Monday 30 December 2013

Google takedown requests quadrupled this year (and are 23 times more than 2011)

One of this blogger's favourite readings of all time is the Google Transparency Report [first published in 2012: see here], a most clever and precious source of information about many things, including real-life developments in the world of online copyright.

As 1709 Blog readers will know, the Transparency Report [by the way: have you checked the transparency reports by Apple, TwitterFacebook and Yahoo! yet?] shows the requests that Google has received from copyright owners and reporting organisations that represent them (eg BPI, RIAA ...) to remove search results [the Transparency Report is in fact limited to Search: it does not include requests for other products, eg YouTube or Blogger] that link to content that allegedly infringes copyright. 

Each request names specific URLs to be removed, and so Google lists the domain portions of URLs requested to be removed under specified domains.

Since its first publication, the number of requests received by Mountain View-based internet giant has constantly increased, at a rather impressive pace.

According to the latest analysis of the report published by TorrentFreak, while in 2011 Google was asked to remove less than 10m URLs, in 2012 the URLs were 50m, and this year the number of requests was over 235m.

This means that the number of requests quadrupled from 2012 to 2013 and was more than 23 times higher than 2011. Wow. This is what can be really called "big data".

As of December 2012, average processing time across all removal requests submitted via the web form for Search was approximately 6 hours [it was 10 hours when the Report was first released ... How long does it take now? Does anyone know?]

This year Google complied with 91% requests [it was 97% between July and December 2011]. Google decided not to take action in respect of 21m URLs, either because the requests were illegitimate or duplicated already submitted in previous notices [the issue of duplicates is also highlighted here].

UPDATE: A great 1709 Blog friend let us know that you can learn more about Google's copyright notice and takedown process here.

Sunday 29 December 2013

The Return of Sherlock Holmes?

Jeremy Brett as Holmes in 1985
Somewhat appropriately on the day that news broke that the two writers of the BBC's 'Sherlock' television series starring Martin Freeman and Benedict Cumberbatch revealed that they killed off Holmes in the final and sixth episode of the widely popular drama because they feared the BBC would axe the series, came news that the US District Court for the Northern District of Illinois had reached a decision in the case brought by Los Angeles-based attorney Leslie Klinger, who was seeking a declaratory judgement that all elements of the canon of Sherlock Holmes works published before 1923 are free for anyone to use. US copyright law, applied to the works of Sir Conan Doyle, creates a scenario whereby most of the works have entered the public domain, while only the ten stories that were published after January 1, 1923, published in The Case-Book of Sherlock Holmes, are still protected

Writers Steven Moffat and Mark Gattis said they used Arthur Conan Doyle's The Final Problem, the 25th and final short story in Conan Doyle's original series of works - when Holmes and Professor Moriarty both fall to their deaths from the Reichenbach Falls in Switzerland - and that they had included The Final Problem as well as the Irene Adler story (based on "A Scandal in Bohemia") and The Hound of the Baskervilles as the final three scripts for the second three part series because they were worried that the BBC series might not be around for long enough for them to run their favourite plots. But now back to the USA, and Mr Klinger's claim.

Miri Frankel first covered Mr Klinger's claim back March 2013 here on the 1709 Blog and we updated this in September in here in The Expiring Detective's Last Case? Mr Klinger’s complaint centred on the position taken by  the Conan Doyle Estate which argued that all elements of the Canon of Sherlock Holmes (the fifty-six short stories and four novels) remain protected by copyright because; “Holmes is a unified literary character that wasn’t completely developed until the author laid down his pen.”  In other words, the character of Sherlock Holmes and all related copyright elements remain protected until 2023, drawn from the date upon which the final story published by Sir Conan Doyle enters the public domain.

The District Court first examined whether the Sherlock Holmes elements published prior to 1923 ("Pre-1923 Elements") are indeed elements that are no longer subject to copyright protection and are now in the public domain.  Applying the 1989 decision of the US Appeals Court for the Second Circuit in  Silverman v. CBS, Inc.the District Court explained, "[i]t is a bedrock principle of copyright that 'once work enters the public domain, it cannot be appropriated as private (intellectual) property,' and even the most creative of legal theories cannot trump this tenet."  Thus, as Miri explains over on the IPKat, the public may use the Pre-1923 Elements without obtaining a license from the Conan Doyle Estate.  

Basil Rathbone as Holmes with 
Nigel Bruce as Dr Watson in 1939
Miri explains that the District Court next turned to the question of whether elements of the Sherlock Holmes canon published after 1923 ("Post-1923 Elements"), such as Dr Watson's athletic background and Sherlock Holmes' retirement, are "increments of expression" that are copyrightable, or if the Post-1923 Elements are plot elements, ideas, or events that are not copyrightable.  Mr Klinger argued that these Post-1923 Elements are merely events in the lives of the Sherlock Holmes characters and are not subject to copyright protection. The District Court examined the Post-1923 works to determine whether they constituted "incremental original expressions" that are readily distinguishable from the prior works.  It concluded that, as storylines, new characters and new character traits, these Post-1923 Elements are indeed increments of expression that are and remain subject to copyright protection, "and as a result neither Klinger nor the public are entitled to use them." So - a partial but not complete victory for Mr Klinger - yes, he can use the first 25 works - but not new elements  introduced [post 1923. Elementary, my dear reader?

