Wednesday 29 June 2016

The CopyKat

Video-sharing website Vimeo LLC cannot be held liable for copyright infringement for unknowingly hosting older music uploaded by its users, a U.S. appeals court ruled, dealing a blow to record labels seeking broader protections. In a victory for internet service providers, the 2nd U.S. Circuit Court of Appeals in New York also held that the mere fact that Vimeo employees had viewed videos with copyrighted sound recordings was not enough to prove the company ignored red flags of infringement. The case, pursued by Capitol Records and Sony Corp units, was closely watched in Silicon Valley, with Vimeo's appeal drawing support from Facebook Inc, Twitter Inc, Alphabet Inc's Google, and other companies.

A new letter, signed by a host of recording stars including Lady Gaga, Sir Paul McCartney, Ryan Adams, Cher, Sir Elton John, Fall Out Boy, Yoko Ono Lennon, Bette Midler, Queens Of the Stone Age, Pink, Maroon 5, Mark Ronson, Elton John, Bon Jovi, Rod Stewart, Lionel Richie, Aerosmith's Steve Tyler (pictured) Pusha-T, Sade, Gwen Stefani, Sting and Beck has been sent to Congress asking lawmakers to "please protect" future artists and songwriters by enacting "sensible reform" of DMCA - adding that the current version of the YouTube-shielding ' safe harbor' law "simply doesn't work" and has allowed tech companies to generate “huge profits” while the earnings of artists and songwriters “has plummeted”

Pirate Bay co-founder Peter Sunde has been ordered by the Helsinki District Court to pay E350,000 ($395,000) to record labels including Sony, Universal, Warner and EMI, after their content was shared illegally via the platform and costs of around $62,000 (55,000 euros) - the payment has to me mad to the local branch of IFPI. Sunde also faces a fine of one million euros if the content continues to be shared via The Pirate Bay but - as he says he is now unconnected to the site - how he is supposed to do anything about that isn’t clear.

A building design firm is suing Lion Enterprises, Inc., Bastian Homes Ltd. and Eugene J. Bastian, citing alleged copyright infringement. Design Basics LLC filed a complaint on in the U.S. District Court for the Middle District of Pennsylvania against the defendants, alleging that they violated Copyright Act and the Architectural Works Copyright Protection Act by publishing, distributing, marketing, and advertising certain architectural designs for residential homes similar to the plaintiff's Plan No. 2316 – Franklin – and Plan No. 6715 – Sycamore. The defendants allegedly violated and continue to violate the plaintiff's exclusive rights in each of the copyrighted works. Design Basics is asking for a jury trial and and injunction prohibiting the defendants from further infringing on its copyrighted works, an order directing the U.S. Marshals Service to impound all copies of the copyrighted works in possession of defendants, and an award for all damages, costs and reasonable attorney’s fees and for such other relief as it may show itself to be entitled.  U.S. District Court for the Middle District of Pennsylvania Case number 1:16-cv-00922]

TechDirt reports on two more decisions from the US Courts that confirm "legal threats against alleged infringers, based on nothing more than IP addresses" will not succeed in the courts.  In the first case, New Jersey Judge Kevin McNulty disagreed with Malibu Media's request for default judgment, pointing out that the limited info it was working with could not rule out a successful defense being raised by the accused infringer. In the second case brought against defendant Thomas Gonzales, Oregon Magistrate Judge Stacie Beckerman said The only facts Plaintiff pleads in support of its allegation that Gonzales is the infringer  is that he is the subscriber of the IP address used to download or distribute the movie, and that he was sent notices of infringing activity to which he did not respond. That is not enough. Plaintiff has not alleged any specific facts tying Gonzales to the infringing conduct. While it is possible that the subscriber is also the person who downloaded the movie, it is also possible that a family member, a resident of the household, or an unknown person engaged in the infringing conduct."

And finally, the Walt Disney Company is taken legal action against three Chinese companies over the animated film “The Autobots” which Disney claims infringes the Disney copyright in the hit animated movie “Cars”. According to Reuters, the three defendants are the production firm Blue MTV, media firm Beijing G-Point and online content platform PPLive Inc. A notice on the Shanghai Pudong New Area People’s Court website states that Disney are suing for copyright infringement and unfair competition.

