The CopyKat - has a treaty lined up for almost everyone

A judge in New York has placed dozens of Malibu Media subpoenas on hold after serious questions were raised about the nature of the copyright infringement cases after a motion to quash filed by a defendant who argued that so called 'copyright troll' employed methods  to identify infringers that were suspect and that Malibu Media is engaged in abusive and extortion-like practices. Adult video outfit Malibu Media (X-Art) is the most litigious copyright claimant in the US,  filing over 4,500 cases in less than 4 years, Citing a University of Washington study which famously that a printer had received a DMCA notice for copyright infringement, the motion concludes that the techniques employed by Malibu for tracking down infringers are simply not up to the job. Citing the earlier words of Judge Harold Baer, the motion notes that “troll” cases not only risk the public embarrassment of a misidentified defendant, but also create the likelihood that he or she will be “coerced into an unjust settlement with the plaintiff to prevent the dissemination of publicity surrounding unfounded allegations.”  Judge Steven Locke held "Because the arguments advanced in the Doe Defendant’s Motion to Quash raise serious questions as to whether good cause exists in these actions to permit the expedited pre-answer discovery provided for in the Court’s September 4, 2015 Order, the relief and directives provided for in that Order are stayed pending resolution of the Doe Defendant’s Motion to Quash,” A total of 88 subpoenas in the Eastern District are now placed on hold.

Yoga was back in the CopyKats paws after numerous reports that Indian-American yoga guru Bikram Choudhury had lost a case asking for copyright protection for yoga poses and breathing exercises he developed. The Court of Appeals for the Ninth Circuit ruled in favour of city-based Evolation Yoga, against whom Choudhury had filed a lawsuit in 2011, saying that copyright was not appropriate for Choudhury's Bikram Yoga sequences because "it was an idea, process, or system designed to improve health, rather than an expression of an idea" adding it was also ineligible for copyright protection as a compilation or choreographic work. More on the Tribune here.

The City of Inglewood, California whose mayor James Butts who took action after online critic, Joseph Teixeira,  made some mocking videos using clips from city council meetings, has ended up with more egg on his face. Mayor Butts had already earmarked $50,000 of taxpayer money to fund the ill judged copyright lawsuit against Teixeira - which failed - the City could not assert copyright protection over City Council videos - and even is they were prptecetd, fair use would clearly apply. The court has now allowed Teixeira to claim legal fees totally $117,741 noting that the entire lawsuit was "objectively unreasonable." 


A leaked 'IP' chapter of the final Trans-Pacific Partnership (TPP) Agreement has atttracted much comment online - with most comments noting that signatories not already in line with the USA will have to adopt a number of 'Americanised' changes to alter the copyright laws of participating countries. The intellectual property chapter covers a broad range of issues including extended copyright terms, ISP liability and the criminalisation of non-commercial piracy.Provided the agreement is ratified, the copyright term will be set to the life of the author plus 70 years. This is already the case in the United States, but Canada for example will have to extend it's current term by 20 years.

The New Zealand government noted that its copyright term would likewise be extended,  saying the change "could benefit New Zealand artists in some cases, but the benefits are likely to be modest. Extending the copyright period also means New Zealand consumers and businesses will forego savings they otherwise would have made from books, music and films coming off copyright earlier". The Chapter also outlines how Internet services should deal with copyright infringement, with a section that 'mimics' the DMCA, although this leaves room for the Canadian notice-and-notice scheme to stay intact. Finally If TPP is ratified, the circumvention of DRM will be banned as well. In addition, manufacturers will not be allowed to sell circumvention tools such as DVD or Blu-Ray rippers. As this blogger had noted before, the US seem less keen to allow other signatories to develop their own 'fair use' doctrines - something of course enshrined in UK law. Other big winners with the new Pacific Rim treaty, which removes some 18.000 tariffs and trade restrictions, are poultry, beef and dairy farmers - but big pharma is seen as a loser - with no extension to protections against generic rivals, and the tobacco industry is seen as a loser too. And the Treaty isn't even guaranteed a home run in the USA - presidential hopeful Hilary Clinton, previously thought to be a strong supporter, has now publicly spoken against the TPP. And just to add to the confusion, here in Europe we have the Transatlantic Trade and Investment Partnership - another trade agreement, and here one that seeks to remove tariffs and regulatory barriers between the US and the EU. The TTIP is already under fire in the UK from the Shadow Chancellor John McDonnell and organisations such as Global Justice, who say the Treaty passes real power from democratically elected governments onto multinational corporations.  Around 250,000 people protested against the TTIP in Berlin last weekend. More on TorrentFreak here and the EFF here and Artstechnica here. The TPP participating nations are the US, Japan, Australia, Peru, Malaysia, Vietnam, New Zealand, Chile, Singapore, Canada, Mexico, and Brunei. Together they represent about 40 percent of the global economy. There is an interesting analysis by Nicola over on the IPKat here.

