"Do we come to bury copyright -- or to praise it?" Debate report

The 1709 Blog is grateful to Emma Beverland and Sam Bardon (Freshfields Bruckhaus Deringer) for preparing this report:

The Copyright Debate organised by the 1709 Blog in conjunction with the IPKat, “Do we come to bury copyright – or to praise it?” took place on Tuesday 12 July 2011at the lovely offices of Freshfields Bruckhaus Deringer at 65 Fleet Street, London before an audience of over 200 people.

Setting the scene

The debate aimed to consider two opposing views of 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and artists, and for encouraging investment in the recording and transmission of their works to the public” or “ an outdated, cumbersome barrier to the spread of information and to the stifling of the very culture which it purports to promote”.

Mr Justice Arnold, in the Chair, briefly introduced each of the speakers – those who wished to praise copyright: Emily Goodhand (Copyright and Compliance Officer at the University of Reading, she writes the copyright4education weblog and tweets as @copyrightgirl) and Richard Mollet (Chief Executive of The Publishers Association and previously Director of Public Affairs for the BPI), and those who wished to bury it: David Allen Green (head of media at Preiskel & Co LLP, a City TMT firm, legal correspondent for the New Statesman and writer of the “Jack of Kent” blog); and Crosbie Fitch (an R&D software engineer and researcher who tweets and writes the Cultural Liberty weblog).

An initial poll of the audience suggested that a handful were in favour of praising copyright, a handful wanted to bury it, whilst the majority sat somewhere in the middle.

The debate

Emily began the debate with suitably Shakespearean oration, giving her “friends and countrymen” the option to either kill copyright or allow it to live, with no middle ground. In Emily’s view, something that is dead cannot be reformed and so those who would propose to bury copyright must also show that there is a better system to replace it.

Emily discussed the reasons copyright exists and the purpose it serves: it is fundamentally a proprietary right in the work which is the expression of an idea. She argued that those who see copyright as a denial of something they want to do can be compared to those who break speed limits – just because they can do it, does that mean they should? Just because people can drive at 90 miles per hour, does that mean traffic laws should be abolished?

In Emily’s view Copyright gives creators the power to decide what to do with their works – if creators want to put their works into the public domain, they can. Copyright also gives creators recourse to justice if somebody misuses their works. In a world without copyright, creators’ choices are limited as they lose the right to protect their work. She submitted that disregarding the right to own and protect would not liberate creators, but rather would usher in a new dark age. Emily also acknowledged that copyright acts as an economic incentive; most people want something more than satisfaction in return for creating a work.

Emily then considered the fine line between replicating a work and being inspired by it. In her view, defences in the law of copyright allow people to be inspired by works, without protecting verbatim copies. Emily accepted that the defences could, and would, benefit from being updated, but when faced with a choice, she advocated reform of copyright and its solid principles, rather than burying it.

Speaking against the copyright status quo, David hit zenith of Roman imagery when he likened copyright to the gladiator chasing the scrawny slave around the Colosseum in the Life of Brian – out of shape, struggling to do its job. Rather confusingly, David then explained that he did not actually want to bury copyright, but that he had never been over impressed by it in his career as a “bog standard” media lawyer and journalist. David looked at copyright from a practical point of view and considered “worlds without copyright”. From a foray into fashion law, David saw two different attitudes to protecting intellectual property: on one hand, brand was to be protected at all costs, while, on the other there was complete disregard for other creators taking “inspiration” from the designs of clothes (the 6-month-fashion-cycle making enforcement actions pointless). David then pointed to the copy-and-paste world of blogging, where very little copyright protection exists, and yet creativity flourishes. However, David did point out that when one of his blog entries was recently copied verbatim, he (potentially jokingly) asked to whom at the offending publication he could sent his licence agreement.

David further argued that it is unnecessary for copyright to protect an assignee (up to) 70 years after the creator’s death; David was unconvinced that creators and assignees should have the same rights under copyright. David also stated that the current state of copyright law defences and remedies was unsatisfactory – lack of a parody defence and remedies other than a licence fee being available were particular concerns.

David also raised general points about how copyright is treated – should it be seen as a tort, and if so, can we abandon all reference to criminality? He also wondered how much further than moral rights copyright extends, and why the legislation limits the scope of the term “works”.

David concluded that, while he did not want to bury copyright, he did not care very much for it and could not see creativity being limited by diminishing the protection copyright currently affords.