Two 'Talking Copyright' sessions at Brtish Black Music Month

Talking Copyright Conference: From A Left & Global South Perspective July 13, 6-8pm @ Houses Of

This conference aims to highlight perspectives that go beyond the concept of Copyright being a Eurocentric construct very much predicated on the creation by the romantic solitary author and providing a monopoly for his and his agents' financial recompense. A panel hosted by Anne McLaughlin MP at the Houses Of Parliament and chaired by Kwaku (convenor), consisting of Dr Enrico Bonadio (senior law lecturer and reggaephile), Awula Serwah (barrister and community activist) - more to be confirmedwill explore Copyright and related conventions and how it works in relation to African/black music, African culture and artefacts from a global South and left focus. Click here to book.

This extra Talking Copyright offer is part of the Vinyl Memories: Talking Classic BBM Albums programme, which ends with City University London Law School senior lecturer Dr Enrico Bonadio, a vinyl and reggaephile, providing a short presentation entitled 'The History of Phonograms and Its Impact on Copyright Law'. So if you're interested in Copyright/legal issues, you'll want to attend this presentation. And you are welcome to participate in the Vinyl Memories session. Oh, and you have a favourite British Black Music album cover or two, why not submit it in our Top 20 poll?

Wednesday 22 June 2016

CREATe Festival in London this week

Our friends at CREATe, the UK Centre for Copyright and New Business Models in the Creative Economy, wish to let 1709 Blog readers know about the forthcoming CREATe Festival 2016, taking place on Friday in London.

More specifically:

"The Royal Society of Arts in London is showcasing on 24 June (this Friday) research findings by CREATe. There will be policy debates and expert panels that explore the future of the creative economy, the interface of digital innovation and legal regulation, and in particular the role of copyright law. You can take part in behavioural experiments, attend a workshop on fashion IP, learn more about art forgery, or interact with fellow online video creators in a meet-up. There will a hackathon video presentation as well as the launch of CREATe’s very own tartan!

The Festival has partnered with London Technology Week, a series of events taking place throughout London that celebrates and connects innovators from leading R&D centres, tech businesses, universities and specialist hubs.

Martin Kretschmer, Professor of IP Law at the University of Glasgow, and Director of CREATe, says: “The creative industries (which include very diverse sectors, such as music, publishing, news, games, film, TV and radio) face a radical challenge. All online behaviour is potentially observable, and whoever controls this data infrastructure will have a stake in the creative economy that is very different from the role of earlier cultural intermediaries.”
“CREATe's core concern is the future of creative production, and in particular the relationship between law and digital innovation. What is the role of copyright, among alternative modes of identification, appropriation and finance? Some see copyright as salvation, some as the enemy of innovation. CREATe’s research programme addresses this faultline.”

You can find the full schedule of the Festival here and can register here.

Wednesday 15 June 2016

The CopyKat

There is yet another copyright lawsuit against the appropriation artist Richard Prince, after Dennis Morris LLC, the London-based photographer’s corporation, filed a complaint on the 3rd June in a Californian federal court seeking unspecified damages and any profits the artist and his dealer Gagosian Gallery made from Prince’s alleged use of three photographs of the 1970s punk rock band the Sex Pistols. According to the complaint, Prince used the images in work included in the 2011 exhibition Untitled (Covering Pollock) at Guild Hall in East Hampton. The claim says that Prince made "derivative works” and accuses the defendants of “producing and distributing large scale reproductions incorporating those derivative works” based on Morris’s photos of Sex Pistols bass player Sid Vicious. Morris is seeking a jury trial and demanding, among other damages, all of Prince and Gagosian’s profits from sales of the disputed works. The complaint also alleges that Prince used Instagram to promote the work for sale and includes a screenshot of a post (since deleted but pictured, left) on Prince’s Instagram account, featuring one of Morris’s best known photos of Vicious who died in 1979 from a drugs overdose.