The RIAA - on behalf of UMG, Sony Music Entertainment, Warner Bros. Records, Atlantic and Capitol Records - has filed a lawsuit against Aurous and its founder Andrew Sampson for what it calls "wilful and egregious copyright infringement". It appears the recorded music sector's trade body will look to shut down the site using injunctive relief, and seek actual or statutory damages. we first noted Aurous on the 1709 blog back in September. The trade group said in a statement: "This service is a flagrant example of a business model powered by copyright theft on a massive scale. Like Grokster, Limewire or Grooveshark, it is neither licensed nor legal. We will not allow such a service to wilfully trample the rights of music creators" - more here.

And finally, Rapper Busta Rhymes has reached an undisclosed settlement in his Copyright infringement battle with hip-hop pioneers The Sugarhill Gang. Rhymes was sued by the group in 2012 for allegedly sampling their 1980s song 8th Wonder for his track Woo Hah! Got You All in Check. In the lawsuit, the band claimed 20 per cent of Rhymes' lyrics, including the phrase "Woo-Hah", came from their song. Rhymes had argued that the phrase was not protected by copyright and the action should be barred by the statute of limitations as out of time. More on Contact Music here.

And one last thing - my email account was hacked yesterday so if I 'emailed' you telling you I was in the Ukraine, I had been mugged and needed funds - errrm, the truth is that I am in the UK, I have not been mugged and I don't need your Money! The lesson from this is that, yes, train wi-fi is indeed 'open' so I won't be doing my emails on a Pendalino again! And Windows 10 deinstalled my anti virus software but I am struggling to deinstall said Widows 10 and get rid of it - a hideous system from the geeks at Microsoft. Grrrr and double grrrrr.

The CopyKat - taking stock of a 'brief week'

A Sky News live feed of the debate between the US Republican presidential candidates, including Donald Trump, Jeb Bush, and Rand Paul on its YouTube channel focussed on the U.K. was shut down part way through, possibly after the intervention of U.S. sister channel Fox Networks. Both broadcasters are owned by News Corp. The YouTube feed was replaced by an error message: "This video is no longer available due to a copyright claim by Fox News Networks, LLC." although some commentators point to the fact that YouTube's own automatic copyright infringement identifying software might have instigated the take down. Sky's old YouTube channel remains blocked - Sky News has since switched over to a new YouTube URL. In the U.S.,  the Republican debate, which was hosted by Fox News in partnership with Facebook, was meant to only be available to those with a cable TV subscription.

Google, Facebook, Twitter, Tumblr and Yahoo! are amongst the signatories to a new amicus brief submitted to the New York court that is considering legal action filed by the Motion Picture Association Of America seeking an injunction forcing third parties to block, remove links and stop providing any services to the copyright infringing MovieTube website(s).  They say that the injunction the MPAA requests is too wide-ranging, hinders the sometimes controversial safe harbours provided to tech companies in the Digital Millennium Copyright Act, and is basically "SOPA by the back door" (SOPa was the much maligned Stop Online Piracy Act, ultimately put on the back burner by the legislature. The brief says: "Plaintiffs now appear to be repackaging the excesses of SOPA into the All Writs Act. Indeed, the injunction proposed here would require the same online intermediaries targeted by SOPA to engage in the same kind of content and domain blocking that would have been required under SOPA had it been enacted".

