Internet rights, rates (and wrongs)

I have always been suspicious that the only reason that songwriter and music publisher collection societies the Performing Right Society (PRS) and the Mechanical Copyright Collection Society (MCPS) in the UK ever evolved into 'PRS for Music' was because that at that time no-one quite knew what a stream or a download was in law and that the merger only way they could sensibly (and legitimately) explain their right(s) to collect royalties from the use of their member’s songs on the internet. There was (and still is) much debate about what constitutes a 'stream' and what constitutes a 'download' and whether these form a public performance (whether a broadcast or a 'communication to the public') or more like the sale of a copy of a copyrighted work - a 'per unit' sale. There again, some ask whether they both? Or are they the same thing? Or is copyright law so hopelessly out of tune with the modern world that none of these definitions are actually applicable? Well now a US Federal appeals court has had a go at casting some much needed light on these issues and indeed on how the US collection society should be levying royalties for the use of (here) collection society ASCAP (songwriter and music publisher) members' works.

Looking at royalty rates first, The US Second Circuit Court of Appeals has overturned a District Court's decision that applied collection society ASCAP's streaming music royalty to Yahoo and RealNetworks’s activities and ordered a lower court to re-examine its findings. The Court of Appeals said that "in setting the royalty rate, the District Court must follow an approach more tailored to the varying nature and scope of Yahoo's music use" saying that "The district court did not adequately support the reasonableness of the 2.5% royalty rate applied to the value of the Internet companies' music use". The lower court was also ordered to "conduct a more complete analysis of the various uses of ASCAP's musical works by RealNetworks."

Judge John M. Walker, Chief Judge Dennis Jacobs and Judge Debra Ann Livingston said that the lower ("Rate") court’s establishment of benchmarks using the rates cable companies and broadcast stations pay for licensing music was inappropriate because the nature and scope of the online companies’ use of music differed significantly. The judges sided with Yahoo! and criticised the Rate court for relying on inconsistent sets of data sources when coming up with its music licensing formulae and said that the rate court’s attempt to come up with a simple 2.5% across-the-board license for the two online services was imprecise -and did not take into account the different kinds of services that both Yahoo! and RealNetworks offer. The three-judge panel also found that the Rate court did not give enough of a rationale for basing its licensing fee formula on the amount of time a piece of music is streamed, rather than on page views, which is the primary driver of advertising revenue. The appellate court also found that Yahoo can’t be compared to television stations because its business isn’t as reliant on music as the television industry with Judge Walker, giving the opinion of the Court, saying "Nearly every program on a television station somehow utilizes musical works,” adding “In contrast, only a fraction of the traffic on Yahoo!’s web site uses music — much of Yahoo!’s web site does not implicate any music whatsoever. Given that Yahoo!’s revenue base relies far less on ASCAP content than the television networks’ revenue base, we believe that comparing percentages of overall revenue bases is of little probative value in this benchmark analysis.” The judge also pointed to Yahoo!’s more specific licensing terms with BMI in the USA for the different kinds of uses of music as an example of how licensing agreements can be more reflective of the nature of the use of the music and noted that ASCAP’s own agreements with Turner Broadcasting for its various cable stations also accommodate different kinds of licenses depending on how each station uses music.

The appellate court did agree with the lower court on one separate, but key issue that ASCAP had appealed. The Court rejected the notion that a music download constitutes a "public performance" of a song. The Court held that downloads do not constitute a public performance of a work as defined under current US copyright law. The court said "In answering the question of whether a download is a public performance, we turn to Section 101 of the Copyright Act, which states that '[t]o ‘perform’ a work means to recite, render, play, dance, or act it, either directly or by means of any device or process'," ruling that "A download plainly is neither a 'dance' nor an 'act'. Thus, we must determine whether a download of a musical work falls within the meaning of the terms 'recite,' 'render,' or 'play'." Judge Walker then went on to say that the court would look at he ordinary sense of the words 'recite,' 'render,' and 'play' which refer to actions that can be perceived contemporaneously saying "Itzakh Perlman gives a 'recital' of Beethoven’s Violin Concerto in D Major when he performs it aloud before an audience .... Jimmy Hendrix memorably (or not, depending on one’s sensibility) offered a 'rendition' of the Star-Spangled Banner at Woodstock when he performed it aloud in 1969. Yo-Yo Ma 'plays' the Cello Suite No. 1 when he draws the bow across his cello strings to audibly reproduce the notes that Bach inscribed. Music is neither recited, rendered, nor played when a recording (electronic or otherwise) is simply delivered to a potential listener."