Arts Technica reports that the lawyers behind the Prenda Law "copyright trolling" enterprise have lost their key appeal and will have to pay more than $230,000 in sanctions. The US Court of Appeals for the 9th Circuit issued a 12-page ruling upholding the sanction order that began Prenda's downfall, issued by US District Judge Otis Wright in 2013. The ruling wholly supports Wright's sanction and dismisses John Steele and Paul Hansmeier claims that due process rights were violated: "These consolidated cases began as minor copyright infringement suits, until courts nationwide started catching on to the plaintiffs' real business of copyright trolling," the ruling states. "Prenda Principals were found contradicting themselves, evading questioning, and possibly committing identity theft and fraud on the courts" and "The Prenda Principals have engaged in abusive litigation, fraud on courts across the country, and willful violation of court orders," the opinion states. "They have lied to other courts about their ability to pay sanctions. They also failed to pay their own attorney’s fees in this case." The third appellant, Paul Duffy, died last year.

All three major record labels, along with 50 other rights owners and platforms, including Spotify, Pandora, SACEM and YouTube, have committed to creating a new system to “dramatically simplify the way that music creators and rights owners are identified and compensated”. The new initiative will hopefully replace and surpass the stalled Global Repertoire Database - and provide a 'one stop' centre for users who want to use songs and sound recordings. The Open Music Initiative (OMI) has been founded by Berklee College of Music’s Institute for Creative Entrepreneurship (BerkleeICE), and has been publicly backed by Universal, Sony, Warner and many more – although as MBW points out - despite Google's YouTube being on board, Apple’s name is conspicuous by its absence.

The European Commission's public consultation on "neighbouring rights" for publishers  - otherwise known as the 'Google tax on snippets' CLOSES TODAY.  The right could potentially allow publishers to demand payment from search engines and content aggregators where they include short snippets that link to the original text. You must use the questionnaire on the EU website to respond

And the latest battle in what the difference is between 'inspiration' and what is 'appropriation' has kicked off in Los Angeles, where Led Zeppelin stand accused of copying of a song called “Taurus,” written by Randy Wolfe and performed with his band Spirit, into their epic "Stairway to Heaven". Those who have listened to recordings of each of the songs might think there is a strong similarity, but the legal team attorney for Zeppelin’s front man, Robert Plant, and lead guitarist, Jimmy Page, said any similarities were because the two songs both relied on “basic musical devices that are completely commonplace” and found in songs dating back centuries.  "Taurus" was released three years before “Stairway to Heaven” surfaced on Zeppelin’s untitled fourth album, commonly referred to as “Led Zeppelin IV.” In the wake of the jury decision in the "Blurred Lines" case, its unsurprising Plant and Page cancelled sows to attend the trial.   
And finally and this time from Canada, a federal court has ruled that that a number of companies must temporarily stop selling TV boxes that allow consumers to access content via streaming sites as they face a court battle over alleged copyright infringement. The plaintiffs, who include Bell and Groupe TVA, allege the TV boxes come with pre-loaded software that allows consumers to view copyrighted programming from illegal streaming sites . MTLFreeTV, one of the defendants, argued the boxes are similar to a tablet or computer, and the company does not develop, produce, service or maintain the software that comes with the boxes. Justice Danièle Tremblay-Lamer ruled that the companies must stop selling pre-loaded products until a the result of a trail in the matter.

Friday 10 June 2016

Does Axl's photograph claim carry any weight?

Guns N Roses and now AC/DC frontman Axl Rose has filed six DCMA take down notices in what is seen as an attempt remove an unflattering photo of him from a 2010 Canadian concert from the web. The requests were filed on behalf of Rose by anti-piracy firm Web Sheriff, and all target examples of the same picture hosted on Blogspot and GoogleUserContent domains which have has spawned a series of 'Fat Axl' memes relating to the singer's increased weight with labels such as 'Sweet Pie of Mine', 'Take Me Down To the Bakery City' and 'Welcome to McDonalds'.

The original image was taken by Winnipeg Free Press photojournalist Boris Minkevich, who was initially unaware that any action was being taken over the image he snapped - and who is reported byTorrentFreak to have said that the only copyright being infringed is his: "The photo was stolen off our website with no permission granted by the Winnipeg Free Press".