Police in the UK have hailed an operation to halt advertising on piracy sites as a “major success”. The Police Intellectual Property Crime Unit (PIPCU) claims that since it launched Operation Creative and the Infringing Website List (IWL) in summer 2013, there has been a 73% decrease in advertising from the UK’s ‘top ad spending companies’ on copyright infringing websites, with PIPCU heralding the success of its 'follow the money' approach. More on MBW here.

Back to SiriusXM and those pre-1972 sound recordings in the USA: As readers may remember, Sirius appealed both the decisions it has so far lost (New York and California) which held that state law DID protect pre-1972 sound recordings and Sirius couldn't therefor use them royalty free , and a similar case against Pandora is also on appeal in California. Last week, EFF, who argue that this effectively creating new public performance rights that might apply to all pre-1972 recordings and all types of broadcasters, filed a brief with the Second Circuit  Court of Appeals in New York, urging that court to reverse the decision. The National Association of Broadcasters, the New York Broadcasters Association, Public Knowledge, Pandora, and a group of law professors also filed briefs (it seems to be 'brief week') opposing the new right, with the EFF explaining to the court some of the many problems this ruling could cause if it’s not reversed. EFF argued that the courts should leave decisions about expanding copyright law to Congress and also saying that whilst public performance rights in sound recordings are common outside the US, and they exist for digital radio services in the U.S. - they come with important safeguards: explicit limitations like fair use, and statutory licenses that avoid the massive transaction costs that would come with having to negotiate with each rights holder individually. 

A report crunching more than six years of copyright lawsuits filed in the U.S. has revealed that Malibu Media is the country's most litigious plaintiff. The company, which TorrentFreak says demands thousands of dollars from individual file-sharers, has filed 4,332 lawsuits since January 2009, fifteen times more than its nearest rival. Overall, it's estimated that 90% of file-sharing cases are settled out of court. However 66 cases reached court with total resulting damages estimated at $3.05 million. The company set up to pursue illegal downloaders of the movie Dallas Buyers Club sits in second place, with a relatively measly 274 cases, fifteen times fewer in volume than Malibu.

ZDNet reports that the Australian Attorney-General has commissioned a cost-benefit analysis of proposed digital copyright reform, which will encompass an economic analysis into the Australian Law Reform Commissions's (ALRC) recommendation to adopt a flexible fair use provision in regards to digital copyright in Australian law, seemingly as the the AG is concerned about the costs to both rights holders and rights users. A new Australian fair use provision would mean the fair use of a copyright material would not constitute infringement, based on a series of as yet incomplete fairness factors -- including the purpose of the use, nature of the material, amount of the material used, and the use's effect on the material's value: in addition research for the purposes of study and education as well as news reporting, review, criticism, satire, parody, quotation, non-commercial private use, professional advice, incidental or technical use, library or archive, and access for people with a disability would be exempted from copyright infringement provisions. The ALRC have said that the reforms are needed to promote the digital economy in Australia, although AG Brandis is seen as a friend to the content industries and unconvinced that despite changing technology, major law reforms are necessary, saying in late 2013 "I want to reaffirm the government's commitment to the content industries. It is the government's strong view that the fundamental principles of intellectual property law, which protect the rights of content creators, have not changed merely because of the emergence of new media and new platforms."

The CopyKat - with nets cast wide, the Kat pulls in the Great British Bake Off, the 2020 Olympics, trolls and porn amongst other titbits

The U.S. Department of Justice's recent proposal to amend the consent decrees to allow music publishers to partially withdraw digital rights from collection societies ASCAP and BMI's blanket licenses may be undermined by another change the DoJ is contemplating. Reports say the DoJ has sent letters to the two performance rights societies telling them that on "split works" songs - works which are co-written and therefore co-owned songs where multiple publishers and, often in the US, multiple PROs are involved, new rules might be applied The new proposal is that any writer or any rights holder would be able to issue a license for 100 percent of the song. In other words, the long-established industry practice of each rights owner 'green lighting' their particular portion of a song in order to establish a license - also known as fractional licensing - may no longer be allowed. So even if Sony/ATV or Universal pulled their digital rights from BMI and ASCAP, any songs in their catalogues co-owned with another publisher who was still using the two collection societies for digital would still be available for digital services to stream under their BMI and ASCAP blanket licences. More on Billboard here.