The court held that "The downloads at issue in this appeal are not musical performances that are contemporaneously perceived by the listener .... They are simply transfers of electronic files containing digital copies from an on-line server to a local hard drive. The downloaded songs are not performed in any perceptible manner during the transfers; the user must take some further action to play the songs after they are downloaded."The ruling also made a clear distinction with the streaming of files which, like broadcasts, had to be licensed for their performance saying "[Yahoo! and Real's] stream transmissions, which all parties agree constitute public performances, illustrate why a download is not a public performance. A stream is an electronic transmission that renders the musical work audible as it is received by the client-computer’s temporary memory. This transmission, like a television or radio broadcast, is a performance because there is a playing of the song that is perceived simultaneously with the transmission".

The Court sent the case back to the lower court to reconsider the method of calculating the licence fees due to ASCAP.


http://www.dmwmedia.com/news/2010/09/28/appeals-court-music-downloads-not-039public-performances039

http://broadbandbreakfast.com/2010/09/ascap-music-licensing-fees-voided-for-yahoo-realnetworks/

http://www.out-law.com/page-11406

Sky porn leak puts ACS in the shot

Further to my blog on the Ministry of Sound’s efforts to combat online piracy, The Daily Mail reports that ‘thousands’ of Sky Broadband customers have had their personal details leaked online by hackers, apparently linked to The Pirate Bay, who then published the customer details, alongside a list of pornographic films they have downloaded and shared. The information , which included the full names and addresses of over 5,300 internet users, had been collected by law firm ACS:Law who had compiled a list of people it believed were illegally sharing adult films using anti-piracy software and third party investigators. Hackers from 4Chan attacked the firm’s website in retaliation to its anti-piracy efforts and around 1,000 confidential ACS:Law emails, including personal correspondence between Andrew Crossley - who runs the company - and his colleagues were leaked onto the popular file-sharing website The Pirate Bay. It seems that the list of Sky Broadband customers was an attachment on one of the emails.

Read more: http://www.dailymail.co.uk/news/article-1315790/Sky-internet-porn-details-leaked-Users-personal-information-appears-online.html?ito=feeds-newsxml

"Music and Intellectual Property": a conference and a competition

Well, someone's got
something to sing about ...

"Music and Intellectual Property" is the title of a one-day conference which CLT Conferences is running on 8 December in Central London. Subtitled "Identifying, Protecting and Enforcing Rights in Music", the programme features a double input from the 1709 Blog: Ben Challis (General Counsel, Glastonbury Festivals Ltd) speaks on "The Glastonbury Tales: the Practicalities of Festival Life and IP", while Jeremy Phillips takes the chair for the day. There are some other excellent speakers too, and the day promises to scintillate.  You can see the full programme here.

There's a competition running along with this conference, the prize being complimentary admission -- and the fabled free lunch. It goes like this. Shakespeare's play Twelfth Night opens with Duke Orsino saying

"If music be the food of love, play on,
Give me excess of it".

Your task is to complete the following sentence:

"If music be the food of love, then copyright is ..."

Closing date for entries is 17 November. Competition entries should be emailed to Jeremy at the 1709 Blog with the subject line "Food of love".

The quiet mysteries of library ebooks

Reading a piece about second-hand ebooks, passed on to me by my new colleague Sebastian Davey at Swan Turton, I was reminded about an ad I’d seen on the train – about ebooks being available at my local library. So I went to see what was on offer. Here’s an extract from the FAQ:

How long can I keep them for? You can keep your chosen eBooks for two weeks.

Can I renew them after that time? eBooks can't be renewed in the traditional sense. However, if no one else wants the books you can borrow them again at the end of your two-week loan period.

Will I get any fines if I am late in returning my eBooks? No. You don't even have to return them. The file will simply become inactive after two weeks.

Will I be left with anything on my hard drive after my books have expired? Yes, a file will remain which you will have to delete. We have written some simple instructions to help you to do this.

What a delight! No more library fines …

So how does PLR work with ebooks? After all, you aren’t really ‘borrowing’ the ebook – you never give it back. The file just becomes inactive. The library is giving you a sublicence that comes to an end. Not the same thing as borrowing a physical book. Well, it’s all in that section of the Digital Economy Act that hardly got a mention in the heated debates, section 43.

It amends the Public Lending Right Act 1979 to say that

“book” includes … a work, other than an audio-book, recorded in electronic form and consisting mainly of (or of any combination of) written or spoken words or still pictures (an “e-book”);

“lent out”—
(a) means made available to a member of the public for use away from library premises for a limited time, but
(b) does not include being communicated by means of electronic transmission to a place other than library premises,

I know the Digital Economy Bill went through in a bit of a rush, but what on earth does (b) mean? It sounds like you have to go into the library with your Kindle and download it there.

Copyright lessons from (American) football

Last week, Kal Raustiala and Chris Sprigman, guest bloggers on the New York Times's Freakonomics blog, posted this interesting piece about what football (of the American variety) can teach us about the correlation between copyright protection and innovation. Though focused on copyright, their point can be made easily about any form of intellectual property protection. The question at heart is whether such IP protections are truly the catalyst for innovation.