However Web Sheriff told TorrentFreak that all photographers at the concert were said to have been required to sign an agreement passing copyright ownership of images taken to Rose's company, The photographer cannot remember whether he signed the agreeement or not. Web Sheriff's stateent reads "

“We can gladly confirm that all official / accredited photographers at [Axl Rose] shows sign-off on ‘Photography Permission’ contracts / ‘Photographic Release’ agreements which A. specify and limit the manner in which the photos can be exploited and B. transfer copyright ownership in such photos to AR’s relevant service company.” 

When pressed by TorrentFreak on whether or not Minkevich had signed a release, Web reportedly Sherriff responded

“[If a photographer] was there and taking shots without permission or authority, then other considerations / factors would come-into-play as to what such individuals can and cannot do in terms of attempting to commercially exploit the resultant images of someone else’s show,” 

In August 2015 George Chin wrote for Music Law Updates on this topic in the wake of Irish Times  refusal to publish photographs of Taylor Swift's sold out arena show in Dublin and a later Washington City Paper (USA) article headlined  “Why we’re not photographing the Foo Fighters” - with both publications critical of "Artist Photography Release Agreements" - which the latter opined were the “exploitation of photographers, pure and simple. If a streaming music service tried to use the band’s music for free, they’d have none of it.”

You can see the image here

Bring fairness to music licensing - a politcian's view

Jim Sensenbrenner
ARTICLE LINK: "Intellectual property rights are critical to our nation’s unsurpassed creativity and cultural development. I’ve long been an advocate for intellectual property rights because individuals deserve to be compensated for their work. However, the process in which these artists receive payment has become opaque. This is largely due to performing rights organizations (PROs), which operate in a convoluted fashion. The music licensing system in which artists are compensated must be clear and transparent for the good of artists, consumers and bar and restaurant owners.

Fairness in music licensing was brought to my attention in the early 1990s, when Wisconsin bar and restaurant owners from my district contacted me about being harassed in their places of business by representatives from the American Society of Composers, Authors and Publishers (ASCAP) — one of the three PROs in the U.S. While seeking payments from the small-business owners, ASCAP representatives were unnecessarily aggressive and combative."

More from this thought provoking and interesting blog article from Rep. Jim Sensenbrenner (R-Wis.) on the Congress Blog

Sheeran claim puts 'Blurred Lines' back in focus

Two musicians based in California are suing Ed Sheeran for $20m (£13.8m) over alleged copyrigt infringement of one of tbeir songs in Sheerhan's single 'Photograph'. Martin Harrington and American Thomas Leonard claim 'Photograph' has a similar structure to their song, 'Amazing'. The two songwriters allege Ed Sheeran's 2015 ballad has the same musical composition to their track, which was released as Matt Cardle's winning X Factor track in 2010. Harrington and Leonard say they wrote 'Amazing' in 2009. Ciurt filings include musical note comparison and chord breakdowns of the two songs, and the pair claim the chorus of Photograph shares 39 identical notes with their track. The court documents say that 'Photograph' has sold more than 3.5 million copies worldwide.

The claim also states that 'Photograph' features prominently in Hollywood drama Me Before You, released last week, as well as trailers for the film. Matt Cardle's version of 'Amazing' has more than one million views on YouTube, while Ed Sheeran's music video for 'Photograph' has 208 million

Documents were filed on Wednesday at LA's federal court in the Central District of California. Other named defendants being sued include Snow Patrol's Johnny McDaid, who is credited as a co-writer on' Photograph', as well as various divisions of Sony/ATV Music Publishing, Warner Music Group and its subsidiary, Atlantic Recording Corporation. Martin Harrington and Thomas Leonard, and their publishing company HaloSongs, want a trial and damages of more than $20m (£13.8m), as well as royalties from Sheerhan's song.

Emma Perot's recent 31st May IPKat article noted that Justin Bieber and Skrillex have been accused of copyright infringement by artist Casey Dienel, aka White Hinterland. Dienel has alleged that Bieber and Skrillex, whose 2015 hit single ‘Sorry’ has received 1.4 billion hits on YouTube, copied her vocal loop from her 2014 song ‘Ring the Bell’. The allegedly copied segment can be heard in the first five seconds of each song. Skrillex and Bieber have both denied the claims on their Twitter accounts. And that claim was before the recent deicision by the 9th circuit Court of Appeal in the 'Vogue' case on sampling and the decision by the German Constitutional Court's decision in Kraftwerk's case against Moses Pelham, both of which seems to have shifted the law in their respective countries - at least on sampling. 

