THE COPYKAT

The fallout from the BMG v Cox case in the USA continues, with a court denying ISP Grande Communications the benefit of safe harbour protection in a case brought by the Recording Industry Association Of America (RIAA). In the earlier case, BMG had accused ISP Cox Communications of running a deliberately ineffective system for dealing with repeat infringers,  At first instance the jury awarded $25 million against Cox when they found the broadband carrier liable for piracy by its subscribers. The US appellate court reversed that verdict in what might have been seen as a defeat for the record label - but many said at the time that a careful look at the judgment, decided on a technicality, was actually a win in the battle against piracy. The 4th Circuit took a long hard look at how and why Cox would be protected by US  "safe harbor" provisions that protect service providers from liability when users infringe copyright. - and here the Court ruled against Cox on a key point. The DMCA provides a degree of protection to ISPs and other platforms that respond expeditiously to takedown requests. But one of the requirements is that the ISP and other intermediaries to have "adopted and reasonably implemented … a policy that provides for the termination in appropriate circumstances of subscribers … who are repeat infringers." The appeals court said that as it stood, Cox wasn't entitled to rely on safe harbor because it did very little if anything even when told about repeat offenders - an important precedent. Grande had been accused of operating a similarly ineffective system for dealing with infringers and infringement, and the RIAA pursued the ISP arguing that Grande should be liable for its users' infringement. Now a US Court has agreed with that position in a summary judgement that quotes BMG v Cox and affirms that those seeking safe harbour protection in the US must "reasonably implement" a policy for disconnecting repeat infringers or they will lose safe harbour protection in circumstances where the "ISP has not 'reasonably implemented' a repeat infringer policy if the ISP fails to enforce the terms of its policy in any meaningful fashion". The new decision noted the December Magistrate Judge's opinion in this case, which concluded that the "undisputed evidence shows that though Grande may have adopted a policy permitting it to terminate a customer's internet access for repeat infringement, Grande affirmatively decided in 2010 that it would not enforce the policy at all, and that it would not terminate any customer's account regardless of how many notices of infringement that customer accumulated, regardless of the source of the notices, and regardless of the content of a notice". The court agreed, saying Grande's systems were even worse that Cox's:  "Grande thus did even less than Cox to 'reasonably implement' the kind of policy required for the protections of ... safe harbour ..... if lax enforcement and frequent circumvention of existent procedures disqualifies a defendant from the safe harbour's protections, the complete nonexistence of such procedures surely must do likewise"

A federal appeals court has partially sided with real estate giant Zillow in important decision involving the long-running copyright battle with photography company VHT over how property photos can be used online. The 9th U.S. Circuit Court of Appeals ruled that Zillow did not willfully infringe on copyrights for 28,000 real estate photos for its home improvement section, now known as Zillow Porchlight in a turnaround in the case from when Zillow lost a jury trial in 2017 and was ordered to pay $8.3 million in damages to VHT. U.S. District Judge James L. Robart had already reviewed the Seattle jury's decision and had ruled that “the jury had no rational basis on which to conclude” that 22,109 of those photos violated VHT’s copyright and reduced the damages award down to a little over $4 million. However Judge Robart upheld a piece of the original verdict that held Zillow liable for willfully infringing on 2,700 photographs, a key victory for VHT and the basis for keeping the damages at around $4 million: the appeals court also sided with VHT when it maintained the prior ruling that several thousand tagged, searchable photos displayed on Zillow did not constitute a “fair use” but criticised VHT's methods of dealing with the infringements before filing their suit.   “We are pleased with the results of this appeal,” Zillow said in a statement. “We take copyright protection and enforcement seriously and will continue to respect copyright permissions across our platforms.” One final consideration is whether the infringing use is as a 'compilation' - so one infringement - or multiple infringements of each image used with the appellate court saying:  “If the VHT photo database is a ‘compilation,’ and therefore one ‘work’ for the purposes of the Copyright Act, then VHT would be limited to a single award of statutory damages for Zillow’s use of thousands of photos on Digs. But if the database is not a compilation, then VHT could seek damages for each photo that Zillow used.

A real peloton (Ben Challis, (C) 2018)

Have you seen the Peloton advert? A 'committed' female cyclist called Rachael pedalling at her home, alone, on a fixed bike being encouraged along to greatness and success by a video simulator. Yeah, great job, you smashed it. Well now a group of music publishers have brought a legal action against the streaming-exercise-class company Peloton for using music from artists like Katy Perry and Drake in thousands of exercise videos without the proper permissions - and are seeking more than $150 million in damages alleging that the uses lack the necessary synchronisation licences.  “Unfortunately, instead of recognizing the integral role of songwriters to its company, Peloton has built its business by using their work without their permission or fair compensation for years,” said David Israelite, president and CEO of the National Music Publishers’ Association adding “It is frankly unimaginable that a company of this size and sophistication would think it could exploit music in this way without the proper licenses for this long, and we look forward to getting music creators what they deserve.”

