Monday 31 May 2010

Clearance: the IPO speaks

The most recent issue of the UK's Intellectual Property Office e-mag Insight carries a short feature entitled "How do I locate a copyright owner if I want to use the work?" Titles like this are always likely to be a hostage to fortune. The article reads:
"If you want to use someone else's material which is still protected by copyright, and if there is no exception to copyright which covers the situation, you need to seek the permission of the right holder.

You may therefore need to consider who owns or controls the rights in the material. This person could be:

* the creator of the material or his heirs, or
* the creator's employer, or
* anyone else to whom the rights in the material have been sold, or otherwise transferred or licensed, or
* a collective licensing society which has been asked to collect fees on behalf of the rights holder. [Pretty good. In this miserable economic climate the person in control may also be a liquidator or trustee in bankruptcy, as this note mentions below. Another possibility is the Treasury Solicitor's Bona Vacantia division, the website of which providentially contains information about the abandoned copyright it sells]
You should remember that as copyright is an automatic right, there are no registers that can be checked to locate the creator or right holder in a work. There are though organisations representing copyright owners who may be able to assist you in tracking them down.

The copyright protection for many works will continue for 70 years after the [end of the year in which the] creator or owner of the rights in a work has died. The rights will have transferred to someone else, perhaps through testamentary deposition (a will) or by inheritance. If there was no will, or if the creator of the work has not specified where the rights in the material should go, then the normal rules of inheritance will apply. (These rules are not specific to copyright, and advice should be sought from a legal adviser.)

When a company goes out of business or ceases trading, any copyright it may own continues for the customary copyright duration. The rights will be part of the assets of the company, and may be sold or otherwise dealt with by the company or its liquidator, etc.

If you wish to trace a right holder, there is no official body that can help you directly, but you could try the following:

* Contact the appropriate collecting society (see the above link)
* Contact the creator's publisher, agent, representative etc.
* Carry out internet searches on various search engines.
* Establish any family connection.
* Use the WATCH file, (Writers, Artists and Their Copyright Holders) - a joint project of the University of Reading, in the UK, and the University of Austin, Texas, USA. They hold a list of some right holder contacts for some authors and artists.
Please note that if you are having difficulty locating a right holder, you should keep good records of your efforts. (This will help to show that you have been trying to act in good faith.) If you are unsuccessful in tracing the right holder, and still wish to proceed with your project, you should do so with caution. You may wish to set aside an appropriate fee for the use of the work in a special bank account [I've personally felt that, for small-scale unauthorised acts, this should come to roughly what a decent meal for two at a good restaurant would cost you], and, when you use the work, apply a statement indicating that you have tried to trace the right holder, but have failed to do so, and then invite any legitimate right holder to contact you [one can imagine some scenarios in which this is impractical, impossible or just plain unaesthetic]. You should bear in mind that should the right owner appear, they may consider suing you for infringement of their rights, and in such a case you would want to show the right holder, and perhaps the courts, that you have acted in good faith and have made reasonable efforts to try to track down the right holder".
The 1709 Blog invites readers to offer the IPO their own tips and suggestions for the first revision of the advice on this web page.

Sunday 30 May 2010

Eircom users to face Dtecnet scrutiny

The Irish Times has reported ("Eircom to cut broadband over illegal downloads") that
"EIRCOM WILL from today [24 May 2010] begin a process that will lead to cutting off the broadband service of customers found to be repeatedly sharing music online illegally.

Ireland is the first country in the world where a system of “graduated response” is being put in place. Under the pilot scheme, Eircom customers who illegally share copyrighted music will get three warnings before having their broadband service cut off for a year.

The Irish Recorded Music Association (Irma), whose members include EMI, Sony, Universal and Warner, reached an out-of-court settlement with Eircom in February 2009 under which the telecoms company agreed to introduce such a system for its 750,000 broadband users.

The mechanism by which it operates was challenged in the courts by the Data Protection Commissioner. Mr Justice Peter Charleton ruled in the High Court [see IPKat note here] that a broadband subscribers internet protocol (IP) address, which Eircom will use to identify infringing customers, did not constitute personal information.

