v Prince: a question of Rastafarians and fair use

2013-04-26T22:48:00.001+01:00

This week the US Court of Appeals for the 2nd Circuit decided that use of certain photographs in a new piece of art did not necessarily infringe copyright in the photographs as the use could be transformative and therefore fair.

The claim was bought by Cariou, a professional photographer who, over the course of six years in the mid-1990s, lived and worked among Rastafarians in Jamaica. The relationships that Cariou developed with the Rastafarians allowed him to take a series of photographs that Cariou published in 2000 in a book titled Yes Rasta.

Richard Prince, an "appropriation" artist (the Tate Gallery has defined appropriation art as "the more or less direct taking over into a work of art a real object or even an existing work of art."), first came across a copy of Yes Rasta in a book shop in St Barth's in 2005. Between December 2007 and February 2008, Prince had a show at the Eden Rock hotel in St. Barth’s that included a collage comprising 35 photographs torn out of Yes Rasta and pinned to a piece of plywood. Prince altered the photographs significantly, by painting “lozenges” over their subjects’ faces and using only parts of some of the images. In June 2008, Prince went on to buy another three copies of Yes Rasta and to create thirty additional works of art in a similar vein.

Understandably Cariou was none to pleased and the question of whether Prince infringed copyright in the photographs has been bouncing around the US courts since 2011. The question was whether Prince's use of the photographs was fair use, and in particular whether it was transformative. The Court of Appeals has now held that it can be, saying:

"Here, our observation of Prince's artworks themselves convinces us of the transformative nature of all but five, which we discuss separately below. These twenty-five of Prince's artworks manifest an entirely different aesthetic from Cariou's photographs. Where Cariou's serene and deliberately composed portraits and landscape photographs depict the natural beauty of Rastafarians and their surrounding environs, Prince's crude and jarring works, on the other hand, are hectic and provocative."

The court found that the five other works were so minimally altered by Prince that they might not be considered fair use by a "reasonable observer". Those were sent back to the lower court for a determination using the appeals court standard for transformative use.

This case is likely to provoke strong views on whether it should be permissible to use part of a photograph in a piece of art without the photographer's consent, even if part of the photo is modified. The real criticism of this case however is that it does not provide much clarity on the murky concept of "transformative use".

The full decision is available here.

A new dawn for British copyright

2013-04-25T22:41:00.001+01:00

Here's how the UK government announced the next batch of law reforms to affect the copyright industries and the creators who fuel their fire: it's a media statement from the Department for Business, Innovation and & Skills and you can read it in its unexpurgated version, plus guidance for editors, here.

The Enterprise and Regulatory Reform [which rejoices in the acronym ERR] Bill today received Royal Assent. The Act will bring in a new regime giving shareholders more say on directors’ pay, improve dispute resolution through reform of Employment Tribunals, establish the new Competition and Markets Authority and enshrine the aims of the Green Investment Bank [unsurprisingly, copyright never hit the headline -- even a five-line one].

Business Minister Jo Swinson said:

“ [the sort of thing that Ministers usually say, i.e. not a great deal].”
The Enterprise and Regulatory Reform Act passed by Parliament today aims to support long term growth through a range of measures which:

...

establish a new Competition and Markets Authority, bringing together the competition functions of the Office of Fair Trading and the Competition Commission. This will be the UK’s lead competition authority with wide ranging powers to tackle anti-competitive behaviour, and a faster, clearer and more effective approach to help make markets work well for consumers. The competition regime will sustain fair and dynamic markets, encouraging businesses to set up and invest in the UK [while copyright is not explicitly mentioned here, holders of copyright, including collecting societies and businesses which use copyright, together with various registered IP rights as a way of creating and maintaining market share, may find this supercharged body -- which has a monopoly in dealing with abuse of monopoly -- may focus its attention on their licensing and/or enforcement policies]; ...

modernise the UK’s copyright regime to promote innovation in the design industry [on which see Class 99 blogposts here and here], encouraging investment in new products while strengthening copyright protections. Creating a level playing field for collecting societies and the thousands of small businesses and organisations who deal with them by strengthening the existing regulatory regime [Any idea how much this will cost or benefit collecting society members, such as composers? Presumably this was the fruit of evidence-based policy ...]. For the first time orphan works will be licensed [it will be interesting to see how this is policed].for use; these are copyrighted works for which the owner of the copyright is unknown or can’t be found. There will also be a system for extended collective licensing of copyright works [to be discussed in full at a later stage].;

...

create a power to give consumers the right to view and download the data businesses hold on them in an electronic format. This will help stimulate developers to create new data management tools and services [is the right to view and download transferable and commercially exploitable? It would be good to know];

...