This is a good time for Sherlock-based entertainments, with  BBC's Sherlock is returning for its third series and CBS's Elementary is in the middle of its second season. A third Guy Ritchie-directed, Robert Downey Jr.- and Jude Law-starring movie is reportedly in the works - all licensed by Jon Lellenberg, who is the American agent for the Conan Doyle Estate.  That said, any writer basing new derivative works on the characters will need to be very careful. The District Court stopped short of granting a permanent injunction barring the Conan Doyle Estate from asserting copyright in the elements of the Sherlock Holmes canon, even those elements that the District Court agreed are in the public domain, so writers face the possibility of a license fee demand - or threat of litigation from the Conan Doyle Estate even for pre-1923 works - albeit surely such claims for a licence may well be unfounded in law - but maybe all but the brave will be deterred from entering this Valley of Fear. Let the Great Game commence. 

BBC One premiered a "Sherlock" mini-episode online on Christmas Day 2013, entitled "Many Happy Returns". It acts as a prequel to the upcoming third series, picking up two years after the second series finale. The synopsis for the episode reads "Sherlock has been gone for two years. But someone isn't quite convinced that he's dead." Indeed, it seems he is very much alive!

The District Court's decision can be found here and more here.  
More on Sherlock Holmes here.

Update: Post decision there have already been some moves by the Estate: It seems at the heart of this is that because the plaintiff Leslie Klinger did not seek a “judicial determination of the copyright status of the Sherlock Holmes character,” the court did not address the issue - and now the Estate's lawyer Benjamin Allison has said "While plaintiff Leslie Klinger sought a ruling that some of these character traits were free for all to use ..... the Court rejected Mr. Klinger's effort in this regard and held that all such characteristics of Holmes and Watson are protected.”  Klinger however, called Allison’s statement “a great attempt at spinning by the Estate,” after having lost on their theory of an “incomplete” character telling Publishers Weekly “The Court carefully said that it was not determining that the character was either in or out of copyright protection; Instead, the Court said that elements were free of protection.”

Thursday 26 December 2013

2013 - The Copyright Year

In January the Paris High Court highlighted the tension that can exist between the right of publicity (droit à l'image in French law parlance) and artistic freedom. In this case a renowned Spanish artist used some photographs taken of his former girlfriend to create works of contemporary art.  As the pictures at issue were intimate in nature, she objected and based her action on article 9 of the  Civil Code which protects privacy and the right of publicity.  The artist retorted that he was entitled to rely on article 10 of the European Convention on Human Rights protecting freedom of expression (including artistic expression). And our beloved FrenchKat let us know that the court decided that the right of publicity (or rather privacy here) trumped the artistic freedom of expression.
And progress on the creation of a Global Repertoire Database (GRD) for musical works moved ahead in 2013 - with the project moving into the technology build, with a first release of the database due in 2015. At the end of January, The High Court in London handed down its decision in SAS Institute Inc. v World Programming Ltd in which it applied the CJEU's decision about which aspects of a computer program may be protected by copyright - and here the programming languages were not protected by copyright. Arnold J's analysis was interesting -   when considering the originality of a programming language the Judge used the "intellectual creation" test, rather than the "skill, labour and judgment" test. Assuming a computer language is not a computer program, Iona commented that this implies that the test for originality is now harmonised for all works rather than just for computer programs, databases and photographs. Arnold J also said that even if he had found that a programming language could be an intellectual creation, it did not follow that it had to be a work.