It is understood that, during the pilot phase, Eircom has agreed to process about 50 IP addresses a week. Irma is using a third-party firm, Dtecnet, to identify Eircom customers who are sharing, and not simply downloading, a specific list of its members’ copyrighted works on peer-to-peer networks. The operation of the scheme will be reviewed after three months.

Dick Doyle, director general of Irma, said his organisation could potentially supply Eircom with thousands of IP addresses a week but it was a matter of seeing what the internet service provider (ISP) was able to process.

Infringing customers will be initially telephoned by Eircom to see if they are aware of the activity on their broadband network. If the customer is identified a third time, they will have their service withdrawn for seven days. If they are caught a fourth time their broadband connection will be cut off for a year. Mr Doyle said international research suggested 80 per cent of people will stop illegal file-sharing if they get a letter from their ISP warning them of the consequences [Is this research published? What's its methodology? Is it reliable?]. ...

... Cable operator UPC has resisted requests from Irma to implement a “three strikes” system and the case is in the courts next month. Last night, a spokeswoman for UPC said it does not see any legal basis for monitoring or blocking its subscribers’ activities".
The 1709 Blog, which hasn't yet heard reports of anyone receiving a call from Eircom, is fascinated to see how effective this procedure will be and hopes its readers will keep it informed of developments as they unfold. Other than a migration of illegal file-sharers to other ISPs and/or fresh identities online, this blogger suspects that the net result of this exercise will be reflected in the increased cost of monitoring and enforcing copyright but without a corresponding increase in sales of legitimate product.

Friday 28 May 2010

Coz we said so ....

Wiggin have published their 2010 Digital Entertainment Survey, a “comprehensive audit of entertainment and digital activity in the UK today , investigating the behaviour, trends, preferences and attitudes across all forms of entertainment activity”. The findings are based on an online survey of 1,592 UK respondents, said to be representative of the national demographic and conducted in May 2010. And here’s what they found:

• One in two are Facebook users – rising to 69% of teenagers
• 22% would add a widget to their own pages to endorse a product in return for a small reward
• The survey found that 44% of those who currently access content via illegal sources would be happy to pay a monthly subscription fee if that meant they could continue to access music via those sources legitimately (ie if file-sharing was licensed), though over half said that only £3 to £3.50 would be a reasonable subscription fee, while a quarter would be willing to go up to £14.50.
• 29% of the file-sharers admitted that if their favourite illegal sources went legit and started charging a subscription fee, they'd move to a different free-to-use illegal site.
• One third of those surveyed thought that the three-strikes system, set up to combat online piracy by the recent Digital Economy Act, wouldn't change their habits regarding accessing illegal content sources even if other file-sharers did start to have their net connections suspended. If the penalty was stepped up to full disconnection though (which will be the ultimate penalty under the French three-strikes system), some of those would start to think twice.
• 20% said that once three-strikes goes live they'll take a more active role in monitoring people using their internet accounts, while 25% said they thought a fairer way to deal with piracy - rather than three-strikes - was to block access to piracy-enabling services.
• In general terms, 90% of the people surveyed said they weren't keen about paying for access to news sites, with 71% saying there was too much free news available to justify paying any one news provider for their content leaving the question - is 10% of the market is enough to build a ‘paywall’ protected content business for newspapers such as The Times? If consumers did pay – and they want unlimited access – a price of £1 a week seems to work, although 48% still think that is unreasonable.
• 32% of people would be prepared to pay small sums (eg 10p-20p) to have TV programmes streamed to them free of adverts – 28% would do the same for music albums. And 21% for music videos.
• 9% are going to buy an iPad in the next twelve months ….

You can see the full report (for free!) here:

Sunday 23 May 2010

Second Life: intellectual property and virtual property are not the same thing

Second Life is website where users can live, well, a second life. It is a role-play game in which users imagine meeting virtual people, doing virtual things and buying virtual property – for real money. Tens of millions of dollars have been spent and some commentators, such as Lawrence Lessig and Chris Anderson, have held the site up as a paradigm of how to make money out of online communities where many are giving their time and energy for free.