The Act has also been a vehicle for a wide range of repeals and reforms to existing law.

Eleonora has also posted a 'breaking news' item, which you can check out on the IPKat here,

US Copyright to be reviewed in the next few months

2013-04-25T10:22:00.000+01:00

Bob Goodlatte

As 1709 Blog readers will remember, during a lecture held at Columbia University last month US Register of Copyrights Maria Pallante called for copyright reform and the adoption of “The Next Great Copyright Act” (here, here, here ...).

As explained by Pallante, among other things, areas to be revised include:

· Licensing;

· Digital first sale (this is something which does not exist under current US copyright law: see here);

· Exceptions and limitations, including enhancing clarity in personal use activities);

· Enforcement, including DMCA safe harbor provisions, and

· Orphan works.

Yesterday House Judiciary Committee Chairman Bob Goodlatte announced that the Judiciary Committee will conduct a comprehensive review of US copyright law over the coming months.

During a speech delivered during the World IP Day [for those who have not yet added the relevant entry to their diaries, tomorrow is World IP Day but - sadly enough - this is not marked as bank holiday] celebration at the Library of Congress, Goodlatte made the following remarks:

Technology continues to rapidly advance. [...]

Our Founding Fathers could never have imagined a day in which citizens would be able to immediately access the knowledge and news of the world on their smartphones as they walk down the street.

When I was first elected to Congress in 1993, only 2.5 percent of Americans had Internet access and less than ¼ of one percent of the world population did. Then, we spoke about the very few who had Internet access. Today, we speak about the few who do not. Technological development has increased at an exponential rate. [...]

There is little doubt that our copyright system faces new challenges today. The Internet has enabled copyright owners to make available their works to consumers around the world, but has also enabled others to do so without any compensation for copyright owners. Efforts to digitize our history so that all have access to it face questions about copyright ownership by those who are hard, if not impossible, to locate [by the way, have you seen the Digital Public Library of America project?]. There are concerns about statutory license and damage mechanisms.

Federal judges are forced to make decisions using laws that are difficult to apply today [speaking of (lack of) digital first sale, in its ReDigi decision the US District Court for the Southern District of New York itself pointed out that "the first sale doctrine was enacted in a world where the ease and speed of data transfer could not have been imagined ... It is left to Congress, and not this Court, to deem them outmoded."].

Even the Copyright Office itself faces challenges in meeting the growing needs of its customers – the American public.

So it is my belief that a wide review of our nation’s copyright laws and related enforcement mechanisms is timely. I am announcing today that the House Judiciary Committee will hold a comprehensive series of hearings on U.S. copyright law in the months ahead. The goal of these hearings will be to determine whether the laws are still working in the digital age. [...]

There is much work to be done [1709 Blog team members look forward to seeing the outcome of these efforts].”

100 years of Imperial Copyright: a book review

2013-04-24T20:25:00.002+01:00

A Shifting Empire: 100 Years of the Copyright Act 1911, edited by Uma Suthersanen and Ysolde Gendreau, is a most unusual book. Uma (Professor in International Intellectual Property Law, Queen Mary, University of London) and Ysolde (Professor of Law, Université de Montréal, Canada) have contrived to do something this blogger would have thought next to impossible: to revive interest in the fabled Imperial Copyright Act by framing it within a legal and historical context of a world that continued to change -- a world which was initially too small and unsophisticated for the copyright regime of the 1911 Act but which eventually matured and outgrew it. As the publisher's blurb says:

"The 1911 Copyright Act, often termed the ‘Imperial Copyright Act’, changed the jurisprudential landscape in respect of copyright law, not only in the United Kingdom but also within the then Empire. This book offers a bird’s eye perspective of why and how the first global copyright law launched a new order, often termed the ‘common law copyright system’.

