Friday 31 May 2013

Lyrical re-write is a cacophony to the ears of a Chinese songwriter

China is focussing on the rights of songwriters after an act on the celebrity reality show I Am A Singer,  broadcast Hunan Satellite TV in January, moved many of the audience to tears with their performance of Mum in the Candlelight. But the singing duo of Chen Yufan and Hu Haiquan had made numerous changes to the song's lyrics and now the original lyricist, Li Chunli, is seeking legal redress againt  Hunan TV and the performing duo, asking for a public apology and 200,000 yuan ($32,659) according to China Daily. Gu Jianfen, who composed the music for Li's words in the original version, has also been in talks with the Hunan, andChina Daily reported that Li told Guangming Online that "I lost my song". In response, the duo defended themselves saying "it should be the program's producers that come out to deal with it" saying that their contract with Hunan protected them.

Li's view was more forthright saying "Changing a song without any prior notice is the greatest disrespect to composers and lyricists. It's like your own kids are grabbed by others for a facelift and then their real mom is made unknown to the public." Li wrote the song at the age of 17 for her mother, who had been ill for a long time, and when her mother passed away three years ago, Li played the song as a goodbye at the funeral. Now each year she sings it to her mother on the Tomb-Sweeping Day and Li said of the song "It is of great importance to me," she said. "Its creation embodies my own experience and feelings."

Lu Junjie, an attorney representing Li, said that the contract between Hunan TV and the Music Copyright Society of China makes it clear that the song must be used in its original form and added that any change must be subject to agreement by copyright owners, Lu said. Ge Xiaoying, composer Gu's attorney, said "it is quite clear that this is an infringement" and it seems that Hunan Satellite TV has apologized, it has not been "active, complete and timely" in dealing with the issue, he said. Lyricist Li added that with copyright, "The awareness is terrible," said the songwriter now in her seventies. "I stand out to fight infringement because I don't want young musicians to lose hope."

It all reminds me a bit of Gilbert O'Sullivan's ultimately successful action against Biz Markie after Markie sampled a substantial portion of O'Sullivan's 1972 song Alone Again (Naturally) in his song Alone Again  In Grand Upright Music, Ltd v. Warner Bros. Records Inc., 780 F.Supp. 182 (S.D.N.Y. 1991), Judge Kevin Thomas Duffy granted an injunction against the defendant, Warner Bros. Records, to block the use of the unauthorised sample – O’Sullivan had actually been asked and refused permission to use part of what was clearly a very personal song (although O'Sullivan has denied it is autobiographical) and the court said "it is clear that the defendants knew that they were violating the plaintiff's rights as well as the rights of others. Their only aim was to sell thousands upon thousands of records. This callous disregard for the law and for the rights of others requires not only the preliminary injunction sought by the plaintiff but also sterner measures." Judge Duffy opened his findings with "Thou shall not steal", and proceeded to clarify that samples needed to be cleared and  referred the case to the District Attorney for criminal prosecution (although this never happened). I do wonder what the Undertones and Blondie thought of One Direction's recent "mash up". As an old punk it quite ruined my day.

Also in China, the country’s  copyright authorities have voiced support for Yang Jiang, a centenarian who urged a halt to an upcoming auction involving private missives written between her and her late husband, Qian Zhongshu, a renowned Chinese literary scholar. Yu Cike, a senior official with the National Copyright Administration, said "Auctioning Qian's private letters may lead to the infringement of the rights of property, authorship, privacy and reputation... We support the copyright owner to protect her rights in accordance with law and will keep tracking the event".  The auction was announced by Beijing-based auction company Sungari and involves 110 letters and manuscripts written in the 1980s by Qian, his wife Yang Jiang and their late daughter Qian Yuan.

With the auction scheduled for late June, the plan triggered vehement protest from Yang Jiang, now 102 and herself a literary scholar, who said she was "hurt and shocked" by the publicity and potential trade of the "most intimate personal communications" as “commodities”. Yu Cike added that there was a threat of legal action and "Those composing the missives are their copyright owners, and auction groups should not make any copyright-related use of such missives without the consent of copyright owners" adding that publicising the letters' contents might result in copyright infringement. However other Chinese commentators pointed out that "the physical ownership of the letters was quite separate from copyright issues".

For a very quick and neat synopsis  of the US position on music sampling, New York attorney Mita Carriman (Carriman Law Croup) has written a piece here

And back in August 2011 Jeremy blogged a fascinating piece on copyright in old manuscripts and letters on the 1709 blog here and the appellate court decision in the 1987 US case of  Salinger v Random House is a useful read too.

Wednesday 29 May 2013

My Rights v Your Rights: the cyber wars escalate

A proposal from the government of Taiwan to amend the Copyright  Act that would require local Internet Service Providers to block illegal content on foreign Web sites yesterday has come under fire from  venture capitalists and Web users alike, primarily for violating freedom of speech and people's rights. The blocks would be placed on  DNS or IP addresses, and would have to be carried out by Taiwanese ISPs on instructions from the government.

The Taipei Times has reported that one venture capitalist, Jamie Lin, from the firm appWorks Ventures, told Taipei Times the proposal goes against the values of freedom and democracy, which locals hold in high regard saying  "It doesn't make any sense," Lin said. "The move seems like building a firewall to prevent local Internet users from seeing illegally uploaded content, but the content would still exist in servers overseas and can be viewed by foreign Internet users." And Ching Chiao, vice president for community relations at DotAsia, a top-level domain registry operator, wrote in a Facebook post that the proposal is a "setback for democracy and a stupid policy that wastes people's money" adding  "Countries which have implemented ISP-level blocking are turning the Internet into intranet, the first step for turning a modern country into a self-enclosed country." Another blogger, Tsai I-Chen, said in a blog post that the amendment violated citizens' rights saying "Can you accept the blocking of Facebook because there are too many infringed movies or the blocking of Dropbox because it is frequently used for the transmission of illegal software? This is not a copyright infringement issue, [but] it is an issue on the violation of people's rights."

Taiwan’s web users were quick to set up an online protest campaign that has already racked up more than 15,000 participants on Facebook - who are attending an online ‘event’ in protest:  another 90,000 have been invited. Called  “#freeandopen!, the event has been snowballing, doubling its number of supporters in the last five days, and the page invites users to contact Taiwan's Intellectual Property Office (TIPO)  representatives and let them know that many people strongly oppose the plan. It lists names, contact phone numbers, and email addresses for several TIPO representatives, as well as a generic contact email and number.

The proposed changes have been compared to other legislation like the US’s Stop Online Piracy Act (SOPA), which caused massive online protests in 2012 and was widely considered a step towards censoring the internet. The bill was ultimately dropped. Techasia adds “Taiwanese net users are hoping that their protests may lead to a similar outcome”.

In the USA, a new 84 page report from the Commission on the Theft of American Intellectual Property proposes a number of ways piracy can be combated, one of which involves “infecting alleged violators’ computers with malware that can wreak havoc, including and up to destroying the user’s computer”. the Commission argue that they need to fight fire with fire and that software can be pre-installed on computers for the purpose of monitoring and identifying copyright-violating activity. If the software detects copyright-violating activities of any of those sorts, it would cause the computer or its files to being locked. Once the files and/or computer was locked, a password would be needed  to unlock the system, and the computer would tell the c user to contact a law enforcement agency, which will have the password necessary to unlock the computer. The plan is to “stabilize” an infringement situation and get the police involved. A second proposal is for the computer to snap a picture of the computer users with the computers built in webcam if they are involved in alleged infringing activity. 

Slashgear reports that the the malware “would allow companies to gather data from a computer, change data located on the network, and destroy it if it feels such an action is necessary – all without permission, obviously. There’s also suggestions that it could be used to do other things as well, including up to destroying the user’s computer and/or network” and the Report itself says 

“While not currently permitted under U.S. law, there are increasing calls for creating a more permissive environment for active network defense that allows companies not only to stabilize a situation but to take further steps, including actively retrieving stolen information, altering it within the intruder’s networks, or even destroying the information within an unauthorized network. Additional measures go further, including photographing the hacker using his own system’s camera, implanting malware in the hacker’s network, or even physically disabling or destroying the hacker’s own computer or network.”

Monday 27 May 2013

RIAA calls for DCMA 'safe harbor' and takedown review

Back in November 2011 we blogged that the Recording Industry Association of America (RIAA) wanted “DCMA clarity” from Congress  - and now the recording industry's trade organization has urged Congress to overhaul the safe harbor provision of copyright law that shield websites from infringement actions provided they remove infringing material after being notified, saying the law is too burdensome for copyright holders.

Congress is planning a comprehensive review of copyright law in the digital era, and RIAA Executive Vice President for Anti-Piracy Brad Buckles said in a post on the organization's website that "the balance is off" in the current system and  “it’s time to rethink the notice and takedown provisions of the DMCA” , going on to outline the various ways that the DMCA isn’t working.

In the blog, titled “One Year, 20 Million Links To Illegal Songs Sent To Google: This Is How It's Supposed To Work?” Buckles says “We are using a bucket to deal with an ocean of illegal downloading” in a post to mark the 20 millionth takedown notice the trade body has issued against Google, requesting that it remove from its search engine a link to unlicensed music content - urging Congress to increase the obligations of web companies which of course enjoy safe harbour protection from copyright infringement claims where they host or link to infringing content, by operating a takedown process.

Buckles is suggesting that the likes of Google and YouTube owners should be more proactive in ensuring that unlicensed content identified by rights owners is blocked or removed permanently, and from wherever it may be stored. At the moment content companies issuing takedown notices generally have to be very specific about the piece of content they object to, which is clearly perceived to be a major burden by content owners  with Buckles saying  “Under a controversial interpretation by search engines, takedown notices must be directed at specific links to specific sound recordings and do nothing to stop the same files from being reposted as fast as they are removed. It is certainly fair for search engines to say that they have no way of knowing whether a particular link on a specific site represents an illegal copy or not. Perhaps it’s fair for them to make that same claim at the second notice. But what about after a thousand notices for the same song on the same site?”

He goes on: “As the Congressional review of the DMCA gets underway, there should be a strong focus on what notice and takedown was supposed to accomplish. The DMCA was intended to define the way forward for technology firms and content creators alike, but some aspects of it no longer work. How could we expect it to? It was passed before Google even existed, or the iPod, or peer-to-peer file-sharing or slick websites offering free mp3 downloads. It was after the DMCA that Napster, and Grokster and LimeWire and Grooveshark and MegaUpload, to name just a few, came on the scene. In particular, it’s time to rethink the notice and takedown provisions of the DMCA”.

Wednesday 22 May 2013

Grooveshark employees settle labels' action

Four former and one current employee of the controversial streaming music service Grooveshark have signed agreements with the major music companies, led by Universal, who are suing the site and a  number of individuals, agreeing in a consent judgment that they will never again infringe the labels' copyrights, or to work for a company that "systematically infringes" copyrights.  Those individuals who had been targeted for infringement will now be removed from the lawsuit. 