Now some of those who bought virtual property are suing in a class action, saying that Second Life has been misleading users about their ownership of virtual property. The plaintiffs’ accounts had been terminated, depriving them of access to their virtual property. And when Second Life went open source, the claimants say property was devalued, as anyone can now create their own land.

Confusion seems to have stemmed from the conflation of two types of ‘ownership’. Firstly Second Life asserts that users retain copyright ownership of content they create. Secondly they have said users can own virtual property. The first type of ownership is real-world ownership. The second is metaphorical ‘ownership’.

Where a user becomes an ‘owner’ of virtual property by buying it from the site or another user, it seems they are paying for a licence. This licence presumably may or may not incorporate an intellectual property licence. For example, the design of property may not be sufficiently original to attract copyright. There must invariably be aspects of what is paid for that has nothing to do with copyright: a house next door to a virtual celebrity’s house might cost more than an identical house in another location. The consideration here is a place in a game, not something that is protected by copyright.

On the other hand, if Second Life terminates an account they do not remove the user’s intellectual property right of owning copyright in content he created. Rather they stop making use of a licence the user has given.

Second Life is a game, so it’s hardly surprising that ‘owning’ something in a role-playing game should be something different from owning the real-life equivalent. The court must decide whether Second Life has been misleading users with statements like: ‘We started selling land free and clear, and we sold the title, and we made it extremely clear that we were not the owner of the virtual property.’

Friday 21 May 2010

WIPO VIPs forum launched

A WIPO press release ("WIPO Launches On-line Forum on Access to Copyrighted Works by Visually Impaired") caught this literal-minded reader by surprise today -- till he realised that the words "by Visually Impaired" applied to "Access" and not to "Copyrighted Works". Never mind, the story goes as follows:
"An on-line forum to promote an exchange of ideas and to build consensus on international measures to improve access to copyright-protected works in formats suitable for visually impaired persons and others with print disabilities (VIPs) was launched by WIPO this week. The Forum, which will remain open at least until June 20, 2010, is designed to stimulate debate, enhance understanding, and broaden awareness of the question.

While sighted individuals enjoy unprecedented access [as contrasted with precedented access?] to copyright-protected content, in some contexts, social, economic, technological and legal factors, including the operation of copyright protection systems, can combine to seriously impede access to such works by the blind or other reading impaired persons. Widespread use of digital technologies, in particular, has prompted reconsideration of the question of how to maintain a balance between the protection available to copyright owners, and the needs of specific user groups, such as reading impaired persons.

More than 314 million blind or visually impaired people around the world stand to benefit from a more flexible copyright regime adapted to current technological realities. Individuals with reading impairment often need to convert information into Braille, large print, audio, electronic and other formats using assistive technologies. Only a very small percentage of published books around the world are available in formats accessible to the reading impaired. This seriously compromises the educational and employment opportunities of reading impaired individuals in all countries, particularly developing countries.

In May 2009, Brazil, Ecuador and Paraguay submitted to WIPO’s Standing Committee on Copyright and Related Rights (SCCR), a draft treaty proposal, prepared by the World Blind Union (WBU), to spearhead international discussions on establishing a multilateral legal framework on limitations and exceptions to international copyright law for the benefit of VIPs to address the needs of VIPs and other people with reading disabilities.

This proposal, together with other possible proposals and contributions from SCCR members will be discussed during the upcoming open-ended consultations from May 26 to 28, 2010. The outcome of those consultations will be submitted for the consideration at the next session of the SCCR in Geneva from June 21 to 24".
This weblog wonders whether the Forum will throw any new light on the problems of visually impaired persons, which have been known to us since before the dawn of literacy and which often appear to be of peripheral significance when contrasted with other, less pervasive, issues. What is wanted now is not so much an increased awareness of the problems as an increased awareness of the need to address those problems in a manner which is both practical and fair.

