Google settlements as a genre: an holistic approach and the hippo in the bath tub

"Online Distribution of Copyright Works: Judge Chin Rejects Google Books Settlement" is the title of an article just published in the CPI Antitrust Chronicle, 2 June 2011 (CPI stands for 'Competition Policy International,' by the way).  The authors, Isabel Davies (Consultant,Boyes Turner) and Holly Strube (a solicitor with the same firm), examine the rejected Amended Settlement Agreement which Google and its counterparts reached and conclude that

"The time has come to look afresh at copyright issues in particular, and IP issues in general, and agree on a structure to deal with these challenges on a holistic basis, perhaps by moving forward with multinational supplementary agreements. 

It is not suggested that multinational co-operation will be easily achieved but, in our view, this process must begin without delay. Certainly Google has served notice that it continues its interest in developing its business in this area and doesn’t intend to cease its activities ..."

I agree that a holistic approach is needed and feel that it should be able to encompass not merely the copyright and competition/antitrust issues but also, to the extent appropriate, the knock-on effect on hard copy and electronic publishing, the retail book sector, the information-supplying industries and -- perhaps most importantly in the long term -- the advertising sector.

To put it in terms of a metaphor, we should ask not just whether the hippopotamus will fit into the bath tub but what precisely happens to the water it displaces: whether the hippo fits or not is an entirely different issue from whether there's room in the tub for anyone else once the hippo's in it, whether there's any water left after the hippo gets out, who gets soaked or where the surplus water runs off to -- but all these effects need to be accounted for.  If the hippo's application to occupy the bath tub is judged solely by the criterion of whether it fits, these other issues remain troublesomely unaddressed.

BT flood warning to High Court

BT has warned the High Court that if an injunction to block access to the Newzbin2 website were to be granted, it would be the ‘thin edge of the wedge’ opening the floodgates to content owners desperate to prevent sites pointing to pirated content. BT told the court that it could face up to 400 applications for injunctions in the next year if the Motion Picture Association (MPA) prevail in an action against the UK telecoms giant.

The MPA has applied for an injunction as part of a long running legal battle with Newzbin, which provides links to content on the Usenet network, and the MPA say that in particular the site links to hundreds of unlicensed movies. In an earlier High Court battle (Twentieth Century Fox v Newzbin) the content owners were successful and Mr Justice Kitchen handed down a significant judgment holding that the Usenet indexing site was ‘liable to the claimants for infringement of their copyrights because it has authorised the copying of the claimants' films; has procured and engaged with its premium members in a common design to copy the claimants' films; and has communicated the claimants' films to the public.’ The judge ordered the website to introduce filters to stop others from linking to unlicensed films. After that court victory Newzbin went offline, only to relaunch as Newzbin2 from Sweden. The former owners of Newzbin claim they now have no connection with the new site, which is allegedly run by a group called Team R Dogs.

The MPA now wants to force BT and other ISPs to stop users accessing the site. The injunctive relief is being looked for despite the fact that provisions of the Digital Economy Act which were drafted to allow for injunctive relief were put on hold by last minute amendments to the Act - in effect removing the right to injunctive relief under that Act. The MPA is using section 97A of the UK Copyright, Designs and Patents Act, which provides for possible injunctions against internet intermediaries. Section's 97A is the UK's implementation the EU Copyright Directive, which has not previously formed the basis for legal action in this country but it has been used to force ISPs to block sites involved in distributing pirated content in Denmark and there are cases pending other European countries. In May this year a German court has granted the MPA preliminary injunction against the (current) Germany-based Web hosts of file-sharing hub The Pirate Bay, CyberBunker. Spain has passed the reintroduced legislative proposals known as the SINDE law which it easier for content owners to target copyright infringing websites and will offer a fast-track system for content owners to take action against commercial websites that exist primarily to assist others in their illegal file-sharing offline.

Richard Spearman QC, acting on behalf of the MPA, told the court that if a blocking order is granted, they will demand that UK ISPs, including BT, TalkTalk and Virgin Media, blacklist the website or face court action. He told the court that there was now "no other way of impeding the infringement of copyright" than to obtain a court order. "[Newzbin2] allows repeat and mammoth-scale copyright infringement," Spearman said. "If BT could not see that happening then they have to be the biggest ostrich in history."

BTs legal representatives said: "Rights holders in the music and movie industries have already identified 100 copyright infringing websites which they would like to see blocked. Claimants would [also then] seek orders blocking access to websites alleged to contain defamatory allegations or private and confidential information".

http://www.guardian.co.uk/technology/2010/dec/16/mpa-bt-newzbin2 and see http://the1709blog.blogspot.com/2011/02/year-of-intermediary.html

Performers to get new instrument, but will it still be the same old tune?

The definition of audiovisual performance will be
interesting. Belarus tennis star Victoria Azarenka's
televised grunts have been recorded at 95 decibels

At the end of last week, the World Intellectual Property Organization (WIPO) excitedly proclaimed a big breakthrough in terms of international consensus over a topic that has long been beset by sticking-points.  The title of WIPO's media release gives the game away a little -- it's "Agreement on Transfer of Rights Paves Way to Treaty on Performers' Rights".