Grooveshark lets users upload music into its libraries, meaning tracks are routinely available on the streaming service without the permission of relevant copyright owners. Because Grooveshark has a takedown system, removing infringing copyright material if made aware of it, the company argues it is operating within the US's DCMA ' safe harbor' provisions, even if taken-down tracks are soon replaced by users.

Grooveshark itself is far from out of the water regarding the copyright infringement case: TorrentFreak has published the relevant court documents, and points out that Grooveshark’s co-founders Sam Tarantino and Josh Greenberg have not yet signed similar agreements and  the label's case has focused on the question of whether the company’s own employees were involved in reuploading tracks taken down through that “strict compliance” policy. Tarantino recently described himself as “literally broke” and said 2012 was “a year of getting punched in the face 10,000 times”. 

For their part, Grooveshark owners Escape Media welcomed the development, telling reporters: "We are pleased that the case between Universal Music and Escape Media has been narrowed and simplified by the removal of some individual defendants from the case upon their stipulation to simply obey the law - something Escape Media does every day through its active licensing of millions of tracks and its strict compliance with the Digital Millennium Copyright Act. Escape Media Group will continue to deliver innovative new solutions and services that revolutionise music consumption for its growing audience of 30 million plus fans around the world".

Last month UMG secured a judgment in the New York State appellate court that held that the DCMA "safe harbor" defence did NOT apply to pre-1972 sound recordings.

Six Striker Struck Down

The Center for Copyright Information, the organisation which administer the USA's voluntary  “six strikes” graduated response scheme, has come up against a significant problem: According to the Columbia Department of Consumer and Regulatory Affairs (DCRA), the company has had it's status revoked. The revocation means that CCI’s articles of organization are void, most likely according to reports, because the company forgot to file the proper paperwork or pay releveant fees. However it seems that whilst the status was actually revoked last year, The CCI has now filed the proper paperwork, although the Copykat imagines there are some very red faces: One blogger commented "It does raise the question of who, precisely, is running this show and why they’d make such an egregious error with something taken so seriously. But we’re sure that this won’t end with the CCI shutting down the Internet of some grandmother and going down in flames due to the bad publicity. This will not happen. Surely not."

The CCI's founder members are five major ISPs (AT&T, Cablevision, Comcast, Time Warner Cable and Verizon) and four rights owners organisations - AIM (independent music), MPAA (motion pictures), RIAA (sound recordings) and ITFA (film and TV). 

Building models for architectural infringement in Houston homes

Of course I used a set square!
Although when I have taught copyright law, I have always mentioned architecture and the fact that architectural designs, drawings and blueprints can be protected in British law as a artistic work, I rarely see any relevant case law. In fact my trusted copy of Cornish has just five lines on the subsistence of copyright architectural works and models. But now comes news that a federal District Court in the USA has awarded $1.3 million to a Texas design firm in an architectural copyright case, finding that Houston-based Hewlett Custom Home Designs, Inc. had a valid claim against Frontier Custom Builders, Inc. in federal law. The jury in the U.S. District Court in Houston found that Frontier had infringed Hewlett's copyrights in designing, constructing and marketing 19 houses, and Frontier's owner, Ronald Wayne Bopp, was also held personally liable for Frontier's activities.

The damages were based on the  profits Frontier had earned from the sales of houses and the court also ordered the destruction of infringing materials in Frontier's possession. Shane Hewlett, the principal of Hewlett Custom Home Design Inc., said, "I am extremely gratified that the jury vindicated our position and acted to help protect our intellectual property and the designs we proudly provide to clients."

Louis Bonham of Osha Liang LLP, who acted for Hewlett, said "Misappropriation of copyrighted building designs is a serious problem in the homebuilding industry and has been for many years. I hope the jury's message will be heard by those in the industry who do not take this issue seriously." 

Reports say that this is the second seven-figure judgment in an architectural copyright case entered by a Houston federal court. In 2012, the court awarded $3.2 million to an Austin architecture firm, Kipp Flores Architects, in a similar case against Hallmark Design Homes. Kipp had previously secured a third multi million dollar award back in 2001, in Norfolk Va.

Hewlett Custom Home Design, Inc. v. Frontier Custom Builders, Inc. and Ronald W. Bopp  Case 4:10-cv-04837; U.S. District Court for the Southern District of Texas, Houston Division.

and the CopyKat found this news story in the Sacramento Bee here

More on the subsistence of copyright in architectural works, drawings, plans, designs and models here

Monday 20 May 2013

Lescure Report on Cultural Exception in France - The Way Forward?

On Monday May 13th, Pierre Lescure issued his long-awaited report to the French government on Act II of the Cultural Exception.  Highlights include the following recommendations:

- Creation of an obligation to digitally exploit copyright protected works (incumbent upon assignees and licensees of such works).

- Adapt the so-called media chronology rules (windowing) so that SVOD services can offer films 18 months after their release.

- Harmonize VAT rules so that no distinction is made between physical copies and intangible electronic versions of cultural products.

- Implement mandatory collective management of producers' neighbouring rights in sound recordings in the field of on-line music services (in the event that a last-ditch attempt at negotiations fails).

- Implement a 1% tax on connected devices (which will initially complement but utlimately merge with the private copy levy).

- Transfer HADOPI's graduated-response powers in the realm of P2P piracy to the CSA (French audio-visual watchdog) and abolish the final third strike of internet access being cut off (to be replaced with fines).  On Sunday May 19th the Minister of Culture confirmed that she was adopting this recommendation.

- Shift focus of anti-pracy action to large-scale for-profit piracy, bringing a follow-the-money approach to bear (actions against financial intermediaries).