Cannonballs and footballs – a judicial comparison

What place is there for common-law tort in the context of statutory IP rights? Future Investments SA v FIFA, decided in the High Court last week, takes a look at the interplay between copyright and the common-law tort of causing loss by unlawful means.

Under a licence from FIFA, IMG Media produced FIFA FEVER, a DVD celebrating FIFA’s 2004 centennial. Future Investments protested, saying home video rights in the ’98 World Cup were theirs. Future, however, didn’t sue FIFA for authorizing copyright infringement, for reasons the judgment does not explore. Instead the action is for causing loss by unlawful means. This tort, clarified by Lord Hoffman in Douglas v Hello!, consists of ‘(a) a wrongful interference with the actions of a third party in which the claimant has an economic interest and (b) an intention thereby to cause loss to the claimant’. The claimants argued that IMG’s freedom to enter into contractual relations with Future was unlawfully interfered with when FIFA warranted to IMG that they held the rights. Floyd J said:

I think the most that can be said, on the basis of Future’s pleaded case, is that IMG was somehow discouraged from approaching Future for a licence. At one level this might be thought to be analogous to the cases of causing loss by unlawful means based on intimidation of customers, of which Tarleton v McGawley (1794) Peake 270 provides a colourful example. In that case the master of a ship used cannons to prevent a potential customer from approaching a rival ship. IMG was a potential customer of Future for a licence to WC98 footage, but was turned away by FIFA’s authoritative and (so say Future) wrongful assertion of the right to grant a licence itself. It seems to me, however, that there is a fundamental and decisive difference between keeping your rivals away from your competitor’s goods and keeping them away from your competitor’s intellectual property rights. In the former case the customer has, and should have a free choice as to where to purchase goods, and that choice is being interfered with by the activity of the tortfeasor in scaring them away. But in the case of an intellectual property right, there is no question of any choice. One either needs a licence or one does not.’
The tort’s 400-year case law does offer closer matches, however. Unlawful interference does not have to take the form of a threat. It can be deception. There might only be one person that can own an exclusive IP right but there is no limit to the number of people who can say they own it.

Thursday 20 May 2010

On your marks, get set ...

Not a moment too soon, yesterday the OFT gave the green light to Project Canvas, the BBC-led joint venture to create internet-connected television (ipTV news reports). It looks like they won't be short of competition after all as today Google announced its own internet TV system. As the battle lines are drawn between these two rather different monopolies, copyright looks on impartially, wondering whether the integration of conventional TV with internet content could work in favour of the legitimate stuff (as Wired suggests here) or against it.

Tuesday 18 May 2010

Canadian court says that music clips can be royalty free

In an interesting decison, Canada's Federal Court of Appeal has ruled that no royalty is payable for the use of thirty-second or less clips which are used by consumers to 'preview' potential purchases on digital music services. The court was hearing an appeal by the songwriter's collection society SOCAN from the Copyright Board of Canada which had applied the 'fair dealing' doctrine to preview clips - it seems by extending the exception for 'research' on the basis that these clips were used by consumers to research music that they might then want to buy. SOCAN had argued that research-based fair dealing exception only applied to proper academic or scientific research, the traditional interpretation of that provision. The Board disagreed and said research did include circumstances when a "consumer is searching for an object of copyright that he or she desires and is attempting to locate and wishes to ensure its authenticity and quality before obtaining it".

The Federal Court affirmed the Copyright Board's interpretation, saying:

The legislator chose not to add restrictive qualifiers to the word “research” in section 29. It could have specified that the research be “scientific”, “economic”, “cultural”, etc. Instead it opted not to qualify it so that the term could be applied to the context in which it was used, and to maintain a proper balance between the rights of a copyright owner and users’ interests.

If, in essence, the legal research such as that referred to in CCH has a more formal and rigorous aspect, the same is not necessarily true for that conducted by consumers of a work subject to copyright, such as a musical work. In that context, it would not be unreasonable to give the word “research” its primary and ordinary meaning. The consumer is searching for an object of copyright that he or she desires and is attempting to locate and wishes to ensure its authenticity and quality before obtaining it. I agree with the Board that “[l]istening to previews assists in this investigation”.