(Image: Mark Bourdillon/Love Productions/BBC)

An advert produced to promote the BBC's amazingly successful televised baking competition 'The Great British Bake Off' has been pulled after a complaint from the publishers of the song: 'The Hills are Alive with the Sound of Music' - which featured in the advert had newly adapted lyrics for the tune originally sung by Julie Andrews in the Sound of Music – including ‘The hills are alive with the smell of baking, with cakes that we baked for a thousand years.’ and other adapted lines include ‘the hills fill my heart with a love of baking’ and co-presenter Paul Hollywood 'sang': ‘I just want to taste every cake that I baked.’ "The advert campaign utilising The Sound of Music is neither authorised nor approved,’ said Bert Fink, senior vice-president (Europe) for Rodgers & Hammerstein."

Quartz tells us that in keeping with its ambition to become the world’s most open institution of its kind, the British Library has released over a million public domain illustrations and other images to the public through Flickr for anyone to reuse, remix or repurpose. So far, these images, which range from Restoration-era cartoons to colonial explorers’ early photographs, have been used on rugs, album covers, gift tags, a mapping project, and an art installation at the Burning Man festival in Nevada, among other things.

The International Olympic Committee has denied claims that one of the the official emblems for the Tokyo 2020 Olympic Games, designed by Kenjiro Sano,  infringes the copyright of a Belgian theatre's logo. Belgian designer Olivier Debie has said that the design is similar to one he created for the Theatre De Liege. And yes, this is a copyrihgt claim as the theatre's logo has not been registered as a trademark.  Reports say that the IOC vice-president John Coates told a meeting of the Olympic management: "The IOC and Tokyo have checked all the copyright registers prior to this launch and that logo in Belgium isn't protected. Hmmmmmmm - from a UK perspective that wouldn't quite work Mr Coates ..... since it wouldn't need to be registered to attract copyright protection if it qualified as an original work. 

Techdirt reports that it now appears that a judge has begun to get a little more curious about "copyright troll" Malibu Media and how it goes about finding "infringers" to "shakedown with settlement agreements". Techdirt says that in the past, evidence showed that other similar copyright trolls like Prenda, were engaged in seeding their own content, which would make the file authorized, and thus the shakedown letters a form of "copyright misuse." There have long been rumours that Malibu Media, perhaps in association with the infamous "international men of mystery" running the behind-the-scenes operation out of Germany, may be seeding their own files as well.  Food for thought!

And finally more on Malibu ....  the company behind the X-Art adult movies that has filed more than 3,500 lawsuits against alleged illegal online sharers of its adult content in the USA has been back to court to seek an order to say that labels such as "porn" and “copyright troll” (which the Kat just used!) can't be used against it in court. Whilst a self admitted maker of 'beautiful erotica', Malibu recently filed a motion asking a federal court to block the defendant from using terms that it believes “would be unfairly prejudicial” saying  that as a Plaintiff, Malibu has been referred to in many different negatively connoted ways, including: ‘copyright troll,’ ‘pornographer,’ ‘porn purveyor,’ and ‘extortionist,’” and the  motion reads: “Referring to Plaintiff at trial by any title except ‘Plaintiff’ or ‘Malibu Media’ would be unfairly prejudicial and would only serve to impede the impartial administration of justice.” One commentator added that Malibu may also be protecting it's copyright claims against arguments that pornography cannot be protected by copyright laws in the U.S, not least as some argue that pornography does not promote the progression of useful arts,  More on tne protection of copyright by copyright  here and Eleonora posted an article on this very matter back in 2012 - 'How Porn Friendly is Copyright?' so have a look at this and the coments - which are very relevant here.

Has anyone noticed how much cake has featured on this Blog recently?

