THE COPYKAT

1)    Record Labels in the United States claim Copyright Infringement against COX

In another US case on the question of liability of intermediaries such as Internet Service Providers and the ambit and threshold required to prove  Contributory/Secondary infringement, US Magistrate Judge, Judge F. Anderson has taken a stance on evidentiary presentations and has blocked the request of COX to not admit certain evidence presented by the Record Labels due to alleged non-credibility, as reported by Law 360. COX had gone on to argue certain issues with the credibility of the evidence, wherein they said that the record labels had not kept all the data related to the finding of infringement (worked by the Record Labels in collaboration with Anti- Piracy agencies – Mark monitor and Audible Magic) on record.

For a claim of such secondary liability to be conclusively established, firstly a user having performed primary infringement must be shown, after which, the burden shifts upon proving actual knowledge of the infringement with the intermediary, and a positive role in promoting the same. A safe harbor protection is available to the intermediaries, which do not conclusively pursue an actual knowledge of infringement. The main argument brought in by the record labels herein is that the ISP COX deliberately had shoddy systems for dealing with infringement and infringers on their networks and produced certain evidence on it, using the worked data, but not all of it. The Judge went on to hold that, whatever is the issue with the evidence, it needs to be brought before the jury, and cannot be blocked, due to such reasons. The court concluded (as reported by Complete Music Update) that the labels weren’t under any obligation to keep all the data which they and their partners had gathered, on record.

2)    Robert “Bobby” Prince sues Gearbox, its President as well as Valve for unauthorized exploitation of copyrighted music.

The original music for the video game Duke Nudem 3d was created and composed by music composer Robert Prince, but has seemingly been used without unauthorisation (without a license or a compensation) by Gearbox Software LLC., in its new game - Duke Nukem 3d World Tour. Further, these allegedly infringing copies were conveniently distributed by another defendant, “Valve Corporation”, which even ignored a takedown notice, hence denying a claim to safe harbor. Another interesting fact to note is that the allegedly infringing game includes text specifically giving accreditation to Mr. Prince for his music, but has not compensated or even contacted Prince to get a license in the use. In light of the same, Robert Prince has filed an infringement suit in the United States District Court Eastern District of Tennessee, Northern Division. The Petition can be found here.  The game is supposed to be released on October 11^th and It will be interesting to see, how this one plays out.

3)    CJEU clears the air over conflict between Design and Copyright Protection and the ambit of Copyright.

The CJEU, in the case of Cofomel (C-683/17) decided on the issue as to whether Copyright would subsist in the designs of G-Star Raw’s Jeans and T-Shirts. The question peculiarly concerned itself with whether member states had the freedom to choose the threshold which works of applied art, industrial designs and works of design are required to meet for Copyright Protection. The Court held that, even in the cases of functional products, the ambit required for it being a work is the same and that is “the author’s own intellectual creation”, that is one reflecting free and collective choices, which could give the non-functional aspect of the work, Copyright Protection. Most importantly, as reported by IAM Media, the judgement makes it clear that an analysis of artistic merit or aesthetic impression need not be done, as it is extremely subjective and non-precise, to conclude whether a work is copyrightable or not.

This makes it clear that the aesthetic aspects of useful articles can also be protected as Copyrightable, insofar as they fulfill the originality standard of “Author’s own intellectual creation”. Read more on this on the IPKAT.

4)    STAIRWAY TO HEAVEN back in court!!

The US Deptartment of Justice had recently released their Amicus Brief in favour of Led Zeppelin in the now infamous copyright suit, covered herein by the blog. In a latest update to this case, as reported by The Rolling Stone, the case started with a filing by Michael Skidmore, a trustee representing the estate of Randy Wolfe, and this accused Led Zeppelin of stealing the opening guitar riff from Spirits' 1968 instrumental track Taurus. The case is now back in court before an 11 judge bench in the 9^th Circuit US Court of Appeals. A request to make available the sound recording was made and a claim was brought in by the plaintiff attorney saying that if these were made available, Led Zeppelin would lose out on the case. However the court observed that if the law limited the claim to the 4 corners of the deposited sheet music, and the currentthinking is that the justices feel that on that basis there was no chance the plaintiff could establish an infringement. Led Zepplin's attorney Peter Anderson argued that “There is no similarity between these two songs, but they both combine a scale, little pairs of notes that are in different melody and an eighth note rhythm.” It will be interesting to see how the court proceeds this time, in light of the Justice Deptartmen's Amicus brief.

