The CopyKat - seasoned, sliced, stirred, baked, reduced, arranged - but that's no recipe for copyright success

News reaches the Copykat that China's 2014 Sword Campaign has dealt with 440 cases: The annual Sword Campaign against online copyright infringements recorded 440 cases in 2014 of which 66 were transferred for criminal investigation. 750 websites were shut down and fines of RMB3.5 million (approx. £350,000) issued. The Sword Campaign is run by the National Copyright Administration of China (NCAC), the State Internet Information Office (SIIO), the Ministry of Industry and Information Technology (MIIT) and the Ministry of Public Security (MPS). More here (in Chinese).


More from China - with news that a new society has been launched to promote legal downloads and streaming of music in one of the world's booming economies. Liu Ping, deputy director-general of the Music Copyright Society of China, said the healthy development of online economy calls for a copyright protection mechanism at the launch of the Legitimate Online Music Promotion Union in Beijing. The Union aims to promote the development of the online music copyright industry in China, protect the copyright and legal rights of involved persons, and discuss the copyright protection measures of Chinese online music. The Union published an anti-piracy declaration at the launch ceremony, saying that they will crack down the infringement of music products through legal measures, and seek legal actions against the music pirates. First members includes the Music Copyright Society of China and companies providing online music fincluding Tencent, Koowo and KuGou Networks and record labels includnig Sony, Warner and Decca records. Image CFP. 

A federal judge has told a Cleveland restaurateur that food recipes can't be protected by copyright law after Rosemarie I. Carroll took legal action against a local rival offering similar dishes. Carroll, the owner of Cleveland eatery Tomaydo-Tomahhdo, said that she owned the copyright to a book of her recipes — a copyright she says her erstwhile business partner Larry Moore infringed by offering similar dishes at his own catering business. Interestingly, and  explaining her summary judgement in favour of the defendants, Judge Patricia A Gaughan noted that Carroll had not developed the recipes herself and had further testified that she did not know how Moore developed his recipes or what served as Moore’s inspiration for the development of those recipes. The menus both consist of basic fare, including sandwiches, salads, pizza, chicken wings, and the like. According to Moore, none of the menu items were new or innovative and none contained unique or signature ingredients. Whilst Carroll had indeed produced a book of recipes, the defendants argued that the plaintiff's copyright infringement claim must fail because the plaintiffs have no protectable interest in the recipes contained in the recipe book. According to the defendants, copyright protection did not extend to the recipes themselves. At best, if the recipe book was worthy of copyright protection, it extended only to the layout and other artistic embodiments contained in the book itself. The Defendants also argued that  as they had no access to the recipe book, there could be no infringement and the defendants further argued that there was no evidence suggesting that defendants had copied the recipes. The Judge held that even if Carroll's book had a copyright as a compilation (in the "order and manner of the presentation of the compilation’s elements") there was no copyright in the actual recipes: "The identification of ingredients necessary for the preparation of food is a statement of facts. There is no expressive element deserving copyright protection in each listing. Thus, recipes are functional directions for achieving a result and are excluded from copyright protection under 17 U.S.C. 102(b)" adding for good measure "Certainly plaintiffs cannot be suggesting that somehow the copyright prevents defendants from serving chicken salad sandwiches". The federal court declined to address the trade secret or breach of contract claims which had been brought, finding these were more appropriate for state court. Tomaydo-Tomahhdo LLC et al v. George Vozary et al CASE NO. 1:14 CV 469  US District Court  Northern District of Ohio Eastern Division.  And more here.

Rightscorp have failed in their efforts to convince a US court that the DMCA can be used to identify potential downloaders of infringing materials under the fast track DMCA subpoena system. Unlike regular subpoenas, these are not reviewed by a judge and only require a signature from the court clerk. ISP CBeyond (which is not part of the US Copyright Alert System) declined to hand over customer data and argued that DMCA subpoenas, because they are in essence fast-tracked, are limited to specific kinds of alleged copyright infringement, and are not suitable for those accused of simply accessing unlicensed sources of content - the fast track should be reserved for those host unlicensed content. According to Torrentfreak, Rightscorp argued that that this argument unfairly hindered rights owners who sought to protect their copyrights, and that anti-piracy activity is exactly the sort of thing the DMCA should be simplifying. But the judge hearing the case said, while that may be a credible argument, that's not what the DMCA, as currently worded, allows, and it was for Congress to amend the rules. The federal court in Georgia ruled: "“CBeyond contends that the section does not apply to service providers that act only as a conduit for data transferred between other parties and that do not store data. The court agrees,” and Magistrate  Judge Janet King added "It is the province of Congress, not the courts, to decide whether to rewrite the DMCA in order to make it fit a new and unforeseen internet architecture and accommodate fully the varied permutations of competing interests that are inevitably implicated by such new technology". An appeal is planned.

