R.I.P. Conceptual Separability Test

The US Supreme Court held on March 22, 2017 that a feature incorporated into the design of a useful article is eligible for copyright protection “if, when identified and imagined apart from the useful article, it would qualify as a pictorial, graphic, or sculptural work either on its own or when fixed in some other tangible medium.” The case is Star Athletica LLC v .Varsity Brands. Justice Thomas wrote the opinion of the Supreme Court.

Conceptual Separability is Much Safer

Readers of this blog may remember that this case is about whether cheerleading uniforms can be protected by copyright. Both parties are creating and selling cheerleading uniforms. Varsity Brands has registered some 200 copyrights for two-dimensional designs appearing on the surface of their uniforms and other garments. It sued Star Athletica for copyright infringement, claiming that its competitor had copied five of its designs protected by copyright. The Western District Court of Tennessee granted summary judgment to Star Athletica, reasoning the designs could not be protectable by copyright, as they could not be separated from the utilitarian function of the uniforms (see here for more). On appeal, the Sixth Circuit Court of Appeals reversed, finding Varsity's designs to be copyrightable graphic works. The Supreme Court affirmed.

Useful articles cannot be protected by copyright, but a pictorial, graphic, or sculptural work incorporated in the useful article can be protected if it is separable from the useful article. However, such design must be capable of being “identified separately from, and [must be] capable of existing independently of the utilitarian aspects of the article,” 17 U.S.C. § 101. The design can be physically separable or “conceptually separable” from its utilitarian aspect. Physical separability occurs if the feature seeking copyright protection can “be physically separated from the article by ordinary means while leaving the utilitarian aspects of the article completely intact,” Compendium §924.2(B). This is easily understandable, but conceptual separability, which applies if physical separability by ordinary means is not possible, is the stuff [bad] dreams [of IP attorneys] are made of. Or, at least, it was, as today’s opinion signals its demise.

The first part of the new test requires that the design seeking copyright protection must be able to be perceived as a two or three-dimensional work of art separate from the useful article. This was the case here. Justice Breyer dissented from the majority, reasoning that the designs on the cheerleading uniforms are not separable because if one would remove them from the uniforms and place them on another medium of expression, such as a canvas, it would create “pictures of cheerleader uniforms.” But Justice Thomas wrote that this does not prevent these deigns to be protected by copyright, because

“[j]ust as two-dimensional fine art corresponds to the shape of the canvas on which it is painted, two-dimensional applied art correlates to the contours of the article on which it is applied.  A fresco painted on a wall, ceiling panel, or dome would not lose copyright protection, for example, simply because it was designed to track the dimensions of the surface on which it was painted” (p. 11).

The second part of the new test requires that the design must be able to exist apart from the utilitarian aspect of the article, as its own pictorial, graphic, or sculptural work. If it can’t, then it is one of the useful article's utilitarian aspects. Thus, the design itselfcannot be itself a useful article (p. 7).

This interpretation is consistent with Mazer v. Stein, a 1954 Supreme Court case studied by all U.S. copyright students. Justice Thomas noted that two of its holdings are relevant in our case (p. 9).  The Court held in 1954 that a work of art which serves a useful purpose can be protected by copyright. In the case of Mazer v. Stein, it as was statue which served as a lamp base. The Court also held in 1954 that a work of art is copyrightable even if it was first created as a useful article. Justice Thomas specified that, in our case, the Court interpreted the Copyright Act in a way which is consistent with Mazer v. Stein as today’s opinion “would afford copyright protection to the statuette in Mazer regardless of whether it was first created as a standalone sculptural work or as the base of the lamp.”

R.I.P. conceptual separability test. Justice Thomas explains it is no longer needed, as “[c]onceptual separability applies if the feature physically could not be removed from the useful article... Because separability does not require the underlying useful article to remain, the physical-conceptual distinction is unnecessary” (p.15).

Justice Thomas clarified the scope of the opinion as such:

“To be clear, the only feature of the cheerleading uniform eligible for a copyright in this case is the two-dimensional work of art fixed in the tangible medium of the uniform fabric. Even if respondents ultimately succeed in establishing a valid copyright in the surface decorations at issue here, respondents have no right to prohibit any person from manufacturing a cheerleading uniform of identical shape, cut, and dimensions to the ones on which the decorations in this case appear” (p. 12).

