The Federal Court's ruling is the culmination of a long-running legal case in which GEMA sued Germany's largest telecoms company Deutsche Telekom for refusing to block the access to the now defunct website 3dl.am, which provided access to a large catalogue of downloadable copyright protected music. The court reminded us that "Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right" (Art. 8(3) InfoSoc Directive). However, and reinforcing the need for balance, in a separate case brought by Universal Music, Sony Music and Warner Music against Telefonica's O2 Deutschland the court dismissed the label's request for O2 Deutschland to block access to peer-to-peer file-sharing network goldesel.to saying "The company that provides access to the internet [will only be liable for blocking access to an infringing site] if the rights holder has initially made reasonable efforts to take action against those parties who committed the infringement itself, such as the owner of the website or the host provider. Only when recourse to these parties fails or lacks any prospect of success [is the access provider obliged to act]". More on the IPKat here.
In Sweden, and after deliberating for almost a month, the Stockholm District Court has decided that copyright holders can not force a Swedish ISP to block the The Pirate Bay. The Court found that Bredbandsbolaget's operations do not amount to participation in the copyright infringement offences carried out by some of its 'pirate' subscribers. Universal Music, Sony Music, Warner Music, Nordisk Film and the Swedish Film Industry had teamed up in a lawsuit designed to force Swedish ISP Bredbandsbolaget (Broadband Company) to block the site. TorrentFreak reports that the District Court ruled that Swedish legislation meets the requirements of the Infosoc directive and further that the actions of Bredbandsbolaget do not constitute participation in crimes in accordance with Swedish law: “A unanimous District Court considers, therefore, that it is not in a position to authorize such a ban as the rights holders want and therefore rejects their request,” said presiding Chief Magistrate Anders Dereborg. An appeal is almost certain with the group's legal counsel, Henrik Bengsaying, saying the decision was "a serious failing for the Swedish judicial system," and that ISPs have the responsibility to "stop illegal services from reaching Swedish internet users."
As I went to 'press the button' to publish this blog ,I noticed that over on the IPKat Eleonora has analysed both of the above cases in a wider article - see here Blocking orders across Europe: personality disorder or are the Swedes right?
And news reached us that Soundcloud has removed a track that is "nothing but four minutes of pure silence" due to “Copyright Infringement” claims. The title of the track by D.J. Detweiler is 'allegedly' the same as an existing 'track' and 'song': John Cage – 4’33, a "popular orchestral performance" that consists of exactly 4 minutes and 33 seconds of silence. For the past 60 years, musicians have argued over the conundrum of copyrighting “just silence”, since it consists of no actual sounds although it could be argued that each recording of a performance would be unique. So why did Soundcloud take down the track? One commentator opines that the reason is that SoundClous "is lazy and takes shortcuts to flag and remove content", here simply relying on the "works" title. Interestingly, it is perhaps the one time D.J. Detweiler cannot claim fair use or even parody - in the past he has produced numerous satirical “flutedrop” remixes to tracks like TNGHT’s “Higher Ground” and Miley Cyrus’ “Wrecking Ball.” - replacing the primary portions of popular songs with an elementary school style recorder rendition of the original melody. But this story has a twist - and a big twist at that: as this news story broke and DJ Detweiler basked in the attention ...... according to SoundCloud, DJ Detweiler's "remix" wasn't silent at all: "The upload referenced in the screenshot was not a track of silence and was taken down because it included Justin Bieber's 'What Do You Mean' without the rightsholder's permission," the company said, adding "The respective user uploaded the track under the title "4'33"," which is also the name of John Cage's famous piece of silence but it was not, in fact, silence. We're happy to host any content on the platform as long as it's properly authorized. If we're told that any content has been posted without permission, we need to remove that content in accordance with applicable law. More here and here.