"WIPO’s top copyright negotiating body will recommend to the September session of the General Assembly to resume a Diplomatic Conference on the Protection of Audiovisual Performances after agreement on the last outstanding issue relating to the transfer of rights. The convening of a diplomatic conference signals entry into the final phase of treaty negotiations, with the objective of concluding a treaty that would shore up the rights of performers in their audiovisual performances [words like 'final' and 'concluding' have a definite end-of-the-process sound to them, but the real end of the story is when WIPO members not only ratify the treaty but actually implement its provisions within their domestic law.  This blogger wonders what proportion of performers in the world today will still be alive when the treaty trickles down from Olympus to the mere mortals below]. 

A diplomatic conference on the protection of performers in their audiovisual performances held in 2000 made significant progress with provisional agreement on 19 of the 20 articles under negotiation. Negotiators at the time did not agree on whether or how a treaty on performers’ rights should deal with the transfer of rights from the performer to the producer and suspended the diplomatic conference.  Member states at the Standing Committee on Copyright and Related Rights,[better known as SCCRR] meeting .. were able to reach agreement ..., thereby paving the way for the conclusion of a treaty.  

The adoption of a new instrument would strengthen the position of performers in the audiovisual industry by providing a clearer legal basis for the international use of audiovisual works, both in traditional media and in digital networks.  Such an instrument would also contribute to safeguarding the rights of performers against the unauthorized use of their performances in audiovisual media, such as television, film and video [for many, the real question is how to safeguard their rights against unauthorised exploitation via the social media, but this is a problem faced on a far wider scale than at the level of audiovisual performances alone].   

Performers such as, singers, musicians, dancers and actors have enjoyed international protection for their performances since the adoption of the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (the Rome Convention) in 1961. In 1996, the adoption of WIPO Performances and Phonograms Treaty (WPPT) modernized and updated these standards to cover the rights in respect of the use of their audio performances on the Internet [this is the problem, though: it's easier to cover rights than to find a practical means for their enforcement]. The Rome Convention and the WPPT, however, grant protection mainly in relation to sound recordings of performances. ..."

This blogger feels particular sympathy for performers, especially the very many of them who cannot make a professional living through the commercialisation of their performances. He naturally cannot criticise the content of a Treaty which he has unsurprisingly yet to read.  However, he can hear a chorus of the words "Too little, too late" racing round inside his head and it will take some effort to dislodge them.

Policy Forum: IPR in the age of the Internet

Last Thursday, 16 June 2011, the Institute for European Studies organized a Policy Forum on “IPR in the Age of the Internet”.  Trisha Meyer (Doctoral Researcher at the Institute for European Studies, Vrije Universiteit Brussel) has kindly prepared a little note on the Forum for the 1709 Blog, and here it is:

"IPR in the age of the Internet

Intellectual property rights (IPR) play a crucial role in our knowledge-based economy and have received a high level of protection and attention in the European Union. Around 30 individuals participated in this event, which brought together two speakers -- an EU policy officer and an academic -- to discuss the European Commission's recently launched IPR strategy.

This strategy, published on 24 May 2011, seeks to address key opportunities and challenges for IPR in the Digital Single Market: it also sets out an ambitious collection of activities that are underway, or planned, to deal with copyright, IPR enforcement, and interaction with parties outside of the EU. The Commission's IPR strategy needs to be placed clearly in the context of several key EU broad policy areas: the Europe 2020 strategy and the Digital Agenda being the principal two.

In this Policy Forum, first Ms Elaine Miller, policy officer in DG Internal Market & Services, shared the European Commission's view on the future of copyright in the EU. She started her speech by pointing to the difficult position from which the European Commission starts: the general public perception of copyright is negative, copyright is still territorial and the Internet is ubiquitous. The aim of the IPR strategy is to set out a coherent approach to intellectual property rights at a European level, harnessing and reforming the legislation already in place. Ms Miller then expanded on some key actions which the European Commission will take over the next years in the area of copyright: a legislative proposal on orphan works; a proposal for a legal framework to increase transparency and governance in collective rights management and to facilitate multi-territory/pan-European licensing of music; a green paper on online distribution of audiovisual content; the appointment of a mediator to explore ways to harmonize the administration of private copying levies; and the possible review of the 2001 copyright in the information society directive, with the option of moving towards further harmonization of copyright through the creation of an EU copyright code.

Next, Prof Tuomas Mylly from the University of Turku, an expert in IPR and competition law, provided comments on the IPR strategy from an academic perspective. He argued that a long-term perspective needs to be applied to any new strategy: IPR today regulate core communication processes and interactions between individuals on the Internet. Prof Mylly emphasized that constitutional values, such as the right to communication, are at stake in the IPR strategy and critiqued the lack of harmonization of exceptions and limitations to copyright at the level of the EU. Further, he questioned the defense of strong IPR by the European Commission, based on rigorous application of competition law. He advocated a utilitarian approach to IPR, similar to the UK tradition, which considers IPR as a temporary monopoly and necessary evil. He explained what a more economic, as opposed to the Commission's proprietarian approach to IPR could look like. He also discussed some concrete actions mentioned in the IPR strategy and was particularly positive about the Commission’s openness towards the development of a unitary European copyright title.

Both the presentation and the commentary, and the fruitful debate that took place after the speeches, raised many more topics for investigation, including a discussion on the interests involved in policymaking, and the final ambitions of EU-level copyright legislation. All parties agreed, however, that only open debate and deliberation will lead to a balanced IPR strategy fit for the age of the Internet.

This Policy Forum took place at the same time as the European Commission's first Digital Agenda Assembly. It was thus an extremely opportune moment to discuss these issues, as reform of copyright is a key action (planned actions 1 through 6) in the Digital Agenda. Indeed copyright needs to be adapted to the digital era in a way that gives authors a fair remuneration for their works and also allows users to make full use of the Internet for creation, distribution and consumption. The interventions from various participants during the Policy Forum showed that this is a controversial and complex debate. Given the constraints already in place at the various levels of governance both inside and outside of the EU, there is a long way to go in order to achieve a fair and just framework for intellectual property rights at the EU level".

Thanks, Trisha, for your efforts!

German hackers get jail

More of the same from me following on from my last post, but this time from an IFPI press release that says that two computer hackers who targeted pop stars and record companies in a bid to secure personal information and distribute pre-release tracks online have been handed down prison sentences by a court in Duisberg, Germany.

The two men hacked computers containing material belonging to international stars such as Lady Gaga and Dr. Dre, accessing email accounts, banking details and other private data. One of the hackers, Deniz A (known as DJ Stolen), was given a prison sentence of 18 months. The other, Christian M (known as CEE), received a suspended 18-month sentence. Both were found guilty of copyright theft and computer intrusion. Deniz A was also found guilty of extortion.

Jeremy Banks, anti-piracy director at IFPI, which provided key assistance in the case, commented: “These are deterrent sentences for serious crimes which cause huge damage to artists and record companies. Hacking into people’s email accounts to obtain and then distribute private information or property is a very serious offence which takes considerable resources to investigate. This case shows the sheer scale and scope of measures taken to identify the offenders and bring them to justice.”

The judgments are the culmination of a two-year investigation involving law enforcement in the US and in Germany, with evidence provided by IFPI, the organisation representing the recording industry worldwide. The case came to light when IFPI investigators noticed a growing number of pre-release tracks being leaked much earlier than would normally be expected in the pre-release cycle. An intensive investigation involving artist camps, management and labels identified those who had access to the tracks concerned and the identity of those posting the pre-release music online.

The hackers were found to be using phishing emails and sending Trojan programmes disguised as music files to obtain the log-in details of their target’s private email accounts . These details were then used to access the accounts and obtain pre-release music which the hackers distributed online. IFPI’s anti-piracy teams in the UK and Germany, working with German and US law enforcement agencies, identified the suspects in Germany as the source of the online leaks. It sent evidence to local police who mounted a criminal investigation.

The convicted hackers were accused of financially damaging artists and record companies by distributing pre-release tracks online where they could be downloaded without permission or payment. They also profited from hacking by selling songs for up to US$1000 to fans.

IFPI has produced a guide for record labels, artist managers and others to advise on how best to protect themselves from this type of online hacking.

www.ifpi.org

Thuiskopie, Opus and the private copying levy: what next?

Yesterday the Court of Justice of the European Union gave judgment in Case C-462/09 Stichting de Thuiskopie v Opus Supplies Deutschland GmbH, Mijndert van der Lee and Hananja van der Lee, a reference for a preliminary ruling from the Hoge Raad der Nederlanden (the Dutch Supreme Court).  This reference turned on Article 16c(1) of the Dutch copyright law, which provided an exception to copyright in favour of copying for private use. Article 16(2) additionally provides that a maker or importer of an item used for reproduction must pay a private copying levy. Stichting de Thuiskopie is the Dutch body responsible for recovering the private copying levy; Opus, a company based in Germany, sells blank media online via Dutch-language websites that target Netherlands consumers. Opus traded on terms that, where a Dutch consumer placed an order online, that order was processed in Germany and the goods were delivered from Germany to the Netherlands, on behalf of and in the name of the customer, by a carrierg engaged by Opus.

Opus paid no private copying levy in respect of the media delivered to its customers in the Netherlands, either in that Member State or in Germany; the cost of the reproduction media sold by Opus did not therefore include any element corresponding to the private copying levy.

Arguing that Opus had to be regarded as the ‘importer’ and, consequently, responsible for paying the private copying levy, the Stichting sued for payment of that levy. Opus denied liability, saying it couldn't be classified as an importer into the Netherlands of the reproduction media which it sold and that it was individual Dutch consumers who must be classified as importers. The trial court and first appellate court agreed with Opus, following which the Stichting appealed to the Hoge Raad. That court referred the following questions to the Court of Justice for a preliminary ruling:

‘(1) Does [the InfoSoc] Directive [2001/29], in particular Article 5(2)(b) and (5) thereof,  provide any assistance in determining who should be regarded under national law as owing the “fair compensation” referred to in Article 5(2)(b)? If so, what assistance does it provide? 

(2) In a case of distance selling in which the buyer is established in a different Member State to that of the seller, does Article 5(5) of Directive [2001/29] require national law to be interpreted so broadly that a person owing the “fair compensation” referred to in Article 5(2)(b) of the directive who is acting on a commercial basis owes such compensation in at least one of the Member States involved in the distance selling?’