But what makes a particular uniform feature of stripes and chevrons particular, is it because they are applied on the uniform, or because the uniform is cut in such a way and uses such contrasting colors  on which the designs are appearing?

Justice Ginsburg concurred, but she took the view that “[c]onsideration of [the separability] test is unwarranted because the designs at issue are not designs of useful articles. Instead, the designs are themselves copyrightable pictorial or graphic works reproduced on useful articles… [and may thus] gain copyright protection as such” (p. 23 and p. 24).

Should we cheer? Time will tell.

Cheering for a much-anticipated Supreme Court opinion on conceptual separatibility

The Supreme Court of the United States will hear next month the arguments of both parties in the Star Athletica, LLC v. Varsity Brands, Inc. case, which is closely monitored by copyright attorneys, but also by fashion designers, as its outcome may help, or hinder, their ability to protect their designs.

The case is about cheerleading uniforms, which the two parties, Star Athletica and Varsity both manufacture and sell. Varsity alleged that Star Athletica had copied some of its designs and sued its competitor for copyright infringement. The District Court held in favor of Star Athletica, finding Varsity's designs not copyrightable because their graphic elements were not physically or conceptually separable from the utilitarian function of a cheerleading uniform. For the court, the colors, stripes, and chevrons featured on the designs are usually associated with cheerleading uniforms. Therefore, they are what makes the uniforms recognizable as a cheerleading uniforms.

Hold on… Conceptual separatibility? What is it?

A “useful article” is not protected by U.S. copyright, 17 U.S.C. § 101. Clothes are useful articles, and therefore, are not protected by copyright. However, a useful article may be protected if it “incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article,” 17 U.S.C. § 101. If a particular feature of a useful article is physically separatable, or “conceptually separable” from its utilitarian aspect, then it is protected by copyright.

While physical separatability is easily understandable (see Copyright Office Compendium 924.2[A]), conceptual separability is not easily defined. Federal courts have each their own “conceptual separatibility” test.

In our case, the Sixth Circuit reversed and created its own five-part conceptual separability test to reach the conclusion that the designs created by Varsity to adorn the uniforms were conceptually separable from its utilitarian function. The Sixth Circuit test asks five questions: (1) is the design is a pictorial, graphic or sculptural work, (2) is the design a useful article, (3) what are the utilitarian aspects of the useful article, (4) can the viewer of the design identify the pictorial, graphic or sculptural features separately from the utilitarian aspects of the useful article, and (5) whether the design features exist independently of the utilitarian aspects of the useful article. The Sixth Circuit concluded that the designs of the uniform are “wholly unnecessary to the performance of the garment’s ability to cover the body, permit free movement and wick moisture” and thus the graphic features of Varsity's cheerleading-uniform designs exists independently from this utilitarian aspect.

Judge McKeague dissented. While agreeing with the Sixth Circuit’s general approach of first defining what is the function of the work, then finding out whether the elements claimed as being copyrightable can be identified separately from that function, or can exist independently of it, Judge McKeague disagreed on in what is the function of the cheearleading uniforms. For Judge McKeague, the function of a cheerleading uniform is to identify its wearer as a member of a group, and thus its design is indeed functional.

Star Athletica filed a petition for a writ of certiorari in January 2016, which was granted by the Supreme Court. The Court will now answer this question: “What is the appropriate test to determine when a feature of a useful article is protectable under § 101 of the Copyright Act?” (This page of the SCOTUS blog lists all the briefs filed in this case, including amicus curiae briefs.)  

Respondent Varsity has filed its brief on September 14. It argues that two-dimensional artwork on useful articles “easily satisfy” the separability test (p.26). For Varsity, the functions of two-dimensional artwork are “purely decorative or communicative, not utilitarian, which makes such artwork inherently separatable from [the utilitarian aspects of a useful article]” (p.26).

The Supreme Court now has the opportunity to unify the conceptual-separability test. It will probably specify the instances when a particular garment can indeed be protected by copyright. We will keep you posted.

The CopyKat

A U.S. District Court judge has again looked at a case brought by three publishers against Georgia State University's e-reserve and ruled that, in 41 of 48 cases, no copyright infringement took place. The 220 page ruling applies the four-part fair-use test that the Eleventh Circuit Court of Appeal directed Judge Evans to use to each on each of the 48 cases - and in particular to look at (i) the purpose and character of the use — which will favour fair use when that purpose is non-profit and educational, and (iv) the potential impact of the use on the market for or value of the original. But the case is seen by copyright experts as a complicated decision that won't be of much help to universities in determining fair use. Excellent comment by Kevin Smith JD on the Duke Universities Library blog here. 

