Monday 18 December 2017

The CopyKat Strikes Back - May the Festivities be With You!

It is that time of year again folks. People are celebrating, children are overcome with excitement and everyone can't stop talking about it. All waiting for that time when we can gather round with our loved ones and watch STAR WARS!

With the launch of the latest film in the franchise, the Disney production engine has been in overdrive. This has led to a number of related interesting stories which we will share with you in this copykat alongside our regular helping of non-Star Wars related copykat content.

This first piece is an oldie but a goodie from late 2016. This article highlights the commercial power of Lucasfilm and Star Wars. Also it is important to point out that Star Wars, or more specifically a storm trooper helmet, was the key point of contention in the regularly cited case of Lucasfilm Ltd v Ainsworth (2011). The Supreme Court ruled in 2011 that the helmets were indeed functional props, and not sculptures for the purpose of copyright protection, meaning that that Ainsworth was free to continue manufacturing the replica outfits.

Lego A/S, Europe’s biggest toymaker, said it won its first copyright court case in China.

The China Shantou Intermediate People’s Court has ruled that products under the name Bela, sold by two Chinese companies, infringed upon Lego’s copyrights, the building block maker said in a statement Thursday. The ruling was made in September, but the appeal window only ended last month, Lego said.

FCC chairman Ajit Pai shot a cheeky video about net neutrality on Thursday.  He now faces the possibility of multiple copyright infringement lawsuits and millions of dollars in damages. This morning, at least one copyright owner vowed to launch a major lawsuit against Pai, the Federal Communications Commission, or both. 

The video has already amassed millions of views across Facebook, YouTube, and other outlets. The video also uses iconic music from both Game of Thrones and the Star Wars franchises. Both franchises are obviously worth immense amounts of money, with Star Wars holding billions of dollars in copyright IP.

Okay this one is not strictly Star Wars, though we feel it is close enough to merit inclusion.

A judge has allowed a lawsuit to proceed against the creators of Oh, the Places You’ll Boldly Go!—a nearly page-for-page remix of the Dr. Seuss classic Oh, the Places You’ll Go! and Star Trek. This decision reverses an earlier ruling.

After receiving a new court filing, US District Judge Janis Sammartino found that ComicMix, the company behind the new work, could not so easily have the case dismissed: “Thus, after again weighing the fair use factors, the Court finds Defendants’ fair use defense fails as a matter of law,” Judge Sammartino wrote in a December 7 order.

If, for some godforsaken reason, you’ve been trying to collect every achievement and emoticon featuring Pepe The Awful Meme Frog on Steam, I’ve got some bad news for you: many of them are gone. Pepe images that players could earn by playing games like Fergus The Fly and, tellingly, Make America Great Again: The Trump Presidency have been replaced with a simple message: “Emoticon art currently unavailable due to DMCA takedown notice submitted on behalf of Matt Furie.”

Google and members of Australia's technology sector have urged the government to reconsider excluding them from changes to safe harbour, while the content sector has applauded the decision to not extend the copyright provisions to digital commercial entities.

The government's reforms, revealed by The Australian Financial Review last Wednesday, seek to extend safe harbour provisions to education institutions and libraries as well as the disability, archive and culture sectors.

Safe harbour provisions give immunity to service providers when users upload copyright-infringing material as long as they are taking reasonable steps to remove infringing content from their platforms.

A federal jury in Houston awarded $585,000 to the publisher of an energy newsletter that accused an investment house of passing around unauthorized copies of its pricey publication.

Energy Intelligence Group, the publisher of 15 newsletters for the oil and gas industry, sued Kayne Anderson Capital Advisors for sharing its five subscriptions of "Oil Daily" with others in the investment firm who did not have their own subscriptions. The jury found that the Los Angeles-based investment firm, which manages $24.5 billion in assets, was liable for copying 39 issues and determined the damages for each instance was $15,000, according to the jury verdict. The trial began Monday, and the jury reached its verdict Thursday.

Online trading services provider GAIN Capital Group LLC has secured a judgement in its favor on Friday, December 15, 2017, as a part of a copyright infringement case launched against it by Tibco Software Inc. Judge Edward J Davila of California Northern District Court has granted GAIN Capital’s Motion to Dismiss the claims for breach of the implied covenant of good faith and fair dealing and copyright infringement.

The Court sided with GAIN Capital, with the Judge noting that the copyright infringement claim does not distinguish between Gain Capital’s alleged use of Tibco’s software while a valid license was in effect and the alleged use of the software after the licenses expired. The copyright infringement claim was accordingly dismissed with leave to amend.

Gain Capital has also moved to dismiss the breach of the implied covenant of good faith and fair dealing claim as superfluous of the breach of contract claim. The Court agreed that the two claims are nearly identical, and the breach of implied covenant claim was accordingly dismissed with leave to amend too.

Tibco is set to file and serve an amended complaint no later than December 29, 2017.

Our final story for you copyright fans today poses more of a question for discussion rather than a legal update.

Are computer games being let down by current IP legislation?

This topic is of particular importance to this writer as he is regularly finding himself explaining this sorry state of affairs to up and coming game developers. It seems that in every creative industry where money has flowed, IP protection has found a way to adapt in order to provide some security to those revenue streams. However in the case of computer games or even software, we are left in a situation where the concept of a game can be copied in its entirety, albeit with entirely different physical content, and the original creator is left with little recourse. Though the idea/expression dichotomy weighs heavy in this writers mind, there must be a compromise to be found. Without it we are left in the very poor situation described in the article: "Some amazing games pass under the radar. Then someone else takes the idea, has a marketing budget, and suddenly has a popular game because they ripped off someone else's idea. I think it's something the industry needs to look into. You're protecting the work of artists basically. Games are art for a large part, and so I think it's important they're protected."

This CopyKat by Matthew Lingard

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