The Court ruled today as follows:

"1. Directive 2001/29 ..., in particular Article 5(2)(b) and (5) thereof, must be interpreted as meaning that the final user who carries out, on a private basis, the reproduction of a protected work must, in principle, be regarded as the person responsible for paying the fair compensation provided for in Article 5(2)(b). 

However, it is open to the Member States to establish a private copying levy chargeable to the persons who make reproduction equipment, devices and media available to that final user, since they are able to pass on the amount of that levy in the price paid by the final user for that service. 

2. Directive 2001/29, in particular Article 5(2)(b) and (5) thereof, must be interpreted as meaning that it is for the Member State which has introduced a system of private copying levies chargeable to the manufacturer or importer of media for reproduction of protected works, and on the territory of which the harm caused to authors by the use for private purposes of their work by purchasers who reside there occurs, to ensure that those authors actually receive the fair compensation intended to compensate them for that harm. In that regard, the mere fact that the commercial seller of reproduction equipment, devices and media is established in a Member State other than that in which the purchasers reside has no bearing on that obligation to achieve a certain result. It is for the national court, where it is impossible to ensure recovery of the fair compensation from the purchasers, to interpret national law in order to allow recovery of that compensation from the person responsible for payment who is acting on a commercial basis."

Public comments from the English-speaking rights management and collection sectors are keenly awaited. Meanwhile, the Court's ruling looks like the source of major headaches for national legislatures (how to provide a scheme which ensures that authors actually receive the fair compensation), courts (how to achieve an appropriate means of enforcing local and EU law in respect of payment which may have to be recovered from a supplier which has no place of business in the jurisdiction or indeed anywhere but cyberspace) and authors and bodies collecting for them (how to identify chargeable uses and then to quantify payments).

US Senate looks to make illegal streaming a felony

The U.S. Senate Judiciary Committee has approved a bill that would make it a felony to stream copyrighted movies and TV episodes online. Sponsored by Senators Amy Klobuchar (D-Minn.) and John Cornyn (R-Texas), the Commercial Felony Streaming Act is actively supported by the entertainment industry and the trio of the Motion Picture Association of America (MPAA), the Independent Film & Television Alliance (IFTA) and the National Association of Theatre Owners (NATO) issued a joint press release with some deeply insightful comment. Drum roll please ....... Jean Prewitt, IFTA President & CEO said “The illegal streaming of motion pictures and television programming is as financially devastating for our industry as is illegal downloading” adding “Stealing is stealing, regardless of the means in which the product is being received. This legislation is a critical step forward in the piracy fight and we commend the Committee for their support. NATO President and CEO John Fithian said “We commend the Committee for moving this important piece of legislation for consideration by the Senate. It will close a gaping hole in the law and go far in protecting the livelihoods of theater employees from the threat posed by illegal streaming” adding the move would protect jobs in the sector. Finally Michael O’Leary, Executive Vice President, Government Affairs for the MPAA said “This bill will help ensure that the punishment for these site operators fits the crime, and we look forward to continuing to work with Members in the Senate and House towards its swift passage

In other news, Torrentfreak reports that a Canadian man who failed to appear to defend himself in a U.S. court has been found guilty of copyright infringement for uploading two adult films to a file-sharing network, and ordered to pay $60,000 in damages. And in China, three people have been jailed after being found guilty of infringing trade secrets regarding Apple’s iPad 2 six months before its release was publicly announced. The case concerned the head of a company that makes accessories for Apple’s iPad and other devices who offered a former employee and another then-active employee at iPad manufacturer Hon Hai incentives for information regarding the iPad 2. The trio were sentenced to jail terms of 18 months, 14 months, and 12 months, respectively.

http://mpaa.org/resources/76421ba8-c3e9-40de-bc0d-c39cedccb7f3.pdf

Three forthcoming events

The 1709 Blog's Big Copyright Debate on Tuesday 12 July, on whether we come to bury copyright or to praise it, had by midnight on Sunday night notched up no fewer than 130 registrants.  The auditorium holds more, so please don't feel shy about letting us know if you'd like to come.  The venue is the London office of Freshfields Bruckhaus Deringer and admission is free.  To register for this event, which is being held in conjunction with the IPKat weblog, just email here and let us know you're coming.

Policy Forum: IPR in the age of the Internet is the title of an event hosted by the Institute for European Studies (IES) at the Vrije Universiteit Brussel (that's the Free University of Brussels).  The Forum is coming up very soon, in fact it's this Thursday, 16 June 2011. According to the organisers:

"Intellectual property rights (IPR) are essential in our information economy and have received a high level of protection and attention in the European Union. On 24 May 2011, the European Commission published a new strategy for intellectual property rights, seeking to address the key opportunities and challenges for IPR in the single digital market. In this policy forum Ms Elaine Miller, policy officer in DG Internal Market & Services, will share the Commission's view on the future of copyright in the EU. Prof Tuomas Mylly, a high-level expert in the field of copyright, will provide comments on the new IPR strategy, as well as address the balance which needs to be sought between protection of IPR online and other interests".

The Forum takes place from 12:00-14:00 at the Institute for European Studies, Pleinlaan 5, 1050 Brussels. Participation is free of charge and open to all but, due to space limitations, registration is required. Further information is available here.  Those wanting to participate can register by sending an email here. 

Talking Copyright: What’s All The Fuss? With the recent prevalence of online activity having moved the subject of copyright from the lofty confines of academic and legal circles into the mainstream consciousness, this seminar is an opportunity for panellists and participants to voice their opinions. What’s copyright? Why should we care about copyright? Where are consumers’ rights? Would the world be a better place without having all rights reserved? What’s all the fuss about?

“Economic evidence is not, of course, the sole driver of IP policy. Legitimate questions of culture, fairness and “just reward” for creators also arise, and have tended to dominate the debate on copyright issues.” Hargreaves Review Of IP, May 2011

Panel: Kienda Hoji (University Of Westminster Commercial Music BA programme director), Saskia Walzel (Consumer Focus policy advocate), Dr Catherine Lee (IPKat contributor), Dr Enrico Bonadio (City University London law lecturer), Emmanuel Legrand (World Copyright Summit conference coordinator), Prof Martin Kretschmer (Centre For Intellectual Property Policy & Management director), Danilo Mandic (University Of Westminster Law School doctoral researcher), Chris Cooke (CMU co-publisher & business editor). Chair: Kwaku (BBM/BMC founder). In association with University Of Westminster Commercial Music and CultureTalkClub.

This event takes place on Friday June 24 2011, 6.30-9pm, at the University Of Westminster (The Old Cinema), 309 Regent Street, London W1B 2UW (Oxford Circus). Registration is free but pre-booking is essential.  You can find further information from British Black Music here or ask for it here.

US Copyright Registration: $35 Insurance?

Formalities may not be allowed thanks to Berne, but that doesn’t stop the United States from encouraging copyright owners to register their works.  With so many everyday people creating copyrighted works – photos, emails, blog posts, tweets – a question to the necessity of copyright registration arises.  When should you bother registering?  Jonathan Bailey over at Plagiarism Today has a great post seeking to answer this question.

Once upon a time, there were formalities…

One answer is that you should register your work if it was created back when registration was required (i.e. under the old 1909 Copyright Act).  That’s something blues musician Syl Johnson learned the hard way.  Although in this instance, Syl had some bigger problems.

Part I

The case, Johnson v. Cypress Hill, et al. [Johnson II], Nos. 08-3810, 09-2213 & 10-1733 (June 1, 2011), involved legendary rap group Cypress Hill and Syl’s song “Is It Because I’m Black.”  Syl recorded two versions of this song, one in 1969 and one in 1972.  In 2003, he sued Cypress Hill for using his song in one of their 1993 songs.  As is the case with most copyright suits about hip hop tracks, the portion of the song used was small (2.5 seconds) and looped.  (Not relevant, but interesting all the same.)

Syl believed that his federal lawsuit was valid based on his recollection of having registered the 1972 recording in 1997.  But he ran into two problems.  First, he didn’t actually register the 1972 song (other songs were contained in the registration, but not the one at issue here).  Second, Cypress Hill didn’t use the 1972 recording, they used the 1969 recording.  The problem with that?  Sound recordings weren’t eligible for federal copyright protection until 1972.  Cypress Hill: 2, Syl: 0.

Syl’s next move was to try to sue under laws that applied to his work: common law misappropriation and federal copyright infringement for a different copyright.  Compositions were eligible for copyright protection in 1969 so Syl registered the work as a composition, in 2003.  That is the registration he used for the basis of the federal copyright claim in his motion to amend his complaint.  By this point, it was 2008, five years after the suit began and 15 years after the Cypress Hill song at issue was released.  The judge denied Syl’s motion to add these claims to the case and granted Cypress Hill summary judgment.  Cypress Hill: 3, Syl: 0.

Syl tried to get the court to vacate the summary judgment and just dismiss the case for lack of subject matter jurisdiction.  In a nice twist, Syl argued that since he didn’t have copyright in the first place, the court didn’t have jurisdiction.  Instead he got an order to pay attorney’s fees and costs for Cypress Hill, a judgment in excess of $300,000.  Cypress Hill: 4, Syl: –300,000.

But wait, it turns out that was only the first half.  If you’ll notice above, the case citation has the nickname “Johnson II.”  All that stuff above, that’s all in Johnson I.  So could Syl come back and even the score in the 2nd half?

Part II

Syl came back with a new case, Johnson II, in state court, again bringing the state law misappropriation claim.  Cypress Hill had the case moved to federal court.*  Once that happened, Syl tried to amend his complaint to add the composition infringement claim, basically attempting to make Johnson II exactly like what he tried to make Johnson I.  It didn’t work any better the second time.  The court dismissed the case with prejudice, meaning Syl couldn’t try to bring the same case for a third time.  The reason: Syl’s claims were barred by res judicata.  Cypress Hill: 5, Syl: still –300,000.

Syl fights hard and doesn’t give up.  He appealed, and he appealed everything: the first courts grant of summary judgment, his motion for dismissal based on lack of subject-matter jurisdiction, the attorney fees and costs award, and the dismissal of his claims in the new case.

