Saturday, 25 August 2018

The COPYKAT - all is fair in love and war

They say that "all is fair in love and war," but when it comes to copyrighted content, you need to respect the rules of the game. Today's CopyKat takes a look at Disney claiming fair use, lawyers behaving badly, copyright policy in trade agreements, Aerosmith v. Donald Trump, and a small claims track victory from one of our readers.

Disney: standing up against "Overzealous Copyright Holders"?

Disney has responded to the copyright lawsuit lodged earlier this year in California by the Estate of Michael Jackson (MJJ Productions (et al) v Walt Disney Company and ABC INC). In May, MJ’s Estate claimed that American TV network ABC News and its parent company Disney used copyright material owned by the estate without permission for their The Last Days of Michael Jackson documentary. Disney argues that ABC News should be permitted to use Jackson’s songs and videos in its documentary “without fear of liability from overzealous copyright holders.”

In its 18-page response, Disney is citing both the US Constitution’s First Amendment and the principle of fair use in its defense. The answer begins by acknowledging that Michael Jackson remains “one of the most iconic performers of the last century, and his music career, tumultuous personal life, and tragic passing continue to be enduring topics of public interest even today, nearly a decade after his passing.”

Disney admits that ABC used short excerpts of Jackson’s songs and videos within its documentary, but that doing so was to provide “historical context and explanation tracing the arc and aspects of Jackson’s life and career—precisely what is contemplated and permitted by the First Amendment.” Disney’s lawyers argue that the Estate’s lawsuit, “in violation of these legal principles, constitutes an attempt to exercise unfettered control over public commentary and opinion on Jackson’s life and career.”

As pointed out over at Above the Law, a common misconception about the fair use doctrine in copyright law is that it is reserved for academics, consumers and private individuals. However, anyone - including large corporations who themselves are proponents of strong intellectual property rights - may be entitled to assert fair use. American University’s Center for Media and Social Impact even has a page dedicated to “Examples of Successful Fair Use in Documentary Film” on its website.

Prenda Law's pornography honeypot lawyer (finally) pleads guilty

After nearly a decade of litigation, American lawyer Paul Hansmeier has pleaded guilty to charges of wire fraud and money laundering, and could be jailed for up to 10 years. The diagram shown below was adopted and used by Judge Wright in his 6 May 2013 ruling, showing the Court's best understanding of the convoluted scheme. What makes this case interesting for the Copykat is that Hansmeier’s criminal activity was part of a multi-million dollar fraud scheme to obtain payments from extortion victims to settle sham copyright infringement lawsuits.

Hansmeier’s “law firm” Prenda Law is believed to have made at least $6m (£4.7) from the scheme. In September 2010, Hansmeier and John Steele established the law firm Steele Hansmeier PLLC, later renamed Prenda Law. They began representing clients that owned copyrights to pornographic films, and monitored file-sharing websites to obtain the IP addresses of individuals who downloaded the movies. They then “copyright trolled” and threatened the infringers with lawsuits, which they would settle for about $4,000.

Although the scheme initially paid off for Prenda, the scam quickly unraveled as courts (and activists, including twitter user Fight Copyright Trolls) uncovered fake defendants, shell companies, forged documents, and honeypots. For example, as was later admitted in his plea agreement, Hansmeier admitted that his brother Peter uploaded porn movies to BitTorrent file-sharing websites, including Pirate Bay, to “entice people to download the movies and make it easier to catch those who attempted to obtain the movies.”

In his 2013 judgement issuing sanctions against Prenda Law, California U.S. District Judge Otis Wright stated that the Prenda attorneys had “discovered the nexus of antiquated copyright laws, paralyzing social stigma, and unaffordable defense costs. And they exploit this anomaly by accusing individuals of illegally downloading a single pornographic video.” Judge Wright also also referred Hansmeier for investigation on criminal, tax and professional-standards charges.

Finally, despite years of lengthy and convoluted denials by Hansmeier and Steele - including a 64-page submission in which Hansmeier argued “the entire justice system will collapse if he's convicted” - the trolling duo has finally been stopped.

South African copyright reforms: a shining example or bad for business?

Each year, the U.S. Trade Representative (USTR) conducts a review of country eligibility for trade benefits under the African Growth and Opportunity Act (AGOA). The purpose of this legislation, passed in 2000, is to assist the economies of sub-Saharan Africa, and to improve economic relations between the United States and the region.

Benefits of being an AGOA-approved country include certain trade preferences, including duty-free export of some goods into the United States. However, the US President must determine on an annual basis which countries qualify for AGOA status. According to the AGOA website, this process was established as a means to incentivise improved labor rights and movement toward a market-based economy.

In a recent filing with the USTR, the International Intellectual Property Alliance (IIPA) has argued that South Africa’s attempts to reform its 1978 copyright legislation could “place South Africa out of compliance with the AGOA eligibility criteria regarding intellectual property.” The Copyright Amendment Bill, which was proposed in May 2017, is currently under consideration by the National Assembly.

Speaking before the USTR panel, intellectual property and international trade lawyer Kevin Rosenbaum explained that “many provisions of the 2017 Bill lack clarity, create unnecessary burdens on rights holders, and/or fall short of needed reforms. Unfortunately, South Africa’s proposed copyright amendments are inconsistent with a healthy, sustainable and fair digital marketplace for creators, both domestic and foreign, and run afoul of the AGOA eligibility criteria to provide adequate and effective protection and enforcement of intellectual property.”