This year a few key words kept coming up again and again - fair use, reform (or review) of copyright law, safe harborblocking orders and the TPP all spring to mind - but more on those later. In February The new “Copyright Alert System” finally launched across all of the major Internet providers in the United States of America including  AT&T, Cablevision, Comcast, Time Warner, and Verizon. Suspected infringers will be flagged up to the Internet providers as part of a “six strikes” program. If a user is accused of downloading the latest box office smash or hot music track,  the user will initially receive “educational notices” designed to warn the user that they have misbehaved. Ignore the notice will results in the next stage of the ‘six strikes’ programme, with an escalation in actions as the process continues. After receiving two “educational” Copyright Alerts, alleged violators will be sent two additional alerts requiring a response; the most severe "mitigation" steps, which would come after the fifth and sixth detected infringement, could reduce or “throttle”  the customer's bandwidth or redirect that person's browsing automatically to an anti-piracy information page. In the UK, and having successfully secured injunctions to force all the major UK ISPs to block access to The Pirate Bay in 2012, the recorded music sector trade body in the UK, the BPI, took successful action to force internet service providers to block access to three more file-sharing websites - with Arnold J agreeing to blocks on Fenopy, H33t and Kickass Torrents. And Eleonora tackled the interesting and very topical question of whether linking can constitute a communication to the public after the European Copyright Society opined that linking was NOT communication to the public within Article 3 of Directive 2001/29/EC. South Korea became one of the first in a growing queue of jurisdictions to bring in fair use: Article 35-3 (Fair Use of Copyrighted Material)  states that  “the copyrighted work may be used, among other things, for reporting, criticism, education, and research” and Article 35-3.2 lists factors to be used to determine if a use is fair (which seem similar to the fair use factors listed in section 107 of the U.S. Copyright Act):  "In determining whether art. 35-3(1) above applies to a use of copyrighted work, the following factors must be considered: the purpose and character of the use, including whether such use is of a commercial nature or is of a non profit nature; the type or purpose of the copyrighted work; the amount and importance of the portion used in relation to the copyrighted work as a whole; the effect of the use of the copyrighted work upon the current market or the current value of the copyrighted work or on the potential market or the potential value of the copyrighted work." 

In March came news that reverberated through the year when the US Court of Appeal for the 9th Circuit (California) unanimously ruled that Gary Fung, the Canadian owner of BitTorrent website isoHunt, had "induced" users to download and distribute films and TV programmes, and that he could not rely on the DMCA safe harbor provisions for protection. Also in the US, Maria Pallante, head of the US Copyright Office, told US politicians that "the law is showing the strain of its age and requires the attention of Congress" Pallante said that "a central equation for Congress to consider is what does and does not belong under a copyright owner’s control in the digital age. I do not believe that the control of copyright owners should be absolute, but it needs to be meaningful. People around the world increasingly are accessing content on mobile devices and fewer and fewer of them will need or desire the physical copies that were so central to the 19th and 20th century copyright laws." Two of the founders of the Pirate Bay failed in their final appeal against their convictions for copyright infringement in the Swedish criminal courts, with the European Court of Human Rights finding that Sweden had rightly convicted the pair, and finally in March the US Supreme Court ruled in Kirtsaeng v John Wiley & Sons that textbooks and other goods made and sold abroad can be re-sold online and in discount stores without violating U.S. copyright law. In a 6-3 opinion, the court overturned a copyright infringement award to publisher John Wiley against Thai graduate student Supap Kirtsaeng, who used eBay to resell copies of the publisher’s copyrighted books that his relatives first bought in Asia at cut-price rates.  But did it add clarity? Well this case sits uncomfortably alongside the EMI v ReDigi decision in the US which followed (where District Judge Richard Sullivan in Manhattan ruled that the  'first sale' doctrine does not apply to digital goods) which itself sits uncomfortably alongside  the European Court of Justice's (ooops, old skool, sorry Merpel, we meant the CJEU) 2012 decision in case C-128/11 UsedSoft GmbH v Oracle International Corp which held that "An author of software cannot oppose the resale of his ‘used’ licences allowing the use of his programs downloaded from the internet. But then again, a German Regional Court in Berlin 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! Can anyone believe the average consumer would understand the nuances in any of this?

Cariou's photograph  (L) and Price's transformation (R)
In April with copyright reform firmly on the agenda in the USA, Ireland, Australia, the UK and Europe, Iona explored the fascinating topic of transformative art - and fair use: In Cariou v Prince the US Court of Appeals for the 2nd Circuit decided that use of certain photographs in a new piece of art did not necessarily infringe copyright in the photographs as the use could be transformative and therefore fairThe claim was bought by Cariou, a professional photographer who, over the course of six years in the mid-1990s, lived and worked among Rastafarians in Jamaica. The relationships that Cariou developed with the Rastafarians allowed him to take a series of photographs that Cariou published in 2000 in a book titled Yes RastaRichard Prince, an "appropriation" artist the used a number of the photos in new works and in the majority of these the court found "Prince's artworks manifest an entirely different aesthetic from Cariou's photographs. Where Cariou's serene and deliberately composed portraits and landscape photographs depict the natural beauty of Rastafarians and their surrounding environs, Prince's crude and jarring works, on the other hand, are hectic and provocative." So fair use.

In May the Recording Industry Association of America (RIAA) urged Congress to overhaul the "safe harbor" provision of US copyright law that shield websites from infringement actions provided they remove infringing material after being notified, saying the DMCA is too burdensome for copyright holders. In a rare case on copyright in architecture, a federal District Court in the USA has awarded $1.3 million damages to a Texas design firm, finding that Houston-based Hewlett Custom Home Designs, Inc. had a valid claim for infringement against Frontier Custom Builders, Inc. Also in May came the first mentions of the Trans Pacific Partnership Agreement – with the EFF calling it “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." Also in May, Harper Lee, the 87-year-old author of to Kill A Mockingbird, launched an ultimately successful claim alleging that her son of her former agent , one Samuel Pinkus, had devised a "scheme to dupe” the author, taking advantage of her declining hearing and eyesight to get her to assign the book's copyright to him and a company he controlled.  And finally, 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 case. 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.