For the full report see here

Sunday 19 May 2013

BREIN refused access to private banking information for infringement claim

PC World have run an article reporting that a Dutch court has dismissed a case brought by Dutch anti-piracy group BRIEN, saying that privacy laws protecting bank account holders are more important than providing information to identify potential  defendants in an alleged  copyright infringement caase. The ruling by the Amsterdam district court favoured ING Bank, saying that that the bank does not have to reveal who has access to a bank account, whose number is posted on the website FTD World

PC World explain

“FTD World, at, is a Usenet-indexing website that lists links to binary files posted on Usenet. It also provides files in the NZB format listing that allows users to download the posted files more easily. By doing this, the site provides access to copyrighted entertainment files including books, movies, music, games, and software without the permission of the copyright holders, according to Dutch anti-piracy foundation BREIN.”

Unsurprisingly BREIN, which represents authors, artists, publishers, producers and distributors of music, film, games, interactive software and books, wanted the court to force ING to reveal who is behind a bank account and was receiving donations made via the site: BREIN had previously been unable to track down the domain name registrant and had received no reply to a letter sent to the Russian hosting provider. The only information BREIN had was that the bank account number belonged to a woman, identified only as "[F]" by the court, who was born in 1927 (so was an unlikely 90 year old file sharing platform owner)  and who had moved to Suriname in 2009. ING admitted that someone else was authorized to use the account on the woman's behalf, but added that Dutch data protection law prevented the bank from revealing this person's or persons' identity. The Bank, however, did reveal that the women's debit card was used for cash withdrawals in the northern part of Amsterdam between February 4 and February 18. BREIN had asked the court to order revelation of any other names, phone numbers, email addresses, and postal addresses linked to the bank account.

In dismissing BREIN's claims, the court noted that ING were not instrumental in the alleged copyright infringement by FTD World, and only provides bank transactions, which are not essential to the potenttail copyright infringements, with Judge Sj.A. Rullmann saying "There is no relationship between ING Bank and copyright infringement" and put the onus  on BREIN to so more  to trace the person behind the site,  noting that BREIN didn't even try to write to the woman attempt to trace her. Judge Rullmann held that all bank clients should be able to trust their banks, and client data should only be communicated in very exceptional circumstances. Further IF that data should be shared, it should be into ‘safe hands’.  The Judge did note that BREIN could also have filed a criminal complaint.

BREIN were ordered to pay £1,800 (€2,100) t cover ING's costs (litigation fees).

Friday 17 May 2013

Further UK Site Blocking actions imminent

According to news first broken by TorrentFreak and subsequently confirmed by MusicWeek, the UK music industry is undertaking a validation exercise prior to issuing the next round of site blocking requests.

As previously observed on this blog, following the landmark "Newsbinz 2" decision, both the record industry and movie industry have used the section 97A injunction route as a way to prevent consumers from accessing illegal file sharing sites.

In this latest move, PPL has written to a number of its members in order to verify that they have not licensed a range of sites, from the blatantly pirate Isohunt to Grooveshark, a site which in the past has at least asserted that it is licensed.    This is a pre-cursor to issuing proceedings, as rightsholders are clearly concerned that the section 97A process remains totally rigorous and is not discredited in the manner in which, for example, the Norwich Pharmacal process against file sharers was discredited by ACS and others.  

No doubt we will shortly hear that proceedings have actually been filed against at least some of the names on the list.  

In the meantime, are the rightsholders concerned that their activities have been leaked?  This blogger thinks that is unlikely - most of the sites concerned are unlikely to change their spots ahead of any possible court action and it seems implausible that they did not know that they were unpopular among rightsholders - after all, according to TorrentFreak, some of the sites had been the subject of hundreds of thousands of take-down requests aimed at google and requiring google to remove specific links, while others operate their own DMCA take-down protocols and have received similarly large numbers of requests.

A plague of trolls?

Can I  trade in the club?
I use embarrassing letters now
My oh my, trolls are in the news! I can hardly fight through the blizzard of furious outpourings of bloggers and webactivists rallying against the threat of copyright trolls, whose evil appears to be on a par with some of the worst crimes ever committed in human history and whose menace far surpasses the treats of nuclear war, plague, starvation, global warming and fur balls. Still, it IS an interesting topic. Well, to me it is.

In a blog titled “Welcome no more in U.S. courts, copyright trolls look to Canada” looks at the world of Canipre,  a Canadian company that seemingly offers to track down people who are illegally downloading copyrighted material on behalf of record companies and film studios, and whose own website says they have issued more than 3,500,000 takedown notices: Jesse Brown's blog says this: “Here’s how it works: you get a threatening letter in the mail from a law firm representing a film production company. It says you illegally downloaded Paparazzi Princess: The Paris Hilton Story. It demands you fork over $2,000, or else be hauled in to court where evidence of your guilt will be presented. You don’t remember downloading Paparazzi Princess: The Paris Hilton Story, but maybe your wife did? Or perhaps your niece … or that houseguest last summer?  What about your neighbours: you did give them your WiFi password that one time — You think about hiring a lawyer, but realize legal fees alone will likely top two grand. Instead you visit the website mentioned in the letter, enter your credit card number and pay some stranger a good deal of money to leave you alone.”  More at MacLeans here

However it seems Canipre have been caught using third party photographs without permission on their own website   – in particular a self-portrait by photographer Steve Houk who is less than amused by the alleged infringement – and the lack of meaningful response from Canipre, who are seemingly blaming a third party web designer.