In China the National Anti-pornography and Anti-illegal Publications Office, the National Copyright Administrative of China (NCAC) and several other government ministries have announced a special enforcement campaign against small photocopying shops that operate on and around university campuses. Many copy shops are suspected of illegally reprinting textbooks and other written works. The campaign – given the operation name “Autumn Wind” – will run from February to September and cover 40 cities. More here (in Chinese).

Also in China the UK's ever useful IPO China IP newsletter tells us that Deputy Chief Judge of the Supreme People’s Court Tao Kaiyuan has called for the establishment of one single, specialist IP appeals court to hear cases from across the country. Currently appeals are heard in provincial-level High People’s Courts. And Shanghai Vice-Mayor Zhao Wen  has again called for the unification of patents, designs, trade marks and copyright into one Ministry-level department.

Three American copyright scholars have released a study into the impact of copyright takedowns on free expression in America: Notice and Takedown in Everyday Practice, by Jennifer Urban (UC Berkeley), Joe Karaganis (Columbia), and Brianna L. Schofiel (UC Berkeley) uses detailed surveys and interviews and a random sample from over 100,000,000 takedown notices to analyze the proportion of fraudulent, malformed or otherwise incorrect acts of censorship undertaken in copyright's name, using the Digital Millennium Copyright Act's takedown procedure. The findings suggest that whether notice and takedown “works” is highly dependent on who is using it and how it is practiced, though all respondents agreed that the Section 512 safe harbors remain fundamental to the online ecosystem. Perhaps surprisingly in light of large-scale online infringement, a large portion of OSPs still receive relatively few notices and process them by hand. For some major players, however, the scale of online infringement has led to automated, “bot”-based systems that leave little room for human review or discretion, and in a few cases notice and takedown has been abandoned in favor of techniques such as content filtering. The second and third studies revealed surprisingly high percentages of notices of questionable validity, with mistakes made by both "bots" and humans. TechDirts take is somewhat evident from the headline DMCA's Notice And Takedown Procedure Is A Total Mess, And It's Mainly Because Of Bogus Automated Takedowns. 

Canadian-based Cirque du Soleil is suing American pop superstar Justin Timberlake, alleging that his hit song "Don't Hold the Wall" illegally borrows from one of the troupe's original musical compositions. A 10-page complaint filed in New York alleges that Timberlake illegally used parts of the song "Steel Dream," taken from Cirque du Soleil's 1997 album "Quidam." More here.

TorrentFreak reports that anti-piracy outfit Rightscorp says that it's working on a new method to "extract cash settlements from suspected Internet pirates". The company says new technology will lock users' browsers and prevent Internet access until they pay a fine. To encourage ISPs to play along, TorrentFreak rather sarcastically points out that Rightscorp says the system could help to limit liability for copyright infringement.

Sweden’s supreme Court has held Wikimedia  guilty of violating copyright laws by providing free access to its database of photographs of artwork - without the artists’ consent. Wikimedia, part of the not-for-profit foundation which oversees Wikipedia, had a database of royalty-free photographs that could be used by the public, for educational purposes or the tourism industry. The Visual Copyright Society in Sweden (BUS), which represents painters, photographers, illustrators and designers among others, too legal action against Wikimedia Sweden for making photographs of their artwork displayed in public places available in its database, without their consent. The photographs were actually portraits of works of art. Whilst the court acknowledged that members of the public were permitted to photograph artwork on display in public spaces, it was “an entirely different matter” to make the photographs available in a database for free and unlimited use: “Such a database can be assumed to have a commercial value that is not insignificant. The court finds that the artists are entitled to that value” and said "It is not relevant whether or not Wikimedia has a commercial aim.”  Damages will be set at a later date. More on the Local here. Image of 'Poundland Jubilee Flag Maker' (2012) by Banksy by Duncan Hull. 

And finally, and again from TorrentFreak - an interesting look at the activities of a London company called Hatton and Berkeley - whose website you can see here and which features a picture of Robert Croucher (Hatton & Berkeley, described as "Managing Director of Hatton & Berkeley, Pro-Copyright advocate, Executive Producer and Film Financier") with  Patrick Achache, "the talented young tech entrepreneur who turned his hand to developing software that tackles digital piracy for the film and TV industries". The UK's Intellectual Property Office has now issued guidance on how copyright trolls operate and how people should handle them.  More here.