5)    GOOGLE undercuts new EU Copyright Law

Google has decided to not pay European Media Outlets to display and use their content on its search engine and Google News platform. It has decided that it will only portray content from those media groups that have allowed free usage of the content. The EU Copyright legislation was brought in to ensure that media companies could get adequate compensation for the display of their items on platforms of these tech giants, however google has played a trump card, mostly propagating free content higher access philosophy. Google’s vice president has announced that it is upon the Europe based news published to decide if it would allow Google to show “snippets” of content or thumbnail images, however there will be no compensation paid for the same. If they don’t allow, only a headline and a bare link to the content will appear in the results. This is a major blow to media organisations which hugely depend on Google for facilitating access and to reach out to more of online audiences. This move by Google has been criticised by the EU Copyright rapporteur, referncing the move as a 'digital dictatorial' practice, with an intention to create a monopoly. This move makes the situation even worse for the publishers. This move has taken place post French legislating this EU directive in its Domestic Law. In Germany, recently after the EU Directive was complied with, some publishers decided to allow Google to publish their content free of cost, due to a drop in traffic (as hreported by Politico). In light of this, it will be very interesting to see the implications of the same and how this practice affects the news industry in the future across Europe.

This update by Akshat Agrawal

The CopyKat

There is yet another copyright lawsuit against the appropriation artist Richard Prince, after Dennis Morris LLC, the London-based photographer’s corporation, filed a complaint on the 3rd June in a Californian federal court seeking unspecified damages and any profits the artist and his dealer Gagosian Gallery made from Prince’s alleged use of three photographs of the 1970s punk rock band the Sex Pistols. According to the complaint, Prince used the images in work included in the 2011 exhibition Untitled (Covering Pollock) at Guild Hall in East Hampton. The claim says that Prince made "derivative works” and accuses the defendants of “producing and distributing large scale reproductions incorporating those derivative works” based on Morris’s photos of Sex Pistols bass player Sid Vicious. Morris is seeking a jury trial and demanding, among other damages, all of Prince and Gagosian’s profits from sales of the disputed works. The complaint also alleges that Prince used Instagram to promote the work for sale and includes a screenshot of a post (since deleted but pictured, left) on Prince’s Instagram account, featuring one of Morris’s best known photos of Vicious who died in 1979 from a drugs overdose.

Arts Technica reports that the lawyers behind the Prenda Law "copyright trolling" enterprise have lost their key appeal and will have to pay more than $230,000 in sanctions. The US Court of Appeals for the 9th Circuit issued a 12-page ruling upholding the sanction order that began Prenda's downfall, issued by US District Judge Otis Wright in 2013. The ruling wholly supports Wright's sanction and dismisses John Steele and Paul Hansmeier claims that due process rights were violated: "These consolidated cases began as minor copyright infringement suits, until courts nationwide started catching on to the plaintiffs' real business of copyright trolling," the ruling states. "Prenda Principals were found contradicting themselves, evading questioning, and possibly committing identity theft and fraud on the courts" and "The Prenda Principals have engaged in abusive litigation, fraud on courts across the country, and willful violation of court orders," the opinion states. "They have lied to other courts about their ability to pay sanctions. They also failed to pay their own attorney’s fees in this case." The third appellant, Paul Duffy, died last year.

All three major record labels, along with 50 other rights owners and platforms, including Spotify, Pandora, SACEM and YouTube, have committed to creating a new system to “dramatically simplify the way that music creators and rights owners are identified and compensated”. The new initiative will hopefully replace and surpass the stalled Global Repertoire Database - and provide a 'one stop' centre for users who want to use songs and sound recordings. The Open Music Initiative (OMI) has been founded by Berklee College of Music’s Institute for Creative Entrepreneurship (BerkleeICE), and has been publicly backed by Universal, Sony, Warner and many more – although as MBW points out - despite Google's YouTube being on board, Apple’s name is conspicuous by its absence.

The European Commission's public consultation on "neighbouring rights" for publishers  - otherwise known as the 'Google tax on snippets' CLOSES TODAY.  The right could potentially allow publishers to demand payment from search engines and content aggregators where they include short snippets that link to the original text. You must use the questionnaire on the EU website to respond. 