On the other hand, the folks over at TechDirt appear to disagree with the IIPA, arguing instead that “those drafting the text seem to have listened to the calls for intelligent fair use rights fit for the digital world.” TechDirt correctly predicts that the fair use proposal will come under heavy attack from big industry players and their lobbyists - including the IIPA.

“Objection!” to calling alleged infringement “theft” is overruled

Words are the primary and essential tools of any lawyer. Cases turn on the meaning that judges and juries ascribe to words, and lawyers must use the right words when carrying out the wishes of their clients. With this in mind, is it unduly prejudicial for a claimant to refer to copyright infringement as stealing, theft, or some other related term? American judge Liam O’Grady thinks not.

As discussed in depth on the 1709 Blog earlier this month, music publisher BMG Rights Management and Cox are gearing up for yet another chapter in their ongoing legal saga. Ahead of this new courtroom drama, both sides have been making various requests of Judge O’Grady.

BMG’s lawyer had previously stated in submissions that Cox had aided and abetted “stealing,” “illegal conduct,” and “illegal infringement.” On the belief that BMG’s counsel would engage in the “same improper practice” this time around, Cox therefore sought a preemptive order to ban “argumentative statements” such as “stealing” and “theft” which could prejudice Cox and risk confusing the jury.

Judge O’Grady refused Cox’s request. In the court order, he explained: the Court does not find it appropriate to bar BMG from referring to copyright infringement as stealing, theft, or some other related term, as such language is not unduly prejudicial to Cox. The Court anticipates that counsel for both parties can and will abide by the rules during opening statements. If a party has good cause to object to a specific comment made by opposing counsel, the party may do so at that time.

Aerial Photographer won't let Cardiff Steel fly away free with his image

Several years ago, the 1709 Blog featured the case of Mr Jonathan Webb and his triumph against copyright infringements of his professional aerial photography. Mr Webb has recently reached out to us again, to inform us another courtroom victory, which you can also read about on In total, Mr Webb was awarded £2,851.42, which was comprised of £1500.00 in damages, £306.72 interest, £285.00 in Court Fees and £759.70 for litigant's in person costs.

This case focused on the copyright infringement of an aerial photograph of Sophia Gardens Cricket Ground in Cardiff, pictured below. Mr Webb explained the defendants Cardiff Steel just “helped themselves to the photo from my website and added it to their website, with the only alteration being a size reduction.”

Mr Webb was awarded damages under s. 97(2) of the Copyright, Designs & Patent Act 1988. As Cardiff Steel “derived some commercial benefit from the use of the image over the years 2011/2-2017,” Mr Webb was awarded awarded £1500. He explained that this was an amount equal to approximately four times his normal licence fee.

The other interesting thing brought to our attention was Mr Webb’s award of additional costs pursuant to the Civil Procedure Rules part 27.14 (2)(g). The rule states that the Court may award “further costs as the court may assess by the summary procedure and order to be paid by a party who has behaved unreasonably.” 

We understand from Mr Webb that this is a relatively rare award to receive, and was attributable to the defendant “making very little effort to settle the case. They sent one short email and wrote a short written defence, both blaming their Web Designer.” The judge even mentioned this in the opening paragraph of his judgement, stating: I have had the benefit of considering Mr Webb’s claim form and particulars of claim, and also a helpful bundle of documentation and evidence prepared for his hearing, which includes a full witness statement. The defendant has only provided a short form defence.

In his correspondence with the CopyKat, Mr Webb stated that he “didn’t know why the defendant did not take the claim seriously but the most likely explanation could be they took advice from the many copyright infringement forums on the internet. The overwhelming advice from these forums is to ignore any copyright infringement claims, and this case illustrates the perils of ignoring legitimate claims. This was an important case for me as the type of company and nature of use were all very typical of infringement of my work.

“The UK has become somewhat of a Copyright Wild West in recent years and I estimate that 99% of users of my work are doing so unlawfully. The IPEC small Claims Track can be something of a two edged sword: for claimants like myself who are familiar with the way it works, it's great because I can pursue small cases which would not otherwise be possible. The downside is that many creatives find the whole process too complicated and difficult and so do not enforce their rights.

This has led to a collapse in the market for low-value intellectual property like photographs, which most users can now simply obtain through a search engine, rather than by actually licencing the works. I have found some of Britain's biggest businesses simply helping themselves to my work, and removing my name from the images.”

The CopyKat notes that the judge praised Mr Webb for preparing his case thoroughly and in detail. Copyright can be, as the judge rightly pointed out, a complicated area - and his thoroughness not only proved to be of assistance to the Court, but contributed to his award of damages in the end.

Livin' on the edge (You can't help yourself from infringin')

And finally, although the CopyKat doesn’t like to stray into politics, it’s worth noting that Donald Trump can now add “copyright violations” to his growing list of legal concerns. Aerosmith’s Steven Tyler argues that by playing the band’s 1993 hit "Livin' on the Edge" at a West Virginia rally, the President infringed the singer's copyright. You can see and hear a clip of the (alleged) infringement in question on twitter.

Tyler’s attorney Dina LaPolt cited the Lanham Act which, although the primary federal trademark legislation in the United States, also speaks to false advertising. In particular, Section 43 of the Act prohibits “any false designation or misleading description [which] is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person.” By playing the Aerosmith song in a public arena, LaPolt asserts that Trump is giving the false impression that Tyler is endorsing Trump’s presidency.

The letter, excerpts from which are available on Variety, goes on to explain that “Mr. Tyler’s voice is easily recognizable and central to his identity, and any use thereof wrongfully misappropriates his rights of publicity. Mr. Trump does not have any right to use the name, image, voice or likeness of our client, without his express written permission.”

No comments: