• The need to train new staff concerning the company’s risk management policies [nb 'risk management' can mean taking more as well as fewer risks, if the odds don't favour detection and liability, eg regarding some species of orphan works];The Phase 2 response group of content end users reported similar levels of concern regarding copyright, with 36% deeming copyright more important than a year ago, a further 63% as important as a year ago and less than 1% less important than a year ago.
• Proliferation of new types of content, particularly digital content;
• Increase of contracting work out to third parties, necessitating the creation of copyright policies both for the company’s own works and for use of others [outsourcing has indeed generated a fresh market for copyright consultancy services, judging by the increased amount of space given to copyright and other IP issues in current outsourcing literature];
• Growing cost of content itself, requiring more attention to managing the risks associated with acquiring and using that content;
• Some countries’ introduction of new laws and regulations applicable to copyright.
Wednesday 30 June 2010
Sunday 27 June 2010
Congress enacted the termination provisions in order to give an “author a second chance to control and benefit from his work" and to "secure to the author's family the opportunity to exploit the work if the author died", according to Stewart v Abend, 495 U.S. 207, 218 (1990).
Shourin has launched an online calculator and website to enable readers to evaluate the rights and risks associated with the termination of copyright grants. While the termination provisions are regrettably intricate, this online calculator seeks to people through the basic issues and maths necessary to figure out when an author may terminate a grant. It does not cover all of the contingencies needed to make an evaluation, but seeks at least to provide a useful starting-point.
Friday 25 June 2010
I haven't seen it yet, but I'm intrigued both by the prospect of a good, scholarly read and by the business model on which this title is based. With luck, it should maximise exposure of the contributors to their readers while also capturing a chance to secure some income from reasonable pricing plus a flexible set of options such as only the internet can provide. This could be the ideal Christmas stocking filler for the copyright enthusiast who has everything ...
Thursday 24 June 2010
The outcome (if not overturned on appeal) is that YouTube will only be obliged to take down clearly defined individual infringing items, rather than undertake any consistent action to remove "clones" of the deleted material as they re-appear.
This of course comes in the wake of the recent ECJ decision in favour of Google in the "AdWords" case, which also impacts on copyright infringement, given that in that case, as discussed by Hugo on this blog at the time, the Court considered the application of the hosting defence in the E-Commerce Directive, which is the closest equivalent to the DMCA language at issue in Viacom v YouTube.
One might think, from UNESCO's World Anti Piracy Observatory report on Azerbaijan, that the country has a nearly complete set of teeth with which to bite copyright infringement. After all, has there not been lots of capacity-building and plenty of training sessions for enforcement officials? But capacity-training and public sector perks are no use so far as most ordinary copyright owners, left to enforce their own rights privately, are concerned. Given that the lack of copyright enforcement in Azerbaijan has been strongly criticised by the International Intellectual Property Alliance (IIPA), the remarkable thing is not that 70 percent of Azerbaijani pressmen do infringe copyright but that 30 percent -- that's nearly one in three -- don't.
Wednesday 23 June 2010
"Parodies come in all shapes and sizes. There are broad parodies and subtle parodies, ingenious imitations and knockabout spoofs, scornful lampoons and affectionate pastiches. All these varieties, and many others, appear in this delightful new anthology compiled by master anthologist John Gross.
The classics of the genre are all here, but so are scores of lesser known but scarcely less brilliant works. At every stage there are surprises. Proust visits Chelsea, Yeats re-writes "Old King Cole," Harry Potter encounters Mick Jagger, a modernized Sermon on the Mount rubs shoulders with an obituary of Sherlock Holmes. The collection provides a hilarious running commentary on literary history, but it also looks beyond literature to include such things as ad parodies, political parodies, and even a scientific hoax.
The collection includes work by such accomplished parodists as Max Beerbohm, Robert Benchley, Bret Harte, H. L. Mencken, George Orwell, James Thurber, Peter Ustinov, and Evelyn Waugh. And the "victims" include Chaucer, Shakespeare, Milton, Wordsworth, Poe, Longfellow, Emily Dickinson, Conan Doyle, A. A. Milne, Raymond Chandler, Agatha Christie, Cole Porter, Ernest Hemingway, Allen Ginsberg, Martin Amis, and many others. The first and longer of the book's two parts is devoted to English-language authors, arranged in chronological order, along with parodies that they have inspired. The second part includes sections on more general literary topics, on aspects of individual authors which transcend the format of the first part, and on a handful of foreign writers".Sadly I wasn't kept waiting more than a few minutes, so had little opportunity to sample this book's contents -- but it did seem fun.