It seems there is an ever growing list of comedians, artists and other creators who want to take a pop at @FuckJerry and owner Elliot Tebele , the wildly popular Instagram meme account that does seem to be very good at finding material for its users, but doesn't seem to be very good at crediting or compensating people when they use their works. First in line with a complaint about alleged violations is a complaint filed in the Southern District of New York on behalf of Nigerian-based Twitter user and Instagrammer Olorunfemi Coker, who has 133,000 followers on Twitter and over 62,000 followers on Instagram. The lawsuit alleges that FuckJerry posted a screenshot of a January tweet by Coker to its Instagram account without Coker’s permission and used it to advertise its JAJA tequila brand. (The post no longer appears to be on the FuckJerry Instagram page.) According to Coker’s lawyer, this is the first case of its kind brought against FuckJerry. But it's not as simple as it seems - jokes are a thorny issue when it comes to proving appropriation - especially when the 'idea' of a joke has been borrowed - but expressed in a new way. This one could be interesting! Jerry Media took some flak for its role in promoting the disastrous Fyre Festival and, after controversy over how the @fuckjerry account was crediting third party works, Tebele said that the account would no longer post images if the original creator couldn’t be identified saying: “In the past few years, I have made a concerted, proactive effort to properly credit creators for their work ..... [W]e have also updated our policies to make sure we are responsive to creators whenever they have reached out to us about posts.”

The EU Parliament will vote next Tuesday (March 26th) on whether to endorse an overhaul of the EU’s two-decade old copyright rules as Google and internet activists stepped up their criticism of a requirement to install copyright filters. Websites and businesses across Europe are protesting controversial changes to online copyright being introduced by the European Union. Ahead of a final vote  a number of European Wikipedia sites are going dark for a day, blocking all access and directing users to contact their local EU representative to protest the laws. Other major sites, such as Twitch and PornHub, are showing protest banners on their homepages and social media. Meanwhile, any users uploading content to Reddit will be shown a #saveyourinternet message.

Cox targeted again by rights owners

The three major recorded music companies and numerous of their labels have launched a new legal action against US internet service provider Cox Communications for copyright infringement. The move follows the earlier 2014 action from BMG, who took umbrage at  what it considered was Cox's poor and ineffective approach to dealing with customers who used Cox's services to infringe their copyrights. Cox, the privately owned subsidiary of Cox Enterprises, provides digital cable television, and telecommunications services in the United States, has more than 4 million subscribers and relied on the 'safe harbor' defence in US law.

Whilst BMG acknowledged Cox had policies in place to deal with users who repeatedly infringed copyrights, it accused  Cox of failing to implement it's own policies and argued that this meant the ISP should be denied safe harbor protection and should be liable for the infringement of its copyrights  by Cox's customers. 

And at first instance BMG prevailed and in August 2016 Cox Communications were ordered to pay a $25 million dollar penalty for copyright infringements to the music rights management company by a federal judge. The ruling followed a jury decision which found Cox liable for illegal movie and music downloads by its customers and the court found that the company's behaviour amounted to wilful infringement of copyright.

The Eastern Virginia District Court dismissed Cox’s appeal of the earlier verdict, and ordered Cox to pay BMG $25m in damages for copyright infringement - a ruling which at the time was thought to have widespread repercussions for online copyright infringement in the US. The court decided that Cox did not do enough to stop users pirating music from BMG, and therefore did not qualify for Digital Millennium Copyright Act (DMCA) ‘safe harbor’ protections. Crucially, BMG provided evidence that its agent, Rightscorp,  had identified individual infringers and then alerted Cox to their wrongdoing - which Cox then failed to act on.  

However, that ruling was subsequently overturned on appeal - but it was an interesting ruling: The decision, by a three-judge panel of the 4th Circuit Court of Appeals, returned the case to the District Court for a new trial, based on a decision that there was an error in jury instructions. Irrelevant of arguments about safe harbor protection at the heart of the case, Cox might not been responsible for users' infringement as companies are only liable for contributing to infringement if the companies either know about acts of infringement, or are wilfully blind to them, and the appellate court ruled that the trial judge, District Judge Liam O'Grady, had incorrectly told the jurors that they could find Cox liable if it knew or should have known about infringement by users. "The formulation 'should have known' reflects negligence and is therefore too low a standard," the appellate judges wrote. "Because there is a reasonable probability that this erroneous instruction affected the jury’s verdict, we remand for a new trial."