Moving again to the pro-copyright side, Richard began by emphasising that copyright is vital for the economy and cultural society, it’s importance to the “real” world. He caveated his praise by admitting that copyright was not perfect. However he asserted that even if the problems associated with copyright could not be solved, its benefits outweigh its weaknesses.

Richard argued that copyright is the means by which creators are supported, protected and rewarded and the mechanism by which creating becomes economically beneficial to the community. Publishing houses and record labels give economic, creative and distribution support to creators, and it is copyright protection which incentivises these invest to do so. They can engage in trade, confident that they have a right to the works they deal with.

Richard then considered alternative systems. He felt that patronage left the patron rather than the creator calling the tune, and questioned how a creator would meet a potential patron – this could lead to a drop in the different areas of society which contribute creative works. He dismissed micropayments and “contingency markets” systems, suggesting that copyright already included such the features of these alternatives. Richard considered it difficult to think of a system other than copyright which would provide such incentivisation to invest in creativity; providing a Winston Churchill quote, he noted: “copyright may be the worst means to drive the economy…except for all the others”.

As for the people who advocate that creativity and the economy should not be related; Richard dismissed this view as an indulgent state of fancy not in line with the current, parlous state of the economy. He emphasised that copyright has a proven track record of incentivising investors and that the creative economy currently contributes around 7% of the UK’s GDP, and the UK has the biggest exporting publishers in the world. According to Richard, unless we are able to replace copyright and replicate its benefits, we should not support its burial.

Crosbie then took up the anti-copyright cudgel, opening by stating that he was not proposing to bury copyright either, but rather to explain why it was coming to an end. He began by considering the history of copyright. He stated that before copyright there were natural rights; that these rights precede law and are superior to it. Crosbie explained that it is nature, not law, that creates rights. In his view law’s purpose is to protect these rights – rights to life, privacy, truth and liberty. By contrast, Crosbie characterised copyright not as a right but a privilege granted to the minority. He recounted the history of the 1709 Statute of Anne which created copyright for the benefit of the Crown and the Stationers Company in order to recreate the effect of a monopoly and to eliminate the sedition that had arisen in the free press. He asserted that privileges are unconstitutional, unethical and would be viewed by Thomas Paine as “the rights of all, held in the hands of a few”.

Crosbie felt that in the 18th century the relatively few press could be policed and controlled, but that in the 21st century this control has broken down – in the modern world we are all publishers, so copyright can no longer work. In his view, people have been indoctrinated into believing that copyright is a right, but that in fact each of us has the right to copy – law has attempted to annul that right, but it has never left us. Crosbie pointed to recent draconian punishments – fines of over one million dollars and prison sentences for sharing relatively few files – as evidence of publishing houses and record labels resorting to scare tactics to maintain the deception.

Crosbie continued that copyright is a historical accident from a les judicious time which should be rectified. His alternative would be for artists to exchange their works directly for money from fans in an open market – for example if 1,000 fans collectively agree to pay money to an author in exchange for that author agreeing to write a new book. He also asserted that without copyright moral rights remain, to prevent out and out plagiarism, for example . He concluded that copyright is a dead parrot that the market can and will continue without.

Questions from the floor

Mr Justice Arnold then allowed questions from the floor. There were a wide range of questions, the highlights were as follows:

A question on extensions to the length of copyright protection – in particular focusing on the recent USA/ Australia treaty. Are these increases just to further monopolistic interests? Richard answered that it was only right for creators to receive their just rewards, and to be able to provide for their families through their work. Now that people are living longer, the protection copyright affords should be extended as well

One member of the audience questioned why the length of protection afforded to copyright was so long when compared to, for example, protection provided by a patent over pharmaceutical products. Richard answered this by asserting that, despite Crosbie’s views, copyright is a fundamental property right and if we compare copyright protection to that afforded to real property, it is actually an incredibly short period of protection. Given the value of pharmaceutical products to society as a whole, they should be more widely available for exploitation at an earlier point. As Richard put it “songs may change lives, but drugs save them”.

Another member of the audience asked how much copyright has been undermined and damaged by the internet. Emily admitted that she was unsure how to either assess or quantify such damage and flagged this as an area which she considered would benefit from independent research. Once again, she pointed out that certain aspects of the defences to copyright infringement do not hold water with the current times, and were in need of serious examination.

One member of the audience was curious as to why copyright had to be buried in order for a new system to emerge: we have the potential for competition between providing complete protection, and allowing complete freedom, and creators should be allowed to choose the system they prefer to express their creativity.