June began with Russia introducing tough new anti-piracy laws, and at the same time the major record labels began blitzing Russia’s social networks, including Russia’s main social networking site vKontakte, with copyright takedowns. The removal 'en masse' of illegal music by the huge social networking site causing outrage among its users. The new new laws, approved by  the State Duma, pushes the responsibility of swiftly removing infringing content onto the services and service providers, who otherwise may find themselves blocked at the ISP level. In the UK, progress on post Hargreaves' copyright reform continued, and the UK's Intellectual Property Office (IPO) published the first pieces of draft secondary legislation for technical review on private copying, parody, quotation and public administration - with some like the film archive owners association FOCAL still worried about the reforms. Album artwork designer Roger Dean, famous for his album covers for the band Yes brought an interesting claim against the producers and the director of Avatar, James Cameron; and Stevie Wonder offered to perform live for international negotiators who were in Morocco trying to forge a deal to give the visually impaired greater access to reading material. In a very amusing video message; the blind singer-songwriter urged WIPO delegates to agree saying “So do it, we get it signed, sealed, delivered, I’m yours.” Wonder said he’d fly to Marrakesh to celebrate with delegates if they struck a deal - and they did!

Ahhhh July! In a case between the owners of the rights to the literary works of William Faulkner and Sony Pictures over Woody Allen's 2011 film Midnight in Paris, Judge Michael Mills of the US District Court for the Northern District of Mississippi (as Eleonora said at the time - quite unsurprisingly) ruled that use of a single line from a full-length novel singly paraphrased and attributed to the original author in a full-length Hollywood film did not amount to copyright infringement. The Government of New Zealand said it was delaying a review of copyright laws until the Trans-Pacific Partnership negotiations are over, saying it would not be practical while the talks are underway. The setback frustrated the Telecommunications Users Association which said the review is long overdue after already being delayed for five years. And Grammy-nominated singer-songwriter Aimee Mann told the Hollywood Reporter that artists are being systematically robbed of digital royalties. Mann brought a legal action against MediaNet, the 1999 venture, originally called Musicnet set up by EMI and BMG and joined by AOL Time Warner and RealNetworks and then sold to a private equity firm in 2005. Later in the year the case moved forward with Judge George King accepting a number of Mann's arguments.

The US House Judiciary Committee, which launched a “comprehensive review” of copyright law earlier this year - continued with it's epic task in July. The Subcommittee on Courts, Intellectual Property, and the Internet held a hearing on the role of copyright in innovation although commentators noted that the line up before the Committee was a little 'one sided' with the Washington Post noting "innovators are almost entirely absent from the list. The witnesses include the executive directors of the Copyright Alliance and the American Society of Media Photographers, and the general counsel of Getty Images. One website pointed out that completely absent were: representatives from the information technology industry, whose innovations have transformed the market for copyrighted works over the last two decades, and who have repeatedly argued that overly-broad copyright law has stifled innovation" as well as actual creators - who often end up with very little from the copyright pie but in whose name much is argued And as the summer heat intensified, the UK Government announced their major strategy paper on the media and telecoms industry, entitled "Connectivity, content and consumers: Britain's digital platform for growth".

Big bad August:  Cyberlocker service HotFile was found liable for copyright infringement in an action brought by the the Motion Picture Association of America on behalf of five member studios. The copyright infringement suit, filed  in 2011, alleged that the company paid incentives to those who uploaded popular files to the system, that were widely shared. It's affiliate program still offers payment "calculated based on a percentage of the total value of premium accounts purchased by users who download the affiliate's uploaded files." SoundExchange, the US non-profit that collects royalties for musicians from satellite radio firms, Internet radio services and cable music channels, said it has filed a suit against SiriusXM seeking to recover what it calls "massive underpayment" of digital royalties over a six-year period. The organisation said the satellite radio firm underpaid by "$50 to $100 million or more" by taking a number of impermissible deductions and exemptions in calculating its royalty payments from 2007-2012. Sirius also faced a claim from sixties band The Turtles who led a $100 million lawsuit arguing that the satellite broadcasting company has infringed on millions of older recordings from thousands of artists, and that Sirius cannot rely on section 114 of the US Copyright Act for protection – as pre 1972 recordings are subject to state law. Lawrence Lessig filed a federal complaint after YouTube forced the Harvard University law professor and Creative Commons co-founder to take down a video of a lecture that featured people dancing to a copyrighted song. And the now somewhat controversial Robin Thicke (along with Pharrell Williams and T.I.) filed a suit in federal court in California against both the family of Marvin Gaye and a publishing company that holds the rights to some of Funkadelic’s compositions asking for a pre-emptive declaration that  “Blurred Lines” – Thicke's party anthem of 2013 - does not borrow from the defendants works. It failed, and litigation seemed imminent as the year ended.