For a court decision to cause a hullabaloo and set off doomsday reports of the end of life as we know it isn’t all that unusual. But for a court decision that leaves the existing law in place to set off that much ruckus, that is unusual. Yesterday, the 10th Circuit Court of Appeals in the US handed down just one of these cases.
The case is called Golan and it deals with the effect of the TRIPs agreement on foreign works under US Copyright law. (full pdf decision.)
The decision, which leaves in tact the restoration of copyright to certain foreign works has been hailed as “Terrible News” and accused of destroying the public domain. In reality, neither of these lamentations are correct.
After the United States signed the TRIPs agreement, it amended its copyright law to be compliant with both the new TRIPs agreement and the old Berne Convention. (“Compliant” as defined by the US.) The amended copyright act provided new copyright protection to two types of old foreign works: those that had lost their copyright due to non-compliance with a formality (such as failure to renew after the initial term under the US’s 1909 Copyright Act) and those who had not previously received copyright protection in the US because their country had not then been a member of any of the international copyright treaties to which the US was a party.
This new protection for old works was called “restored copyright,” and authors who wanted their copyrights restored had to provide notice to known users of the works or the US Copyright Office.
That was the law before Golan, and it is still the law after Golan.
The plaintiffs in Golan were users of those restored-copyright works who had used the works relying on their status as public domain works. And they had quite a strong group of copyright experts on their team, including the Stanford Center for Internet and Society and Harvard (of Stanford at the time this case began) Professor Lawrence Lessig. But the arguments in this case were not about copyright law; they were about constitutional law. And the defendants, the United States government and the United States Copyright Office, they had the Department of Justice on their team.
The Constitutional Claim
This is the second time Golan has been to the 10th Circuit. The first time it heard the case, the 10th Circuit affirmed the lower court’s holding with respect to two of the plaintiff’s claims, dismissing claims attempting to argue the violation of the “for a limited time” part of the copyright clause in the Constitution. [full pdf decision.] But the 10th Circuit also remanded the case to the district court to address whether the law violated the plaintiff’s First Amendment rights.
The district court held that the plaintiffs’ First Amendment freedom of expression rights were violated. The 10th Circuit disagreed. And here’s where we need to get a bit into United States Constitutional Law.
First Amendment Law in the US
Details for non-Americans and non-attorneys
The freedom of speech granted by the First Amendment to the US Constitution includes the freedom of expression. The government is allowed to impinge on this freedom within certain parameters and what they are allowed to do depends on the type of speech they are regulating, how they are regulating it and their interest in regulating it.
There are three options for the court in terms of how the court compares these different pieces to decide if the government’s actions are ok or in violation of the Constitution. These three options are commonly called levels of scrutiny. Both parties, the district court and the circuit court agreed that the proper level of scrutiny in this case was intermediate scrutiny. Agreement all around, always nice.
In order for a law to be upheld as constitutional under this medium level of inspection, intermediate scrutiny, the government must show that it has an important governmental interest in regulating the speech and that the burden placed on speech is not substantially more than necessary.
The Government’s Important Reason
The US Government said it had three important reasons. The court looked at one, said it was important enough and ignored the other two.
We might expect that the important interest would be that of the government to uphold US obligations under international treaties. But then again, we might not be surprised to learn that was one of the reasons the court ignored.
The reason the court found important enough to justify the limit on speech caused by restoring copyright to foreign works was the protection of US works abroad. Congress passed the amendment to the Copyright Act in part because it believed the world would operate on a you-scratch-my-back-I’ll-scratch-yours basis. Other countries were refusing to restore copyright to US works in their public domains, - the decision mentions specifically Russia – and the US was told its citizens would get copyright in their works when those countries’ citizens got US copyright in theirs.
The court acknowledged the plaintiffs’ rights and the restrictions restored copyright placed on their speech rights, but it summed up the governments’ interest quite eloquently:
“Although plaintiffs have First Amendment interests, so too do American authors.” (p. 14, internal citation omitted.)