Breaking news - boadcasters triumph in Aereo battle

On 25th June the U.S. Supreme Court ruled that Aereo, the controversial streaming video service which used the much mentioned 'mini antennae' to deliver its service to paying customers - has violated US copyright laws by “capturing broadcast signals on miniature antennas and delivering them to subscribers for a fee.” The split court - in  a 6-3 decision - has handed down a decision which will prevent Aereo selling a service that allows its subscribers to watch television programs over the Internet at about the same time
as the programs are broadcast over the air agreeing that Aereo was infringing the broadcasters right to 'perform' their copyrighted works 'publicly'. The District Court has denied a preliminary injunction and the Second Circuit had affirmed. The decision has wide-ranging implications for the television industry: but it is a victory for current business models and will undoubtedly be seen a victory for the major television networks, which had argued that Aereo’s business model amounted to theft of their programming - and that Aereo 'performs' the works and doesn't merely provide equipment allowing others to so do.

I must be brief but the decision is here: http://www.supremecourt.gov/opinions/13pdf/13-461_l537.pdf

Background here http://the1709blog.blogspot.co.uk/2013/10/aereo-battles-seem-destined-for-supreme.html

Supreme Court's decision in Aereo could have a significant impact on other technologies

In the recent oral hearing, U.S. Supreme Court appeared a little unsure of whether to rule against Aereo Inc in the major copyright case brought by a group of US broadcasters against the controversial start up.  Several justices raised concerns about how a ruling in favour of broadcast networks could affect increasingly popular cloud computing services - and with both liberal and conservative justices split on what the way forward should be. That said, Aereo, backed by media mogul Barry Diller, could be forced to shut down if the Supreme Court rules for the four major television broadcasters, with the broadcasters saying the service violates copyright law. Aereo charges users a low monthly fee to watch live or recorded broadcast TV channels on computers or mobile devices. Aereo, which launched in 2012, offers the public a means to view broadcast TV over the internet, providing an alternative to expensive cable TV services and say all they do is enable people to access the airwaves with tiny TV antennas, and for this reason the company says they don't have to license broadcasts.

Several Supreme Court justices expressed scepticism at the Aereo business model at the Tuesday hearing, saying that it looked like the company had created to a "technical workaround" to bypass copyright laws: "Your technology model is based solely on circumventing legal prohibitions” Chief Justice John G. Roberts said to Aereo’s attorney David Frederick and asked if there was any particular reason why the company uses thousands of individually assigned antennas - except to avoid copyright fees owed to broadcast networks: “It looks as if somehow you are escaping a constraint” other companies are held to under copyright law, Justice Stephen Breyer said and Justice Ruth Bader Ginsburg noted that one lower court judge’s dissenting opinion stressed that Aereo appeared to be a technology entirely conceived as a legal workaround saying “You are the only player so far that doesn’t pay [a] royalty”.  Retransmission fees are expected to reach $3 billion in the U.S. this year.


But some justices also raised concerns that a decision siding with the television broadcasters could have far-reaching effects on new Internet, cloud and other technologies - from companies such as Google, Microsoft, DropBox and Box, which would then be swept up in other questions about the reach of copyright laws. Justice Stephen Breyer told the networks' attorney, Paul Clement, that his legal argument "makes me nervous about taking your preferred route" and that  he was concerned about what a decision “will do for other technologies.” Justice Sotomayor continued this line of thought, citing different technologies–Dropbox, iCloud, Roku and Simple.TV - and asked lawyers for both sides to make distinctions between them and Aereo. At one point she gave the example of a coaxial cable supplier and asked Clement, “How do I avoid a definition [of ‘public performance’] that might make those people liable?”

The company's fate was placed in the hands of the Supreme Court when ABC network, CBS Broadcasting, Comcast's NBCUniversal and Twenty-First Century Fox appealed a decision by the 2nd U.S. Circuit Court of Appeals in April 2013 that denied their request to shut Aereo down while litigation moved forward.

The Electronic Frontiers Foundation (EFF) commented "The Court will probably decide the case by late June. Yesterday’s oral arguments didn’t give much indication of how the Supreme Court will ultimately rule. But they made clear that the Court is rightfully concerned about side effects of too broad a ruling. It's only in the most narrow sense that Aereo is a case about dime-sized antennas. Fortunately, the Court seems to realize that the issues it raises are much, much larger."