But, and its a big but, the 4th Circuit took a long hard look at how and why Cox would be protected by US  "safe harbor" provisions that protect service providers from liability when users infringe copyright. - and here the Court ruled against Cox on a key point. The DMCA provides a degree of protection to ISPS and other platforms that respond expeditiously to takedown requests. But one of the requirements is that the ISP and other intermediaries have "adopted and reasonably implemented … a policy that provides for the termination in appropriate circumstances of subscribers … who are repeat infringers." The appeals judges said that as it stood, Cox wasn't entitled to rely on safe harbor because it did very little if anything even when told about repeat offenders, re-affirming the jury decision that sided with BMG and against Cox when they found the broadband carrier liable for piracy by its subscribers. 

Indeed despite 'losing' the case, many in the entertainment sector were pleased with the February 2018 decision and the appeal court's conclusion that the safe harbor provision of the Digital Millennium Copyright Act require a meaningful implementation of a policy that terminates the service of repeat copyright infringers - not least because the appellate judges agreed with BMG that Cox wasn't entitled to rely on the safe harbor protections, writing that the broadband provider's policy was lacking. Cox had in place a "13-strike" repeat-offender policy, meaning that the company would consider terminating subscribers after they received 13 notices of copyright infringement. In practice, it has been alleged the company went to great lengths to avoid disconnecting people with the court acknowledging  "Cox formally adopted a repeat infringer 'policy,' but ... made every effort to avoid reasonably implementing that policy ...... Indeed, in carrying out its thirteen-strike process, Cox very clearly determined not to terminate subscribers who in fact repeatedly violated the policy." It was alleged that Cox really maintained an "under the table policy purporting to terminate repeat infringers while actually retaining them as high-speed internet customers." 

Judge Diana Motz was clearly unimpressed with Cox's efforts to stem piracy by its customers saying: "Indeed, the risk of losing one's Internet access would hardly constitute a 'realistic threat' capable of deterring infringement if that punishment applied only to those already subject to civil penalties and legal fees as adjudicated infringers" and saying a "ISP has not 'reasonably implemented' a repeat infringer policy if the ISP fails to enforce the terms of its policy in any meaningful fashion. Here, Cox formally adopted a repeat infringer 'policy,' but ..... made every effort to avoid reasonably implementing that policy. Indeed, in carrying out its thirteen-strike process, Cox very clearly determined not to terminate subscribers who in fact repeatedly violated the policy." Motz added that failure to implement a consistent and meaningful repeat infringer policy essentially means it has no policy and can't be entitled to a safe harbor defence.

In the wake of the appellate court's ruling, the Recording Industry Association Of America (RIAA) used the appeals court judgement in an action against another ISP,  Grande Communications. In am April 2018 filing related to that case, the RIAA argued that the appeals court ruling in BMG v Cox "affirmed the holdings ... that [we] rely on here, and expressly rejected the central arguments [Grande] advance in their motions to dismiss" and accused Grande of “refusing to take meaningful action against repeat infringers”,  users who repeatedly downloaded music illegally over BitTorrent networks.

Now Sony, Universal and Warner are also using the BMG decision to underpin a new lawsuit against Cox (Sony Music Entertainment et al v. Cox Communications, Inc. et al). The claimants say that while Cox claims to have an internal procedure to deal with repeat infringers in its customer base, the earlier case confirmed this process to be a "sham" and the labels say that Cox "knowingly contributed to, and reaped substantial profits from, massive copyright infringement committed by thousands of its subscribers" and that when the labels notified Cox of infringements by its users "rather than working with plaintiffs to curb this massive infringement, Cox unilaterally imposed an arbitrary cap on the number of infringement notices it would accept from copyright holders" and this, the labels say, meant Cox was "wilfully blinding itself to any of its subscribers' infringements that exceeded its 'cap'" and the only justification for the arbitrary cap is alleged to be that "rather than stop its subscribers' unlawful activity, Cox prioritised its own profits over its legal obligations".

http://the1709blog.blogspot.com/2018/02/us-appeals-court-tells-isp-that-safe.html

https://www.mediapost.com/publications/article/313895/court-reverses-25-million-copyright-verdict-again.html

https://jolt.law.harvard.edu/digest/bmg-v-cox-court-of-appeals-denies-dmca-safe-harbor-in-landmark-copyright-case

https://www.billboard.com/articles/news/7768055/riaa-suing-grande-communications-copyright-infringement

http://www.completemusicupdate.com/article/major-labels-sue-cox-communications/