Mr Justice Arnold also put forward his view that worldwide collective licensing (as per Virgin Media/Spotify) would potentially solve may of the problems.

To bury or to praise copyright?

A final poll of the audience revealed that there were still a handful in favour of the burial of copyright, but that the “praise” group had persuaded a larger smattering of the fence-sitters to their cause.

The majority of the audience were also in favour of a new copyright act being drafted.

A New Day Rising!

Following on from last nights fun packed 1709 debate at Freshfields (report to follow on this site soon!), and if you are up for more, then BLACA are hosting their next meeting tommorrow evening (Thursday 14th July) at the offices of Berwin Leighton Pasiner with the title of "New Day Rising" and which promises an explanation of the "practical impact of recent announcements in the field of copyright. A most distinguished panel is tackling the issues and features Jackie Alway (Universal Music Publishing), Trevor Cook (Bird & Bird), Henry Ward (8 New Square) and Florian Koempel (UK Music) - plus as we say in the music biz - special guest TBC!

Its at 6.15 at the offices of Berwin Leighton Paisner at St Magnus House (Rooms MM41 and MM42), 3 Lower Thames Street, London EC3R 6HE,

More information at www.Blaca.org

Monkey See, Monkey Do, Monkey get Copyright, too?

By now it’s all over the twittersphere, the blogosphere and every other made-up sphere on this green and blue sphere.  The monkey that stole a photographer’s camera and got her pictures published in the Daily Mail. 

Copyright experts and dilettantes alike are going ape trying to analyze who owns the copyright in these images.  Why?  Because the Daily Mail put a copyright notice on two of the pictures in its article.  Most of the analyses I’ve seen are Americans trying to sort it out under American law, which is typical, but not necessary the best approach here.  You see, the monkey is Indonesian.  The work was made in Indonesia.  The photographer who’s camera was taken and the  agency claiming copyright ownership of the photos are British.

The main questions being discussed: Does the monkey get the copyright?  If not, does anyone?

Monkey stole the camera from the camera man

Under Indonesian copyright law an author is “a person or some persons.”  Miss Monkey is ruled out right there I’m afraid.  But what about under British copyright law?  Since it’s a British company claiming copyright, any suit is likely to be brought in the UK.  Indonesia is a member of Berne and TRIPs, so the photos should be treated the same as UK works under UK copyright law.  Unfortunately for the monkey, The UK copyright law also defines author as “the person.”  Sorry monkey, it’s not you.

If not, then who?

It appears the monkey, by virtue of not being a “person,” cannot be the author of the photos.  (…unless there’s a statute somewhere that makes monkeys a person the way corporations are made a person.)  So who gets the copyright? 

The photographer / Carters News

If the photographer did own the copyright, it appears that he transferred his rights to Caters News Agency Ltd based on the copyright notices on the newspaper photos.

There is a clause in Article 7 of the Indonesian copyright law that specifies if a work is designed by one person and worked out by another, then the one who designed the work gets the copyright.  If the photographer had set up the shot and the monkey had just taken the photo, the photographer would likely have the copyright.  But the photographer didn’t design anything here.  He just left his camera.  The monkey did all the designing in the photos, so this article shouldn’t apply.

Indonesia

Perhaps more useful here is Article 9, “If a legal entity announces that a work has originated from it without mentioning a person as the author, then the legal entity shall be deemed to be the author, unless proven otherwise.”  The monkey took the photos in an Indonesian national park.  The Indonesian government presumably owns that park and is a legal entity.  It would seem that if the Indonesian government claimed it was the copyright owner, then it would be.  Except for that “unless proven otherwise bit.”  But this leads us to another question, does the park own the monkey? 

If not having an author as defined under the copyright law is the same as having an unknown author, then Indonesia owns the copyright under Article 10A of the Indonesian copyright law.

No one

The main claim I’ve seen in the US discussions of who should own the copyright is that no one should; the photos should be in the public domain.  And it appears, under UK copyright law, they’re right.  - Now, this is the part where, knowing that there are a great deal of very knowledgeable UK copyright practitioners who read this blog and that the author is not one of them, the author asks for forgiveness and clarification should she get anything wrong.  -

Under Section 153, the work only qualifies for copyright protection if it meets requirements in several different areas including the area of author.  Section 154 outlines the requirements the author must meet in order for the work to receive copyright protection. 

