Thursday 20 March 2014

The CopyKat - opening Pandora's Box - and other remarkable tales

The UK government has admitted that it is unlikely that changes to copyright law will be introduced on 1st April as it had intended. The Business, Innovation and Skills (BIS) minister David Willetts confirmed during a debate in the House of Commons that there was likely to be a delay in the delivery of the copyright reforms. As the technical review of the changes (which would introduce a new right to copy copyrighted material for private use; a new exception to conduct data analysis for non-commercial research; a new qualified right to quote copyright-protected content for purposes extending beyond criticism, review or news reporting, and a new limited right to use copyrighted material in a work of parody) has only just been announced, the April 1st deadline seems unlikely with Willlets saying "I think that things are reaching the stage where, arithmetically ... it will be hard to have the commencement date as 1 April".

US streaming service Pandora has secured a victory on one of the fronts of its ongoing royalty war with the American music industry last week, when a rate court judge considering the streaming service's licence from song rights collecting society ASCAP set a royalty rate of 1.85% of annual revenue, which basically keeps things as they are. That said - no one seems happy - Pandora are unhappy as the rate hasn't changed and they wanted a reduction - and songwriters and publishers are peeved - they argue that a significant uplift was called for to re-balance songwriters interests compared to the far larger share of the pie gathered in by record labels and recording artists. Pandora has subsequently announced that it would be increasing the price of its ad-free premium service; From May, new Pandora One customers will pay $4.99 per month, though existing subscribers will continue to pay $3.99 (for the time being).

The Recording Industry Association Of America has told the US House Of Representatives Intellectual Property Subcommittee (who are reviewing the of the Digital Millennium Copyright Act) that the  DMCA is not fit for purpose. The RIAA's chief Cary Sherman told the committee: "[Google should] ensure that when links to content are taken down, the same content on the same site is not continuously re-indexed when repopulated by the pirate site, rendering the takedown process useless". He went on: "Regardless of what Google takes down today, its search engine will spider the same pirate sites tomorrow and index anew all the illegal content on the pirate sites. All those links to infringing music files that were automatically repopulated by each pirate site after today's takedown will be re-indexed and appear in search results tomorrow. Everyday we have to send new notices to take down the very same links to illegal content we took down the day before. It's like 'Groundhog Day' for takedowns". In response and giving her company's side of the argument, Google's Katherine Oyama said "The best way to battle piracy is with better, more convenient, legitimate alternatives to piracy, as services ranging from Netflix to Spotify to iTunes have demonstrated. The right combination of price, convenience, and inventory will do far more to reduce piracy than enforcement can".

Irish internet service provider Eircom, which voluntarily instigated a three-strikes anti-piracy system (as part of a legal settlement with Ireland's record industry), has admitted that it is yet to disconnect a customer for illegal file-sharing.

Back  in March 2007 Viacom commenced copyright infringement proceedings against YouTube in a New York federal court after Viacom and its affiliates, including Paramount Pictures, discovered that its copyright-protected content (episodes, movies and substantial segments thereof) were uploaded onto YouTube without Viacom’s permission by YouTube users. Viacom was not holding any punches either, claiming approximately $1 billion in damages for the infringement ..... now seven years later the IP Kat takes up the story - but frst the background in case you have forgotten! In the District Court Judge Stanton’s gave summary judgment and held that YouTube had insufficient notice of particular, specific infringements for them to have "actual knowledge" or "aware[ness] of factors or circumstances" which would disqualify them for the safe harbour protection. Without item-specific knowledge of infringing activity, a service provider could not be found to have "the right and ability to control" infringing activity under section 512(c)(1)(B). Further, the District Court held that the replication, transmittal and display of videos on YouTube was done "by reason of the storage at the direction of a user" under section 512(c)(1). The net effect was that YouTube benefited from the USA's safe harbor provisions. On appeal, the Court agreed with Judge Stanton’s interpretation of the knowledge requirement stating that under Section 512(c)(1)(A) knowledge alone will not disqualify a service provider from the safe harbour protection. What will disqualify a service provider is if they have the knowledge or awareness but does not act expeditiously to remove or disable access to the material. Removing access to the material, of course, requires specific knowledge of the infringing material. That said, the appellate court vacated the order granting summary judgment because it held that a reasonable jury could find that YouTube did have acknowledge knowledge or awareness of specific infringing activity on the website.  The case reverted to the lower court, and then a further appeal was lodged  ....... and now the parties have settled saying In their joint statement;  "This settlement reflects the growing collaborative dialogue between our two companies on important opportunities, and we look forward to working more closely together". More on the IP Kat here and on the WSJ here.

In a related post, has revealed that YouTube has created an invitation-only program giving about 200 individuals and groups special status in identifying material suspected of violating its community guidelines — but it’s aimed at removing content such as hate speech and pornography, not copyright-protected videos. The so-called “super flagger” program came to light last week, in a Financial Times article that said the U.K. government’s anti-terrorism unit has the ability to alert YouTube to multiple videos suspected of containing “extremist material.”

Left - the Cariou original: right - Prince's transformation
The 'transformative' artist Richard Prince has reached a settlement with Patrick Cariou, a photographer who accused Mr. Prince of violating his copyrights by using Mr. Cariou’s pictures of Rastafarians as the basis for a series of paintings that sold for millions of dollars. Last year, the United States Court of Appeals for the Second Circuit decided largely in favour of Mr. Prince, who initially was found by a federal court in 2011 to have illegally used the photographs.  The appeals court ruled that of the 30 works by Mr. Prince in question, 25 were permissible under the fair use exception. The terms of the settlement are confidential but it seems none of the paintings will be destroyed. 

The original creator Michael Robertson has lost the action brought against him by EMI who sued the new company and Robertson himself in 2007, claiming that the operation infringed its copyrights. The former chief executive was found liable for infringing copyrights for sound recordings, compositions and cover art owned by record companies and music publishers once part of EMI Group Ltd. A federal jury in Manhattan found Michael Robertson, the former MP3tunes chief executive, and the defunct San Diego-based company liable on various claims that they infringed on copyrights associated with artists including The Beatles, Coldplay and David Bowie - both for direct involvement in distributing unlicensed files and for being "wilfully blind" to other copyright infringement on his site. The court now needs to decide what damages Robertson should pay to EMI.

And finally, don’t expect US copyright law to change this year — but it might change next year, according to Representative Jerrold Nadler, speaking at the Association of American Publishers meeting in New York said “I expect a number of hearings and not much else,” said Nadler, a Democrat from New York. “I don’t think we’re going to do major legislation this year — maybe next year.” Nadler is a member of the Congressional Subcommittee on Courts, Intellectual Property and the Internet.

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