As a child, I was taught "necessity is the mother of invention." Do you have a need that isn't being met? Create the solution! In law school, that lesson refocuses. Copyright protections (and patents) encourage creations; no one would create new ideas if they could be copied by others with no compensation. Right?

I must admit, as a bigger fan of soccer/football than of American football, I was not aware of just how much innovation has occured on the football field over the years. The Freakonomics post includes fascinating examples of innovations that would be valuable in the long run if copyrightable, but are still highly advantageous in the short term - winning now, this season - despite the fact that other teams are sure to copy the innovations later.

As the debate rages on in the U.S. whether copyright law should be extended to cover fashion designs, the argument that companies, designers, sports teams, must "innovate or die" in a highly competitive environment, regardless of IP protection, carries quite a bit of weight. I'm not suggesting that we shouldn't still ensure that innovations are able to be protected by IP rights for the benefit of the creator. We should. But perhaps the view that IP protection is required to spur design innovation needs rethinking.

Ministry put on hold

A number of Internet Service providers seem to have had some success in persuading Chief Master Winegarten that threatening letters being sent by lawyers Gallant MacMillan, on behalf of their client, the iconic London nighclub and record label Ministry of Sound, may be targeting innocent end users who have never infringed any of Ministry of Sound's copyrights.

Whilst the Chief Master professed some ignorance when it came to the technicalities of illegal downloading and peer-2-peer file swapping, The ISPS, which include PlusNet, 02, BT and Sky Broadband, argued that from all of the thousands of letters sent, not one end user had ever been sued. The Chief Master refused the Ministry of Sound’s request for more personal details of UK broadband ISP customers, stressing that the public's concerns must be addressed before the matter could proceed. The hearing has been adjourned until 4th October 2010.

Ministry of Sound Recordings Ltd v Plusnet Plc

For more on this story please go to
http://www.ispreview.co.uk/story/2010/09/23/uk-isp-plusnet-illegal-file-sharing-judge-predicts-end-of-settlement-letters.html

Google wins in Spain "A big win for the internet"

This morning, it was reported that Google has won a case in Spain where Telecinco was seeking to impose liability for YouTube in respect of content uploaded by users of YouTube.

With a mixture of hyperbole and predictability, Google has heralded the victory as "a big win for the internet"

What is fascinating about the reporting of this case is that, as far as I can see, in all instances (including this blog posting) the primary source of the information reported is not a formal case report or decision, but the Google press release posted on one of their own blogs - follow the link above to read it for yourselves. That press release was picked up by a number of news organisation and their reporting then spread around the internet.

European law undoubtedly does give protection to a hosting service in certain circumstances where it "does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent" - but it is somewhat of a jump from that proposition to the conclusion that it is established law that YouTube is undoubtedly the beneficiary of that protection in all circumstances - nevertheless, many reputable news sources have reported Google's own coverage of their victory as if it were unblemished fact. What do readers think?

Pirates sunk in Sweden

After a spectacular showing in the European elections in 2009, the Pirate Party has done woefully in national elections in Sweden taking just 0.7% of the vote, a 90% slump in a year, according to exit polls. They will not be awarded any seats having failed to reach the 4% threshold needed for seats. In the European elections they gained 2 MEPs. The chief Pirate, Rick Falkvinge, told Torrentfreak "The Swedish Pirate Party did its best election campaign ever. We had more media, more articles, more debates, more ... flyers than ever. Unfortunately, the wind was not in our sails this time, as it was with the European elections," adding "The other parties had put a collective blanket over the privacy, culture and knowledge issues, as they had absolutely nothing to gain by even mentioning the issues" and concluding with "If the wind is not in your sails, the sweat on your brow will still not steer the ship. I guess the most obvious example is how the appellate trial of The Pirate Bay will begin just nine days after the election."

http://torrentfreak.com/swedish-pirate-party-fails-to-enter-parliament-100919/

European copyright reform: a meeting -- of minds?

Given their different backgrounds and cultures, it was not surprising
that Europeans found it so hard to reach consensus on a copyright code

The annual BLACA–IPI Seminar takes place on 14 October in the London office of law firm Bird & Bird.  The subject is European Copyright Reform.  Speakers will include Jonathan Griffiths (Centre for Commercial Law Studies, Queen Mary, University of London) on "Reform of the three-step test", Paul Torremans (Professor of Intellectual Property Law, University of Nottingham) on the limitations of an EU approach to a copyright code, plus contributions from Mr Justice Arnold, Frances Lowe and Uma Suthersanen (on orphan works).

The cost is as follows: IPI and Blaca members £25; others £50.  Students go free.
To attend please email the IPI here and reserve your place.

The 1709 Blog is pleased to note that, after a long quiet summer, the Intellectual Property Institute is showing signs of renewed life.

New Copyright Tribunal Chairman

Congratulations go to Colin Birss QC on his appointment, announced yesterday and effective 5 October, as new Chairman of the Copyright Tribunal (and Judge of the Patents County Court).

His Honour Judge Birss QC, as he will be known, is a relatively youthful 45 and became a silk in 2008. He has been one of the Deputy Chairmen of the Copyright Tribunal since last year.

Earlier this year, the Tribunal rules were modernised with the ambition of streamlining the Tribunal process and introducing more pro-active case management - we wish His Honour every success in delivering on these aspirations.

Copygrounds gets Tenenbaum

A new copyright web forum called Copygrounds has been launched by staff and students at the Department of Radio-Television-Film at the University of Texas. The first blog is a fascinating interview with Joel Tenenbaum, who became the poster boy for illegal filesharers around the world after being sued by the Recording Industry Association of America (see previous blogs here!).

Copygrounds describes itself as “an academic discussion forum and digital media platform which focuses on the technological changes now taking place within contemporary media systems. The dynamics of technological development have been accompanied by numerous antagonisms and outright conflicts between parties with conflicting interests. These antagonisms and conflicts are the particular target of our analysis.”

The Tenenbaum interview is posted by Debbie Rosenbaum. Debbie is currently completing a dual law and business degree at Harvard Law School and Harvard Business School and is a member of the team of Harvard Law School students who, under the guidance of Professor Charles Nesson, mounted Tenenbaum’s defence. There is quite a large blogging team with some pretty impressive CVs, so a site well worth watching.

The site is open and welcomes public commentary – but also says “as this is primarily a student project, commentary which is not suitable for a classroom setting will be removed.”

http://copygrounds.com/

For more comment see http://torrentfreak.com/confessions-of-a-convicted-riaa-victim-100916/

Droit de repentir: can anyone help?

At a seminar earlier today I mentioned the French droit de repentir , this being the author's right to prevent further reproduction, distribution or representation in return for compensation paid to the distributor of the work for the damage done to him, under Article L121-4 of the French IP law. I was asked about limitations on the exercise of this right and said I didn't think there were any.

My understanding is supported by the statement in Wikipedia that

"The moral rights are inalienable, perpetual and inviolable. They pass to the author's heirs or executor on the author's death, but may not be otherwise transferred or sold under any circumstances, by either the author or his legal successors. Any agreement to waive an author's moral rights is null and void, although the author cannot be forced to protect his work".

However, there was some speculation as to whether there exist, in any circumstances, any form of limitation to the exercise of this very powerful right, which might appear to be a disincentive to investment in the commercial exploitation of a work in France. Can any readers advise? Also, does anyone know whether the right can be asserted in France with regard to further exploitation outside France itself?

Prison for camming – a UK first

Emmanuel Nimley, 22, yesterday received a 6-month sentence for filming movies with his iPhone at The Vue cinema in Harrow and uploading them to silverscreen.com. His motive: self-glory. The Federation Against Copyright Theft (FACT) say this is the first-ever UK prison sentence for ‘camming’.

In the US, cammers are prosecuted under the Family Entertainment and Copyright Act of 2005 – e.g. ‘the Dark Knight’ got 2 years – but the UK does not have a specific provision for this offence. According to TorrentFreak, Nimley had been charged under the Fraud Act 2006 (ss. 6 and 7) and section 107 (1)(e) of the Copyright, Designs and Patents Act 1988.

‘Nicholas Bull, defending,’ the Mail reported, ‘asked the judge to take into account the amateur quality of his client’s work: “The camera was unstable. It was audible my client was drinking and eating throughout at times it was tilted up to view the top of the cinema.”’

If you can’t beat ‘em, join ‘em!

Last month, blogger Ben posted this piece highlighting the Recording Industry Association of America’s complaint that U.S. copyright law isn’t working in protecting their copyrighted content from appearing illegally on the Internet. Perhaps, the RIAA should take a cue from the numerous copyright owners who are now working in cooperation with YouTube to monetize infringements.

According to a September 2 article about new YouTube revenue streams, available here, if a user uploads a video that incorporates copyrighted material owned by another person or entity, the copyright owner could choose an alternative to having the video removed through the Digital Millennium Copyright Act take-down process. Instead, the copyright owner could allow the video to remain posted and allow YouTube (a subsidiary of Google) to run Google ads at the bottom of the video. In return, the copyright owner receives half of the ad revenue generated by the Google ads, with the other half of the revenue being kept by YouTube.

Given the difficulty of preventing unauthorized uses of copyrighted material on the Internet, copyright owners may benefit more by leveraging the apparent popularity of their material in return for unanticipated cash payments. Of course, the copyright owners would retain the option to determine whether the most appropriate course of action is to have the video taken down or to allow it to remain viewable with embedded ad content.

An initially-unauthorized video from the TV show Mad Men generates revenue through Google ads, right.