The court was also asked to consider whether the dealing itself was fair given the large number of previews at issue. The court confirmed that the Board's decision was not unreasonable or in error.

Michael Geist said this on his excellent blog (link below): "The implications of this decision are very significant. While fair dealing is still constrained by the current list of exhaustive categories (research, private study, news reporting, criticism, and review), the broad interpretation of research to include consumer research could be used a wide variety of other situations where consumers use a portion of a work as part of their buying decision making process. Moreover, the broad interpretation of research should be similarly applied to private study, news reporting, criticism, and review, which, with the exception of private study, also do not contain restrictive qualifiers. This does not mean the law is a free-for-all - the dealing itself must still be analyzed to determine if it is fair - but it does confirm that the door is open to creative uses of the fair dealing provision in Canada consistent with the Supreme Court of Canada's view of a copyright balance between user rights and creator rights".

Monday 17 May 2010

Reproduction behind closed doors

Last week the Advocate General’s opinion was delivered on Case C-467/08, SGAE v Padawan. The ECJ has been asked to clarify private copying levies.

The Copyright Directive provides, in Article 5(2)(b), for an optional exception for private non-commercial copying, on the condition that the rightholders receive fair compensation. All European countries with the exception of the UK and Ireland now have a private copying exception – in most cases compensating rightholders by a levy on companies manufacturing, importing or distributing copying machines and media (e.g. blank CDs, video recorders, MP3 players, computers and printers). In 2004 copyright levies raised €568m in the EU.

The Advocate General was of the view that a levy should not be indiscriminately applied – it’s ‘justified only where it may be presumed that the digital reproduction equipment, devices and media are to be used for private copying’. She said that it was OK for such presumed use to be estimated. Specifically in this case equipment used by businesses would not be for private non-commercial use, so a private-copying exception levy was not applicable.

The opinion would appear to introduce a new grey area: when is a levy being applied indiscriminately? If this opinion is followed by the ECJ, member states could exercise their discrimination differently, removing different sales from the imposition of the levy. This would result in less consistency of levies across Europe, adding to the existing intractable problem that member states have wildly differing levies, imposed on different products and different charges. An iPod classic costs €229 in Germany (where the levy is €2.56), €259 in France (€20 levy) but only €217.65 in Luxembourg (no levy).

Private copying is such a complicated and unmanageable thing – didn’t a levy seem like such an elegant, simple solution?

Friday 14 May 2010

Limewire bites the dust .....

The international music industry has responded with delight at a court ruling that has found against Limewire, one of the oldest file-sharing networks on the Internet. In a 59-page decision issued Tuesday (May 12th) in New York, U.S. District Judge Kimba Wood has ruled in a summary judgment that the peer-to-peer company is guilty of inducing copyright infringement, committed copyright infringement and practiced unfair competition. Reuters report that the judge leaned heavily on one of the plaintiff's expert witnesses, Dr. Richard Waterman of the Wharton School, who testified that a random sample of 1800 files turned up copyright infringement in 93% of them, including 43.6 percent of copyrighted files owned by the plaintiff record labels. Based on the results, Dr. Waterman concluded that "98.8 percent of the files requested for download through LimeWire are copyright protected or highly likely copyright protected, and thus not authorized for free distribution."

The judgment itself is perhaps unsurprising given the Supreme Court's stance in MGM v Grokster where the Court unanimously held that defendant P2P file sharing companies Grokster and Streamcast (maker of Morpheus) could be sued for inducing copyright infringement for acts taken in the course of marketing file sharing software

Here it is interesting that the judge was willing to take a long hard look at the evidence available and the fact that the site promoted filesharing - Judge Wood dismissed LimeWire's contention that the statistics weren't reliable and accepted evidence that the service was not only aware of the copyright abuse but actively tried to attract infringing users. Wood also noted that the only step LimeWire took to curtail abuse was to make users agree not to infringe copyrights in its terms of service. The notice does "not constitute meaningful efforts to mitigate infringement," she wrote. The Court found that from 2004 to 2006 Limewire's annual revenue grew from nearly US$ 6 million to an estimated US$20 million. The judge found this growth depended greatly on Limewire users’ ability to commit infringement through Limewire.