However If either of these claims goes to trial, it could be the 2016 edition of the infamous “Blurred Lines” dispute, which resulted in Pharrell Williams and Robin Thicke being ordered to pay Marvin Gaye’s family $7.4 million USD (which was later reduced to $5.3 million) for infringing copyright in his 1977 hit ‘Got To Give It Up’. The trial over the possible infringements by Led Zepplin's iconic 'Stairway to Heaven' and alleged similarities to Spirit's 'Taurus' is another one to watch. In April, Judge R. Gary Klausner of United States District Court denied Led Zeppelin's request for summary judgment, saying: "While it is true that a descending chromatic four-chord progression is a common convention that abounds in the music industry, the similarities here transcend the core structure." 

Lawyer Richard Busch who represented the Gaye family in Blurred Lines, is again involved in the Sheeran case, here acting for Harrington and Leonard.

Read more at:

Why Does the CJEU Always Have to Answer the Question?

The recent judgment of the Fourth Chamber of the CJEU in the case of Egeda C-470/14 is a thoroughly bad decision. You can read more about the case and the judgment in Eleonora's posting on the IPKat here. This article is less about the reasoning of the Court, but more on why it was thought the Court was competent to deal with the matter in the first place. The simple answer is that a referral was made to the Court by Spanish Supreme Court for clarification of Article 5(2)(b) of  the InfoSoc Directive 2001/29. But what the court has actually managed to do is create law where none existed before.

But before we get to that part, was the referral necessary? It is worth bearing in mind that under the TFEU, the EU does not have competency in intellectual property matters. This may come as a surprise to some readers who will wonder why if this is the case, there are a dozen or so Directives and copious EU regulations on exactly that subject area. Of course the reason - often stated in the opening recitals of the various Directives - is to ensure the smooth running of the internal market. In treaty-speak this refers to the free movement of goods and services, as well as of labour etc. But as Article 5 (2) and(3) of the Treaty of the European Union (TEU) (the so-called Maastricht Treaty as amended by the Lisbon Treaty) say:
2. Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.
3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.
In other words the overarching principle of harmonizing the marketplace does not automatically give the EU competence to legislate in every area of life within the Member States. Yet to all intents and purposes, by a slow process of mission creep, the reach of the EU has been extended deeper and deeper into the intellectual property law of the member states. As readers in the UK and some others may be aware, this sort of activity by the EU is under some scrutiny here at present, although I doubt if Boris Johnson will be taking up the particular issue of EU copyright reform.

Thus it is that we have the InfoSoc Directive. A document which was approved by the European Parliament, and which thus is deemed to have democratic legitimacy. Regular readers will know that the drafting of this Directive was less than ideal, and this has lead to many referrals to the CJEU for clarification, especially where Article 5 is concerned. Perhaps the most significant thing about Article 5 is that it is the one place in the Directive where the member states are given a degree of freedom about whether and/or in what manner to implement the majority of exceptions and limitations set out there. The Egeda case centred on Article 5(2)(b), concerning the exception to make copies for private use and the requirement for rightholders to be fairly compensated for such activities. As Eleonora has already covered the details of how this was relevant in Egeda, I won't reiterate them here. Suffice it to say that the Directive is silent on how this compensation is to be raised. Even the recitals, which normally provide the principles and reasoning behind certain provisions found in the Articles, make no mention of how the compensation is to be raised, beyond the fact that it must be fair, taking into account matters such as the potential economic harm to the rightholder.

The Commission which drafted the Directive and the Parliament which agreed to it, saw no pressing need to specify the actual means by which the compensation was to be raised, provided that the amount was 'fair'. The various member states have thus quite reasonably adopted several different models for implementing this exception. Countries such as Spain adopted the state funding route, while others approved a levy on the sale of various devices and media used for the purposes of copying, and still others (the UK among them) made no provision whatsoever for general compensation. Interestingly the UK's public lending right, which is not about the reproduction of copyright works, does provide for the centralised funding of compensation to authors of books which are borrowed from public libraries.