The Not-So-Burdensome Burden
The court found that the restored copyright did not burden the plaintiffs’ speech too much because of a special provision put in the law specifically for people in the plaintiffs’ position.
In addition to restoring copyright protection to the foreign works mentioned above, the law also created some protections for those people who had used the work relying on its public domain status. The law gave users a twelve month grace period in which to finish selling or using works with restored copyrights and then provided a mechanism for determining licensing fees if the user wanted to continue using the restored work after the grace period ended.
[British readers may be interested in pages 30 – 33 of the decision where the court spends some time comparing the US system of dealing with the burden on these users to the systems enacted in the UK.]
Separation of Powers
Although this part isn’t really necessary for this blog post and is covered well in-depth by the court decision for those who are really interested, I feel it is necessary to address it at least a bit here because of the mis-information out there in some other posts about this case.
The American government has three branches, the judicial, legislative and executive. It is structured this way to effectuate a separation of powers, where each branch has its own duties. Legislative decision making, making laws, belongs to the legislative branch – the US Congress. Interpreting laws belongs to the judicial branch – the courts.
How to structure laws to effectively enact international treaties is the duty of the legislative branch. It is Congress that holds hearings with all sorts of interested parties, that listens to the RIAA and the MPAA and those who disagree with the RIAA and the MPAA. It is Congress that decides which interests are most important for the country to protect and decides how those interests should be protected. And yes, Congress must stay within the confines of the Constitution when making these laws. Hence the development of the levels of scrutiny as mentioned above.
When the Golan court discusses how and why Congress made its decision to restore copyright, the court is not looking at whether or not Congress made a good decision. The court is looking at whether Congress’s decision was reasonable in light of the information it had. When the Golan decision cites some of the testimony from Congress’s hearings, the court is not “actually rel[ying] on testimony about "losses" from an RIAA official.” The court is simply giving examples of information upon which Congress relied.
The American people might not agree with Congress’s decision, the judges might not agree with Congress’s decision, but that does not mean the decision is unconstitutional. It is the people who are supposed to have the power to change the law, not the courts. The people elect their Congressional representatives to represent their positions. Whether or not that happens is a whole ‘nother issue not related to this case and addressed very well by Lessig at his site Fix Congress First.
Image credit: “The Emperor’s New Clothes” by Vihelm Pendersen, public domain
Tuesday 22 June 2010
BPI, the UK recording industry’s trade association has sent a cease-and-desist letter to Google, asking the search engine to take down links to nine "one-click hosting" sites, each of which hosts thousands of illegal songs. The BPI cite 38 links "that are available via Google's search engine, and [requests these] links be removed as soon a possible as they directly link to sound recordings owned by [BPI] members". Simple Google search queries such as keying in artist and song names and then a word like 'MP3', 'download', 'upload' or the name of a file-transfer service lead users to illegal downloads on pages of sites that includes MegaUpload, SendSpace and UserShare. Last October, Google removed links to the Pirate Bay – the infamous illegal BitTorrent tracker – from their search index. The BPI takedown request promoted much chatter online yesterday after it was leaked by the Chilling Effects website with some journalists and bloggers claiming this is a new more aggressive initiative on behalf of the BPI.
CMU Daily says that some commentators also note that the document includes not only a list of specific links to infringing content, but also a list of home page links to the services that have aided the infringement, such as MegaUpload, leading to additional speculation that the BPI is stepping beyond the strict remit of America's Digital Millennium Copyright Act and calling on Google to block access to whole website rather than just infringing content. The BPI has denied there is anything out of the ordinary about this takedown notice to Google and BPI Spokesman Adam Liversage told C-Net that such documents were filed with Google on a regular basis by bodies like the BPI and that "in most cases, Google takes down the links in question, following its own internal procedures".
In more encouraging news for the recorded music sector, The Black Eyed Peas' track 'I Gotta Feeling' has become the first ever single to be downloaded more than one million times in the UK.