Following the oral arguments,  counsel for Aereo, David Frederick, said, "The court's decision today will have significant consequences for cloud computing. We're confident, cautiously optimistic, based on the way the hearing went today that the Court understood that a person watching over-the-air broadcast television in his or her home is engaging in a private performance and not a public performance that would implicate the Copyright Act."  

New York University School of Law Professor Chris Sprigman explains the copyright law behind the Supreme Court case with 'billions of dollars' of re-transmission fees at stake - and what the decision may mean for the television industry going forward on Bloomberg Television’s Market Makers http://www.bloomberg.com/video/aereo-broadcast-television-and-u-s-copyright-law-QcnU7kRoQQueVRpa30L9cg.html 

More on the Washington Post here and the EFF here. 

NLA v Meltwater: temporary copies issue referred to the CJEU

Readers will remember that both the High Court and the Court of Appeal held, in NLA v Meltwater, that users of Meltwater's news aggregation service need a licence from the NLA in order to receive and read Meltwater news snippets. The specific question of whether the copies made on users' computer screens and hard drives when they access and read content online are temporary for the purposes of Article 5.1 of the InfoSoc Directive was appealed to the Supreme Court.

There has been some heated discussion on this blog as to whether the case would or would not break the internet, and several academics locked horns to debate whether the case meant the end of browsing. This is a topic on which everyone has an opinion, because the question of whether it is legal to read material online is an important one. So important that the Supreme Court has today held that it will refer the question of temporary copies to the CJEU.

The Supreme Court's decision contains a thorough analysis of the temporary copies exception and previous CJEU case law, and sets out the conclusions that it reaches on the effect of the Information Society Directive as the CJEU has interpreted and applied it to date.

The decision notes that if it is an infringement merely to view copyright material, without downloading or printing out, then those who browse the internet are likely unintentionally to incur civil liability, at least in principle, by merely coming upon a web-page containing copyright material in the course of browsing.

The Supreme Court recognises that "the issue has a transnational dimension and that the application of copyright law to internet use has important implications for many millions of people across the EU making use of what has become a basic technical facility. These considerations make it desirable that any decision on the point should be referred to the Court of Justice for a preliminary ruling, so that the critical point may be resolved in a manner which will apply uniformly across the European Union."

On that basis the Supreme Court will refer to the CJEU the question whether the requirements of article 5.1 of the Information Society Directive that acts of reproduction should be (i) temporary, (ii) transient or incidental and (iii) an integral and essential part of the technological process, are satisfied by the technical features described at paragraphs 2 and 31-32 of the Supreme Court judgment, having regard in particular to the fact that a copy of protected material may in the ordinary course of internet usage remain in the cache for a period of time after the browsing session which has generated that copy is completed until it is overlaid by other material, and a screen copy will remain on screen until the browsing session is terminated by the user.

The specific questions to be referred are yet to be decided.

 

Disclaimer: Baker & McKenzie acts for Meltwater and PRCA in this case.

Supreme Court says copyright law does not protect publishers in discount re-sales

The Supreme Court has ruled that textbooks and other goods made and sold abroad can be re-sold online and in discount stores without violating U.S. copyright law. In a 6-3 opinion, the court overturned a copyright infringement award to publisher John Wiley & Sons against Thai graduate student Supap Kirtsaeng, who used eBay to resell copies of the publisher’s copyrighted books that his relatives first bought in Asia at cut-price rates.  

Kirtsaeng sold $900,000 worth of books published abroad by Wiley and others, and made about $100,000 in profit. The international editions of the textbooks were essentially the same as the more costly American editions. A jury in New York awarded Wiley $600,000 after deciding Kirtsaeng sold copies of eight Wiley textbooks without permission.

The District Court had held that Kirtsaeng could not assert the “first sale” defence because that doctrine does not apply to “foreign-manufactured goods” (even if made abroad with the copyright owner’s permission) and on appeal, a split panel of the Second Circuit agreed with the District Court. The Supreme Court has now said that the "first sale doctrine" applies to copies of a copyrighted work lawfully made abroad.