Trolling tonight?
Arts Technica have published an update on one of the early 'trolls',  Righthaven, who they say tried to turn newspaper article copyright claims into a business model: We first wrote about Righthaven on the 1709 Blog in November 2011 (see here) and now the US Court of Appeals for the Ninth Circuit has now ruled on the two Righthaven appeals in what appears to be a terminal judgment saying (amongst other things!)  which begins with this:

"Abraham Lincoln told a story about a lawyer who tried to establish that a calf had five legs by calling its tail a leg. But the calf had only four legs, Lincoln observed, because calling a tail a leg does not make it so" 

The Electronic Frontier Foundation have filed a brief urging the U.S. District Court of Appeals for the District of Columbia Circuit "to stop a copyright troll's shakedown scheme in a case linked to the notorious Prenda Law firm”. More at and see our previous blogs on Prenda here and here.

And more opinions on Prenda and the business of trolls on Boing Boing here

And number of US internet service providers including AT&T, Cox, Bright House and Verizon have filed an appeal in their ongoing battle against "porn copyright troll" AF Holdings whose name first surfaced in the 'Prenda' reports . AF Holdings has accused 1,058 broadband users of illegally sharing adult movies on BitTorrent, and last year won their initial legal attempt to force the ISPs to hand over the identities behind those IP addresses.

Finally on trolls, TorrentFreak says that it has uncovered a new tactic in the supposed war against piracy in the US: the threat of exposure. I am not sure it’s that new, but anyway, they say that a legal entity calling itself the Anti-Piracy Law Group (descried elsewhere as "the latest Prenda reincarnation" ) has sent letters to people suspected of pirating pornographic material that insinuates the group will be interviewing family and neighbours about the downloads saying “ The purpose of this step is to gather evidence about who used your internet account to steal from our client. The list of possible suspects includes you, members of your household, your neighbours (if you maintain an open Wi-Fi connection) and anyone who might have visited your house. In the coming days, we will contact these individuals to investigate whether they have any knowledge of the acts described in my client's prior letter.” The ‘extensive letter’  goes on to detail examples of people who have been fined large amounts for copyright infringement before offering this gently worded (but undeniably intimidating) suggestion that the accused make an out-of-court cash settlement. More on this one here and 

In related news, Gizmodo are (re)alerting the world to the TPP – the Trans Pacific Agreement – “the biggest global threat to the Internet since ACTA” saying “The United States and ten governments from around the Pacific are meeting yet again to hash out the secret Trans-Pacific Partnership agreement (TPP) on May 15-24 in Lima, Peru. The TPP is one of the worst global threats to the Internet since ACTA. Since the negotiations have been secretive from the beginning, we mainly know what's in the current version of this trade agreement because of a leaked draft from February 2011. Based upon that text, some other leaked notes, and the undemocratic nature of the entire process, we have every reason to be alarmed about the copyright enforcement provisions contained in this multinational trade deal.” Countries involved are the USA, Peru, Chile, Malaysia, Singapore, Vietnam, Brunei, Australian and New Zealand - with Mexico, Japan and Canada in the process of joining the ring of copyright fire.

You can see a LOT more about copyright trolls at

And in the Autumn of 2013 we can look forward to an article by Brad Greenberg for the University of Colorado Law Review:  This article discusses the threat copyright trolls present to speech and innovation, and building on the historical evolution of the Fair Use Doctrine, it argues that a fair use presumption is warranted because: (1) There is no market harm because the troll has no market other than litigation; (2) the secondary use is for a different purpose and thus transformative; and (3) courts may excuse infringements because enforcement would not support the objectives of copyright law. Brad has kindly let the 1709 Blog know that an early draft of the entire article is downloadable (free) at this address:

Class action against YouTube fails

A U.S. federal court has denied class-action status to copyright owners suing Google Inc. over the usage of material posted on YouTube. U.S. District Judge Louis Stanton, in the District Court for the Southern District of New York, rejected a motion to approve a worldwide class of copyright owners in a long-running lawsuit over videos and music uploaded on the popular website. In denying class certification Judge Stanton said that that copyright claims have only superficial similarities ruling
Can we all join in? Errrrrr NO!

"The suggestion that a class action of these dimensions can be managed with judicial resourcefulness is flattering, but unrealistic"

The proposed class action lawsuit was filed in 2007 and included as named plaintiffs the English Premier League, the French Tennis Federation, the National Music Publishers' Association (NMPA) and individual music publishers. The NMPA settled with Google in 2011.

In April this year Judge Stanton had dismissed the 2007  copyright infringement complaint by Viacom International and others against YouTube over the Google company's alleged unauthorized hosting on YouTube of clips uploaded by users from "The Daily Show with Jon Stewart", "SpongeBob SquarePants" and ""South Park" stating that YouTube was protected under the safe harbor provisions of the Digital Millennium Copyright Act. Judge Stanton threw Viacom's case out on April 18th, a year after the 2nd U.S. Circuit Court of Appeals reinstated the copyright infringement case. after his initial ruling in favour of YouTube.   Viacom has filed a notice of appeal from Stanton's new ruling.

The current case would have allowed a proposed class which could have included any copyright owner whose allegedly infringed videos were on the popular web service, and music publishers whose compositions were allowed to be used on YouTube without proper permission. Judge Stanton said that while the legal analyses he would have had to apply in the case would have been similar for the various plaintiffs, each copyright owner's case would need to be decided based on facts particular to their individual claims commenting 

"Generally speaking, copyright claims are poor candidates for class-action treatment" and the case would turn into a "mammoth proceeding", with potentially thousands of plaintiffs worldwide, and that

"Each claim presents particular factual issues of copyright ownership, infringement, fair use, and damages, among others” and

"Plaintiffs offer no explanation of how the worldwide members of this proposed class are to be identified, how they are to prove copyright ownership by themselves or by their authorized agent, or how they will establish that defendants became aware of the specific video clips which allegedly infringed each of the potentially tens of thousands of musical compositions incorporated into specific videos”

Citing the Viacom case, the Judge said that YouTube does not generate infringing material, had a take down system and unless an exception applies, the DMCA requires that YouTube have legal knowledge or awareness of the specific infringement to be liable for it.