Onwards to September: In the latest chapter of the Google Books saga, Judge Denny Chin gave Google some cause for optimism. After a mere 40 minutes oral hearing, Judge Chin appeared to favour Google’s fair use claim. Chin repeated the many public benefits that Google Books provides, noting that even his law clerks use it to perform citation checks. He also acknowledged amicus briefs from libraries and humanities professors that support the benefit the project has for researchers. Given these arguments, he posed a question to Authors Guild attorney, Ned Rosenthal: “aren’t these transformative uses, and don’t they benefit society?” Patrick reported that When Rosenthal argued that the project may lead to lower compensation for authors, Chin noted examples where people had bought works after finding information about them through Google Books. When Rosenthal argued that this was a matter for Congress, Chin quipped: “[d]oes anything get done in Congress these days?” He later followed this by asking Rosenthal: “[w]hat are you suggesting? That I don’t decide…and wait for Congress?”. Patrick also reported on the trails of the US Post Office which was ordered to pay a historic $685,000 to Frank Gaylord after it issued a stamp that infringed copyright in Gaylord’s war memorial statues.  a separate claim from Robert Davidson, who created the sculpture called Lady Liberty of the Las Vegas Strip followed later in the year. In the UK the Copyright Licensing Steering Group (CLSG) published a report detailing the successes of implementing Richard Hooper and Ros Lynch's's plans for a Digital 'Copyright Hub' over the past 12 months and plans for implementation of the main recommendations,  and ensure continued cross-border collaboration focused on further streamlining of copyright licensing. And Spain passed legislation that made it a criminal offence to run a website that provides links to sources of unlicensed content, and anyone convicted of running such an operation could face up to six years in jail in "aggravated cases". The law only targets those sites that are run for profit (but that includes those making "direct or indirect profit") and the Spanish government has said that carrying advertising would be sufficient to bring a website into the system. 

In October  The 'Happy Birthday' lawsuit that is (still) winding its way through the US federal courts - seeking clarity on whether the music publisher Warner Chappell has a valid copyright in “Happy Birthday to You”  - was moved on a step. U.S. District Judge George H. King (Central District of California) ordered that certain tangential claims be stayed until further notice, while the case will move forward on the central claim alone. Elsewhere, the Irish Government published "Modernising Copyright”: According to the Summary of Recommendations  "The centerpiece recommendations relate to the establishment of a Copyright Council of Ireland and specialist intellectual property tracks in the District and Circuit Courts, and to the introduction of tightly-drawn exceptions for innovation, fair use, and very small snippets of text in the context of online links." Eleonora posed the question "Should droit de suite become a "global right"?" and Antigua took action to suspend US copyrights - and recoup the country's losses - which have been set at $21 million each year by the WTO who had challenged the USA's total prohibition on cross-border online gambling services

November November: the Hollywood Reporter told us that the Russian government plans to form an agency in charge of copyright observance amid a series of moves aimed at cracking down on piracy. The Economic Development Ministry has submitted plans for an Agency for copyright control, which is to be formed on the basis of the existing Patent Agency, but will have much broader authority and would be report directly to government.  In the United Kingdom, The Court of Appeal upheld the High Court's decision in SAS v WPL, confirming that copyright cannot protect the look and feel of computer programs. And in UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH und Wega Filmproduktionsgesellschaft GmbH Advocate General Cruz Villalón decided that an internet provider can be required to block access by its customers to a website which infringes copyright provided such a court injunction must refer to specific blocking measures and achieve an appropriate balance between the opposing interests which are protected by fundamental rights. Almost simultaneously the Public Prosecutor in the Court of Rome blocked Italian users access to vKontakte, and the Paris Tribunal de Grande Instance gave its long awaited ruling in the Allostreaming matter - proceedings under Section L.336-2 of the French Intellectual Property Code (which implements Article 8 (3) of the 2001 EU Copyright Directive). The Court found that the impugned websites did indeed infringe copyright (by unauthorized communication to the public) and ordered the ISPs to implement the necessary measures to prevent access to a defined list of websites (for 12 months).  The ISPs were ordered to do so by any efficient means and in particular by means of blocking the domain names.  It ordered the search engines to take the necessary steps to prevent the appearance on their services of any result linking to the infringing websites (for 12 months). Next door in Belgium an Investigating Judge used powers under the Code of Criminal Proceeding and ordered ALL Belgian operators and internet service providers (ISPs) to block access to content hosted by the server linked to the root domain name This decision was upheld by Supreme Court in Belgium who also said this was not a monitoring obligation on the ISP and was legitimate under 15(1) E-Commerce Directive