Actions against internet users for copyright infringement have been possible since Lithuania's Code of Administrative Infringements was amended last year, extending the scope of the earlier provisions which could only be invoked against infringements perpetrated for commercial purposes. In cooperation with the police, the association tracked the internet protocol addresses of 106 Linkomanija users who were downloading and seeding the Microsoft Windows 7 operating system. Based on this information, the police issued a statement of administrative infringement against one of the users.
The Kaunas Regional Court, referring to principles of legality and Supreme Administrative Court case law on the collection of evidence, ruled that there was no evidence that the association, as a public institution, was authorized to collect evidence independently, and no information had been provided as to whether the equipment used to track copyright and related rights infringements by internet users was officially certified. Accordingly the defendant's activity had not been shown to amount to an administrative infringement and the case was dismissed. This decision is under appeal.
Monday 21 June 2010
Saturday 19 June 2010
Yesterday, Flickr announced a new program available to its users – licensing through Getty Images. Through the program, users can add a “Request to License” link next to their photos. Viewers who click this link are put in contact with Getty Images. Getty licenses the photo to the viewer on behalf of the Flickr user and transfers payment from the viewer to the Flickr user.
At first glance, this program may seem like a really good opportunity for photographers. But Flickr users interested in the Getty program need to think carefully before jumping on board.
Getty Images is a large, professional, photo clearing house that has been in business for a long, long time. Although working with Flickr is a foray into the future, Getty is still an institution based on old business models. This means a lot a lot of legal gymnastics for anyone wishing to participate, as a photographer or a licensee.
You can check out the FAQ section for more information on model license requirements, the 2-year exclusive contract required for the program and other program details.
As one Getty program user and supporter comments,
“The effort is not minimal. Gathering model releases, unloading full size images, doing any post processing required, filling in photo details, having to book the shot date in about three different places, uploading model releases seperately [sic] for every photo even if you have the same release for 5 photos from one shoot.”
With all this work required to submit photos, plus the restrictions of a two-year long exclusive contract that prohibits anyone other than Getty Images from licensing your submitted photos and photos similar to your submitted photos – yes that includes even you – is there really any benefit to participating?
After all, there really isn’t a need for a third-party intermediary for licensing photos on Flickr. Every photographer can easily be contacted via Flickr Mail. Why should it be necessary to ask a third-party for permission when you can already ask the copyright holder directly? Additionally, many photographers have already granted licenses to use their photos, without the need to contact anyone.
The most apparent benefit, currently, appears to be the vetting. Photos admitted to the Getty program are thoroughly reviewed by Getty Images and approved for admission to the program. Knowing that the vetting is already done might make some photo users feel better about the search process for the right image. However, Flickr has a strong community that can also serve as a vetting process based on how many views, uses and comments a photo receives.
In the end, the program seems to be more of a way for Getty to increase the number of photographers in its pool than to really help copyright owners with licensing. But perhaps this judgment is coming too early.
Friday 18 June 2010
GlobalCOAL facilitates the trading of coal and coal derivatives by means of a standard industry contract (‘SCoTA’) and an online trading platform. Traders and brokers who make use of this platform sign a Product Licensing Agreement. Under this agreement, globalCOAL grants licensees a licence ‘under its Intellectual Property Rights in the globalCOAL Products to use the globalCOAL Products and the Trade Marks’ and in return the licensees undertake not to the ‘use the globalCOAL Products’ in certain ways, including transactions with parties that are not other globalCOAL licensees. ‘Products’ include data, prices, indices and contracts developed and published by globalCOAL.
This agreement was scrutinized last week in Global Coal Ltd v. London Commodity Brokers. The court asked itself: is it only globalCOAL’s IP that licensees are undertaking not to use in prohibited ways or does the undertaking extend further, to not using any of globalCOAL’s information and documents? Mr Justice Briggs came to the conclusion that the undertaking related to the Products, not the IP. If London Commodity Brokers had used the Products in brokering trades with parties that were not globalCOAL licensees, it would be in breach of contract even if it had not made use of globalCOAL’s IP.
Either way, the licensees’ obligations technically extend beyond IP rights. Copyright could never forbid you to refer to a dictionary when you write something. A contract can, perhaps. Moreover, restricting use of the Products was working more efficiently for globalCOAL than enforcing IP: the court found it easier, quicker and cheaper to determine whether a licensee had used the Products than the IP (e.g. copying SCoTA) – and jurisdiction was cleaner too.