Football Association Premier League Ltd et al v. YouTube Inc et al, U.S. District Court, Southern District of New York, No. 07-03582.

Image Glastonbury crowd (c) 2009 The Television Company (London) Ltd

Tuesday 14 May 2013

Intangibles and exhaustion: ReDigi and UsedSoft revisited

Last November, New Zealand intellectual property enthusiast and legal consultant Ken Moon (AJ Park Law) wrote a controversial little piece which this blog hosted on Case 128/11 Oracle v UsedSoft.  Today the 1709 Blog is pleased to welcome him back. The following piece, which is well described by its title, contrasts critically the legal substance and practical consequences of the rulings in ReDigi in the United States and UsedSoft in Europe. Writes Ken:
Excepting Intangibles from Exhaustion of Distribution Right on First Sale: ReDigi versus UsedSoft
As noted by Ben Challis in the 1709 Blog and by Eleonora Rosati on the IPKat, many commentators believe it wrong that a court could decide that first sale exhaustion of the distribution right only applies to copyright works embodied in physical media.  Thus they disagree with the March decision of the US District Court in Capitol Records v ReDigi where online sales of iTunes files were found not to trigger the first sale doctrine and that subsequent resales were infringements of Capitol’s copyright.  They unfavourably contrast that outcome with that in Kirtsaeng v John Wiley & Sons where the Supreme Court held the first sale doctrine did apply to copies of textbooks (paper) even when they had been made (lawfully) abroad and suggest this is evidence of copyright law not keeping up with technology.  In addition, at least from some European commentators holding this view, there is support for the decision of the CJEU in UsedSoft v Oracle which held that multi-seat enterprise software acquired under licence and delivered by download constituted a sale and fell within the scope of the provision for exhaustion of the distribution right in the EU Software Directive 2009. 
In contrast, the present commentator says the analysis of the facts and law by Judge Sullivan in ReDigi was perfectly correct and that the analysis of the facts and law by the CJEU in UsedSoft was totally wrong.  In ReDigi the judge was doing what courts should do and that is apply the law as drafted, which he held to be unambiguous.  If people consider the result to be wrong on policy or any other grounds then the answer is to persuade the lawmakers to change the law. 
On the other hand the CJEU was doing what courts should not do – rewriting the law to align it with what they believed to be EU policy.  They did so even in the face of contrary submissions made by the European Commission, the body responsible for drafting the Directives which were considered by the Court.  Again, if the result that would have been produced on a more literal interpretation of the law was considered contrary to policy then it is for the lawmakers to change the law, not the Court.  Of course, Jeremy has already commented on the IPKat, in his Sandie Shaw post, on the “apparently irreversible shift of legislative power away from the European Council, Commission and Parliament and towards the Court of justice of the European Union”. 
The question nobody seems to be asking is whether it is indisputably correct to assert that exhaustion of the distribution right should apply irrespective of whether works are delivered online or on physical media?  The CJEU took this as a given and did not cite economic analyses, but as mentioned obiter by Judge Sullivan in ReDigi it may not be so clear cut and there are policy arguments that may justify a distinction between tangible and intangible distribution.  He referred to the US Copyright Office’s 2001 report on the Digital Millennium Copyright Act, which said the impact of the first sale doctrine to copyright owners distributing works in physical form was limited, but applying the doctrine to online distribution would have a bigger and unequal impact.  It was noted that physical copies degrade and are less desirable than new ones, unlike “used” copies of digital works which suffer no degradation.  The need to transport physical copies acted as a natural brake which did not exist in the online world where geography was irrelevant.     
Whatever the outcome of such policy arguments may in due course be, legal issues remain to be considered which go to the core of doctrines of exhaustion by first sale. 
The first is the nature of the contract between the copyright owner and the first user of a copy of the copyright work in digital form.  Is it in fact a sale?  In UsedSoft the Oracle contract was drafted as a licence and for the CJEU to find it to be a sale by considering only one term of the contract – the licence was for an unlimited period – is rather unimpressive legal logic, especially as the software was not mass produced for consumer use.  In the well-known 2010 US case Vernor v Autodesk, which involved computer software, the Court of Appeals for the 9th Circuit applied a three limb test to find a licence was not a sale.  The reasoning was that the contract (i) expressly granted the user a licence, (ii) it restricted the user’s right to transfer the software and (iii) imposed notable use restrictions .  Back in Europe the High Court for England and Wales in London Borough of Southwark v IBM UK Ltd (2011), only one year before UsedSoft, arguably went further than Vernor and quite logically took into account all relevant provisions in the licence before deciding there was no sale.  
Surprisingly this licence-versus-sale issue was not considered in ReDigi, where the case was run on the basis that the iTunes transaction between Apple and the downloader was a sale even though Apple’s agreement doesn’t read like a normal sale contract and that Capitol’s own agreement with Apple was a licence. 
Whatever the legal situation may be for “content” (such as eBooks, sound recordings and films) why should computer software be treated in the same way?  On 2 May the IPKat reported the German Regional Court in Berlin had held that UsedSoft reasoning does not apply to content such as eBooks and audiobooks because the CJEU had anchored their decision on the Software Directive 2009 invoking lex specialis to ignore the InfoSoc Directive 2001 (and the WCT 1996) which clearly was the applicable law for copyright content and does not allow the resale of intangibles . 
But there is more to this issue than the CJEU being hoisted by its own petard.  It has long ago been argued that software is different from literary, artistic and musical works.  It is not for the entertainment or education of humans.  It has a silicon readership rather than a human one.  Software is not just information, not just functional instructions, but instructions for machines and not humans. 
Computer software, unlike content, is digital from creation and is not something analogue in nature which might subsequently be digitised for transport.  Further, it is “read” (by computer hardware) in the same digital form without the need for conversion from digital to analogue format for watching, listening or viewing (by humans).  The software itself is just as intangible when delivered on a physical medium.  The media is not the message.  Further, software has always been distributed under a licence contract, unlike content, which always involved a sale until modes of digital distribution were evolved. 
Should computer software therefore, whether distributed online or on physical media (it always has digital format), ever be subject to first sale exhaustion doctrines?  There seems to be more logic in removing exhaustion of the distribution right for software while retaining it for content than the somewhat bizarre reverse of this which now exists in Germany as a combined result of the CJEU’s decision and the Regional Court’s decision – exhaustion for licence of software; no exhaustion for licence of content.   
Maybe those people who in the 1970s opposed copyright protection for software and favoured sui generis protection such as that proposed in the 1978 WIPO model law (and more recently the 1709 Blog: see Iona Harding's post of 18 March) had a valid point after all.