Beastie Girls?
In December the European Commission launched a public consultation as part of its on-going efforts to review and modernise EU copyright rules. The consultation was framed thus:  "Over the last two decades, digital technology and the Internet have reshaped the ways in which content is created, distributed, and accessed. New opportunities have materialised for  those that create and produce content (e.g. a film, a novel, a song), for new and existing  distribution platforms, for institutions such as libraries, for activities such as research and for  citizens who now expect to be able to access content – for information, education or  entertainment purposes – regardless of geographical borders"  The Review of the EU Copyright Rules invited stakeholders to share their views on areas identified in the Communication on Content in the Digital Single Market including territoriality in the Single Market, harmonisation, limitations and exceptions to copyright in the digital age; fragmentation of the EU copyright market; and how to improve the effectiveness and efficiency of enforcement while underpinning its legitimacy in the wider context of copyright reform." But be quick! And  U.S. Copyright Office Register of Copyrights, Maria Pallante, updated Billboard on the review of US copyright laws, begun this year by Rep. Bob Goodlatte, the new chairman of the House Judiciary Committee. TV broadcasters reiterated their position against Aereo in a brief filed with the U.S. Supreme Court in December, labelling a lower-court decision denying their request to shut down the Internet TV startup “nonsensical” and saying Aereo’s legal arguments defied common sense: also in December, news broke that the 'Wonder' effect works: the Israeli Ministry of Justice published a bill in which it is proposed to add an exception to the Copyright Act (as well as an exception to the Performers and Broadcasters Rights Act) following on from the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.  And fair use, a topic that (along with reforms and blocking orders) has underpinned the Copyright Year, raised its head again in the very public spat between the Beastie Boys and toy company Goldieblox. Was Goldieblox's use of a reworked version of the Beastie Boys track 'Girls' in an advert (that the toy company said was meant to empower young girls to enter science and engineering) fair use? Or were they simply taking commercial advantage of the band - who have been publicly and resolutely against their music appearing in adverts? And whilst it appeared that the US wasn't too keen on introducing a US style doctrine of fair use into the Trans Pacific PartnershipTreaty (which stalled slightly as large swathes of the secret text were put online for all to see and a number of countries rallied against certain US led provisions), the Australian Law Reform Commission recommended introducing a 'fair use' style exception in the form of  "a flexible fair-use exception as a defence to copyright 

The last words - firstly from a letter to the Times in London on the 17th December from a group of copyright users - often drowned out in the debate on copyright by the loud voices of the content industries and the technology sector: Signatories including the British Library, the National Portrait Gallery, the Society of College, National and University Libraries, the Association of Independent Museums and the Wellcome Trust, said: "The Government is on the brink of bringing in new laws which will be fundamental in ensuring that the UK can compete globally. We urge this forward thinking approach to avoid a breakdown in respect for our copyright laws because they no longer reflect the use of digital technologies in everyones' lives". To me this chimes with that iconic graphic from the noughties - the young music fan with the ubiquitous ipod headphones dangling from his his ears, and the motto "I steal music - and I'm not going away!". Reforms, treaties and even judge driven solutions to modern problems are all well and good - but we need pragmatic and effective legislative reforms for copyright - for the benefit of all stakeholders - as Maria Pallante said in December "It's important for investors to do well. It's important for corporate licensees to do well. But at the end of the day, if we want the respect of the public, and we really want to be able to say our law is functioning the way the Constitution envisioned it would, it has to work for creators." 

The EFF's 2013 in Review: The Next Great Copyright Act? here

As ever - readers will have their own views on what should (or perhaps should not) be in their copyright year - The CopyKat writes from a UK/US, music industry and Anglo-Saxon perspective: that said, last year (amongst other things) I missed the immensely important amendments to the Canadian Copyright Act and not one but five Canadian Supreme Court decisions (on the same day, no less!) as well as a very confusing German music sampling case. So please let us know if you think something important is missing - comment is free on the 1709 blog! And Happy 2014.

Wednesday 25 December 2013

CJEU takes foot off the GasPedaal, then puts the boot in

Case C‑202/12, Innoweb BV v Wegener ICT Media BV, Wegener Mediaventions BV, is a ruling from the Fifth Chamber of the Court of Justice of the European Union (CJEU) last Thursday, 19 December, following a request for a preliminary ruling by the Gerechtshof te ‘s‑Gravenhage (The Hague Regional Court, The Netherlands). This case has been noted on the IPKat weblog here; a media release has also been received from Joris van Manen (a partner in the Amsterdam office of law firm Hoyng Monegier, which acted for AutoTrack in these proceedings). According to Joris:
"In a landmark ruling, Europe’s highest court:, the CJEU, banned so called 'dedicated meta search engines'. [this appears to be the Dutch word for 'accelerator'], a venture of Dutch publisher De Telegraaf, is a dedicated meta search engine that searches through used car advertisements on a number of different Dutch used car websites such as, and If the Gaspedaal user searches for a particular type of car GasPedaal translates the query into the format of the search engine of these websites. GasPedaal then retrieves data directly, i.e. in "real time", from these websites and displays the combined search results in its own layout to the user. Every day GasPedaal carries out approximately 100,000 searches on the AutoTrack website in response to queries.