The CopyKat - the pain in Spain means no blocking - again

A  court in Spain has overturned a previous ruling that had led to the blocking for a number of file-sharing sites. Back in May this year the anti-piracy group FAP secured injunctions in court forcing internet service providers in the country to block various file-sharing set-ups, including SpanishTracker, PCTorrent.com, NewPCT.com, PCTestrenos.com, Descargaya.es and TumejorTV.com - but in a blow to the content industries - who had celebrated the earlier ruling - an appeals judge in the wonderfully named Court of Instruction No.10 (well that's according to TorrentFreak)  has said there are "insufficient grounds" for blocking the offending sites in order to protect intellectual property rights - although thus will no doubt prompt fresh calls to extend or revise the so called Law Sinde in Spain which was meant to have allowed web blocking as a remedy against internet piracy from March 2012. 

It seems Amazon is trialling a 'Spotify' type service which will allow Kindle users to subscribe for ebooks - paying $9.99 a month to have access to 640,000 books and nearly 7,000 audio books. Richard Mollet, the Chief Executive of the Publishers Association in the UK has said that it is essential that any subscription service properly rewards writers and publishers. Kindle Unlimited joins Scribd, EnTitle and Oyster - but with the potential a far far bigger library of books available to subscribers - although no books from any of the 'big five' publishing houses (Penguin Random House, Simon & Schusterm, Harper Collins, Hachette and Macmillan are featured in the prootional video which had been seen by Gigam - although Lord of The Rings, books from the Harry Potter series and Life of Pi were apparently seen in the video.

And Google is possibly experimenting with a new system that would see adverts for legitimate content platforms positioned at the top of searches for unlicensed movies or music. Google has been widely criticised by the music and movie industries for not doing enough to steer web-users to legitimate rather than illegal sources of content.

Bornstein & Bornstein, a firm of attorneys in San Francisco are being accused of censorship after reportedly using a DMCA copyright takedown notice to remove a controversial and secretly filmed video from YouTube. A certain Jackson West had attended one of the firm's sessions  on how to progress local evictions of longterm tenants, and video taped people protesting at a seminar given by the lawfirm . However you can still see the video via Vimeo - for now - from a link on TechDirt.

US fashion and make up blogger and YouTube star is facing a copyright infringement action from Ultra Records and Ultra International Music Publishing, home of Calvin Harris and Deasmau5. The case, filed in the United States District Court in Los Angeles, makes it clear the label has only begun its search of Phan’s many online productions, but has so far uncovered dozens of infringements, according to the complaint. Those videos have been viewed more than 150 million times, the plaintiffs said. However at lest one Ultra artist, Kaskade, the globally renowned US DJ who was nominated for a Grammy last year, is not happy with his label's stance tweeting "Copyright law is a dinosaur, ill-suited for the landscape of today’s media.”   “I’m not suing @MichellePhan + Ultra Records isn’t my lap dog. I can’t do much about the lawsuit except voice my support for her.".

And finally, Malibu Media, perhaps wrongly accused of being a copyright troll, has succeeded in an infringement action against Don Bui, an immigrant from Vietnam who is now a naturalized US citizen, after the judge in the case gave short shrift to his explanation that the reason he downloaded and kept 57 Malibu Media porn movies from Kickass Torrents was because he had no idea how torrents work - and saw nothing wrong in "ordering movies" from Kickass Torrents. The erotic film studio has filed thousands of lawsuits against "John Doe" defendants in the U.S., in many cases "collecting a couple of thousands of dollars from "scared file sharers who do not want to go to court." US District Judge Robert Jonker reportedly said this "Defendant has some quarrels with the details of how BitTorrent works, but nothing that the Court sees as a fundamental or material issue of fact. Even as Defendant describes the facts, using BitTorrent technology, he ultimately winds up with 57 unauthorized copies of Plaintiff's works--copies that did not exist until Defendant himself engaged the technology to create new and unauthorized copies with a swarm of other users. True enough, the process is not identical to the peer-to-peer file sharing program in Grokster. It is, however, functionally indistinguishable from the perspective of both the copyright holder and the ultimate consumer of the infringed work. In both situations, the end user participates in creating a new and unauthorized digital copy of a protected work. It makes no difference from a copyright perspective whether the infringing copy is created in a single wholesale file transfer using a peer-to-peer protocol or in a swarm of fragmented transfers that are eventually reassembled into the new infringing copy." Bui's attorney also suggested his client was a "poor immigrant" who didn't understand English very well" - that argument was shot down as well. More on TechDirt.