• Option one, a British citizen.  Pretty sure the Indonesian monkey is not a British citizen.
• Option two, an individual domiciled or resident in the UK.  Monkey lives in Indonesia.
• Option three, an individual domiciled or resident in another country to which the relevant provisions of this Part extend.  This seems to include any countries to which the UK must extend national treatment with respect to copyright.  Since Indonesia is a member of Berne and TRIPS, Indonesia would be one of these countries.  It might seem like we need to know if the monkey is an individual, or if it can be domiciled or resident.  But, that doesn’t matter because the first part of Section 154 says “if the author was at the material time a qualifying person.” (emphasis added)

So it appears under UK law, the photos are in the public domain.  Under Indonesian law, the matter is less clear.

Barrels of Fun

Perhaps more fun than the real story are all the different extra facts you can add to make even more puzzlingly-fun scenarios.  What if the monkey belongs to a zoo?  Or a person who taught him to take pictures?  What if the park or zoo where the monkey lives posts a sign that says the copyright of any photographs taken by animals inside the park or zoo belong to the park or zoo?  What if it is not a monkey but one of the gorillas that can speak sign language or otherwise communicate to subjects in a photo how to move?

Personally, I like the position one of my colleagues took: Forget the copyright issue.  The monkey should sue for rights of publicity.

US content industry and ISPs to inform and alert

After months of discussions, a large number of the major U.S. Internet service providers (ISPs) have signed up to an agreement to take action against users who violate copyright. AT&T, Cablevision Systems, Comcast, Time Warner and Verizon have agreed to participate in the scheme along with a number of content providers from the film, TV and music industry including the MPAA (The Motion Picture Association of America whose members include Disney, Sony, Paramount, Warner Bros and Twentieth Century Fox), the Recording Industry Association of America (representing the major labels including Universal, EMI North America, Warners and Sony) , the IFTA (representing independent producers & distributors of film & television programming) and A2IM which represents independent record labels.

The voluntary “Memorandum of Understanding” is based on a system of Copyright Alerts, “a state-of-the-art system similar to credit card fraud alerts – that will educate and notify Internet subscribers when their Internet service accounts possibly are being misused for online content theft. This voluntary landmark collaboration will educate subscribers about content theft on their Internet accounts benefits consumers and copyright holders alike.”

The approach is intended to overcome one of the major arguments against disconnecting accounts that are being used for piracy, which is that often the person who pays the bill is unaware that illegal activity is occurring. In other cases, the accused infringer is unaware of the applicable copyright laws, or may be unaware that downloading copyrighted content from illicit sources is illegal and violates ISP’s terms of service. The Copyright Alert System is based on a consumer’s “right to know” when his or her Internet account may have been used improperly to download copyrighted content. The RIAA’s press release says that the new system addresses these problems with a series of early email alerts (up to six) notifying the subscriber that his or her account may have been misused to access illegal for online. It will also put in place a system of “mitigation measures” intended to stop online content theft on those accounts that appear persistently to fail to respond to repeated Copyright Alerts. The system will also provide subscribers the opportunity for an independent review to determine whether a consumer’s online activity in question is lawful or if their account was identified in error (there will be a small charge of $35 for this).

However, termination of a subscriber’s account is not part of this agreement. ISPs will not provide their subscribers' names to rights’ holders under this agreement although the new system of graduated Copyright Alerts means that consumers will have more advance warning and educational opportunities before extreme penalties are implemented. This will replace the current practice of DMCA violation notices being sent to the ISP, who then forwards them to the account holder.

The agreement also establishes a Center for Copyright Information to support implementation of the system and educate consumers about the importance of copyright.

Comment from the ISPs seems limited with Randal S.Milch, executive vice president and general counsel of Verizon saying “This is a sensible approach to the problem of online-content theft and, importantly, one that respects the privacy and rights of our subscribers”

Comment from the content industries was widespread (and rather verbose in places). Both Michael O’Leary, Executive Vice President for Government Relations at the MPAA and Cary Sherman, president of the RIAA said that piracy put the jobs of many creative industry workers at risk, and that the provisions of the new Agreement would lead consumers to discover the multitude of content now legitimately available online with O’Leary saying “Many people don’t realize that content theft puts jobs – and future productions of films, TV shows, music, and other content – at risk …. today, there are more ways to enjoy content legitimately online than ever before. This agreement will help direct consumers to legal platforms rather than illicit sites, which often funnel profits to criminals rather than the artists and technicians whose hard work makes movies, television, and music possible.”