Syl lost on all four. The first court didn’t abuse it’s discretion when granting summary judgment because of the long delay in attempting to amend the complaint.  The court had subject matter jurisdiction over the case because a valid copyright registration is a requirement for filing a claim but does not affect the court’s jurisdiction over the case.  The fees and costs award was valid because the US Copyright Act gives the court discretion to award costs and attorney’s fees to the prevailing party in an infringement suit.  And finally, dismissal of the new case was correct because the second case involved the same people, involved the same events, and the first case was decided on its merits.

Final score: Cypress Hill: 300,000.  Syl: –300,000.

 

* For those unfamiliar with US civil procedure, there are basically two ways to have a case heard in federal court, have a claim under a federal law (federal question jurisdiction) or have the two parties be from different states (diversity jurisdiction).  Johnson I was brought in federal court under the first type; Johnson II was moved to federal court under the second type.

Hat tip to Joe Forward and the State Bar of Wisconsin for their post on this case.

To bury or to praise?

Mark Antony --
copyright or bust?

"Do we come to bury copyright, or to praise it?"  The title of the forthcoming debate on 12 July (click here for full details) has been widely recognised by readers as a nod to Mark Antony's speech in Shakespeare's celebrated drama Julius Caesar.  You can access the original by clicking here and scrolling down to "Friends, Romans, countrymen ..."

One erudite reader has drawn our attention to what he calls "the original, slightly adapted by Gaius Indiges".  Its relevance to copyright makes it fit to cite here, in the context of the debate.

"Friends, Romans, countrymen, lend me your ears
I come to bury Copyright, not to praise it.
The evil that men do lives after them;
The good is oft interred with their bones;
So let it be with Copyright. The noble critic
Hath told you Copyright was out of date:
If it were so, it was a grievous fault,
And grievously hath Copyright answer'd it.
Here, under leave of the critic and the rest—
For the critic is an honourable man;
So are they all, all honourable men—
Come I to speak in Copyright’s funeral.
It was the creator’s friend, faithful providing just reward
But the critic says it was out of date;
And the critic is an honourable man.
Copyright hath brought many ideas home to the digital services
Whose exploits did their general coffers fill;
Did this in Copyright seem out of date?
When that the creator have cried, Copyright hath helped:
Copyright should be made of sterner stuff:
Yet the critic says it was out of date;
And the critic is an honourable man.

You all did see that on the Lupercal
In thrice times hundred years the world presented many a change
Which it did thrice times hundred managed. Was this out of date?
Yet the critic says it was out of date;
And, sure, the critic is an honourable man.
I speak not to disprove what the critic spoke,
But here I am to speak what I do know.
You all did love copyright once, not without cause:
What cause withholds you then, to mourn for copyright?
O judgment! thou art fled to brutish beasts,
And men have lost their reason. Bear with me;
My heart is in the coffin there with copyright,
And I must pause till it come back to me.
…
But yesterday the word of copyright might
Have stood against the world; now lies it there,
And none so poor to do it reverence.
O masters, if I were disposed to stir
Your hearts and minds to mutiny and rage,
I should do the critic wrong, and the academic wrong,
Who, you all know, are honourable men:
I will not do them wrong; I rather choose
To wrong the dead, to wrong myself and you,
Than I will wrong such honourable men.
But here's a parchment with the seal of copyright;
I found it in its closet, 'tis its will:
Let but the commons hear this testament—
Which, pardon me, I do not mean to read—
And they would go and kiss dead copyright's wounds
And dip their napkins in its sacred blood,
Yea, beg a hair of it for memory,
And, dying, mention it within their wills,
Bequeathing it as a rich legacy
Unto their issue".

The Big Debate now has 107 registrants, representing all sides of the copyright . There's room for more, registration is free and refreshments are provided -- so do let us know if you're coming by emailing Jeremy here with the subject line Copyright Debate".

Tajikistan dances to the beat of the WPPT

Today is an historical day for the 1709 Blog -- it's the first time we have ever had the need to make mention of Tajikistan. Suffice it to say that, through WPPT Notification No. 81 we have been notified of the deposit by the Government of the Republic of Tajikistan, on May 24, 2011, of its instrument of accession to the WIPO Performances and Phonograms Treaty, adopted at Geneva on December 20, 1996 [and grumbled about ever since by various poeple for requiring (i) too much, (ii) too little or (iii) the wrong sort of protection for the works covered by it].

The Treaty will enter into force with respect to the Republic of Tajikistan on August 24, 2011.

Music of Tajikistan here and here

WPP moves to cut of advertising cash for infringing websites

In another example of how the imagined 'Wild West' of the internet is (slowly) being tamed by proactive business practices which can run alongside new legislation and court decisions, advertising giant WPP has announced a list of 2,000 websites in the USA which it says carry illegal or pirated content and will not be used for advertising for the group's clients. The list will be used by the media buying agencies within WPP's GroupM business and executives in those companies have been told not to buy any advertising on those site - and since they have a combined annual spend of $6 billion, $3.5 billion in the US alone – that’s quite a major move. WPP's clients include Ford, Unilever, AT&T and IBM and interestingly their client list also includes two major labels - Universal Music and the Warner as well as the Paramount film company. The list will be regularly updated.

