Sunday 28 February 2010

Digibill in a hot spot

How will copyright infringement via wi-fi be handled under the Digital Economy Act? This factsheet says wi-fi providers could either fall under the Act's 'ISP' or 'subscriber' definition – each establishment has to work out which it is for itself! Most wi-fi providers would be subscribers, so could find themselves receiving letters from their ISPs. The factsheet acknowledges that it will be hard for wi-fi providers to prevent all infringement but that does not let them off the hook. They should try to put people off, employing various psychological and technological methods. Those who baulk at the idea of internet filtering may soon find it being employed on their trains and in their coffee shops...

Further comment here on ZDnet.

Friday 26 February 2010

Copyright Tribunal: more lovable from 6 April

A press release from the UK's Intellectual Property Office announces that the resolution of disputes by the little-loved Copyright Tribunal will make it "faster, cheaper and fairer". According to the Office:
"Collecting societies, small businesses and individuals will soon find it simpler, cheaper and quicker to resolve disputes about copyright licensing schemes through the Copyright Tribunal. Simplified and modernised rules of procedure, on which licensing societies, industry and consumer groups were consulted last year, will come into effect from the 6th April 2010.

These changes seek to

* Promote the effective resolution of disputes in a fast-changing business environment by introducing procedures in line with the Civil Procedure Rules 1998.

* Improve access to the Tribunal for small businesses and individuals by introducing a small applications track for quick and economical resolution of small cases.

* Reduce costs and delays in large-scale litigation by providing for active and robust case management. ...

The revised rules will enable the Tribunal to deal with cases justly and fairly but more rapidly. This will be done by ensuring the parties are on equal footing; saving expense; dealing with cases on a proportionate level according to the complexity, amount of money, and financial position of each party; and by dealing with cases quickly, fairly and with the best use of time and resource.

The revisions to the Tribunal's Rules of Procedure take into account recommendations made by the then Innovation, Universities and Skills Select Committee in its Report of March 2008, recommendations made by an internal Intellectual Property Office Review of 2007, and comments made by stakeholders in response to these reviews".
Of all these things, I'm most pleased about the promise of 'robust case management' -- particularly if has the effect of reducing the volume of technical analysis relating to royalty calculations, market impacts etc which some of us have been known to pretend to understand before preparing to flip a coin ...

Thursday 25 February 2010

Latest Copyright World

The February 2010 issue of Copyright World, published 10 times a year by Informa Law, came shimmying through my letterbox this morning. Among its contents are the following items of note:
* "Beware of the blog", by Rita L. Berardino and Jessica M. Kiser, who explore the spectrum of content and infringement liability risk associated with corporate blogging;

* "The case of the copied photograph", claiming that "a landmark Italian decision has established that producing a painting of a photograph may result in copyright infringement". The authors are Edith Van den Eede and Luca Trevisan (Trevisan & Cuonzo Avvocati);

* "How litigation changed peer-to-peer file sharing", penned (as if anyone uses a pen these days ...) by the Arnold & Porter duo of Richard Dickinson and Alex Watt.

Wednesday 24 February 2010

Baidu found to infringe with lyric use

After a run of success in the Chinese courts, search engine Baidu has now lost a lawsuit in the Beijing courts. The new case centred on the use of lyrics of songs that Baidu posts next to its MP3 search function. It was sued by the Music Copyright Society Of China, which said the search firm did not have the appropriate licence to publish song lyrics owned by its members. The Beijing People's Court for the Haidian District agreed and fined Baidu, 50,000 yuan plus 10,000 yaun legal costs just over £5500).

Baidu’s usual (and so far successful) defence that it only provides links to infringing sites failed on the facts of this case as the lyrics were actually posted and published on Baidu’s site (rather than linked to) next to links to MP3 search functions. Baidu plans to appeal.

Has Nesson turned the tide ......