James Assey, executive vice president of the National Cable & Telecommunications Association (NCTA) said “Consumers have a right to know if their broadband account is being used for illegal online content theft, or if their own online activity infringes on copyright rules – inadvertently or otherwise – so that they can correct that activity” adding “We are confident that, once informed that content theft is taking place on their accounts, the great majority of broadband subscribers will take steps to stop it. That’s why the educational nature of this initiative is so critical.” The International Federation of Phonographic Industries, representing the recording industry worldwide welcomed the agreement and the IFPI’s Chief Executive Officer, Frances Moore, said “It is very good news that ISPs in the US recognise their pivotal role in tackling online piracy and have committed to take proactive steps to achieve this. The agreement also sends an important signal internationally. It adds to the momentum already created by initiatives such as graduated response and blocking of infringing websites in other countries, and is the latest mark of recognition that ISP cooperation is the most effective way of addressing online piracy.”

A word of caution came from The Center for Democracy & Technology and Public Knowledge said the agreement met many but not all of their concerns regarding the rights of the average citizen, and that “close ongoing scrutiny will be required to ensure that the agreement achieves its purpose without unfair or disproportionate consequences for Internet users.”

Both the Center for Copyright Information and the Copyright Alert System are voluntary collaborations between the entertainment and broadband business communities. Participating ISPs will begin implementing Copyright Alerts in 2011 and 2012.

http://riaa.com/newsitem.php?content_selector=newsandviews&news_month_filter=7&news_year_filter=2011&id=2DDC3887-A4D5-8D41-649D-6E4F7C5225A5

SGAE investigated over "misappropriation of funds"

Spanish collecting society SGAE has featured in this weblog a couple of times. The Court of Justice ruling in Case C‑467/08, Padawan SL v Sociedad General de Autores y Editores de España (SGAE) has given quite considerable food for thought, and there's also the matter of the organisation's local battle with EXGAE.  It now seems that SGAE has been hitting the headlines again -- and not for the best of reasons.

Billboard reports that the organisation has been raided by Spanish police as part of an investigation of "misappropriation of funds".  Nine people, including president of SGAE's Board of Directors Eduardo Bautista, were detained, while offices and private homes were searched.  The investigation is said to have been triggered by a 2007 complaint filed by a number of organisations representing internet, computer and the restaurant trade; the main target is said to be SGAE's subsidiary SDAE -- the Digital Society of Authors.

Thanks, Jonathan D. C. Turner (13 Old Square), for spotting this item.

Blindsided! Will U.S. Supreme Court Patent Ruling on Willful Blindness Determine Standard for Red-Flag Knowledge Under DMCA?

The 1709 Blog has previously reported on developments in the ongoing Viacom v. YouTube litigation in the United States, in which members of the content industry sued the online video-sharing service for copyright infringement based on user's uploading of copyrighted content. YouTube prevailed on summary judgment in the trial court, and Viacom appealed. The appeal is now fully briefed, and has been tentatively scheduled for oral argument on September 12, 2011.

One of the significant issues that the Second Circuit Court of Appeals is expected to address is what constitutes "red-flag" knowledge under Section 512(c) of the Digital Millennium Copyright Act ("DMCA"). The DMCA shields internet service providers ("ISPs") from liability for copyright infringement resulting from user-generated content if the ISP meets certain conditions. Among other requirements, the ISP must not have actual knowledge of infringing material on its service, or, absent actual knowledge, the ISP must not be "aware of facts or circumstances from which infringing activity is apparent." This latter category of knowledge is often referred to as "red-flag" knowledge.

The blind leading the blind

Prior case law provides little insight into what qualifies as "red-flag" knowledge. The legislative history of the DMCA suggests that a "copyright owner could show that the provider was aware of facts from which infringing activity was apparent if the copyright owner could prove that the location was clearly, at the time the directory provider viewed it, a 'pirate' site of the type described below, where sound recordings, software, movies or books were available for unauthorized downloading, public performance or public display. Absent such 'red flags' or actual knowledge, a directory provider would not be similarly aware merely because it saw one or more well known photographs of a celebrity at a site devoted to that person."

In an early case construing the "red-flag" knowledge requirement, however, the Ninth Circuit Court of Appeals held that no red-flag knowledge arose from the fact that the defendant's clients' websites had names like "illegal.net" or "stolencelebritypictures.com." In that case, Perfect 10 v. CCBill, the publisher of adult entertainment photographs sued the provider of webhosting services and the processor of credit card payments, alleging secondary liability for infringement occurring on client sites. In contrast to the above-quoted language from the legislative history, the court held, “When a website traffics in pictures that are titillating by nature, describing photographs as ‘illegal’ or ‘stolen’ may be an attempt to increase their salacious appeal . . . We do not place the burden of determining whether photographs are actually illegal on a service provider.”