Enough from me - there are two excellent blogs on the IPKat giving more detail on the judgment and comment - the first by Eleonora Rosati here http://ipkitten.blogspot.co.uk/2013/03/breaking-news-us-supreme-court-decides.html and a guest blog by Miri Frankel here http://ipkitten.blogspot.co.uk/2013/03/licensing-of-digital-copy-does-first.html

Comment from the Washington Post here

And there is now an update by Eleonora Rosati on the IPKat at   http://ipkitten.blogspot.co.uk/2013/03/a-kats-perspective-on-kirtsaeng-why-is.html

And its worth comparing this decision with 2010 case of Costco Wholesale Corp v Omega SA where the Ninth Circuit held that the first sale rule in the US copyright statute did not apply to foreign sales as a matter of law, since that statute lacked extraterritorial application. The Supreme court split 4-4 on appeal - perhaps showing just how difficult this whole area is. 

http://www.supremecourt.gov/opinions/12pdf/11-697_d1o2.pdf

Kirtsaeng v.  John Wiley & Sons   No 11-697 (Decided March 19, 2013)

Supreme Court refuses Tenenbaum appeal

The US Supreme Court has refused to hear the Joel Tenenbaum case in a case brought by the Recording Industry Association Of America's which resulted in a win for the RIAA and damages of $675,000 awarded by the jury for illegally sharing 30 songs online. The damages were then reduced 90% by the trial judge Nancy Gertner on constitutional grounds but the appeals court subsequently criticised the judge's process, and reinstated the $675,000 damages sum. Tenenbaum's legal advisor Charles Nesson (pictured) hoped to persuade the Supreme Court that his client's damages were indeed unconstitutionally high and that Judge Gertner was correct when reducing the award. But the Supreme Court declined to hear Nesson's arguments yesterday, meaning Team Tenenbaum will have to continue to fight the damages sum in the lower courts, which could involve several more hearings and appeals yet.

Tenenbaum has said publicly that he (unsurprisingly) doesn't have $675,000, and has previously suggested he'd have to bankrupt himself if that figure stood.

From www.thecmuwebsite.com and see  http://articles.boston.com/2012-05-22/metro/31802695_1_copyright-joel-tenenbaum-downloading-music  and  http://www.digitaljournal.com/article/325282 

Supreme Court confirms that a download is NOT a performance

The U.S. Supreme Court denied an appeal against an appellate court’s ruling that a traditional Internet download of sound recording does not constitute a public performance of the recorded musical work or the composition under federal copyright law. The Supreme Court denied the appeal without comment.

The American Society of Composers, Authors and Publishers (ASCAP) had appealed to the Supreme Court saying the ruling has profound implications for the nation's music industry, costing its songwriter members tens of millions of dollars in potential royalties each year. The federal government opposed the appeal and U.S. Solicitor General Donald Verrilli said that the ruling by the appeals court and the court of first instance were correct and comported with common understanding and sound copyright policy.

ASCAP argued that digital downloads were also public performances for which the copyright owners must be compensated. But a federal judge and the appeals court rejected that argument.

At issue was the section of the US Copyright Act stating that to perform a work means to recite, render, play, dance or act it either directly or by means of any device or process - with the appeals court ruling that "music is neither recited, rendered, nor played when a recording (electronic or otherwise) is simply delivered to a potential listener" saying that the download it is simply considered a “reproduction” and thus not subject to performance royalties under the Act. A mechanical royalty for the delivery of a composition would be due for each download (though not payable to ASCAP).


ASCAP v. United States, No. 10-1337

(over the) Pond Life

The U.S. government has seized control of dozens of websites it says are offering unauthorized copyrighted or counterfeit content. The Department of Homeland Security's Immigration and Customs Enforcement (ICE) division took over 82 domains including Torrent-Finder.com, RapGodFathers.com, DVDProStore.com, Cartoon77.com, NFLJerseySupply.com and Handbag.com. The seizure orders come from courts in eight states and take place shortly after a U.S. Senate Committee approved the Combating Online Infringement and Counterfeits Act (COICA), which aims to empower the Justice Department to use tactics similar to those just employed by Homeland Security and ICE.

Wired.com report that EMI Records has asked the federal judge overseeing the label's copyright infringement lawsuit against music locker service MP3tunes to bar digital civil liberties group the Electronic Frontier Foundation (EFF) from submitting a "friend of the court" brief in the case saying that the EFF brief is "a pure advocacy piece, not a 'friend of the court," and also that the brief is "duplicative," "contains unsupported speculation," and exceeds the court's page length restriction. EMI also argues that, should EFF's brief be allowed, parties supporting EMI's position should be allowed to submit additional briefs.

