Wednesday, 15 August 2018

THE COPYKAT reaches out to a new public

Howzat! (C) 2018 Ben Challis
There has been plenty of recent comment on the decision by the CJEU in C‑161/17 Land Nordrhein-Westfalen v Dirk Renckhoff where the court found that users who publish content which is already available on the internet would  still need the further consent from the rights owner in question saying “The posting on a website of a photograph that was freely accessible on another website with the consent of the author requires a new authorization by that author”. We have already posted Eleonora's analysis of of CJEU's thought provoking decision and this blogger, a very keen sports photographer, is rather pleased with the CJEU's reasoning which he feels has some resonance - but the decision has stirred up widespread criticism. To me the fact remains when I post a photo on my sports photography Facebook page - for example the one to the left on this very blog - it's targeted to a specific audience for a specific reason - and I would not want to see my photo re-used on a third party website without my consent - being pointed at a 'new' audience whether that's free or perhaps supported by advertising. I certainly would want the right of further consent  should that image used for a different purpose such as in advertising.  And the case is being seen as a pro-copyright with Reuter's headlining with "EU's top court backs copyright holder in landmark ruling" - not least as the Court went against the Opinion of Advocate General Campos Sanchéz-Bordona. More here and others may have different opinions to this CopyKat's thoughts above. 

Techdirt have posted a fascinating insight into the somewhat complex set of cases involving a woman named Shirley Johnson, who posted videos to YouTube that were critical of the New Destiny Christian Centers and Paula White Ministries. This in turn resulted in a lawsuit from Ms Paula White et al for copyright infringement. So far so good. But things did not go smoothly for Ms White. Her case seemed to ignore the fairly obvious defence of fair use - and indeed as time progressed the case was dismissed, and then Johnson counter sued for "malicious prosecution" and she also filed DMCA s512(f) abuse claim. That claim is ongoing by techdirt now reports that  the court awarding Johnson $12,500 against White for the "emotional harm" from the 'bogus' copyright claim. Remembering it was Paula White Ministries (et al) who started this battle, the court was fairly scathing of how White treated the litigation as time went on, saying that Paula White Ministries "have exhibited a patent disregard for the Court’s discovery orders and processes" and "maintained that they did not have to comply with discovery, demonstrating a preordained belief that they were above this process" and  "The Court now finds that the interests of justice require default judgment as the only effective remedy" awarding very limited costs to Johnson (who represented herself) and awarding  $12,500 for emotional harms, although this was limited because Johnson seemingly did not seek medical treatment for the harm.

Another expensive (with hindsight) mistake seems to have been Ludlow Music's efforts to protect the 'copyright' in the iconic US song ‘We Shall Overcome’. Ludlow have now been handed a legal costs bill of $352,000 after conceding earlier this year that the work was public domain in America. The case was settled in January and Ludlow declared that both the melody and lyrics of ‘We Shall Overcome’ are “hereafter dedicated to the public domain”. Now Judge Denise Cote has said that Ludlow should cover the other side’s legal fees - despite the fact that Ludlow’s defence wasn’t “objectively unreasonable” CMU says that the Judge awarded legal costs to reward the Plaintiffs for enabling public access to “an American treasure”. The judge stated: “The degree to which plaintiffs succeeded in this litigation, and the inestimable benefit they have conferred on the public through doing so, renders this the type of lawsuit that should be encouraged in order to promote the purposes of the Copyright Act”.

More from the USA: The Music Modernization Act, which quickly passed the House unanimously in April, and the through the Senate Judiciary Committee, looked in some trouble after an objection by collection society SESAC (formerly known as Society of European Stage Authors and Composers) and the Harry Fox Agency which administers licenses that would be affected by the operations of a new blanket licensing collective in the legislation. Owners Blackstone persuaded Senator Rafael E. “Ted” Cruz (R-Texas) to halt the bill’s progress in the full Senate and things looked tricky until a compromise clarified that the new organization only will administer a particular kind of license, and will have exclusive purview only over blanket licenses - and according to industry sources the Harry Fox and other organisations will still be able to control individually negotiated licenses. before the compromise both the Nashville Songwriters Assn. International and the Songwriters of North America had encouraged their members to speak out against SESAC’s effort to get changes made to the bill, but now the NSAI have said “Reaching consensus within the music industry, on what may be the most important songwriter legislation in history, is a win for American songwriters and the broader music community. We are pleased to have put our differences behind us and support this bill in unanimous harmony. The Nashville Songwriters Association International has been a friend and fan of SESAC’s for decades and that is how our relationship will immediately resume”.

He may have passed but he is still in the news: A takedown notice of the iconic 2016 fan singalong video of 'Purple Rain' that was shot just hours after the singer’s death, has now been withdrawn and the video has been reinstated. After Prince’s death in thousands of fans congregated in the streets of Minneapolis to mourn and one of the most iconic moments from that night involved a video of those fans singing “Purple Rain” together. The video, shot by the Star Tribune’s Aaron Lavinsky, quickly went viral with his video tweet receiving over 14,000 retweets and 17,000 likes. Universal Music then filed a DCMA takedown of the video but after a social media storm at the end of July with Lavinsky saying  on Twitter "This is very disturbing: Universal Music filed a DCMA takedown on a video I shot of thousands of Prince fans singing Purple Rain the night of his death. This was clearly fair use and UMPG and Twitter are in the wrong"  UM have relented and the video is back online prompting a tweet from Lavisky saying "Update: Prince faithful can rejoice -- UMPG has retracted their DCMA takedown of my video and it has reappeared in the original tweet. PURPLE RAIN, PURPLE RAIN!".

THE BBC has halted its action against a pro-independence blogger following a row over alleged YouTube copyright infringements. The UK's public broadcaster had denied political bias after Stuart Campbell, who runs Wings Over Scotland, claimed his channel was closed without warning after the BBC complained about 13 videos that had been uploaded to it and that his use was 'fair dealing'.  Now the channel has been reinstated by YouTube and the BBC has said it will review its actions.

Techdirt is celebrating after it discovered the Finnish Bar Association is reprimanding Finnish law firm Hedman Partners for seemingly violating copyright law by sending out 'settlement letters' to supposed copyright infringers in what Techdirt opine is a classic trolling exercise. Hedman lawyer Joni Hatanmaa seems less concerned saying the firm's actions on behalf of its clients against suspected infringers will continue: "cases against infringers will continue. Plenty are still underway and the project continues to expand."

And finally The BBC reports that a US court has ruled that the plot of Oscar-winning fantasy film The Shape of Water was not copied from a 1969 play. Judge Percy Anderson has now dismissed the legal action that claimed Guillermo del Toro's film copied the story of Let Me Hear You Whisper by Paul Zindel. The late playwright's son sued del Toro, the Fox Searchlight studio and others in February and Zindel v. Fox Searchlight Pictures, Inc. et al, case number 2:18-cv-01435, filed in the United States District Court Central District of California, claimed the two works were "in many ways identical". In his ruling  the judge said they only shared "a basic premise". Del Toro's film, which won four Academy Awards in March including best picture, told of a mute cleaner who falls in love with an amphibious creature. David Zindel's suit claimed the film bore a number of similarities to his father's play, in which a cleaning lady goes to work in a laboratory where experiments are carried out on dolphins. Judge Anderson accepted that the plots were similar but ruled that the central concept was "too general to be protected".

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