Record label trade bodies were naturally delighted with Mitch Bainwol, CEO of Recording Industry Association of America saying "This definitive ruling is an extraordinary victory for the entire creative community" adding "Unlike other P2P (peer to peer) services that negotiated licenses, imposed filters or otherwise chose to discontinue their illegal conduct following the Supreme Court's decision in the Grokster case, LimeWire instead thumbed its nose at the law and creators. The court's decision is an important milestone in the creative community's fight to reclaim the Internet as a platform for legitimate commerce." IFPI chairman and CEO John Kennedy said: “Limewire has been a major hurdle in the music industry's efforts to make the transition to a new, legitimate online music business. This ruling will be hugely valuable both as an educational message and as a legal precedent internationally. It shows the stark reality of a site which made a fortune by violating the rights of artists and creators. The judgment also ends years of uncertainty among consumers, many of whom have felt free to use Limewire in the incorrect belief that it was a legitimate music site. Now it has been made clear to them that Limewire is not legal, does not respect artists and creators, has profited handsomely from its illegality and is not OK to use.”

In related news, a German court has granted a preliminary injunction against the current Germany-based Web hosts of file-sharing hub The Pirate Bay, TorrentFreak has reported. The Motion Picture Association petitioned a court in Hamburg for an injunction against CB3ROB Ltd, operators of the CyberBunker Web hosting service. The court said that CyberBunker must specifically remove links to torrents purporting to facilitate downloads of "The Bounty Hunter," "Alice in Wonderland," "Our Family Wedding," "Green Zone," "Repo Men" and "Cop Out." CyberBunker now must either disconnect The Pirate Bay entirely, or else The Pirate Bay must remove those specific torrents to comply with terms of the court's order. Sanctions include fines of up to E250,000 for each instance of infringement and potential custodial sentences for CB3ROB directors.

MGM v Grokster 545 U.S. 913



Legal experts: LimeWire likely doomed: "It is obviously a fairly fatal decision for them," said Michael Page, the San Francisco lawyer who represented file sharing service Grokster in the landmark case, MGM Studios, vs. Grokster and also represented Lime Wire's former CTO in the company's most recent copyright case. "If they don't shut down, the other side will likely make a request for an injunction and there's nothing left but to go on to calculating damages."

With an injunction, the RIAA can force LimeWire to cease file-sharing operations. Music industry sources who spoke to CNET on condition of anonymity said the RIAA, the trade group representing the four largest music labels, is considering whether to seek an injunction prior to a status conference Wood scheduled for June 1. If that happens, LimeWire may have little room to maneuver and the company could be forced to shutter operations within weeks. Representatives for the Lime Group did not respond to interview requests. An RIAA spokesman declined to comment. "

Ruling could have chilling effect on P2P Services

Friday 7 May 2010

Nine Miles Down

French heart-throb Olivier Martinez recently split up with model Rosie Huntington-Whiteley – his exes also include Mira Sorvino, Angelina Jolie and Kylie... Some relationships don’t last. But others, they never really get off the ground.

In March 2006 film director Anthony Waller was desperately trying to woo Martinez – to be lead actor in his film Nine Miles Down. But things didn’t work out and the film ground to a halt. That wouldn’t have mattered except they were already one day into filming with production services company One Step Beyond in place in Namibia. The production company, NMD (UK) Ltd, failed to pay One Step Beyond and subsequently went into liquidation. Its only asset: the screenplay. The screenplay, co-written by Waller, had been sold by Waller’s company Stonewood to NMD in a contract drafted by LA entertainment lawyer Peter Hoffman.

The makers of Nine Miles Down were not to be dissuaded and the film went on to be made by Hoffman’s daughter’s company, Gone to Hell Ltd (GTH). However, the liquidator of NMD was not going to let NMD’s sole asset slip through his fingers and last week Peter Smith J held that the GTH had infringed NMD’s copyright by making the film using the screenplay.