But the advantages may not be without their risks. As the judgment draws to a close, it makes a passing reference to ‘potentially serious issues of abuse of dominant position’, but leaves them for another day.
Limewire publicly remains convinced it can offer legitimate business models to the content owners in the music industry saying in a statement "We have had many promising meetings with labels, publishers, and artists alike about our new music service and a business model that will compensate the entire industry”.
EMI April Music Inc. v. Lime Wire LLC, 10-cv-04695, U.S. District Court, Southern District of New York (Manhattan).
Wednesday 16 June 2010
In short, Budget alleged that Specsavers' print ad and itscorresponding terms and conditions infringed copyright in two versions of a print advertisement, a radio script and a set of terms and conditions under which an offer in the advertisements were made, seeking interlocutory relief for infringement. Budget pointed to the following phrases as reflecting originality:
'If your Specsavers glasses break – and we're not saying they will – simply bring them into Budget Eyewear. We'll replace them with [sic] pair from our own range – free of charge';Specsaver's print ad contained the following phrases:
'We're not saying they will, but if your Specsavers glasses break, we'll replace them for free'; and
'If your glasses aren't all they're cracked up to be, don't worry, we'll come to the rescue. For the next two weeks... you can take any Specsavers glasses to your nearest participating Budget Eyewear store and we'll replace them with a pair from our range – free of charge'.
'If your OPSM glasses happen to break, and we're not saying they're going to, we'll exchange them with a pair from Specsavers with a 2 year guarantee, for free'Did copyright subsist in the works? Before asking whether there had been infringement, Bennett J first had to establish whether copyright subsisted in the works at all. She felt there was sufficient evidence of authorship for the purposes of seeking interim relief, and said Budget had an arguable case that
'If your prescription glasses aren't what you hoped for, don't stress – we're here to help. From Thursday 13th May to Thursday 27th May, take any broken OPSM glasses to your nearest Specsavers store and we'll give you a pair from our range – for free'.
"the way in which a concept is expressed in an advertisement intended to attract customers may involve originality that attracts copyright protection ... the fact that the words are commonplace does not mean that the way in which they are put together cannot have a degree of originality".
Justice Bennett agreed with Budget that Specsavers chose to adopt the same expression of ideas where various means could have been used to express the concept. Specsavers could have copied the idea but exercised its own imagination to express that novel concept in new and different language. rather than "using a thesaurus" to substitute a synonym. Accordingly a prima facie case of infringement had been made out.
Saturday 12 June 2010
Bloggers in the USA have pondered the quantum of damages facing Lime Group and Limewire founder Mark Gorton, with one estimating damages at $1.5 trillion (see link below) The RIAA itself said “In every case in which a perpetrator of massive online infringement has been held liable on summary judgment, the courts have promptly issued an injunction to try to stop the continued harm to the plaintiffs. It does not require sophisticated mathematics to calculate that the likely damage award in this case will run into the hundreds of millions, if not the billions of dollars”. The RIAA has also argued that following the Supreme Court’s decision in MGM v Grokster, Gorton moved his own assets into ‘family partnerships’ to shield them from any judgment. Despite the fact that many bloggers and some academic papers argue that careful scrutiny of relationship between illegal downloads and lost sales to the music industry shows no direct correlation, The RIAA are relying on US statutory damages which can indeed lead to massive awards when thousands and thousands of illegal acts of infringement are involved.
In another twist to this story, Limewire has told Computerworld that it hopes it can “amicably settle” its dispute with the record industry. Pointing out that Lime Group have been developing legitimate digital services, a spokesperson told Computerworld that the company was "actively engaged" in working with the music industry to settle the labels' legal claims, and to then "move forward with a new way of working together that benefits all parties involved" adding "LimeWire absolutely does not encourage or condone the illegal copying or sharing of copyrighted material", pointing out that LimeWire had added an option to its P2P platform that could filter out unlicensed files. It has to be said that Judge Kimba Wood was earlier unimpressed by the filter – not least because it had to be activated by the user, and was disabled by default
The words ‘pigs’, ‘might’ and ‘fly’ spring to mind about any potential settlement but the fact remains that closing Limewire itself might have very little impact on global digital piracy and perhaps the RIAA might (just might) consider a deal, however unpalatable, to show that it is trying to promote legitimate business models for users to easily buy music.