Similarly, in UMG v. Veoh, a parallel case to YouTube playing out on the opposite coast of the United States, the trial court found that Veoh’s general awareness that infringement was occurring on its video-sharing site, without more, could not support a finding of “red-flag” knowledge. It reasoned that to hold otherwise would undermine the DMCA’s purpose of enabling the robust development of the Internet and e-commerce. The court granted summary judgment to Veoh in September, 2009, and the case is currently on appeal to the Ninth Circuit Court of Appeals. The Ninth Circuit heard oral argument on May 6, 2001; a decision is expected in Veoh before YouTube is decided.

The trial court in YouTube provided virtually no analysis of “red-flag” knowledge. Indeed, the entire opinion is strikingly devoid of content. The court effectively conflated actual and “red-flag” knowledge by holding that the “tenor” of the DMCA “is that the phrases ‘actual knowledge that the material or an activity’ is infringing, and ‘facts and circumstances’ indicating infringing activity, describe knowledge of specific and identifiable infringements of particular individual items. Mere knowledge of prevalence of such activity in general is not enough.”

In perhaps the only case where a court has found that an ISP had “red-flag” knowledge, the United States District Court for the Central District of California in Columbia v. Fung found that the operator of a “torrent” filesharing site where users swapped copyrighted television shows and motion pictures “turned a blind eye to ‘red flags’ of obvious infringement.” The operator himself engaged in unauthorized downloads of copyrighted material from the site. Because these downloads were done outside the United States, they could not be used to establish actual knowledge, but they showed that the operator was aware that infringing material was available on the site. The operator also designed the site to categorize copyrighted content into lists with titles such as “Top 20 Movies,” “Top 20 TV Shows,” “Box Office Movies.” These lists included copyrighted works. “Thus, unless Defendants somehow refused to look at their own webpages, they invariably would have been [sic] known that (1) infringing material was likely to be available and (2) most of Defendants’ users were searching for and downloading infringing material.” Overwhelming statistical evidence also showed the prevalence of copyrighted material on the site. Thus, “the only way Defendants could have avoided knowing about their users’ infringement is if they engaged in an ‘ostrich-like refusal to discover the extent to which their systems were being used to infringe copyright.’”

Fung notwithstanding, U.S. case law has not defined what “red-flag” knowledge is. We are thus left with a regime that recalls Supreme Court Justice Potter Stewart’s famous quote regarding obscenity: "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”

To blindly go where no DMCA case has gone before?

Against this backdrop, the parties in Viacom v. YouTube are preparing to argue the appeal. In a late-breaking development, Viacom’s attorneys have brought to the appellate court’s attention a recent Supreme Court decision in a patent case that Viacom argues should apply in the context of the DMCA. In Global-Tech Appliances v. SEB, decided May 31, 2011, the Supreme Court construed Patent Act Section 271(b), which provides that whoever actively induces infringement of a patent is liable as an infringer. The language of the section implies some degree of intent, raising the question whether the requisite intent is the intent to induce the act that results in infringement or the intent to induce infringement itself. Put another way, does the inducer need to be aware of the existence of a patent and intend to cause infringement?

The Supreme Court concluded that the inducer must intend to induce infringement and must know of the existence of the patent. The Supreme Court went on to hold, however, that this specific intent standard can be satisfied by a showing of willful blindness, defined as (1) a subjective belief that there is a high probability that a fact exists and (2) the defendant takes deliberate actions to avoid learning that fact. The Supreme Court stated that the doctrine of willful blindness enjoyed a “long history” and “wide acceptance in the Federal Judiciary,” and was “well established in criminal law.” Consequently, the Supreme Court saw “no reason why the doctrine should not apply in civil lawsuits for induced patent infringement.”

Though briefing is closed in YouTube, Viacom wasted no time bringing this decision to the Second Circuit’s attention, arguing that the case “refutes YouTube’s suggestion that the doctrine of willful blindness cannot apply to the knowledge requirements under the DMCA because the doctrine is ‘extra-statutory.’” Without explanation, Viacom also argued that the Global-Tech opinion “refutes YouTube’s argument that recognizing willful blindness is knowledge would impose on all service providers a broad affirmative obligation to ‘seek[] facts indicating infringing activity.’” Such an obligation would run afoul of DMCA subsection (m), which explicitly provides that an ISP need not monitor its service or affirmatively seek facts indicating infringing activity.