AutoTrack, a venture of Dutch/Belgian publisher De Persgroep, filed a lawsuit in 2008 before the District Court of The Hague. The Court banned the "scraping" of AutoTrack because GasPedaal infringed the database rights of AutoTrack. De Telegraaf appealed the judgment and the Hague Court of Appeal referred nine "questions of interpretation" to the Court of Justice in Luxembourg.

In its judgment the CJEU held that GasPedaal’s dedicated meta search infringes Wegener’s database rights as it deprives AutoTrack of its revenues. The court ruled:
“As the end user no longer has any need to proceed via the database site’s homepage and search form, it is possible that the maker of that database will generate less income from the advertising displayed on that homepage or on the search form, especially to the extent that it might seem more profitable for operators wishing to place advertisements online to do so on the website of the dedicated meta search engine, rather than on one of the database sites covered by that meta engine.

As regards, furthermore, database sites displaying advertising, sellers – aware that, with the dedicated meta search engine, searches will be made simultaneously in several databases and duplications displayed – may start placing their advertisements on only one database site at a time, so that the database sites would become less extensive and therefore less attractive.”
According to the court, this practice “comes close to the manufacture of a parasitical competing product.” Thus GasPedaal “re-utilizes” the whole or a substantial part of AutoTrack’s database and hence infringes AutoTrack’s database rights.

The case will now return to the Hague Court of Appeal, which is expected to render its final judgment at some point in the summer.

Van Manen comments: 
"This ruling of the highest EU court is of the utmost importance for the digital publishing industry. It is a strong incentive to develop quality data products without having to fear that these products will immediately be parasited. It again is an important step in the maturation of the internet”.
The ruling of the CJEU is actually quite detailed and fact-specific, so anyone seeking to venture into the attractive territory of meta search should check the judgment out carefully before deciding to give up.

This ruling also illuminates something of greater importance than the decision itself.  According to this media release, the initial action to restrain Innoweb was commenced in 2008.  The dispute has so far gone only as far as trials before a first instance court and an appellate chamber, followed by a reference to the CJEU for a preliminary ruling.  Now it must go back to the Hague Court of Appeal, with the prospect of the decision of that court itself being subject to a further appeal.

It seems to this blogger that, in the digital age, it is absolutely intolerable and unacceptable that a dispute over any aspect of digital communications and internet use should be allowed to take so long.  If some sort of fast-track, rapid response service from the CJEU is not to be made available, the very fact that a reference for a preliminary ruling will delay national proceedings by two to three years becomes a potent weapon in the hands of trial lawyers and also offers a bonus prize for those who make the effort to conjure up the most obscure and remote uncertainties of EU law in order to earn for their clients a valuable lacuna in the litigation process.

Monday 23 December 2013

Mega revelations may make uncomfortable reading for the Dotcom team

The defence team for Megaupload boss Kim 'Dotcom' Schmitz seem to have suffered a bit of a set back against moves extradite Dotcom to the USA to face criminal charges - as alleged new details have emerged about how the Mega system actually worked - and how those behind the platform went about their business.There again, they are only set backs if these allegations are actually true, and that has certainly not been tested or proven as yet. 

Firstly it has been argued that the Megaupload 'takedown' system, which was meant to allow owners of infringing content have their material removed, was not only ineffective - it was allegedly designed to be ineffective. The 'Abuse Tool'  was made available to U.S. copyright holders, and would purportedly remove copyright-infringing material from Mega-controlled servers. All very good and very DMCA compliant, The Abuse Tool allowed copyright holders to enter specific URL links to copyright-infringing content of which they were aware, and they were told by MegaUpload that that the Mega Conspiracy’s systems would then remove, or disable access to, the offending material. However - the Abuse Tool "did not actually function as the copyright owners were led to believe .... because the Abuse Tool only disabled the specific URL link identified, and the Abuse Tool failed to disable access to the underlying copyright-infringing material or remove the file from the server" and indeed would not disable other URL's linking to the same infringing content, even though Mega would have a list of all links to that content. So it was still there - still linked to - and still available.

Secondly,  files released by the U.S. Department of Justice,  to comply with a November order by Judge Liam O'Grady in the U.S. District Court for the Eastern District of Virginia, show multiple conversations about the scope of copyright infringement on the site. The DOJ seized Megaupload in January 2012 and charged owner Dotcom and other defendants with criminal copyright infringement and other crimes. Here's just a few examples of alleged conversations from what has been released:

- In a May 2007 Skype conversation, Megaupload CTO Mathias Ortmann told head software developer Andrus Nomm: "I have a feeling that Kim tolerates a certain amount of copyright violation." Nomm responded "Yep, but not too obvious ones" .... "Since it helps initial growth," to which Ortmann added. "But we must not overdo it."

September 2007, via Skype: "We're modern pirates" said Bram van der Kolk, Metaupload network engineer; Ortmann responded : "We're pretty evil, unfortunately, but Google is also evil, and their claim is "don't be evil." '. To that Van der Kola added : "The world is changing, this is the internet, people will always share files and download their stuff for free, with or without Megaupload."