The RIAA and representatives of Lime Wire will appear before the court on Monday. A Lime Wire spokeswoman to US reporters "We are looking forward to an opportunity to address the Court for the first time in two years and show that as a matter of fact and law there is no support for this motion."
Does Limewire owe the RIAA 1.5 Trillion? http://www.p2pnet.net/story/40481
Friday 11 June 2010
The University of Westminster is playing host to a British Black Music Month panel on copyright law aimed at music industry, media and law students and lecturers, and music industry and practitioners, who determine a wrap-up vote on (a) are today's copyright laws robust enough for an internet age? and (b) copyright awareness: have we lost the fight to win the hearts & minds of the youths – tomorrow’s consumers? Panellists including Kienda Hoji (lawyer/head of the University of Westminster commercial music), David Stopps (MMF UK & International copyright & related rights director), Pauline Henry (ex-Chimes singer/IP consultant), Dave Laing (researcher/lecturer), Ben Challis (lawyer/lecturer), and Kwaku (BMC) who will lead an irreverent yet factually-rich discussion covering various angles - history, landmark cases, causes célèbre, 'good' and 'bad' copyright stories/policies in association with the University's Black Music Centre.
When: Tuesday June 15, 6.30-8.30pm
Where: University Of Westminster (The Old Cinema), 309 Regents Street, London W1B 2UW
Cost: Free, but pre-booking necessary - for booking and more info contact email@example.com and see http://www.britishblackmusic.com/
Tuesday 8 June 2010
The Strategic Advisory Board for IP Policy (SABIP) has recently published a report on the economics of copyright and digitization. Christian Handke’s report reviews the literature and empirical studies on the economics of copyright and makes recommendations for further research with the objective of informing UK government policy. The report considers a plethora of interesting issues, finds a shortage of empirical research and ultimately suggests two questions to get the ball rolling:
1. How does digital copying affect the supply of copyright works?
2. Does the copyright system entail obstacles to desirable aspects of technological transition?
There appear to be at least three major hurdles in turning economics into copyright law: determining what should be counted as the benefits and costs of copyright and infringement, and deciding their relative weight; getting good data about such a complex and rapidly changing range of human activity and agreeing on how to interpret the data; deciding what policy should follow.
Some of this is down to science; but some of it must surely always be a matter of opinion or taste. For example, some say copyright’s limits on using old material is a cost – you could say it is a benefit (it drives people on to seek original expression). Are mash-ups a wonderful upsurge of grass-roots creativity or a tedious waste of time?
Economic research appears to be sorely needed but may not make uncertainty, risk, judgment and strategy things of the past.
Almost all of the empirical studies to date on the economics of copyright have been about the impact of illegal file-sharing on the music industry. They generally show a negative effect, but to varying degrees, some showing no loss of sales – the sort of conclusion that spurs on the sceptics and stokes the debate.
Many of these studies have focussed on falling CD sales, but they would probably have declined over the last decade anyway. However, isn’t it more likely that illegal file-sharing, rather than eating away at CD sales, deprived the music business of potential profits in the burgeoning online music market? Without illegal file-sharing, the music business could plausibly have expected to see unprecedented profits over the last decade. Some of those profits could have been used to seek out new talent, not just tread water. Might consumers have sparked a renaissance, rather than recycling old material?
How to quantify something that might have been? We will now be able to monitor online sales in countries that have introduced tougher anti-piracy laws (e.g. UK, France, Sweden, Taiwan and South Korea): if unauthorized copying is reduced, do legal transactions increase or are they unaffected? According to IFPI statistics, digital music sales in Sweden in 2009 were double those of 2008 and in South Korea digital music sales grew by 53% in the first nine months of 2009.
But (and there is always a ‘but’) online music sales probably would have risen to some degree even if there had not been new laws. Arriving at figures that everyone will agree with seems impossible. But science, after all, never was more than our best guess.
Perhaps the trickiest question is what the policy implications of any reliable research results would be. The UK can’t unilaterally abolish copyright or even change its basic rules, which are fixed at European level. Handke says economic studies are unlikely to be much use for fine-tuning policy.