YouTube, not surprisingly, responded that Global-Tech has no applicability to a copyright case invoking the DMCA, which contains “express provisions governing knowledge of infringement, including a specific statutory alternative to actual knowledge.” YouTube also pointed out the inherent contradiction between the willful blindness standard and DMCA subsection (m)’s refusal to impose an obligation of monitoring on ISP’s.

Any attempt to predict how the Second Circuit may construe and apply the Supreme Court’s Global-Tech opinion is an exercise in reading tea leaves. The Second Circuit’s 2010 decision in Salinger v. Colting, however, gives some insight. In that case, the author J.D. Salinger sued to enjoin the publication of an unauthorized “sequel” to his iconic novel “Catcher in the Rye” entitled “60 Years Later: Coming Through the Rye.” The trial court granted Salinger’s motion for a preliminary injunction, using the traditional test it had employed in copyright cases for decades: a likelihood of success on the merits coupled with irreparable harm to the plaintiff, with irreparable harm being presumed if the plaintiff could make a prima facie case of copyright infringement. The Second Circuit reversed on the basis of the Supreme Court’s ruling in eBay v. MercExchange, a patent case involving a permanent injunction in which the Supreme Court rejected the practice of presuming irreparable harm. Despite the different substantive context and procedural posture of eBay, the Second Circuit reasoned that the Supreme Court had relied not only on patent law, but on traditional principles of equity, as well as copyright cases, in reaching its conclusion. Thus, it rejected the trial court’s presumption of irreparable harm and remanded the case for further proceedings consistent with eBay.

As it did in Salinger, the Second Circuit could just as easily conclude that since the Supreme Court relied on criminal law and general principles involving knowledge standards, it should apply the Global-Tech standard in YouTube. On the other hand, it could conclude, as YouTube urges, that willful blindness and DMCA subsection (m) are irreconcilable. The panel of judges that will hear YouTube has not yet been announced, so it is unknown whether the panel will include some or all of the same judges that decided Salinger. Of course, however constituted, the panel may well decide the case on other grounds, leaving the state of “red-flag” knowledge squarely in Justice Potter territory.

Hot of the press: today's public consultation on copyright in Ireland

David Brophy (Partner, FRKelly, Dublin) has just stepped out of this morning's Public Consultation Meeting which was held in Trinity College Dublin to identify areas of Irish copyright law that might need reform, particularly as regards fair use/fair dealing. He reports:

"This morning around 70 people turned up to a public consultation on copyright reform in Ireland. The meeting was chaired by Dr Eoin O'Dell from Trinity College Dublin (http://twitter.com/cearta), who heads up a copyright review group set up earlier this year by the Irish Government (see earlier 1709 posting here). The group has been asked to identify areas of Irish copyright law that pose barriers to innovation particularly in the digital environment, with a view to making recommendations to resolve any problems identified.

The terms of reference include both amendments to Irish law and the identification of areas where EU directives may need amendment, with specific reference to whether a US-style fair use provision might be needed.This morning's meeting began with three presentations based on experiences of those operating in the current environment.

• Brian Fallon of online news website http://thejournal.ie described how his organisation operates and how it differs from US-based news sites such as Google News, Digg and Bleacher Report (a sports site). He expressed the view that such sites could never have been founded in Ireland due to the fact that aggregation of news content and photos would be seen as copyright infringement in Ireland.

• T. J. McIntyre, a practising solicitor, law lecturer and digital rights activist who runs
http://digitalrights.ie, spoke of how the EU database right is being used by website owners (who argue their websites constitute databases) to prevent extraction and reutilisation of data by price comparison sites. He also pointed to the interface with contract law, such as was seen in the Irish High Court case of Ryanair v Billigfleuge.  The Court held in that case that the terms and conditions on Ryanair's website, which were accessible from a link at the bottom of the page, were binding on visitors to the site, and that this could be used to prevent practices such a screen scraping and deep linking.  T. J. McIntyre suggested that even without involving EU reform, it was open to Ireland to legislate on the interface between contract and copyright law.

• Finally David Cochrane, founder of discussion group http://politics.ie spoke of how his team of 15 moderators spend significant time dealing with copyright infringement issues: users tend to wish to discuss current news items and commonly seek to do so by posting either a link to the item (which is encouraged), or copy/pasting the text of a newspaper article (which is prohibited by their terms of use but happens all the same).  Certain users, unable to find the article they wish to discuss online will take a photo of the newsprint page and post that instead. 