Harvard Law School professor Charles Nesson, who along with a team of his students is defending Joel Tenenbaum, the post graduate student ordered to pay the recorded music industry the combined sum of $675,000 for downloading and sharing songs online has asked a federal judge to reduce the penalty or order a new trial. Nesson’s latest argument is that Tenenbaum only caused the companies to lose a total of $21 when he failed to pay 99 cents charged online for each of the 30 songs in question – and this should be the limit of his damages. Tenenbaum, a Boston University student admitted to downloading music and was penalised in July after being found guilty of violating copyright rules for downloading songs between 1999 and 2007 (see previous blogs on this site). His lawyers have appealed against the "severe" and "oppressive" damage award, asking that it be reduced to 99 cents for each song. The recording labels have described Tenenbaum as a "hardcore" infringer. Interestingly I asked my own students about the latest appeal and a straw poll revealed that sympathy had actually swung to the record labels! The idea of a ‘infringe now, pay iTunes if you are caught’ policy really did strike them as somewhat preposterous – it would be fascinating if Nesson’s defence actually sparks sympathy for the Recording Industry Association of America, routinely reviled and mocked in the blogworld for ‘suing its own customers. Times, they are a changin!

Tuesday 16 February 2010

Let your kids make their own mistakes

On Friday Mrs Justice Gloster delivered this judgment in CDV v Gamecock on a question of authorization of copyright infringement. It is a cautionary tale for parent companies.

In 2008 Gamecock, a publisher of video games, entered into a $10-million contract with CDV, a distributor of video games, for seven games: Dementium, Insecticide, Mushroom Men, Velvet Assassin, Hail to the Chimp, Pirates vs Ninjas and Stronghold Crusader Extreme. Gamecock was in financial difficulties, got behind with paying developers and behind on its delivery schedule. CDV consequently terminated the agreement in respect of four of the games. Gamecock said the games were not late and that the termination was a repudiatory breach of the agreement. Gamecock then set about exploiting the games itself with its new parent company, SouthPeak US.

In November 2009, Mrs Justice Gloster held that CDV had been entitled to terminate the agreement in respect of three of the games and that the agreement had not been repudiated. Consequently, Gamecock found itself both in breach of contract and infringing CDV’s exclusive licence to distribute the games.

The question that arises in last week’s judgment is: was Gamecock’s parent company, SouthPeak, liable for authorizing copyright infringement under s. 16(2) CDPA. Although generally speaking it is relatively hard to find liability for authorizing infringement in English law, there is a species of liability for indirect infringement by ‘participation in a common design’. This line of authority (passing via CBS Songs v Amstrad and Unilever v Gillette) is ‘a bold step, since it applies a common law doctrine to the interpretation of a statute’ (MCA v Charly Records).

SouthPeak, it was held, was infringing by being involved in distributing Gamecock’s games. It was irrelevant that SouthPeak didn’t seem to have intended to infringe. By contrast, SouthPeak was not liable for inducing Gamecock to breach the contract, as that liability requires the offender to know he is inducing a breach.

Monday 15 February 2010

"I want my e-books free"

It's rare for this blogger to draw on the materials provided by other bloggers, but this is an exceptional case. In the first place, I have been either invited or provoked to do so by fellow blogger, legal scholar and gentleman C. E. Petit of Scrivener's Error. Secondly, what follows is truly amusing. Let C.E. take up the story from here:

"At many of the local bars in Campustown, Thursday is karaoke night. With special thanks to cyclobenzaprine, I offer the following commentary on the public reaction to the Amazon/Macmillan kerfluffle, aka AmazonFail 3.21 [see eg here, here and here] — and in particular, to those who took Amazon's side because e-books should never cost more than $9.99:

Karaoke -- sung, slightly off-key, to the tune of Dire Straits' "Money for Nothing"

[sotto voce] I want my, I want my e-books free
I want my, I want my e-books free
I want my, I want my e-books free

[air-guitar solo]

Now look at them yoyos
That's the way they do it
They read my novel on their Kindles — free!
That ain't stealin'?
That's the way they do it
Info ain't for nothin' and e-books are free
Now that ain't stealin'?
That's the way they do it
Lemme tell ya them guys ain't dumb
Maybe get a blister on a mouse-wheel finger
Maybe get papercuts on a thumb

They gotta work in Microsoft Windows
Custom software deliveries
They wanna upload your bestsellers
They wanna download e-books free

That little hacker
With the file-share startup
No buddy his school don't care
That little hacker
Got his own jet airplane
That little hacker
He's a millionaire

They gotta work in Microsoft Windows
Custom software deliveries
They wanna upload your bestsellers
They wanna download e-books free

I shoulda learned to burn some software
I gotta learn to like them bums
Look at that mama!
She got it stickin' in the scanner, man
She'll share some fun
And he's searchin',
What's that? Indexin' noises?
Bangin' on the keyboard like a chimpanzee
That ain't stealin'?
That's the way they do it
Info for nothin' and e-books for free

They gotta work in Microsoft Windows
Custom software deliveries
They wanna upload your bestsellers
They wanna download e-books free

[air-guitar solo]

I want my e-books free
I want my e-books free
I want my e-books free

That ain't stealin'?
That's the way they do it
Info ain't for nothin'; e-books for free

[sotto voce] I want my, I want my e-books free
I want my, I want my e-books free
I want my, I want my e-books free

All trademarks property of their respective owners. Yeah, right.

Sunday 14 February 2010

Sabam v Scarlet and ISP filters

As already noted on this blog, a reference has been made to the ECJ in Sabam v Scarlet (formerly the Belgian subsidiary of Tiscali). The questions are here. The judgment of 28 January is here - thanks to Cédric Manara.

Sabam (the Belgian Society of Authors, Composers and Publishers) sued Scarlet in 2004 over P2P copyright infringement. In 2007 Scarlet was ordered to adopt a system called Audible Magic to filter illegal file-sharing. Audible Magic didn't work and the order was overturned in 2008.
The Court of Appeal's questions are complex but the Internet waits for no man. To save the ECJ time here's my simplified version with excess directives filtered out:

1. Does Article 15 of the E-Commerce Directive prohibit an injunction compelling an ISP to filter P2P communications because it would be 'a general obligation to monitor'?
2. If not, should the Belgian court impose such an injunction on Scarlet?

To save even more time, the ECJ could pass on the second question because it has already provided courts with a guideline in Promusicae: the Copyright Directive (including injunctions) should be interpreted in accord with fundamental rights (e.g. rights to property, private life and freedom of expression) and other general principles of Community law (e.g. proportionality). In Sabam the court would balance the copyright owners' property right against users' rights to privacy and freedom of expression; then consider the proportionality of any measures (e.g. effectiveness). Furthermore, Recital 59 of the Copyright Directive says that the conditions and modalities relating to injunctions against digital intermediaries should be left to the national law of the Member States. The ECJ could decline to take on a general obligation to monitor injunctions.

That would leave just the one question – can ISPs be placed under an obligation to filter?

The answer to this question isn't spelled out in black and white in the E-Commerce Directive. It is a policy question that needs to be answered in the context of today's internet, not that of 2000 when the E-Commerce Directive was created. The copyright problem is on a different scale in 2010 (Napster was new on the block in 2000). Privacy concerns about 'monitoring' need to be reviewed in the context of the internet's mass voluntary waiver of privacy via Adwords etc. Concerns about whether ISPs can bear the financial burden of filtering need to be objectively reassessed in the light of real profits made by ISPs today.

How is the ECJ likely to respond? If this leaked document concerning ACTA is anything to go by, the ECJ will not authorize a filtering obligation – nor is it likely to be created by ACTA (see here). Although the issue in ACTA would be a general statutory obligation rather than a single injunction, as in Sabam, the effect of a single unlimited injunction would be comparable. Interestingly, in the consultation process that has culminated in the Digital Economy Bill, the British government looked at a general obligation on ISPs to impose filters (BERR Consultation on Legislative Options to Address Illicit P2P File-sharing, July 2008, Option A4) but in the Government's response of 29 January 2009, that option had disappeared without trace.

Filtering seems to be deemed politically incorrect but is it really such a dud idea? Currently individual rightsholders must scan the endless vistas of the internet in the hope of spotting an infringement. Then they enter the longwinded, expensive process of removing it, knowing that they are only fire-fighting as it will only be the tip of the iceberg. ISPs, by contrast, have a birds-eye view of everything.

If a restaurant has a health and safety problem, who is best placed to fix it? The one-off customer who gets food poisoning? Or the restaurant owner who exercises day-to-day control over the restaurant's premises and practices?

PPL lose tariff appeal

Last October the Copyright Tribunal rejected new rates that Phonographic Performance Limited (PPL) wanted to bring in, siding with the British Beer and Pub Association and the British Hospitality Association who were fighting three new tariffs. Somewhat understandably, the collecting society had argued that larger premises should more than smaller ones for use of music. But, where PPL had been asking for a hotel or pub of under 400 sq metres to pay a tariff of £464.80 for a licence, the Tribunal stuck at a rate of around £110. Unhappy with that decision, PPL asked the High Court to review and overturn the Tribunal. Mr Justice Arnold has now rejected PPL’s appeal, prompting a short statement from PPL which says:
"On the appeal, the Judge was limited to considering whether the Copyright Tribunal had erred in law, not whether the decision was one he would have made based on the evidence. Naturally the company is extremely disappointed that the Judge found there was no error of law although he identified some problems with the decision of the Tribunal. This leaves PPL with tariffs that it believes substantially undervalue the rights of its performer and record company members.”

Friday 12 February 2010

Net fury as Google deletes music blogs

When some bright spark noted that social networking site MySpace’s terms and conditions for posting up music were somewhat one sided (prompting a very high profile and damaging campaign against the site by musician Billy Brag) it left netheads up in arms – and with Facebook and Bebo just around the corner a mass migration began – surely one of the turning points for MySpace whose dominance in social networking has quickly shrunk (and whose CEO, Owen Van Natta, has just left the company).

Now Google has dipped a toe into this very murky swamp in what critics are calling "musicblogocide 2010". It seems Google has deleted at least six popular music blogs that it claims violated copyright law under the US Digital Millennium Copyright Act. The sites, hosted by Google's Blogger and Blogspot services, received notices only after their sites – and years of archives – were wiped from the internet according to a reports in the Guardian and elsewhere. The sites, which included Pop Tarts, I Rock Cleveland, To Die By Your Side, Masala, Living Ears and It’s A Rap all posted up MP3 files (often sourced from record labels and artists) alongside reviews and other materials but were told
"We'd like to inform you that we've received another complaint regarding your blog ….. Upon review of your account, we've noted that your blog has repeatedly violated Blogger's Terms of Service ... [and] we've been forced to remove your blog. Thank you for your understanding."

Bill Lipold, the owner of I Rock Cleveland, who clearly wasn’t very “understanding”, cited four cases in the past year when he had received copyright violation notices for songs he was legally entitled to post saying to Google saying "I assure you that everything I've posted for, let's say, the past two years, has either been provided by a promotional company, came directly from the record label, or came directly from the artist". He told Cleveland newspaper The Plain Dealer: "It's difficult to get across ... that there's a difference between someone working with the blessings of the artists and the labels and someone who leaks Bruce Springsteen's entire discography. They don't see the distinction between someone who's adding value and someone who's facilitating piracy. That goes to the root of this whole mess".

As the story broke Google rushed to assure bloggers that there was an appeals process for “DCMA complaints” and that bloggers could file a DCMA counter claim to show that use of MP3 files was authorised or “official”, although bloggers countered saying that the notices they receive contain no details of infringing tracks and rather worryingly for Google that it was “treating bloggers like Big Brother … shoot first, ask questions after."

Picture and opinion at

Thursday 11 February 2010

RIAA face up to third Thomas-Rasset trial

I imagine that the mention of the names Joel Tenenbaum and Jammie Thomas-Rasset, the two high profile and currently convicted file swappers in the USA, probably drum up nothing but despair in the offices of the Recording Industry Association of America (RIAA) in light of the ongoing negative press the record labels face for ‘suing their own customers’ etc etc. Even so, the RIAA has rejected a judge's order reducing the damages awarded against convicted file-swapper Jammie Thomas-Rasset from $1.92 million to $54,000, meaning that the Minnesota single mum will now face a third trial on the issue of damages

In her first trial, a jury found Thomas-Rasset guilty and ordered her to pay $222,000 in damages for copyright infringement. However, the judge later said he had erred in his instructions to the jury and ordered a new trial. In the second trial the jury again found Thomas-Rasset guilty, but this time awarded $1.92 million in damages. Then last month the judge from the second trial, Judge Michael Davis, sided with Thomas-Rasset's attorneys and reduced that jury award to $54,000, representing $2,250 for each song that Thomas-Rasset was found guilty of sharing - triple the statutory minimum of $750, but far far less than the statutory maximum of $150,000. To end matters, the RIAA then offered Thomas-Rasset an even lower settlement (thought to be $25,000) provided she ask the judge to vacate his ruling that lowered the damages; she refused that offer. The RIAA have now said that they “find it impossible to accept a remittitur that could be read to set a new standard for statutory damages - essentially capping those damages at three times the minimum statutory amount of $750 saying “this far-reaching determination is contrary to the law and creates a statutory scheme that Congress did not intend or enact." Let round three (and a half) commence.

Google plans superfast highway

Are Google's new broadband plans the death knell for the content industries as we know them - or a brave new world with ever increasing opportunities for interacting with consumers?

Google has announced plans to launch a new optic fibre network delivering broadband speeds of up to 100 times those currently available to consumers - one gigabit per second. This is on top of the $7.2 billion (£4.6 billion) promised by President Obama for broadband infrastructure in the US. The new Google networks, to be trialled in up to 500,000 homes in a number of cities in the USA, will mean that users can download a high definition full length feature film in just a few minutes - although luckily it seems also true that that rural clinics in the USA will be able to (legally) send 3D medical images over the networks, or so press reports say.

Content owners will watch this one carefully - and this topic is just going to get more and more interesting, especially in light of the SABAM v Tiscali reference to the European Court Justice, the Australian Federal Court's decision that Internet Service Providers cannot be held liable for copyright infringements committed by their subscribers and the various adoptions of 'three strikes' laws in France, South Korea and Taiwan. Clearly the decisions of courts and governments are going to be critical in underpinning (or undermining) the future business models for record, film and TV companies, games companies and ISPs, mobile companies and other intermediaries.

Logorama drama

Thank you, Arthur Heard (HarperCollins) for letting us know about Logorama, a short animated film that received critical acclaim at the 2010 Sundance Film Festival. Written and directed by the French H5 team of François Alaux and Herve de Crecy, the film is effectly crafted from a plethora of highly recognisable brand logos and corporate mascots -- as well as fictional icons such as the Buy N Large logo from Pixar’s Wall-E. Disappointingly, the use of brands extends only to the visual dimension of this imaginative work: for the sake of consistency -- though it would probably irritate the hell out of viewers -- the sound-track did not consist of stitched-together jingles.

A film of this nature inevitably involves fascinating legal issues. Copyright in trade marks extends to logos but not generally to single words, and whether the use made of the logos here is regarded as transformative, fair per se, marginally infringing or as a pernicious stain on the integrity of the logo itself is a matter that varies as between the subjective view of copyright lawyers as well as the country-by-country rules that determine inherent protectability and the scope of protection (all of this is to say nothing of the issues arising from trade mark law and from infringement of Community design rights). As ever, readers' comments are welcomed.

You can watch the film, which lasts about quarter of an hour, here.

Tuesday 9 February 2010

Latest ECDR

Issue 1 for 2010 of the bimonthly European Copyright and Design Reports, published by Sweet & Maxwell, features an English translation of Bonnier Amigo Music Norway AS v Telenor Telecom Solutions AS, a November 2009 decision from the District Court of Asker og Baerum (Norway) which held that an internet service provider was not liable as a contributory copyright infringer, since its role is not an "unlawful contributive" one, contributing in a "merely physical" manner only. This case arose following an application by various rights owners for a preliminary order that internet service provider Telenor block customer access to The Pirate Bay.

Saturday 6 February 2010

False hope for Google Book Settlement?

The US government filed a statement setting out its views of the Amended Google Book Settlement on Thursday, again rejecting it as it did the original Settlement. Again, the Government said it fails to satisfy the requirements of the class-action procedure and is anti-competitive. Again it has therefore effectively pronounced the Settlement dead but then goes on to say it really wants to see it happen and presents a number of somewhat conflicting options for the court to explore.

It leaves it still uncertain as to whether an opt-out system could ultimately be acceptable in its eyes. It seems extremely difficult to imagine what new form the Settlement could take that would satisfy Google's business objectives and the Government's requirements.

Meanwhile Google is sitting on millions of unauthorized scans of books and continuing to use them to return results in Google Book Search. While this litigation has been trundling on over the last five years, Google's scanner has not been turned off. The scale of the copyright infringement has ballooned. Although it is heartening that the US government has rejected the Settlement, it seems intensely problematic that leaving the possibility of a resolution open could leave rightsholders in a virtually perpetual limbo while Google keeps its foot pressed down hard on the infringement accelerator.

Friday 5 February 2010

The kookaburra wins down under

An Australian Court has found that Men at Work did copy Larrikin Music’s song Kookaburra Sits in the Old Gum Tree, written by Marion Sinclair in 1934, in their composition and recording Down Under. Down Under record company Sony BMG and publisher EMI Songs Australia had disputed the claim but today the Federal Court ruled in Larrikin's favour and Larrikin Music's lawyer Adam Simpson welcomed his win saying it was yet to be decided what percentage of earnings from the song they'd be seeking commenting “It depends. I mean anything from what we have claimed which is between 40% and 60% and what they suggest which is considerably less”. The judge also ruled that a Qantas advertisement which used a small similar section of the riff was not in breach of copyright laws. EMI said it was pleased with this decision but Larrikin Music's has said that it wasn't ruling out further legal action. In an interview with ABC Australia’s The World Today programme music lawyer Stephen Digby said he was surprised by the court's decision saying “ think it could have gone either way but my initial reaction and also looking at this case my initial reaction following it has always been that this is going to be a very hard case for Larrikin to win” adding “it is certainly an identifiable and discernable piece within the song but as a gut feel, my gut feel was that it was probably not a substantial, sufficiently substantial in the song as a whole. Clearly the judge disagreed with me” and Digby says that he is looking forward to seeing the judgment in full and “I'm hopeful that in that he might give us guidance on what he considers to be a considerable, a substantial part or not.” The judge in the case, Justice Peter Jacobson, ruled on the matter saying: "I have come to the view that the 1979 recording and the 1981 recording of 'Down Under' infringe Larrikin's copyright in 'Kookaburra' because both of those recordings reproduce a substantial part of 'Kookaburra'. I am also of the view that Larrikin is entitled to recover damages ... for the infringements". He added: "I would emphasise that the findings I have made do not amount to a finding that the flute riff is a substantial part of 'Down Under' or that it is the 'hook' of the song. Over in the USA a mighty mighty row is brewing over Black Eyed Peas' smash hit Boom Boom Pow - with a new claim that the song infringes Phoneix Phenom's Boom Dynamite. if you know your rice from your peas take a look at and make up your own mind.

Australian court finds safe harbour for ISPs

Australia's Federal Court has ruled that Internet Service Providers cannot be held liable for copyright infringements committed by their subscribers, dealing a blow to content owners in a closely-watched lawsuit against Australian Internet Service Provider iiNet. Justice Dennis Conroy found that whilst it was shown that iiNet had knowledge that its customers were committing copyright infringement, this knowledge did not equate to "authorizing" the activities ruling “While I find that iiNet had knowledge of infringements occurring, and did not act to stop them, such findings do not necessitate a finding of authorisation. I find that iiNet did not authorise the infringements of copyright of the iiNet users”. The case was brought by AFACT (the Australian Federation Against Copyright Theft) on behalf of a consortium of film and TV companies and centred on the ISP’s liability for illegal file-sharing committed by its customers. AFACT had asked for damages and wanted iiNet to be forced to disconnect any customers it knew were illegally sharing music online. The ISP had refused to forward file-sharing warning notices to its subscribers on behalf of the studios, saying they violated privacy provisions in Australian law. Instead, iiNet had taken to forwarding the notices from copyright holders to the police, along with its own terms and conditions showing it prohibited copyright infringement.

It is now likely that the Australian government will review legislation with a suggested move to enact a three strikes system.

Monday 1 February 2010

GUIs go to Luxembourg: some background

Back in December this blog drew the attention of its readers to Case C-393/09 Bezpečnostní softwarová asociace (Security software association) v Ministerstvo kultury ČR (Ministry of Culture of the Czech Republic), a reference to the Court of Justice of the European Union relating to copyright in graphic user interfaces (GUIs).

I've now received an email from Slovakian blogger Martin Husovec, who writes that we might be interested in the background of C-393/09. You can read it here. Thanks, Martin, and good luck with Huťko´s IT & IP legal blog.