So what’s left? Making it more or less easy to enforce IP rights? Generally the cost of enforcement is borne by copyright right owners – even under the Digital Economy Act they will continue to bear the lion’s share of this cost. So how much money is spent enforcing copyright is ultimately a cost-benefit analysis that is decided by individual businesses. They will make that decision in relation to their own business, not total social welfare. Some companies may remain unenthusiastic about spending their profits in this way.
Gambling money on chasing pirates on the high seas and hoping it will shift public attitudes is not so much the science of money as the art of war.
The bill provides for a penalty to the value of US$ 2,500 (EUR 2,030) for a first offence [this is more than twice Armenia's gross per capita annual consumption], with a prison sentence of up to 12 months for second and subsequent offenders. The most recent BSA survey showed Armenia among the top nations for software piracy, where 93% of computer programs are reported to be illegal.
For prison conditions in Armenia click here
Monday 7 June 2010
The Act itself requires ISPs to notify their subscribers if their internet protocol addresses are reported by copyright owners, in a copyright infringement report (CIR), as being used for the purpose of infringing copyright. ISPs will also have to furnish copyright owners with anonymised copyright infringement lists concerning subscribers whose CIRs exceed the threshold of illicit permissibility. Initially Ofcom's code is proposed to cover only the seven fixed-line ISPs with over 400,000 subscribers (BT, Talk Talk, Virgin Media, Sky, Orange, O2 and -- perhaps a surprise for some readers -- the Post Office).
"a system of quality assurance reporting to ensure that where allegations are made against subscribers they are based upon credible evidence, gathered in a robust manner".
Two further consultation exercises are planned. These will cover (i) enforcement of the code and the handling of industry disputes, which is expected next month, and (ii) tariff setting – i.e. sharing costs - from implementing and fulfilling requirements in the code (possibly as early as September, depending on the progress of the government's cost-sharing plans).
Sunday 6 June 2010
"facilitating downloading is ‘making available to the public’. The court explicitly follows Mr Justice Kitchin in Twentieth Century Fox v Newzbin".According to the Dutch court,
"2.1. The issue of this case is the downloading from Usenet of copyright material and the role played by [the defendant] FTD in this …On the decision of Kitchin J the court had this to say:
2.6. FTD provides a service by which users can find and download files on Usenet in an easy way. To that end it gives access to a computer application, referred to hereinafter as FTD Application, by which users can share information about files stored in Usenet servers. In the FTD Application users post so-called spots, data regarding files which are considered interesting by users. A spot comprises the name under which the file in question can be found on Usenet.
4.3. The present preliminary proceedings concern the question whether by its behaviour FTD makes the work available to the public.
4.4. FTD argues that it does not make available, because the copyright files are not within its power at any time. The servers in which the files are stored are not controlled by it, nor does it have any influence on the downloading by users, so it argues. Be that as it may, provisionally judging it is not relevant whether the copyright files are actually in the power of FTD at any time. Instead it is important whether the behaviour of FTD allows users to download copyright files (in an easier manner) and that it thus makes such files in fact available to the public. This is the case, provisionally judging".
"4.10. The Preliminary Relief Judge looks for adhesion with a recent decision of the English court. In a judgment with detailed reasons Mr Justice Kitchin finds that Newzbin, a company operating in a way which is similar on relevant points with the behaviour of FTD, infringes copyrights, despite the circumstance that on the site of Newzbin no copyright works have been posted. Just like FTD, Newzbin offers a platform for the exchange of data concerning inter alia the exact location of copyright works in Usenet servers. Thus Newzbin allows its users to download such works (in an easier way). Just like FTD in this provisional judgment, Newzbin was actively and substantially involved in the data posted by users, inter alia by categorizing such data and – at the request of users or not – removing unusable spots. Moreover the activities of Newzbin were aimed, in the view of the English court, at (enabling) large-scale copyright infringement".You can read the judgment in translation here or, if you prefer it in the original, here. It's good to see how much more comfortable the judiciary in Europe is when looking at decisions of other national courts within the EU: there's no suggestion that a judge is bound by a decision made by a brother judge in another country, but there is at least the prospect of a sanity check, available to any judge who might otherwise feel he was heading in the wrong direction.