As Google has perfected the art of “targeted advertising,” the ads visible on such videos could be targeted for the likely viewer. Dave Marsey, senior vice president of media at Digitas, explained to the New York Times, “Google smartly realized that consumers consume different types of media throughout the day. Search is a huge component of that, but there are times when you want some entertainment or you want to solve a problem and going to YouTube makes sense.” In fact, YouTube reports that hundreds of content partners with which it shares ad revenue receive more than $100,000 a year. One clever example described in the article could become a new source of income for the RIAA: an unauthorized upload of Eminem’s “Not Afraid” was permitted by the copyright owner to remain viewable with ads linking to authorized sites through which viewers could purchase the song or ring tone. The revenue generated was split between the copyright owner and YouTube.

This “if you can’t beat ‘em, join ‘em” strategy seems like a win for all involved: the video poster avoids having his video removed, interested viewers of the video maintain access, YouTube generates revenue that will help it reach profitability, and the copyright owners enjoy increased brand impressions with each view, as well as (and possibly more importantly in a down economy) an increase in their revenues. Content owners should thus consider whether this strategy may work well for them, especially if they frequently expend time and resources issuing DMCA take-down notices.

Splitting the load: good news for infringers, ISPs

The UK government's Department for Business, Innovation and Skills (BIS) has issued a press release today with the intriguing title "Rights holders to bear 75% of Online Digital Economy Act copyright infringement costs". The text goes like this:

"The Government today set out how costs would be shared as part of the Digital Economy Act’s measures to tackle online infringement of copyright. The decision will see costs resulting from these measures split between rights holders and internet service providers (ISPs) at a ratio of 75:25 [rights holders wanted 50:50] respectively [this being the case, I wonder whether the government would have done better to entitle this news "ISPs to bear 25% of Online DEA costs" ...].

Responding to its consultation on sharing costs for implementing the initial obligations to send notifications to consumers who have infringed online copyright, the Government also announced no fee will be charged to consumers who want to appeal a notification [might this prompt an outbreak of brazen and unconscionable appeals in unmeritorious cases, just for the hell of it, as the statement recognises later? Why not a presumption of no-fee-payable, coupled with discretion to waive it where appropriate?]. Minister for Communications, Ed Vaizey, commented:

“Protecting our valuable creative industries, which have already suffered significant losses as a result of people sharing digital content without paying for it, is at the heart of these measures ['these measures' presumably being the DEA itself and not the cost-sharing mechanism]. The Digital Economy Act serves to reduce [identifiable and detectable] online copyright infringement through a fair and robust process and at the same time provides breathing space to develop better business models for consumers who buy music, films and books online [Business models for consumers? Isn't it the 'valuable creative industries' whose business models are at stake, since the old ones aren't working any more?].

“We expect the measures will benefit our creative economy by some £200m per year [that's less than one-fifth of football club Manchester United's debt] and as rights holders are the main beneficiaries of the system, we believe our decision on costs is proportionate to everyone involved.”

The costs sharing decision applies to both the notification and appeals process. Following serious consideration of the issue of appeal costs, it has been decided that no fee should be charged to internet subscribers who wish to use the appeal system to refute a notification. However as a free system risks the possibility of large numbers of unnecessary appeals, the Government will monitor the situation closely, and reserves the right to introduce a small fee at a later stage [retrospectively?].

The decision will now be notified to the European Commission before being introduced in Parliament as a Statutory Order. Ofcom’s Online Copyright Infringement Initial Obligations Code will implement the notifications process and will also reflect the decision on costs. This will come into force in the first half of 2011".

We await further developments with interest.

BBC report here

And so to Beth

Breaking news in the United States is that Register of Copyrights Marybeth Peters has announced her intention to retire with effect from 31 December 2010. How appropriate a date, it seems, since the last day of the year is also the last day of copyright protection for all those works which fall into the public domain on 1 January of the 51st or 71st (or whatever) year following the author's death or other termination-triggering event.

In post since August 1994, Marybeth's tenure is the second-longest in US history.  Only Thorvald Solberg -- remember him? -- served longer. He reigned from 1897-1930, a period of 33 years, but that was in the days before the internet and computers.

If you want to apply for the job, apply here -- but if you really want to run the show, apply here.

Many thanks to C.E. Petit, distinguished author of the Scrivener's Error weblog, for letting us know. 

Read all about it - new book is a real Page turner!

Robbie Williams co-manager Tim Clark has told the Popkomm conference that the U.K.’s recently passed Digital Economy Act – aimed at curbing Internet piracy – was “laughable and unworkable" saying that "It allows ISPs to sit on their hands for longer, knowing they are off the hook,” claiming one major label CEO agrees with him that the Act is "a waste of time” and “is never going to work.” Clark said that “the truth is digital technology has driven a panzer division through copyright law” (an interesting choice of words given the location of the Berlin based event) adding “If 70% of the population are ignoring a law, it’s no longer a law – we have to figure out a new way of working with copyright.”