The respondents had tried a succession of arguments: NMD’s licence, in spite of being exclusive, was only for that particular production, so didn’t preclude a parallel licence … the licence was void as Stonewood never owned the rights (rather they belonged to Stone & Stone, a company registered in Curaçao, Waller being its ultimate beneficial owner ‘perhaps behind an offshore trust’) … the licence ‘was not intended to be legally binding and was merely a document that was being peddled around the world to obtain funding’. Smith J was having none of it. In fact he thought the badly drafted document was probably a partial assignment.

To make matters worse, in order to secure finance for the second attempt at Nine Miles Down, documents backdated to before the liquidation were forged terminating NMD’s licence, assigning NMD’s rights and waiving claims against GTH. When it became evident that these documents were forged, the respondents attempted to persuade the judge that NMD’s screenplay licence had been varied by an oral agreement. ‘Thus,’ Smith J explained, ‘they moved on from the creation of false documents to telling lies before me.’ Even if there had been an oral agreement, he said, it was unenforceable as there was no consideration for NMD varying its rights.

Anyway, what’s the film like? The website sums it up: ‘Nine Miles Down can best be described as a “thinking man’s scary movie”. It will tease the gullibility of the audience while exploring the consequences of abandoning logic and reason for ancient fears and superstitions.’

Thursday 6 May 2010

Google asks the questions ....

Google has taken the somewhat unusual step of asking a California judge to declare that it is not liable for copyright infringement, simply by linking to copyright-infringing works on Rapidshare. The move arose afterthe action brought by Blue Destiny Records last year alleging that the search engine and others were liable. Google is keen to establish that it is not facilitating the illegal distribution of copyrighted songs.

In 2009, the small blues label sued Google, Microsoft and Rapidshare in Florida, claiming that Rapidshare was running "a distribution centre for unlawful copies of copyrighted works," and that Google and Microsoft's Bing search engine were helping to prop up the company. The label argued that users could easily find copyrighted songs on file-hosting websites by doing a simple Google or Bing search. Whilst the suit was then withdrawn, Blue Destiny refused to waive its rights, preserving its option to re-file its claims.

Now Google has decided that it wants a court to decide the issue and the Company has filed a 96-page complaint with the California district court, asking for a declaratory judgment that it's not infringing Blue Destiny's copyrights. It seems to be a clever move and Billboard Magazine points out that the label is now on the back foot, facing a major court case on an important issue – and that “Google gets a more favorable jurisdiction than a Florida court. The Ninth Circuit has been friendly to Google in similar litigation with Perfect 10, an adult entertainment publisher that tried to punish search engines for indexing copyrighted photos”.

Tuesday 4 May 2010

Something to take your mind off the pain

If going to the dentist is not your favourite thing, try distracting yourself in one of the following ways:

1. Stamp on your toe. One pain distracts you from another.
2. Listen to piped musak in the waiting room. If there isn’t any...
3. Consider this ECJ reference posted on the IPO website, SCF - CONSORIO FONOGRAFICI v Marco DEL CORSO:

(a) Are the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations of 26 October 1961, the TRIPS Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights) and the WIPO (World Intellectual Property Organisation) Treaty on Performances and Phonograms (WPPT) directly applicable within the Community legal order?

(b) Are the abovementioned sources of uniform international law also directly effective within the context of private-law relationships?

(c) Do the concepts of 'communication to the public' contained in the abovementioned treaty-law texts mirror the Community concepts contained in Directives 92/100/EEC and 2001/29/EC and, if not, which source should take precedence?

(d) Does the broadcasting, free of charge, of phonograms within private dental practices engaged in professional economic activity, for the benefit of patients of those practices and enjoyed by them without any active choice on their part, constitute 'communication to the public' or 'making available to the public' for the purposes of the application of Article 3(2) (b) of Directive 2001/29/EC?

(e) Does such an act of transmission entitle the phonogram producers to the payment of remuneration?

ECJ references taken out of context have extra brainteaser value. How on earth, you ask yourself, did they arrive at that?