Monday 13 May 2013

Berlin and London will be home to the Global Repertoire Database

The Global Repertoire Database (GRD) – the project that aims to catalogue the world’s music – has announced that it will set up its global headquarters in London and will base its operations centre in Berlin.

The London office, housing corporate functions and business development capabilities is scheduled to open later in 2013, and will work alongside the current London-based project team in the first instance. The Berlin operations centre will provide registrations and data processing facilities, and may provide a template for further operations centres to support the global operation as it grows.

When completed, the main aim will be to create a new and more effective global infrastructure for music rights management, leading to an improved path to music licensing for digital and other music services, and to efficiency benefits for the whole music ecosystem saving extensive costs currently lost to duplication in data processing.

Alfons Karabuda, President of ECSA, the European Composer & Songwriter Alliance, said, ‘We are happy to have a home for the Global Repertoire Database. These two great cities of Berlin and London with their proud heritage and strong support for authors’ rights and for copyright will serve our needs very well. We can now turn our attention to building the world’s first authoritative database of musical works and to creating a completely new system of rights management that will benefit creators globally.’ 

Kenth Muldin, Chair of CISAC, the organisation representing the world’s copyright management societies, said, ‘The Global Repertoire Database is necessary for the effective functioning of the rights licensing, management and royalty payment systems of musical works in the 21st century. A single, authoritative global view of music ownership in real time will mean that anyone wanting to set up a music service can do so more quickly – and that means more legal choice for music fans and consumers, and a more efficient way of identifying who should be paid royalties for the use of their music.’

The next stage of development in the GRD project is the technical build, during which the systems and processes required for the new database to interact with existing licensing and payment systems will be structured. GRD systems will be fully compliant with existing rights management solutions FastTrack and ICE, who are technology partners in the project.

Saturday 11 May 2013

The Theft of Creative Content: Copyright in Crisis

We highlighted last Thursday night's debate at the LSE in our 'Forthcoming Events' column, but in the end and despite a very kind invitation, this CopyKat was unable to attend what looked like a lively night hosted, by PRS for Music under the strapline 'The Theft of Creative Content: Copyright in Crisis'

Despite a cancellation from headliner Gary Kemp, musician, actor, author and songwriter for Spandau Ballet, the panel remained impressive, featuring Robert Ashcroft, Chief Executive, PRS for Music; Amelia Andersdotter, member of the Pirate Party in the European Parliament and Dr Luke McDonagh, fellow in the Department of Law at LSE along with songwriter Eg White (his smash hot songs include Leave Right Now and Chasing Pavements) in conversation with Ludovic Hunter-Tilney, music critic at the Financial Times, all chaired by the LSE's Professor Andrew Murray.

So whilst this blogger didn't make it - I am glad to say MusicAlly did and they have posted up a fairly detailed and well informed report on their website - so if you want to know what was said ...... here is the link

AND you can listen to the podcast here on the LSE's website

Wednesday 8 May 2013

Prenda: copyright trolls and Star Trek references

US District Judge, Otis D Right II, has handed down his decision in the Prenda copyright troll case, saying that Prenda (a firm that claimed to fight copyright piracy) ran a fraudulent scheme to extort millions of dollars from people who shared pornographic videos online.

As Ben has reported before (here and here) Prenda came to prominence as a "porn troll", filing lawsuits against internet subscribers whom it alleged had downloaded copyright protected X-rated films and then demanding a sum of money to settle the matter.
This blogger is not particularly knowledgeable when it comes to Star Trek, however it is hard to ignore the plethora of references in this decision which opens with a quote:

The needs of the many outweigh the needs of the few.

—Spock, Star Trek II: The Wrath of Khan (1982).
Aside from providing an entertaining read (it's not often that judgments are so blatantly and inexplicably littered with Star Trek references) this decision is a salient reminder that the aim of copyright should not be forgotten. As the judge said, "copyright laws originally designed to compensate starving artists allow, starving attorneys in this electronic-media era to plunder the citizenry."