And the latest battle in what the difference is between 'inspiration' and what is 'appropriation' has kicked off in Los Angeles, where Led Zeppelin stand accused of copying of a song called “Taurus,” written by Randy Wolfe and performed with his band Spirit, into their epic "Stairway to Heaven". Those who have listened to recordings of each of the songs might think there is a strong similarity, but the legal team attorney for Zeppelin’s front man, Robert Plant, and lead guitarist, Jimmy Page, said any similarities were because the two songs both relied on “basic musical devices that are completely commonplace” and found in songs dating back centuries.  "Taurus" was released three years before “Stairway to Heaven” surfaced on Zeppelin’s untitled fourth album, commonly referred to as “Led Zeppelin IV.” In the wake of the jury decision in the "Blurred Lines" case, its unsurprising Plant and Page cancelled sows to attend the trial.   

And finally and this time from Canada, a federal court has ruled that that a number of companies must temporarily stop selling TV boxes that allow consumers to access content via streaming sites as they face a court battle over alleged copyright infringement. The plaintiffs, who include Bell and Groupe TVA, allege the TV boxes come with pre-loaded software that allows consumers to view copyrighted programming from illegal streaming sites . MTLFreeTV, one of the defendants, argued the boxes are similar to a tablet or computer, and the company does not develop, produce, service or maintain the software that comes with the boxes. Justice Danièle Tremblay-Lamer ruled that the companies must stop selling pre-loaded products until a the result of a trail in the matter.

The CopyKat - food for thought

Whilst (and for an unexplained reason) numerous blogs including Boing Boing and TechDirt focussed on a 2013 ruling in Germany that "Germany Says Taking Photos Of Food Infringes The Chef's Copyright", The CopyKat was more intersted in the ruling in the the Australian Federal Court which dismissed an interlocutory application by Seven Network (Operations) Limited (Seven) to restrain the Nine Network (Nine) and production company Endemol from continuing to broadcast the kitchen reality TV show, The Hotplate. Seven alleged that, by producing and broadcasting episodes of The Hotplate, Nine was infringing Seven’s copyright in its program, My Kitchen Rules (MKR) - its format wars again folks! Seven had argued that key elements of MKR sufficient to constitute a substantial part of one or more of the MKR literary works had been incorporated into The Hotplate and that Endemol had access tho the MKR production 'Bible'.  The Court dismissed the application, finding that  the balance of convenience of either granting or withholding the interlocutory relief weighed in Nine’s favour, not least as if The Hotplate were halted, it would be increasingly difficult to re-start as successfully at a later date. This means that the remainder of the first season of The Hotplate can continue to be broadcast (at least until the next hearing).  Justice Nicholas did find that Seven has a reasonably arguable case that the formats of MKR and The Hotplate are very similar and that this close similarity was (at least to some extent) the result of copying by Nine.  Sonia Borella and Sam Berry (Holding Redlich) have some useful observations here.

The Motion Picture Association Of America has dropped their somewhat controvesrial request for a preliminary injunction that would have required U.S. internet service providers to block access to the copyright infringing MovieTube we mentioned in our last (catscratching) post.

Paul Duffy, one of the attorneys behind the somewhat notorious copyright 'troll' Prenda Law, has died. His death was confirmed by the  Cook County Medical Examiner. The cause of death is still pending and could take up to three months to confirm. The Madison Recorder noted that Duffy died at a Chicago hospital. He was 55. . US District Judge Otis Wright had Prenda's practices referred to the Internal Revenue Service's criminal investigation unit and in August 2014, the US Court of Appeals for the Seventh Circuit upheld judicial sanctions against Duffy and fellow attorneys John Steele, and Paul Hansmeier for engaging in “abusive litigation” and failing to pay attorney's fees to defendant Anthony Smith in a porn-downloading lawsuit. ArtsTechnica also say that in June this year US District Judge David Herndon ruled that Steele and Duffy had "engaged in unreasonable, wilful obstruction of discovery in bad faith" in its case against Smith. Herndon ordered Duffy and Steele to pay for the defence's discovery costs.

The Chinese State Administration of Press & Publications, Radio, Film & Television (SAPPRFT) has announced a regulatory notice to control reality television programmes that are “vulgar and damaging to social ethics”. The notice does not give details of mechanisms that will be used to define or ban problematic programmes. The notice may affect licensing of programme formats and content from overseas, for both on- and off-line screening. More here (in Chinese). This from the IPO's excellent monthly China IP Newsletter.