But the Fourth Chamber felt that the absence of any explicit EU direction on this particular issue did not mean that the principle outlined in Article 5(3) of the TEU quoted above should apply. Or rather, the Court seems to have assumed that "by reason of the scale or effects of the proposed action, [action would] be better achieved at Union level." But don't forget, what underpins all this is the desire to have a harmonised marketplace. It is hard to see how the scale or effects of whether the compensation is raised through a levy or by a state-funded mechanism truly merits an intervention at the EU level in subject area where it doesn't have competency. Both mechanisms are intrinsically unfair and ineffective at achieving the aim of correctly compensating the rightholder, simply because no-one has any idea of the extent to which private copying is carried out. In countries which have a levy system, media such as blank CDs are 'taxed' on the basis that they will be used to store copies of all manner of digital works be it music, images, literary works or indeed, none of these. Since no-one knows the proportions of CD sales which actually relate to the copying of, say, an individual musician's records, how can that individual be 'fairly' compensated for the potential loss of sales? A single blank tape cassette would be taxed once (at the point of sale) and could theoretically be used over and over to record music, but there was no linkage between the levy and the potential harm. Most CDs on the other hand are only used once, and therefore each unit accounts for many fewer copies. In both cases the actual levy on blank media remains fixed as a percentage of the sale price, irrespective of their relative levels of potential to harm rightholders.

Much the same objections apply to a state-funded model: an arbitrary figure will be set, possibly based on certain metrics such as sales of goods likely to affected by copying, but no-one will have any reasonable way of knowing how much of this central fund should be allocated to the individual rightholders. As a consequence the collecting societies usually provide the conduit to pass the money to their members, many of whom will be totally undeserving of it, because their works are rarely copied. But both methods equally fail to meet the fairness test since there is absolutely no linkage between any possible economic harm to an individual author or artist on the one hand and a calculation of that harm which needs appropriate (or 'fair') compensation. Either system is at best a compromise and at worst a fudge.

Which brings me back to where it is best to make decisions about which system to adopt. Since each member state has its own historic approach to copyright, based on a number of concepts, such as the droit d'auteur or the more Lockean utilitarian or public good concept, it would sensible to also let the member states decide how compensation should be arranged locally, given the need for fairness as it applies to its own population, and the extent to which domestic law on copyright is permissive or restrictive in its application. To take the particular example of photographs, in jurisdictions where the 'originality' threshold is high, fewer works will gain copyright protection in the first place, and so there will be less need overall for compensation to photographers generally than in countries where the originality threshold is low. However the extent to which private copying of photographs may or may not take place in these countries is entirely unrelated to this fact. It seems clear that harmonization of the marketplace no more applies here than it does to the individual fees which various authors and artists can command within their respective national marketplaces. On that basis the decision on how to fund compensation for private copying should be left at the level of the member state. A logical extension to the Fourth Chamber's decision would be that not only should compensation be achieved through a levy system, but that the amount of the levy should be identical in each member state, irrespective of whether they are within the Eurozone or not.

However, none of that analysis troubled the Fourth Chamber in their deliberations. Instead they were more concerned that the person responsible for the copying should actually pay for that privilege, which rather misses the point made in the recitals that the emphasis of the calculation should be based on the (potential) harm suffered by the rightholder.
That is the reason I think the Egeda judgment was wrong as a matter of principle. The CJEU should learn to step back occasionally and ask itself if the Treaties really require the EU to determine policy on a specific topic and thus whether the Court needs to intervene at all. The saying "when all you have in your toolbox is a hammer, it's easy to see every problem as a nail" comes to mind.

Friday 3 June 2016

Is music sampling back in Vogue?

A US Appeals court has decided that Madonna did not violate copyright law when her producer allegedly used a short section of music taken from another recording for her hit song “Vogue”. The split 2-1 decision must  call into doubt the strict approach taken by the 6th Circuit Court of Appeals in the leading case of Bridgeport Music, Inc., et al. v. Dimension Films, et al 410 F.3d 792 (September 2004). There the court in Cincinnati posed the question “If you cannot pirate the whole sound recording, can you ‘lift’ or ‘sample’ something less than the whole?” The Court’s answer to this was in the negative” and the court added “Get a license or do not sample – we do not see this as stifling creativity in any significant way.”