GroupM Interaction's Global CEO Rob Norman told reporters: "We're serious about combating piracy and protecting our clients' intellectual property as forcefully as we possibly can. This policy extends to digital media buyers at all GroupM agencies, as well as other WPP companies like Team Detroit, which manages Ford's media business". According to The Guardian, among the sites blacklisted are access-anything.com, albumhunt.com, extratorrent.com, fileseek.info, free-tv-show.com, gpirate.com, kickasstorrents.com and laptop-downloads.com. Last year Google pledged to stop websites that infringe copyrights from using its adwords service.

http://www.guardian.co.uk/media/2011/jun/08/wpp-groupm-sir-martin-sorrell

Do we come to bury copyright -- or to praise it?

1709 Blog Copyright debate

in conjunction with the IPKat weblog

“Do we come to bury copyright — or to praise it?”

Tuesday 12 July 2011

What’s the debate about?

Is copyright a vital tool for protecting authors, composers and artists, and for encouraging investment in the recording and transmission of their works to the public—or is it an outdated, cumbersome barrier to the spread of information and to the stifling of the very culture which it purports to promote?

The current state and future prospects for copyright law have never been more keenly debated than today, when modern technologies and the expectations of internet users are among the forces which have called for a radical overhaul of what, for others, is a sensible and practical basis for achieving justice while facilitating business.

This debate seeks to air the issues that make us ask: do we come to bury copyright or to praise it?

Four people who are deeply committed to finding an answer to this question will be debating it.  The audience will be polled for their answers both before and after the debate, so that we can see which side has been the more persuasive.

Debating the issue (in alphabetical order):

Crosbie Fitch (An R&D software engineer,  Crosbie has been researching and developing revenue mechanisms and business models for digital artists and their audiences for more than a decade. He has concluded from his work that  copyright is not only an ineffective anachronism, but that it is unethical and unnecessary)

Emily Goodhand (Copyright and Compliance Officer at the University of Reading, Emily enjoys engaging with others on copyright and IP issues and dedicates a lot of time to raising people's awareness of copyright. She writes the copyright4education weblog. As @copyrightgirl she is listed by The Times as a Top Ten tweeter)

David Allen Green (A lawyer and writer, David is head of media at Preiskel & Co LLP, a City TMT boutique firm, and was recently selected as one of The Lawyer’s “Hot 100” for 2011.  He is also legal correspondent of the New Statesman. His “Jack of Kent” blog was shortlisted for the George Orwell Prize in 2010)

Richard Mollet (Richard has been Chief Executive of The Publishers Association—the leading representative voice for the UK's book and learned journal publisher— since October 2010. He coordinates members' views on copyright policy and anti- infringement strategies.  Richard was previously Director of Public Affairs for the BPI, the UK recorded music industry body)

In the chair

 Mr Justice Arnold (Richard was called to the Bar in 1985, became a QC in 2000 and was appointed to the Chancery Division of the High Court in 2008)

Further details

Date: Tuesday 12 July 2011; Time: 5.00pm till 7.00pm; Venue: Freshfields Bruckhaus Deringer, 65 Fleet Street, London EC4Y 1HT, England (please use Tudor Street entrance).

Admission is free. Refreshments will be provided after the debate.

To register, please email Jeremy Phillips here using the subject line “Copyright Debate”.  

Origami artists bring action against Morris

Six origami artists from around the globe are bringing a US legal action against artist Sarah Morris, accusing her of using their works in her own. The origami artist's lawsuit says that some of Morris's collection of 37 abstract works simply titled 'Origami' are nothing more than coloured in versions of their own intricate works of folded paper which feature humming birds, grasshoppers, beetles and other creatures. The lawsuit, filed in California by the six artists whose home countries include Spain, Italy, Japan and the USA, says that in 24 of Morris's works, she copied the original origami crease patterns, changed the colour schemes and then exhibited the works without permission from the original creators of the patterns and designs, saying that the new works by Morris are "strikingly similar to copyrighted artworks". In an interview on her gallery's website she says that "for me, origami is a sign of change. It is always used ... like a harbinger of change. And what the change is depends on your projection of change. You know its an open structure and. Its like an open vessel". Morris had reportedly said that she had based the Origami series on "found origiami designs" and "traditional patterns". It is reported that Morris's lawyer, Donn Zaretsky, told Art Newspaper the case was "completely without merit and we look forward to defending the matter in court. Its hard to think of a clearer use of transformative fair use".

More at http://www.guardian.co.uk/artanddesign/2011/jun/05/tate-artist-sarah-martin-origami-lawsuit

Licensees, third parties and the Software Directive: a reader asks ...

(Third) party time for the
Software Directive ... 

The 1709 Blog has received some interesting questions from one of its readers, who asks:

"“Articles 5(1), 5(2), 5(3) and 6 of the Software Directive (Directive 2009/24) and Sections 50A, 50B, 50BA and 50C of the Copyright, Designs and Patents Act 1988 in the UK set out ‘permitted acts’ in relation to software (see also SAS v WPL here and here, in which questions have been referred to the ECJ regarding the scope of the permitted act of observing, studying and testing). My questions however relate to third parties and the permitted acts. They are:

1. If a licensee engages a third party to carry out a permitted act on its behalf:
(a) would the licensee be able to use the results of the third party’s act without infringing the licensor’s copyright? 

(b) would the third party have a defence to copyright infringement, on the basis it was carrying out a permitted act on behalf of the licensee? 