Kim Dotcom has posted a recording of a phone call he had with some Universal Music executuves a few years ago in which the major label men –- at that point major foes of the MegaUpload founder and about to shut him down - discussed the possibility of participating in a new venture he was experimenting with at the time called Megakey. CMU Daily have an interesting update on this here. 

A Los Angeles federal judge has now scheduled the trial in a copyright-infringement case involving Led Zeppelin’s iconic rock anthem “Stairway to Heaven.” A lawsuit, filed last year in Philadelphia and subsequently transferred to Los Angeles, alleges that the guitar arpeggio opening of “Stairway,” released 44 years ago, was lifted from the 1968 instrumental “Taurus” by the long-defunct Los Angeles band Spirit who suppirted Led Zepplin on tour. The complaint was lodged on behalf of the estate of Spirit’s guitarist- songwriter Randy California, who drowned in 1997 off the coast of Hawaii. The trial is set to begin on May 10th.

And finally: So you're a farmer in rural America - the land of the free and the self reliant - and your John Deere 8520T tractor plays up - and needs a fix:  the problem is that it's all run by a computer and you can't actually do repairs as there's a digital lock on the software and only the autorised dealer can fix the tractor.  Tamper and you run the risk of a copyright infringement suit. Now farmers and mechanics are asking the Library of Congress' copyright office to review the law and make an exemption.  More here.

Rock Follies? heavy metal copying claims rock on

The dust has yet to settle on the 'Blurred Lines' litigation in the USA - with a review of the damages awarded to the Gaye family, a revised settlement, an injunction against Pharrell and Robin Thicke, a new trial and/or an appeal are all being mooted, who wrote what remains a big question, as does the the difference between appropriation and inspiration: the recent settlement by Sam Smith and his co-writers with Tom Petty and Jeff Lynne over allegations that "Stay With Me" plagiarised "I Wont Back Down" just adds to this confused conundrum, as does the recent news that Mark Ronson and Bruno Mars have added the five members of the Gap Band as co-writers of "Uptown Funk" because of similarities to 'Ooops Upside Your Head". Now its the turn of heavy metal:

The lawsuit  brought by the trustee of the late Randy California claiming that Led Zeppelin's 'Stairway to Heaven' was plagiarised from an obscure song 'Taurus' by the band Spirit has survived its first legal challenge.  In 1969, Spirit and Led Zeppelin shared the bill at several concerts. U.S. District Judge Juan Sanchez has now refused to dismiss the claim. If the suit succeeds, a three-year statute of limitations would limit the award to the most recent earnings. Judge Sanchez said he declined to dismiss the suit "in the interest of justice," because the improper venue could be fixed by sending the case to California. As to the location of any trial, in his order, he said the Led Zeppelin members weren't subject to jurisdiction in Pennsylvania, in part because they don't live there and hadn't appeared to specifically target the district for selling their music. Guitarist Jimmy Page had dismissed the claim as “ridiculous” but added nothing more. Before he died 1997, Spirit guitarist Randy California told a reporter: “I’d say it was a rip off. And the guys made millions of bucks on it and never said ‘Thank you’, never said, ‘Can we pay you some money for it?’ It’s kind of a sore point with me. Maybe someday their conscience will make them do something about it.” 'Stairway To Heaven' is said to be one of the most covered rock songs and its worth is estimated to be more than $560 million. Francis Malofiy, the lawyer for the late singer's estate, said, "Attribution is the most important thing'' adding  "What we want is for credit to be given where it's due. I'm a fan of Led Zeppelin, but in this situation, we want credit for Randy.''

The internet has been buzzing with comments of the similarities between Guns N' Roses' most enduring song - 1987's 'Sweet Child O' Mine' - and Australian Crawl's 1981 song 'Unpublished Critics', from their album Sirocco. Now this may well NOT be copied - but blimey, and as one commentator said - it really does have "the same chugging chord progression, a similarly-sweeping lead break, the verse melody, and the elongated one-syllable vocal in the chorus."  You can hear and compare the tracks on this webpage.

http://www.bloomberg.com/news/articles/2015-05-07/led-zeppelin-judge-declines-to-dismiss-stairway-to-heaven-copyright-suit

http://www.maxtv.com.au/news/is-sweet-child-o-mine-stolen-from-a-1981-australian-crawl-song.aspx

And more on Francis Malofiy, the attorney acting for Randy California and   can be found here

 http://www.phillymag.com/news/2014/10/24/lawyer-filed-stairway-heaven-suit-led-zeppelin-may-disbarred/