Tuesday 24 September 2013

The CopyKat - a squealling pig and a horrified mouse head up this animal house

Pandora has won one of it's legal battles with the music industry, with a US court ruling in a summary judgement that American music publishers cannot withdraw from the streaming firm's existing deal with collecting society ASCAP and force the company to do direct deals. The ruling means that the big publishers will have to continue to licence Pandora via ASCAP until 2015, even though the digital firm had actually agreed direct deals with some of them while this litigation was going through the motions.

Oink, UK-based invite-only file-sharing community launched in 2004 and shut down in 2007 following a joint investigation by British and Dutch police, working in collaboration with UK and global record label trade bodies the BPI and IFPI, is returning as an apparently legal service at oink.cd and oink.me.uk.Users are asked to sign up to a mailing list "for updates and an invitation in due time" and are reminded to "never forget 23 Oct 2007", the date of the original site's shutdown. The shutdown resulted in four successful prosecutions of prolific users of the service for infringement, although founder Andy Ellis escaped conviction for conspiracy to defraud.

A Delhi court has dismissed a complaint against Bollywood filmmaker Madhur Bandarkar for allegedly stealing the plot and idea of his movie "Fashion" from a book without giving credit to its author.  Additional Chief Metropolitan Magistrate Lokesh Kumar Sharma dismissed the case against Bhandarkar, producer Ronnie Screwvala and writer Ajay Mongia after the complainant, actress turned author Seema Seth, repeatedly failed to appear before it to pursue her case. "Several opportunities have been given to her since last year" and having failed to submit her own script, the Judge found that she was "not interested in pursuing her case." 

In South Africa, commentators are musing that stricter rules on the use of exclusive news content may come into effect following a recent charge of plagiarism by  Moneyweb against Fin24, which is accused of rewriting seven Moneyweb stories, without fully acknowledging the source or indeed having permission: commentators also point to the fact that Moneyweb has its own unique financial comparisons,  tables or models which “similar to exclusive stories, are protected  under copyright law and can’t be copied without permission.”

The EFF have highlighted a new push by the content industries in the USA to establish extra-legal "voluntary agreements" with search engines, similar to the "Copyright Alert" surveillance machine already in place with some ISPs. The EFF point to both a Congressional hearing and a glossy new paper published yesterday by the Motion Picture Association of America (MPAA), which the EFF says both underscore a major push by the copyright lobby - saying "These sorts of agreements represent a troubling move towards enforcement regimes that have the speech-squashing capabilities of actual law, but not the corresponding due process or accountability". More here

A federal judge in New York has said that there is a 'triable issue' at the heart of the the claim brought by the major record labels against user-generated video website Vimeo, owned by Barry Diller's IAC, over claims that Vimeo  had knowledge or awareness of copyrighted music in some of the videos being shared. Vimeo, which is now one of the top 130 most trafficked websites, responded by asserting that it was free of liability thanks to the safe harboir provisions of the Digital Millennium Copyright Act. The claim centres on whether the company took enough preventative actions to avoid liability.  Judge Ronnie Abrams denied safe harbour defence for 55 of the 199 videos detailed in the suit, in particular the now very popular 'lip synch' videos. Reportedly, these 55 presented situations where Vimeo employee either knowingly uploaded videos that used copyrighted music themselves, or had documented interactions with users that did (comments, likes, etc.) and still failed to take the video down. In the 56-page ruling Judge Abrams called the site’s alleged knowledge of these incidents a “triable issue.”  Noting that the site had 12.3 million registered users uploading 43,000 new videos each day”n the judge also agreed that there were no triable issue in regards to pre-1972 music and granted the website summary judgment on that. matter, although reportedly said that as the DCMA does NOT apply to pre-1972 recordings, leaving Vimeo with an interesting challenge there.

Talking of UGC and safe harbour, This blogger had a recent and unexpected experience with You Tube when I discovered that there was a limit on the number of Copyright Infringement Notices that can be submitted to YouTube within a (unknown) time period - effectively limiting the number of legitimate takedowns a content owner can issue against illegitimate and infringing content on the Google owned platform: Now it's not often I do work like this and maybe I missed something, but this had to be done - and all that happened was a page popped up saying "Submission frequency limit exceeded  Please come back later to submit your next copyright complaint.". No when, not why - in fact no other information at all - just that. It seemed to be working again 30 minutes later BUT ......... if YouTube has self imposed arbitrary limits - does that mean it doesn't have an effective takedown system for legitimate claims - and if so - what does this mean for DCMA safe harbour protection?