But in this new case, the U.S. 9th Circuit Court of Appeals said the horn segment at the heart of the copyright lawsuit  lasted less than a second and would not have been recognisable to a general audience.

Judge Susan P. Graber said for the majority: "The horn hit occurs only a few times in ‘Vogue' .... without careful attention, the horn hits are easy to miss.” The decision fits in neatly with the December 2014 decision by New York federal judge Lewis Kaplan who dismissed TufAmerica's lawsuit against Jay Z and his record companies which alleged he had violated copyright by sampling an "oh" on the song, "Run This Town," released on the album The Blueprint 3 from an older sound recording entitled "Hook & Sling Part 1" saying ""Plaintiff's tautological argument that 'oh' must be qualitatively significant to Hook & Sling Part I and to the "Hook & Sling" Master because defendants' sampled it more than 40 times in "Run This Town" misunderstands copyright law generally and the substantial similarity test in particular," writes the judge, later adding, "If the original recording has been sampled at all ... the fact of the matter is that the samples appear only faintly in the background of Run This Town and are, at best, only barely perceptible to the average listener."

VMG Salsoul, LLC, which holds a copyright to “Love Break,” sued Madonna and others, alleging that  Shep Pettibone, the producer of “Vogue,” copied a 0.23-second segment of horns from “Love Break,” which he had worked on years earlier. "Vogue" was a release from the album "I'm Breathless", and topped the charts in all major music markets reaching number one in the USA, the UK, Australia, Canada, Italy and Spain, selling six million units worldwide.

Having listened to the recordings Judge Graber held: “we conclude that a reasonable jury could not conclude that an average audience would recognize the appropriation of the composition.”

However, Judge Barry G. Silverman dissented, arguing that the use of the horn segments, if proven,  would amount to infringement: “It is no defense to theft that the thief made off with only a ‘de minimis’ part of the victim’s property”.  He said a copyright of a recording amounted to a “valuable property right, the stock-in-trade of artists who make their living recording music and selling records.”

The German Constitutional Court in Karlsruhe recently made a ruling in a case brought by the German avant garde rock band Kraftwerk against German music producer Moses Pelham over a two second sample - balancing the position of rights owners against a right of artistic freedom - coming down on the side of the latter. According to the Constitutional Court, requiring the phonogram producer's permission for taking even the "tiniest sliver" of a recording when it was possible to recreate the sound without copying violated freedom of art as it would essentially prohibit modern forms of pop music, namely hip hop, which relied on sampling. Norms of hip hop demanded actual sampling, not recreation of that snippet. Licensing was not a viable alternative namely for songs that were sampled from many other recordings, as it  as it was very time consuming and prohibitively complicated.

TufAmerica, Inc v   WB Music Corp, et al. Case 1:13-cv-07874-LAK 

Bridgeport Music, Inc., et al. v. Dimension Films, et al 410 F.3d 792

The CopyKat

Star Trek franchise owners Paramount Pictures and CBS have revealed they're planning to drop their controversial copyright lawsuit against the makers of the ambitious fan film, Star Trek: Axanar. The news was announced by the producer of the new Star Trek Beyond JJ Abrams at a Trekkies fan event. Paramount/CBS lawyers told Buzzfeed's Adam Vary that they are in 'settlement' discussions and that they will draw up guidelines for fan film projects in the future, so that this sort of thing doesn't happen in the future.  But hang on - now we wont hear arguments about whether the Klingon language can be protected by copyright. This is a BIG SPOILER! You can see all 21 minutes of Prelude to Axanar here

A jury has ruled in favour of Google in the long-running legal dispute with Oracle over software used in many of the world’s smartphones. Oracle contended that Google used its Java copyrighted programming code in 11,000 of its 13 million lines of software code in Android, its mobile-phone operating system, and asked for $9 billion from Google. Google said it made fair use of the code. The victory for Google will cheer many other software developers,who use so-called open-source software. The decision was delivered in U.S. District Court in San Francisco. More here.