In his decision, the judge condemned Prenda for its "brazen misconduct and relentless fraud," which justified his order for damages of $81,319.72.5. Further he said that some of Prenda's controlling parties (Steele, Hansmeier, Duffy and Gibbs) suffered from "a form of moral turpitude unbecoming of an officer of the court" and that he would therefore refer them to their respective state and federal bars.
Finally, though the claimants "boldly probe the outskirts of law" he said that "the only enterprise they resemble is RICO. The federal agency eleven decks up is familiar with their prime directive and will gladly refit them for their next voyage. The Court will refer this matter to the United States Attorney for the Central District of California. The [he?] will also refer this matter to the Criminal Investigation Division of the Internal Revenue Service and will notify all judges before whom these attorneys have pending cases."
So although the damages awarded were comparatively low, the real damage is to the reputation of Prenda and its associates.

Tuesday 7 May 2013

Orphans: Much ado about … what?

Many of you will know Martin Kretschmer, Director of CREATe and Professor of Intellectual Property Law at the University of Glasgow, and Martin has just published this post on the CREATe blog and I am delighted to say has agreed that we can re-blog his thoughts:

Much ado, even an air of conspiracy, surrounds the passing of the Enterprise and Regulatory Reform Act (EERA) on 25 April. The main focus has been on the Copyright Provisions in Part VI (“Miscellaneous and general“) that will insert a new section 116A into the Copyright, Design and Patent Act 1988, entitled “Orphan works licensing and extended collective licensing”. 

The section will enable the government to set up (through the statutory instrument of regulations) a body with the authority to license so-called Orphan works, i.e. those works whose owner of copyright “has not been found after a diligent search made in accordance with the regulations” (s. 116A(3)). 

Campaigning photographers ( have argued that identifying metadata are routinely removed before images are published online, and a misinformed section of the blogsphere has trumpeted a message of expropriation. Eleonora Rosati of the IP Kat and Ben Challis of the 1709 Blog [see our previous post here] offer a nice range of quotes, including Dominic Young’s assertion that the UK had “abolished copyright”, and the Telegraph’s Instagram Act headline: “social media users lose ownership of their own photos”. 

Paul Briden’s KnowYourMobile blog is another typical example: 

“Within the new legislation is a change to UK copyright law which will effectively allow companies to use images which don’t include information identifying the owner for commercial gain. In other words, your holiday snap taken on your iPhone which you shared to your public-facing Facebook page, could end up in someone’s glossy brochure and you wouldn’t even get a penny, let alone a note asking if it’s ok. 

There’s also no section of the new Act which forbids sub-licensing practices, ie: someone can get your photo and sell it to someone else with little risk of repercussions. This is a very serious problem and I can see it only getting worse. 

Interestingly, Instagram tried to enact this kind of commercial sharing approach to users’ content fairly recently but was (quite rightly) shouted down by angry consumers – and yet here it’s happening on a broader scale, by a national government and quietly through the back door.”  

There are many misunderstandings in these short paragraphs. Here are three reasons why social media services will not attempt to rely on the Orphans provisions of the ERR Act for the use of digital images. 

First, users would have to evidence diligent search (which photographers can pre-empt by registering their images on any public database). 

Secondly, users will have to obtain a formal licence from a public body. 

Thirdly, user will have to pay a market price for commercial use (and deposit that fee so that it could be claimed by a reappearing author). 

Why would a social media service want to jump through these hoops? 

Prior to the ERR Act, none of these processes were formalised. The current media practice to strip images of meta data, and even use such images in prominent positions (e.g. on newspaper covers, as is common with Twitter photographs after accidents and atrocities) will now attract greater scrutiny. While these practices may be undesirable (and indeed constitute an infringement under copyright law, both before and after the ERR Act), this a matter for legal remedies (such as the damages available for stripping metadata and indeed for unlawful use). This is where the photographers’ scrutiny should be. 

It is misleading to claim that the ERR Act would permit digital images to be used without permission and compensation for the rights holder, and it is surprising that the claim has gained such currency. 

The Orphan works provisions of the ERR Act are really designed for the large body of copyright works that lie barren because of the long copyright term. For example, Mulligan and Schultz found that only 2.3% of in-copyright books and 6.8% of in-copyright films released pre-1946 remained commercially available in 2002: Mulligan, D.K. & Schultz, J.M., ‘Neglecting the National Memory: How Copyright Term Extensions Compromise the Development of Digital Archives’, 4(2) Journal of Appellate Practice & Process 451 (2002). 

Archives currently run considerable risks making their collections available online. While the intentions of the ERR Act are thus well meaning, and entirely consistent with the overall purpose of copyright law (to release creativity), the details of implementation will matter greatly. I have to declare an interest here, as I am co-author of a study commissioned by the UK IPO which aims to offer a clearer understanding of how Orphan works are regulated and priced in other jurisdictions, and how a pricing system could be structured to ensure that “parents” are fairly remunerated if they re-appear, and users are incentivised to access and exploit registered orphan works. 

Our study (with colleagues Favale, Homberg, Mendis and Secchi) simulated the clearance of Orphan works in several jurisdictions which have an operational system for licensing Orphan works (including Canada, Denmark, Hungary, Japan and India). Another example of the bizarre reception of the ERR Act is the Register’s claim that “[f]or the first time anywhere in the world, the Act will permit the widespread commercial exploitation of unidentified work“. 

Simply not true. Our study found that in most of these systems in particular non-profit, non-commercial uses do not happen in the way anticipated, i.e. Orphan works are not released, or reunited with their parents, as the legislators claim. (I’ll write another blog once we can reveal the data with the publication of the full study.) 

Lastly, I also should put on record that I consider the legislative process of the ERR Act to be problematic ( The first version of the ERR Bill (as introduced in May 2012) did not contain any Orphan works provisions at all, and I still do not think the appropriate scope of copyright exceptions should be a matter for secondary legislation. 

Martin's original blog can be found here

Image: publicity shot for Orphan, the 2009 American psychological horror film directed by Jaume Collet-Serra.  (from ).