The discussion was then opened to the floor.  Several contributors were from the journalist community, working either as photographers or reporters, and they were almost uniformly against any adoption of fair use provisions.  From this observer's viewpoint, they were also uniformly in the dark about how the US courts actually apply fair use.  

For instance one freelance news photographer opined that if fair use were introduced, her career would be over.  Fair use (she said) would effectively mean that nobody would pay for her photos.  The same contributor also questioned why she should be required to email a site such as http://politics.ie if her photo appears there without permission - she suggested that the onus should be on the website to police her copyright and remove infringing work without her having the burden of asking or identifying the infringement.  Finally, and to some scattered applause, she offered the slogan "Fair use is never fair" which appeared to strike a chord with fellow reporters.  Enough said ... apart from this observation: the Review Group had specifically asked for evidence-based rather than anecdotal contributions.  On the evidence, there is no reason to believe that the USA's fair use system has made freelance photography untenable in that country or that such photographers cannot get paid for their work. 

Similarly, a number of print journalists, including a freelancer, a speaker from the National Union of Journalists, and a spokesman for National Newspapers of Ireland, suggested that fair use was effectively a licence to infringe copyright.  The NUJ spokesman made reference to the recent Righthaven decision in which reposting an entire article was deemed fair use. The case against fair use was supported by IRMA (i.e. the major record labels collecting society) and by the Irish Film Board, who suggested that fair use was open ended and provided no certainty, unlike the European closed list of fair dealings. 

Other notable contributions came from a speaker from the National Library of Ireland who was supported by a speaker from the Library Association of Ireland, who asked for clarity and certainty on digital archiving of work, so that they might be available a hundred years from now, and on the law relating to unpublished works.  Rob Corbet of Arthur Cox noted that in addition to the current consultation, the Department is currently running a parallel consultation on the issue of allowing content owners to obtain injunctions against ISPs, and questioned why the two issues were not being considered together given the obvious overlap. 

In the closing remarks, T. J. McIntyre made what was (to this writer) the best-informed contribution on fair use.  He corrected the view that the fair use evaluation is entirely open ended (he was the only speaker acknowledging that there is a statutory test of four factors), and noted that the Righthaven decision is something of an outlier, it being uncommon for reposting an entire print article to be permitted as fair use.  He also noted the drawback with using the closed-list of fair dealings: it cannot cater for unforeseen new uses of work, just as the issues raised by search engines or Google Books could not have been catered for under the Berne Convention or the Statute of Anne.

Hats off to Eoin O'Dell for chairing the meeting in an even-handed manner and for gently prising some riders off their hobby horses to keep the discussion on track. He stressed repeatedly that this meeting was a place to air views, but that it was equally crucial for interested parties to make written submissions to the Group (email them at copyrightreview@djei.ie).  Once the views are received (the deadline is July 14) these will be summarised in a discussion paper on which further comments will be invited."

Thanks so much, David -- this is hugely appreciated!

Georgian Authors' Society opts to monitor unauthorised sales

Always a useful source of news from Eastern Europe, the Petosevic newsletter reports ("Georgian Authors Society to Monitor Audio-Video Stores and Piracy Websites", 21 June 2011) that the Georgian Authors’ Society plans to start actively monitoring all stores selling audio and audiovisual material, and all websites offering pirated material in Georgia, with an aim to putting an end to the illegal distribution of music files and computer software in that country.

According to local estimates, unauthorised downloading of movies, games and mp3 tracks has caused a 30-40 percent drop in demand for CDs and DVDs, despite a range of tariffs which is quite steep for local inhabitants, where the average monthly income of a family in 2005 stood at just US$200; fines currently range from  205 euro (US$300) to  1,235 euro (US$1,800) for unlicensed use, rising to between 1,235 euro (US$1,800) and 2,060 euro (US$3,000) for repeat offenders.

The Georgian Authors’ Society Director Giga Kobaladze is quoted as hoping that, within 6-12 months, the majority of illegal discs will disappear from the market, adding that the legislation clearly defines the sanctions against the illegal use of audio and audiovisual material, but that consistent monitoring has never been carried out. It is likely that monitoring will bring some sort of result pretty soon, since it is believed that the vast majority of sales outlets for recorded materials sell unauthorised products.

The National Intellectual Property Centre (SAKPATENTI) welcomes this initiative, noting that there is an urgent need for improving copyright protection.