The Turtles may have done well in battering Sirius XM's attempts to avoid paying royalties for the use of pre-1972 copyrights, but now CBS has advanced an interesting new argument on the same topic - and a California judge has handed down a big ruling that could help "immunize" terrestrial radio operators and others from lawsuits and upend many preconceived notions about copyright. The decision from U.S. District Court Judge Percy Anderson comes in a dispute between ABS Entertainment, owner of recordings by Al Green and others, and CBS Radio, and was based on the concept that pre-1972 songs are protected under state law and can't be broadcast without permission. In reaction to the ABS lawsuit, CBS tried out a new argument - it was not performing the original analogue recordings, but rather NEW digitally remastered versions that came out after 1972. Under this argument, the specifically performed works aren't protected by state law, and CBS doesn't have to pay. And the court agreed. The labels are going to have a battle fighting this one, as they already file new copyrights for re-masters - which might extend the life of copyright for those gleaming new digital re-masters - but this plays into terrestrial broadcaster's hands. More on re-mixing and re-mastering here and here.

And over on the IPKat, two important recent decisions are reported. First off, Does an internet service provider (ISP) lose its safe harbour protection because, upon obtaining actual knowledge or awareness of third-party illegal content, it has not acted expeditiously to remove or disable access to such content? The Tribunale di Roma (Rome Court of First Instance) had such a case where an ISP had acted months after the request of the concerned rightholder.  The Tribunale issued an interesting decision on the liability of ISPs for third-party infringing acts, here in the context of proceedings brought by RTI - Reti Televisive Italiane (owned by broadcasting company Mediaset). This time the defendant was French video platform provider website Kit Digital France (now bankrupt, formerly Kewego). The court referred to a number of decisions of the Court of Justice of the European Union (CJEU). More specifically it recalled: L’Oréal and Google France in relation to what an ‘active role’ (such as to prevent safe harbour protection) of an ISP entails; Scarlet and Netlog in relation to the prohibition to impose on ISPs general filtering obligations;  Netlog and Telekabel to note that copyright protection (the protection of IP is mandated within the right to property in Article 17(2) of the Charter of Fundamental Rights of the European Union) must be balanced with other fundamental rights and freedoms, including ISPs’ freedom to conduct a business (Article 16 of the Charter) and users’ freedom of expression/information (Article 11 of the Charter). On the facts, the court concluded that Kewego should be liable for the damages caused to the claimant by such delay, but left their actual determination to a later stage.

And finally - back to that thorny issue of 'making available' and that 'new public'. The Court of Justice of the European Union (CJEU) had been asked to say whether the making available of TV broadcasts in rehabilitation centres should be regarded as an act of communication to the public in Reha Training, C-117/15 (a reference for a preliminary ruling from the Landgericht Köln (Regional Court, Cologne)) asking essentially whether the making available of TV broadcasts by means of TV sets on the premises of a rehabilitation centre falls within the scope of Article 3(1) of the InfoSoc Directive and Article 8(2) of the Rental and Lending Rights Directiveand the concept of ‘communication to the public’ for the purposes of those two provisions must be given a uniform interpretation. The Grand Chamber has now delivered a 67 paragraph judgment substantially confirming the Opinion of Advocate General Bot, although not relying on the four elements indicated therein. The Court highlighted that there are some differences between relevant provisions in the InfoSoc and Rental and Lending Rights directives. However, it concluded that there is no evidence that EU legislature intended the concepts of 'communication to the public' differently in these two pieces of legislation. Here the court found on the facts that: The operator of a rehabilitation centre deliberately transmits protected works to patients by means of TV sets installed in several places on his premises. As such, he is committing an 'act of communication' and; The patients of a rehabilitation centre constitute a 'public' that can enjoy the works broadcast by means of TV sets thanks to the indispensable intervention of the centre operator; This public is also 'new' in that it was not taken into account by the relevant. Eleonora's excellent analysis is here - but this blogger cant help but think that the court is getting itself into ever more difficult waters - and what the law is (or rather how it will be applied) is anyone's guess now. How would say the  use of a publicly available radio broadcast in  a staff canteen differ from say a dentist's surgey or waiting room, a spa, a hotel room (Rafael Hoteles), a tyre fitter's waiting area ? Apart from 'the can of worms opened by Svensson' - this writer is left with a nagging feeling that is reflected in the comments from one garage owner who said back in 2009 “The radio stations are paying to play the music and we have to pay to listen to it – they [the PRS] are taking with both hands".