Photo by Wally Gobetz (wallyg @ Flickr)
Patrick has already noted that the US sculptor Frank Gaylord has won his claim against the US Postal Service a for copyright infringement and has been awarded damages and interest of nearly $685,000. To remind you, the case involved the printing of stamps with an image of the soldiers sculpted for the Korean War Veterans Memorial in Washington, D.C. We also know that the Postal Service "respectfully disagrees" with the U.S. Court of Federal Claims' damages decision and that, together with the Department of Justice, it is considering whether to appeal. Having won at first instance when the Federal Court ruled in the Postal Service's favour, saying it's use of a photograph taken of the memorial during winter by a retired Marine fell under the doctrine of "fair use", the appellate court reversed this, directing the Court of Federal Claims to  "determine the proper amount of damages due Plaintiff Frank Gaylord" . Well how did they do this? Well the the Court of Federal Claims used a 10 percent "running royalty" to determine the fair market value of Gaylord's copyright, calculating that the Postal Service collected an estimated $5.4 million for stamps purchased by collectors, entitling Gaylord to $540,000. The balance of Gaylord's award came from royalties on merchandise sales and pre-judgment interest.

The Sunday Times featured an interesting article asking why The Walt Disney Company, never one to normally shy away from using its formidable array of legal weapons against anything that taints the Disney brand,  is ignoring a new black and white horror film, shot without permission on small digital cameras and mobile phones at Walt Disney World in Florida and Disneyland in California. Posters for Escape From Tomorrow feature Mickey Mouse's hand dripping with blood - 'brazenly provoking Disney's legal pitbulls'. The reason seems to be that The Mouse House is wary of giving the film any more publicity - which opens with the credit 'the following motion picture has NOT been approved for all audiences by the Walt Disney Company - despite potential copyright and trade mark infringements, and the lack of permission to film. 

You can see the trailer here.

The dispute over royalty payments between the BBC and Eos, the agency representing some Welsh language music composers and publishers, is going to the Copyright TribunalAt an interim hearing in April, the Tribunal ordered the BBC to continue paying Eos £120,000 a year to access its members' repertoire of music. his sum was agreed by both parties in February. Eos wants the Tribunal to increase that amount to £1.5m a year - the BBC are suggesting an annual figure of £100,000. Eos was formed when its members became unhappy with royalty payments from PRS for Music, the UK's principal royalties collection agency.
Lauren LoPrete 
And more on songwriters ..... and royalties: According to research carried out by Victoria University of Wellington PhD student Sharma Taylor, despite the popularity of reggae music around the world, the economic return to Jamaica is very low, with most music rights being owned by foreign companies: Taylor’s research shows that many of the 57 singer/songwriters she interviewed didn’t fully appreciate the copyright they own. An interesting piece of research - more here.

And finally ..... it seems blogger Lauren LoPrete's two month old blog, This Charming Charlie,is under threat from Universal Music Publishing Group. The blog uses lyrics from the iconic British band The Smiths (published by UMPG) to re-word classic Charlie Brown cartoons. It seems no complaint has been raised by the Peanuts legal team and TechDirt reports that LoPrete has been offered legal support and now will fight on - you can see her legal team's response to UMPG on the blog - arguing fair use, transformative use, and pointing out that the use of the brief excerpts does no damage to UMPG's commercial position.


Friends of QEII Daniel Park said...

Ben, talking of YouTube, how long should one have to wait for them to respond to a Copyright Infringement Notice? 3 weeks ago I completed one in relation to 2 bootleg recordings of one of our theatrical productions. It was ignored. I flagged up the 2 videos in question. Ignored. I emailed. Received dumb reply. Submitted another CIN. Ignored. Is a phone call to their HO necessary?

Ben said...

Wow - that is poor - that can hardly be considered an effective DCMA system can it? I have to say though, so far my run of takedowns has been much smoother than that, and I have had a succession of confirmations over the last few days.

Francis Davey said...

Caroline, assuming you have sent the notification to google's designated agent, then they loose the "safe harbor" if they fail to respond "expeditiously" - 17 USC 512(1)(c)(C) - 3 weeks does not sound like it is "expeditious" to me.

Oddly, the DMCA take-down procedure does have time limits for counter-notices measured in days, but nothing so concrete for notices.

Friends of QEII Daniel Park said...

Thanks, both. I haven't gone down the designated agent route yet (have just filed a couple of what they call 'webforms') but I shall do that. Thanks for the tips.