This carefully researched and reflective work draws upon some of the best scholarship from Australia, Canada, India, Israel, Jamaica, New Zealand, Singapore, South Africa and United Kingdom. The authors – academics and practitioners alike – situate the Imperial Copyright Act 1911 within their national laws, both historically and legally. In doing so, the book queries the extent to which the ethos and legacy of the 1911 Copyright Act remains within indigenous laws.

A Shifting Empire offers a unique global, historical view of copyright development and will be a valuable resource for policy-makers, academic scholars and members of international copyright associations".

This blogger warmed to the book more than he expected to, possibly because -- in the days of his youth when he worked within the terms of the UK's 'modern' Copyright Act 1956 -- references to the Imperial Act imparted a sort of toxicity which is often found in the company of antiquated and increasingly irrelevant chunks of dead legislation. This book, while allowing the contributors the proper freedom of responsible criticism, lets the reader appreciate that this Act was once young, vibrant, commercially sound and full of meaning.

The list of contributors is both impressive and apt. Given his interest in colonial copyright, Michael Birnhack must have been the most obvious name on the roll-call; Sam Ricketson too, with his Australian pedigree and his penchant for the patient historical analysis. The others are excellent too and, for this blogger, the eye-opener was Dianne Daley's chapter on Jamaica, a small nation about whose copyright affairs he was hitherto sadly ignorant. This book is never going to be a Harry Potter, but wouldn't it be grand if its sales matched its interest value.

Bibliographic data: Publication date March 2013. ix + 251 pages.. Hardback ISBN 978 1 78100 308 4; ebook ISBN 978 1 78100 309 1. Price $115.00 ( online price $103.50). Web page here.

Safe harbor defence does not apply to pre-1972 recordings

2013-04-24T16:06:00.000+01:00

A New York state appeals court as held that the safe harbor defence found in the Digital Millennium Copyright Act does not apply to pre-1972 recordings.

In UMG Recording, Inc. v. Escape Media Group, Inc. et al, UMG Recording, Inc. sued Grooveshark, an internet-based music streaming service, for copyright infringement, accusing it of uploading around 100,000 recordings without authorisation. Grooveshark conceded that it could not ensure that each work uploaded to its servers was a non-infringing work however, it claimed that it operated on the basis that it was shielded from infringement claims by the safe harbor provisions of the DCMA.

Many of the recordings uploaded by Grooveshark were made before 15 February 1972 which is significant as, when the US Copyright Act was amended in 1971 to include sound recordings, Congress expressly extended federal copyright protection only to recordings "fixed" on 15 February 15 1972 or after. UMG claimed that by permitting the pre-1972 recordings to be shared on Grooveshark, the defendant infringed UMG's common law copyright in those works, and that the DMCA should not apply to those recordings.

Grooveshark responded that the pre-1972 recordings sat within the safe harbor of section 512(c) of the DMCA, but UMG argued that the DMCA could not apply to the pre-1972 recordings because that would conflict with s.301(c) of the Copyright Act that nothing in the Act would "annul" or "limit" the common-law copyright protections attendant to any sound recordings fixed before 15 February 1972.

The appeals court found that the safe harbor provisions do not apply to recordings made before 1972, as this was when Congress first recognized a federal copyright for sound recordings.

This flies in the face of previous decisions: last year, the Manhattan Supreme Court relied on the 2011 federal ruling in Capitol Records v. MP3tunes, to find "no indication in the text of the DMCA that Congress intended to limit the reach of the safe harbors provided by the statute to just post-1972 recordings."

This was reversed on Tuesday, when the appeals court said:

"It is clear to us that the DMCA, if interpreted in the manner favored by defendant, would directly violate section 301(c) of the Copyright Act." Therefore without language expressly reconciling the two provisions, the court must presume that Congress did not intend the DMCA to extend to all recordings.

The full text of the decision is here.