(c) would the answer to 1(b) be different if the Licence Agreement between licensee and licensor included a prohibition on sublicensing or permitting any other third party use? 

(d) could a prohibition on permitting any third party access for the purpose of carrying out a permitted act on behalf of the licensee, be void under Article 8 Software Directive and Section 296A Copyright, Designs and Patents Act 1988?"

As usual, the 1709 Blog welcomes your answers and comments, even if you are a member of the Court of Justice of the European Union ...

Out with the Acting, in with the Doing

The news is a few days old, but it hasn’t appeared here yet and it should.  This past week the United States got a new Register of Copyrights: Maria Pallente.

Maria has been serving as the Acting Register since the previous Register, Marybeth Peters, retired at the end of the last year.  As of the first of this month, Maria is now the full, official, not-just-acting-but-being, Register.

The US Register of Copyrights works under the Librarian of Congress and does a lot more than just registering things.  Her role does includes developing procedures within the Copyright office for registering works, researching registrations and other such things.  But her increasingly more important role is to provide input and analysis on copyright law and issues relating to copyright, both domestic and international.

Already Maria has testified before Congress about potential changes to the US copyright regime.  Her first day as Register, she appeared before the Subcommittee on Intellectual Property, Competition, and the Internet to discuss various types of online infringement.  She had testified about similar issues before the same subcommittee has Acting Register in March.

Marybeth Peters is often hailed for her many achievements as Register of Copyrights, and I’ve often heard her spoken of fondly by both sides of the great copyright debates.  Maria has some big shoes to fill, but it looks like she’s jumped right in and is ready for the challenge.  Welcome to Maria!

For a full description of the US Register of Copyrights duties: 17 U.S.C. §701

When appeal loses its appeal: CSC turn tables on VPL

CSC Media Group Ltd (formerly Chart Show Channels Ltd) v Video Performance Ltd [2011] EWCA Civ 650, 27 May 2011, is a decision of the Court of Appeal for England and Wales which is not yet available on BAILII (this note being taken from a helpful alert on LexisNexis) but which raises important implications for anyone thinking of appealing against a decision of the UK's Copyright Tribunal.

In August 2010 Mr Justice Floyd heard an appeal against the first decision of the Tribunal on the going rate for broadcasting music videos. The appellant, Video Performance Ltd (VPL), was not very happy when the Tribunal said that the correct royalty rate payable by TV channel operator CSC should be somewhere in the region of 10% to 15% since an earlier licence between VPL and BSkyB set a more comfortably remunerative rate of 20%.  Floyd J allowed VPL's appeal and held that, when the Tribunal assesses the amount the licensee must pay under the Copyright, Designs and Patents Act 1988 s.129, it must give proper weight to the terms of other comparable licences. In this case the Tribunal had taken account of the BSkyB licence only after it had reached its position that 10-15% was correct. Even if the Tribunal had reservations about the BSkyB licence, it couldn't just be shunted into the background since it was the single most significant piece of evidence as to what the proper royalty rate should be. The correct approach involved starting with the most relevant comparable licence, then adapting it to the circumstances of the present case. Since the Tribunal had not only taken the wrong view concerning the earlier licence but had also erred in not applying the pro-rating formula which the parties had themselves agreed while having no proper or rational basis for departing from that formula, the case would be remitted to a differently-constituted Tribunal for reconsideration.

This time it was CSC's turn to appeal, submitting that Floyd J had (i) failed to attribute to the Tribunal awareness, in fixing the reduced window, of its subsequent discussion of comparables and (ii) failed to appreciate that the Tribunal's treatment of the relevance and weight of those comparables was coloured by its earlier discussion of the law and of the music video market.

The Court of Appeal allowed CSC's appeal.  In its view the judge's criticisms of the Tribunal's arrival at the reduced window royalty rate took an unrealistic and unjustified view of its reasoning and adopted too prescriptive a view of the way such cases fell to be decided.  This was because, before arriving at those figures, the Tribunal had surveyed the music video market and effectively rejected VPL's case that it had secured a freely negotiated voluntary acceptance of an alleged standard licensing approach of a headline 20 per cent royalty. Additionally, the Tribunal had made findings of fact which were directly relevant to its assessment of any comparables.  This being so, it was unrealistic to subject the Tribunal's reasoning to a rigorous analysis which was based on the assumption that, when fixing the lower window, it had missed issues which it actually mentioned explicitly later on in its decision.

This would have been enough to bury Floyd J's decision by itself. However, having got up a reasonable momentum, the Court of Appeal was not going to be easy to stop.  It would be odd, it added, to hold that a specialist Tribunal --  in a lengthy, conscientious and detailed judgment -- had ignored its own clear and proper statement of the correct legal approach. What's more, the Tribunal's findings of fact were capable of supporting a perfectly proper conclusion about the reduced window since the law did not compel the Tribunal  to deploy any specific analytical structure and methodology. So long as it discharged its statutory duty under section 126, the precise way it carried out its analysis and the order in which it addressed the material issues in its decision could not undermine the validity of its conclusions.

It wasn't just the judge who came in for a bashing: VPL's criticisms of the Tribunal's approach to the reduced window royalty rate weren't worth a shout since they did not disclose any error of law which undermined the validity of its decision.