TorrentFreak reports that the US Copyright Group, which has filed copyright infringement lawsuits against tens of thousands of internet users who have allegedly illegally downloaded movies such as "Far Cry" has been hit with a class action lawsuit by over 4,500 of those sued. The retaliatory class action lawsuit alleges "extortion, fraudulent omissions, mail fraud, wire fraud, computer fraud and abuse, racketeering, fraud upon the court, abuse of process, fraud on the Copyright Office, copyright misuse, unjust enrichment and consumer protection violations" and says that the offences were committed by US Copyright Group in its efforts to extract settlement fees from alleged file-swappers. The claim also says that the producers of "Far Cry" did not secure a copyright registration for the film until after it began collecting information on peer-to-peer traffic, and argues that this fact invalidates any earlier claims of infringement.

In case you missed it, there is a war of words going on over in the USA all about a letter sent to PC Mag by the major record labels and other music industry trade groups in response to a PC Mag story about the demise of Limewire, which the labels say was promoting unauthorized copyright infringement by naming alternatives to the now defunct Limewire. Apart from the fact it seems that the original story was actually published by PC World (a competitor of PC Mag) the accusations stirred up a hornets nest, in particular over the magazine’s right of free speech with PC Mag saying “PC Mag's job is to cover all aspects of technology, which includes the products, services and activities that some groups and individuals might deem objectionable. We covered these Limewire alternatives because we knew they would be of interest to our readers. We understand that some might use them to illegally download content. We cannot encourage that action, but also cannot stop it. Reporting on the existence of these services does neither.” Not content with that, the letter goes on to say “It worries me that the music industry took this action, because it reeks of desperation. The RIAA and other music industry organizations have spent the better part of the decade fighting the digital transition, with only a shrinking business to show for it. In recent years, though, the fist of anger has turned into at least one open hand as the music industry embraces the once shunned digital music industry. Unfortunately, that warm embrace, and the change that comes with it, are not happening fast enough. Clearly the music industry is still losing money to music piracy and even the recalibrated profit margins brought on by legal music sharing services. It's time for these music execs to pull their collective heads out of the sand and fully acknowledge and accept all the ways their industry has changed. They also have to understand that nothing will stop technology's inexorable march forward. Things will continue to change. Music downloads and sharing will never go away. These execs have to find a way to use all that technology allows and make a business”.

A US teenager has failed in her appeal to have her damages for illegally downloading overturned because she didn’t know what she was doing was illegal. As a 16 year old Whitney Harper had used the then popular Kazaa service to download 37 tracks and she was sued by the RIAA and faced damages of $27,750.00. Harper argued that she was not aware that the file-sharing program on her computer was dealing in stolen property saying she thought the songs could be downloaded for free, just like listening to the radio on the Internet. The Supreme Court disagreed (with one judge dissenting) and upheld the 5th Circuit Court of Appeals who ruled in February that Harper could not pay a reduced minimum fine of $200 per infringed track -- instead of $750 -- as an "innocent infringer." The federal appeals court cited a provision that says infringers should know they are breaking the law since a copyright notice "appears on the published phonorecord."

Now on to Sarah Palin, who has secured much needed publicity for her new book after HarperCollins, the publisher of "America By Heart: Reflections on Family, Faith, and Flag", reached a settlement in their a lawsuit with Gawker.com. The website had published several leaked pages of the book and was ordered to take them down by a New York City judge earlier this week. "In settling the case, Gawker has agreed to keep the posted material off its website and not to post the material again in the future" HarperCollins said in an official statement.

And finally to Bradford Cox, the artist behind Deerhunter and Atlas Sound who had a rather unusual weekend after Sony Music issued a DMCA takedown notice against his blog on Friday, it seems in connection with two albums of his own bedroom-made demos which he had uploaded for his fans to download for free. This was somewhat confusing because Cox is not and has never been signed to any Sony Music label so the album's cannot be their property. Deerhunter are signed to Beggar's 4AD while Atlas Sound release via indie label Kranky according to the CMU Daily. The major has now admitted to Billboard that it had made a mistake and that it had made Cox, his manager and music server Mediafire aware of this fact. Which brings us full circle to the first story and the risks we all run when content owners are given legal powers to have allegedly infringing websites taken offline – what happens if they get it wrong?

http://www.pcworld.com/businesscenter/article/211832/courts_shut_down_82_sites_for_alleged_copyright_violations.html

www.techdirt.com

http://www.courthousenews.com/2010/11/29/32147.htm