Trent Reznor, Nine Inch Nails front man, has been at the forefront of creating new music business models for copyright which combine new media and traditional business models – offering free internet downloads of albums alongside premium internet products, limited edition CD and vinyl box sets, special merchandise and other paid for product – in an eclectic mix of free and paid for. Now Jimmy Page, the legendary guitar hero from Led Zeppelin, recently voted the best ever rock band in a BBC Poll, has announced that he will be releasing a limited edition signed photo-memoir priced at £445 bound in silk and leather. The Book was trailed in the Sunday Times Magazine two weekends ago with new and unseen images, and now 2,500 fans can get their hands on the unique book which will contain more than 700 Page picked photographs, starting with the guitarist as a 12 year old choirboy. If the band’s recent massively oversubscribed and sold out 02 reunion is anything to go by, selling 2,500 copies won’t be a problem for Page – whatever the price. Page was described by Rolling Stone magazine as “probably the most digitally sampled artist in pop after James Brown” but he and his publisher Genesis Publishers seem to have hit on a neat revenue generating idea here – free from the worries of digital copyright infringement – and which will net them a cool million – well actually £1,112,500.00.

Photo Sean Preston (c) 1995

Copyright, Friend and Foe when Accessing Knowledge

Access to Knowledge, it’s one issue where you will generally find copyright law lounging smack dab in the middle.  Sometimes copyright is friendly to the surrounding circle, like old Uncle Bob at the campfire, delighting the audience with wonderful tales of giving people access to works through fancy tricks like fair dealing.  Other times, copyright is more like a lion surrounded by warriors, roaring, teeth bared, snarling at anyone trying to gain access to its domain.

One might think that being able to tell Uncle Bob from an attacking lion would be easy, but not necessarily.  And likewise with, it is not always easy to tell when copyright is helping people get access to knowledge, and when it’s impeding that access.  Enter Consumers International and the 2nd Edition of Access to Knowledge, a Guide for Everyone (144pg pdf).

This internationally compiled book explains how copyright law and other areas such as net neutrality, border enforcement and patent law affect people’s access to resources around the world.  The book also discusses ideas for changes to intellectual property law that could help improve access to knowledge and current in-place systems that grant access, such as the public domain.

There’s a neat section in chapter one (p. 21) that explains how the different players, governments, inter-governmental organizations, consumer groups, etc., interact to create the landscape of accessible knowledge.  And in chapter 2, Brazil receives a bit of attention for the country’s forward-thinking laws prohibiting the destruction of fair use via technical protection methods. 

Readers following the ACTA debates may be interested in pages 57-59.  Those unfamiliar with Access to Knowledge can check out the FAQ section and glossary in the appendix.

Access to Knowledge A Guide for Everyone is licensed under a Creative Commons Attribution-ShareAlike license, which means you can print out fancy copies you want, give them away, even sell them, without a problem; Uncle Bob won’t bite.

Photo by author: Masai Lion Hunt exhibit at the Milwaukee Public Museum with author’s friends and family reenacting the exhibit.  More exhibit reenactions here.

Police target file sharers in 14 European countries

The web is buzzing this morning with news that police in 14 European countries launched a coordinated series of raids on suspected file-sharing network operations yesterday (Tuesday 7th). Reports say that Belgian authorities spearheaded the investigation that led to the raids, although a substantial part of the police activity took place in Sweden, including a raid on Sweden's PRQ in Solna, the new web host of whistleblower site WikiLeaks. Raids also took place on sites in Stockholm, Malmo, Eskilstuna and at Umea University's campus in Sweden. TorrentFreak reports that other raids took place in The Netherlands, Belgium, Norway, Germany, Italy. Great Britain, Czech Republic and Hungary. The believed target of the raids is the file-sharing "Warez Scene" or the “Scene”, which appears to be a loosely-affiliated group thought to be behind many leaks of copyrighted material to the Internet and described as “ the network of individuals and servers at the top of the so-called ‘Piracy Pyramid’ “. In Sweden it is reported that four people are being questioned on suspicion of breaching copyright law. Servers and computers have also been seized.

PRQ’s Mikaelo Viberg spoke to reporters and said that armed with IP addresses, police officers turned up at PRQ’s premises “At 9:00 this morning, five policemen were here” adding “They were interested in who were using two IP addresses from 2009 and onwards. We have no records of our clients but we’re handing over the e-mail addresses for those behind the IPs. However, it’s rare that our clients have mail addresses that are traceable.”

The web was also creaking under a welter of rumours of conspiracy - the theory being that because of the PRQ action, the raids were in some way connected to WikiLeaks whose recent exposures have been rather embarrassing for the Government and military in the USA. Sweden’s Pirate Party (unsurprisingly) expressing concern saying it was “highly critical” of the raid but Swedish prosecutor Frederick Ingblad confirmed to local media that WikiLeaks was not a target of the operation.

http://torrentfreak.com/police-in-file-sharing-raids-across-europe-wikileaks-host-targeted-100907/

Eminem on iTunes – distribution agreement or licence?

After signing Eminem in 1995, FBT Productions transferred his recording services to Aftermath (a Universal record label). Under their agreement, Aftermath pays FBT a 12–20% royalty on ‘records sold’ and 50% for ‘masters licensed … to others for their manufacture and sale of records or for any other uses’. A few years later Aftermath concluded a deal with iTunes and began paying FBT the Records Sold royalty on iTunes sales. FBT sued, moving for summary judgment that the Master Licensed provision should apply. The district court refused summary judgment, saying the agreement was ambiguous. A jury then decided that the lower royalty should apply – Aftermath was awarded more than $2.4 million. On appeal, the Ninth Circuit has held that the district court was wrong not to give summary judgment: the agreement was unambiguous and the higher royalty should apply.

Although the Ninth Circuit must be technically right to say that Aftermath had given iTunes a copyright licence, it would also have been true to say Aftermath gives its factory a copyright licence to print CDs and its CD distributors a copyright licence to sell records. That would not have resulted in the licensing royalty being applied. Copyright licences, after all, underly many distribution agreements. What arguably swings it here is that a digital file sent to iTunes fulfils the definition of a ‘master’ in a way that physical CD stock wouldn’t. However, the commercial role played by iTunes in this supply chain does seem much closer to distributor than licensee.

Totally unambiguous?

Fair Use, the Standard Hail Mary

When a judge starts his opinion, “For the fourth time we consider on appeal…” you get the impression he’s a little annoyed and tired of seeing these two parties in court.

That’s exactly how Judge Michael of the United States Court of Appeals for the Fourth Circuit started his opinion in the latest iteration of Bouchat v. National Football League. (full opinion).  The case began over a dozen years ago when Bouchat first brought suit against the NFL and one of its teams, the Baltimore Ravens.

Bouchat designed the first Ravens’ logo used in the mid-90s, except the Raven’s didn’t acknowledge this, didn’t license Bouchat’s work from him and didn’t pay him any royalties for the use of the “strikingly similar logo.”  So Bouchat sued and won and got absolutely no damages. Obviously not happy with this outcome, he attempted to sue other companies that had manufactured and sold goods bearing the Ravens’ logo.  That didn’t pan out well for him either. 

Then, 10 years after the original suit against the Ravens and NFL for using the logo on its helmets and fields, Bouchat tried again, suing again for copyright infringement but this time for using the logo in a highlight reel that includes video of those original uses and for displaying the logo on historical memorabilia in the franchise’s headquarters.  (How an expansion team that’s been in existence for less than 20 years has enough highlights for a full-length video is beyond me, but then I come from hardcore-football land.)

The Play: Fair Use

The Ravens tried to claim fair use of the logo, citing its use in the highlight reel as historical and non-commercial. The district court agreed and found in favor of the Ravens.  The appellate court disagreed and reversed.

Fair Use in the Film - Blocked

Under the US Copyright Act, fair use in analyzed against four factors: Purpose and character of defendant’s use of the work, the nature of the copyrighted work, the amount and substantiality of the portion of the work used compared to the whole, and the effect of the use on the potential market for the copyrighted work.

Looking at the logo’s original use in the footage rather than the usage of the footage itself in the highlight reel, the appellate court found that the use was not transformative.  The logo was used to identify the team.  A standard use for a logo.  Additionally, the highlight reel was sold commercially giving the use of the logo a commercial purpose. [When a defendant’s use is transformative or non-commercial, the use is more likely to be deemed a fair use.]

The appellate and district courts agreed with each other on the second fair use factor, finding that the copyrighted work was highly creative. The logo is a drawing of a flying B.  [When a work is very fact-based or only minimally creative, the factor leans in favor of fair use.]

The third fair-use factor is probably the one responsible for misleading 10% guides and other myths that suggest there is a certain set amount of a work one can take without infringing.  In this case, the court did not need to consider any percentages; the entire work was used.  This was a place where the appellate court disagreed with the district court as the district court had compared the logo to the entire video content instead of to itself.  [The less of the work that is used, the more likely there will be a finding of fair use.]

The defense attempted to rely on the absence of damages awarded in the previous lawsuits to show that there was no market for Bouchat’s work, but the court disagreed.  “The licensing of NFL logos for use in the sale of official team merchandise, in exchange for royalties,is exactly the type of potential market that exists for Bouchat’s copyrighted logo.”  [If the use has little to no impact on the potential market, it is more likely to be fair use.]

Having found that all four fair use factors weighed against fair use, the court held that the Ravens were liable for copyright infringement for showing the Bouchat logo in the highlight videos.

Fair Use in Memorabilia – It’s Good

When analyzing fair use in terms of the memorabilia displayed in the lobby, the court came to a different conclusion.

With the video, original footage showing the original use of the logo was deemed not transformative and for commercial purposes.  However, when displaying an original ticket with the logo in a location open to the public free of charge, the court found this use to be both transformative and non-commercial.  “Most important, the use of the logo in a museum-like set-ting "adds something new" to its original purpose as a symbol identifying the Ravens.”

The second factor analysis remains the same as above since the work is still highly creative.  Interestingly enough, although the amount of the work used under the third factor did not change, both the ticket and the video used the whole work, the court found the third factor to be neutral in the lobby display context.  The court decided that using the whole work was justified in relation to transformative nature discussed under the first factor.  (Professor David Franklyn of the University of San Francisco stated at this year’s American Bar Association meeting that the transformative factor has morphed fair use; this use of transformative to justify taking the entire work seems to be a good example of Professor Franklyn’s concern.)

Transformative is brought in again for the fourth factor, with the court stating that transformative uses are less likely to have an effect on the potential market.  The fact that Bouchat presented no evidence to support any market harm didn’t help either.  The court found the fourth factor to be in favor of fair use.

The court held that it was fair use to display the logo on memorabilia in the lobby.

Final Score – not quite

Finding one use as infringing and the other as fair, the court remanded and sent the case back to the district court to decide whether an injunction is appropriate.  After all that, the review from the booth overturned the ruling on the field and it’s back to the game to find out who will win in the end.

He Had a Go at Have a Go, but Had to Go

The reality is often far less exciting than the expectations we conjure up -- and the litigation in Meakin v British Broadcasting Corporation, Paul Smith and Celador Productions [2010] EWHC 2065 (Ch), 27 July 2010, raised initial hopes that we would get some hugely important ruling on the protection of TV game-show format rights. As it was, the troops spent years lining up against each other (Meakin first complained of infringement in 2004) but the battle was over before it started, Mr Justice Arnold (Chancery Division, England and Wales) granting the defendants summary judgment against Meakin's claims of copyright infringement.

Meakin had claimed, inter alia, that the defendants had infringed his copyright in proposals for his Cash Call TV game-show formats and that they used information in his proposals in a manner which constituted a breach of confidence. His claim focused primarily on a programme broadcast by the BBC called Come and Have a Go ... If You Think You're Smart Enough. Arnold J analysed the viability of the copyright claims by reference to two issues: was the defendants' work derived from Meakin's or was it a reproduction of a substantial part?

As to derivation, the similarities between the Cash Call proposals and Have a Go were insufficient to create an inference of copying: the similarities were general and related to features that were commonplace in the TV game-show arena and at a high level of abstraction. After applying the same analysis of the works' similarities, the judge also concluded that Meakin had no real prospect of proving reproduction of a substantial part of his work.

Isn't it urgent now I've hesitated for so long?

Ordinary people may be forgiven for believing that things usually get more urgent the longer you put them off. Anyone who considers filing a motion for a preliminary injunction in Germany should be warned that the law takes quite a different view of the matter.

German music collecting society GEMA and eight other collecting societies learned that lesson the hard way a couple of days ago, when the Regional Court of Hamburg (Landgericht Hamburg) dismissed their motion for a PI against YouTube (judgment of 27 August 2010, file reference 310 O 197/10).

In April 2009, GEMA and YouTube started negotiations concerning a licensing agreement for the GEMA music repertoire. Negotiations were broken off in May 2010 because the parties had somewhat different opinions as to what would constitute a reasonable licensing fee. GEMA and the other collecting societies then applied for a PI against YouTube to have YouTube enjoined to remove 600 music videos from its video platform. Under German law, however, you can only obtain a PI if the matter is urgent. After all, the rationale behind preliminary proceedings is to either "freeze" the status quo or create an interim situation in order to secure your rights and prevent matters from getting worse.

So as a general rule, one should apply for a PI within a couple of weeks - a couple of weeks since what happened, though? When the negotiations failed, the collecting societies were very quick indeed to file the PI motion. However, the crucial point was that they had been aware of the alleged infringements since April 2009 at the latest. It did not matter that GEMA and YouTube had been in negotiations. Therefore, the court dismissed the motion for lack of urgency.

I agree. If you can negotiate for a year and do not mind the allegedly infringing videos being available during the time, the matter can arguably not be so very pressing. If you've waited that long, surely you can wait a bit longer and file for ordinary proceedings... Yet not all was bad for GEMA et al. The judges let slip that they believe a lot militates for the collecting societies having a valid copyright claim against YouTube to cease and desist from making the videos in question available to the public.

Spokesman for YouTube's parent company Google, Kay Oberbeck, said that YouTube is willing to share the proceeds it makes from music with the rightholders, and has invited the collecting societies to return to the negotiating table. They have yet to decide whether to appeal the decision, concentrate on the main proceedings instead, or resume negotiations (or maybe all three).

I agree they should try and come to an amicable solution. Not just because the logos look so nice together (although they do), but mainly because while a lengthy court battle may very well establish that YouTube has a duty to take down infringing videos, it is not likely to do much for musicians' and composers' bank accounts.