And finally in March 2009: "We do have legit users" Ortmann said. Van der Kolk responded "Yes, but that's not what we make $ with."

At the end of August Kim Dotcom has resigned as managing director of the cloud hosting company to channel his energies into fighting extradition to the United States, as well as launching a music service, MegaBox, and political party. The party will be launched at a "big event" on 20 January 2014, although John Key, New Zealand's prime minister, said that the new party should be called the "No Hope Party".

Background on the 1709 blog here and here and here.

Saturday 21 December 2013

The CopyCat - the final furballs of 2013

This summary is not available. Please click here to view the post.

Thursday 19 December 2013

Israel publishes bill on disability-related exceptions

From Tamir Afori (a partner in the Tel-Aviv law firm of Gilat, Bareket & Co.) comes news that the Israeli Ministry of Justice has now published a bill in which it is proposed to add an exception to the Copyright Act (as well as an exception to the Performers and Broadcasters Rights Act).  The proposed exception follows the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled [full text here, Agreed Statement on its interpretation here], but it covers all sorts of disabilities, not only sight. (thus it may apply to, for example, hearing disabilities).

The bill also relates to the exporting of "adapted copy" for the benefit of people with disabilities outside of Israel. Here is a link to the Hebrew version (no English translation is yet available).

This blogger notes that Israel has acted surprisingly swiftly to legislate a Marrakesh-type exception when that country is not yet a signatory to that Treaty (which is not yet in force).

Tuesday 17 December 2013

Still on the Italian Communication Authority’s Regulation

A few days have passed since the Italian Communication Authority (AGCOM) issued its Regulation on Online Copyright Enforcement [breaking news by The 1709 Blog here and extremely helpful and detailed comment on the IPKat here]

Today, The 1709 Blog is delighted to publish a further analysis by its highly-reputed world expert on AGCOM matters, who so writes in incognito [is he/she a member of AGCOM? A Google employee? A lawyer from a law firm? Nobody really knows …]:

“Following the enactment of AGCOM Regulation, commentators are still debating what this new mechanism may entail for IP protection and freedom of the Internet. Meanwhile, there appears to be one thing that the Regulation will bring for sure, suggest some [naughty] practitioners: more business for the legal sector. So considered, law firms in Italy are getting ready for dealing with a possibly hugely increased amount of (administrative) litigation to which the Regulation may give rise from 31 March 2014 (this being the date when this is due to enter into force).

In this perspective, this blog's readers Portolano e Cavallo Studio Legale’s Regulation Toolkit may come as a helpful resource to navigate safely the sea of the AGCOM Regulation. The Toolkit is composed of two documents. The first one is a non-official English translation of the final version of the Regulation. Notably, its English appears to be much more stylish (and not less reliable) than the one used in the official English translation of the first draft, penned by the AGCOM itself and available here.

The second document is a graphic handbook where the pillars of the Regultion are delved with thanks to user-friendly red-coloured charts. To give 1709 Blog readers a preview, here are some pillars' pills on the procedure (regular track)…

… and on the “tragedy” that an ISP may face in case of non-compliance with AGCOM’s order:

Beyond the procedural diagrams, the Portolano's Toolkit is also worthwhile to learn some vocabulary. Thanks to its help, the foreign reader (and the Italian one alike) may become aware of brand-new categories that might populate the Italian copyright enforcement world from March onwards.

One of the most intriguing is "digital work", i.e. the particular subject-matter that the Regulation aims to protect. Pursuant to Article 1, (p), this is "a work, or parts thereof, with audio, audiovisual, photographic, videoludic, editorial and literary nature, including the applicative programs and the computer operating systems protected by Copyright Law and diffused on electronic communication networks". It is somehow innovative and super-broad definition that well-highlights the wide scope of application of the Regulation and of AGCOM’s potential influence in the Italian IP scenario in the next future. Another “alarming” one is "Webpage Manager" that, pursuant to Article 1, (h) is "who, within a website, manages a page where are present digital works or part thereof or hyperlinks […] to the same". Are 1709 Blog authors Webpage Managers? No one still knows, but in any event please
Average highly-trained team (of trainees)
specialised in handling AGCOM requests 
consider carefully that the red diagrams above are (likely to be) copyright-protected and that our Portolano friends own the relevant rights.

Interestingly, in the last slide of the Handbook the Portolano guys suggest that the potential targets of AGCOM orders (i.e., hosting and access providers) may have to “setup internal processes to manage AGCOM requests”. This might be handled by an “internal team trained and specialised in AGCOM requests and proceedings management”. Considering the fines that an ISP may be ordered to pay in case of non-compliance (from EUR 10,000 to over EUR 250,000), this might be a good idea. But is this at hand for newly established start-ups and ISPs with shoulders less broad than those of big multinational tech companies?"