And after recent reports that Ian Fleming's body of work including the James Bond 007 stories would enter in the public domain in Canada after a term of life of the author plus 50 years expired, comes news from the EFF and others that planned signatories of the Trans-Pacific Partnership (TPP) Agreement (which include Japan and New Zealand who have similar copyright protection terms) have "caved in" to U.S. pressure and have agreed to extend their copyright term to life plus 70 years.  NHK reports that a deal on copyright term has been reached within the TPP with countries agreeing to a US standard 'Micky Mouse' term of life plus 70 term. Alongside Japan, Malaysia, New Zealand, and Vietnam (the TPP countries that adhere to the Berne standard), "it appears that Canada has dropped its opposition to the change."

The CopyKat - DMCA takedowns: a real growth industry

Following on from our last start of the year CopyKat where we highlighted the 'top ten' domains subjected to DMCA Piracy Takedowns in 2014, those clever bods at TorrentFreak have worked out that Google handled 345 million copyright takedowns in 2014 - a 75% year-on-year jump, and exponentially more than a few years ago, as the likes of the RIAA, NBC Universal and Microsoft began to start request thousands and then millions of takedowns. UK recorded music industry group BPI was the top "link-killer", handing in some 60 million complaints about links.
.

Herr Günther Oettinger

In a letter to the European Commission's digital commissioner Günther Oettinger, the European Copyright Society (ECS), the academic think tank on copyright has said "actual Union-wide unification of copyright" as opposed to simply further harmonising the existing EU copyright regime would have "several major advantages" saying "While copyright unification may be considered undesirable, or perhaps too drastic, by certain stakeholders and national legislatures, this is in our opinion the only way a fully functioning digital single market for copyright-based goods and services can ultimately be achieved. It is in fact the logical next step for the EU legislature to take in this field" and "A European copyright law would establish a truly unified legal framework, replacing the multitude of often opaque and sometimes conflicting national rules that presently exists. It would have instant Union-wide effect, thereby creating a single market for copyrights and related rights, both online and offline" and "The Members of the European Copyright Society are convinced that the time is now ripe to start work on a European Copyright Law that would apply directly and uniformly
across the Union.". Oettinger had previously expressed his preference for "uniform rules" on copyright to apply across the European Union.

The EFF report that the Ford Motor Company has recently sued Autel, a manufacturer of third-party diagnostics for automobiles, for creating a diagnostic tool that includes a list of Ford car parts and their specifications. Ford claims that it owns a copyright on this list of parts, the "FFData file," and thus can keep competitors from including it in their diagnostic tools. It also claims that Autel violated the anti-circumvention provisions of the Digital Millennium Copyright Act by writing a program to defeat the "encryption technology and obfuscation" that Ford used to make the file difficult to read. There are also Trade Mark claims against Autel, claims the Autel misappropriated Ford's trade secrets and that Autel used unfair, unconscionable, or deceptive methods, acts, or practices in the conduct of trade or commerce, in violation of Michigan’s Uniform Trade Practices Act (the action was filed in the District Court for the Eastern District of Michigan, Southern Division).  The complaint can be found here.  

Rather annoyingly (albeit in the context of  the CopyKat's nosey nose) it seems as if MGM is dropping its lawsuit against Universal, endings its claim that U’s plans for a spy film called “Section 6″ was a copy of the James Bond franchise. Attorneys for the studios, as well as for the “Section 6″ screenwriter Aaron Berg, filed a stipulation for dismissal in U.S. District Court in Los Angeles on Wednesday. But the dismissal is without prejudice — meaning that similar claims could be filed again. Variety reports that details of the settlement were not disclosed, but attorneys issued a statement that read, “The parties have resolved the matter to their satisfaction” and Variety added  that there has been speculation that the settlement includes a detailed road map of what can and cannot be used in the movie, so as to not infringe on the Bond franchise.

And Universal Music have filed a lawsuit against a group of companies including the Centric Group and Keefe Group who are allegedly selling "care packages" that family members and friends can send to prison inmates. Why the complaint? well amongst the items being sent to prisoners, according to a complaint filed in California federal court, are mixtapes featuring performances by artists like James Brown, Eminem, Marvin Gaye and Stevie Wonder. 

Finally today, Billboard reports that Senator Patrick Leahy (D-Vt.) and several of his fellow Democrats have reintroduced a bill that would close a loophole in the U.S. Copyright Act that prevents a surviving same-sex spouse from content ownership if they reside in a state that does not recognize gay marriages. It seems that in its current form, the Copyright Act only allows rights to revert to a widow or widower if they live in a state where gay marriages are legal. That means if an artist, musician or writer gets married in Iowa, which has marriage equality, and then moves to Texas, which does not, their legal spouse won't retain that copyrighted material when he or she dies.

In the deserts of Sudan and the Gardens of Japan, From MIlan, to Yucatan, the CopKat is in the can

A split panel of the Federal 9th Circuit Appeals Court has confirmed that DC Comics and its parent company Warner Brothers own the copyrights to Superman, with the court noting that it was ending "another chapter in the long-running saga regarding the ownership of copyrights in Superman - a story almost as old as the Man of Steel himself".  Heirs of Superman co-creator Joseph Shuster filed a copyright termination in 2003 in a move to reclaim rights Shuster had sold to DC Comics in 1938. U.S. District Judge Otis Wright in Los Angeles ruled for DC, finding that a 1992 agreement signed by Shuster's siblings, from which they received lifetime pensions from DC, had revoked a previous 1938 contract. Dissenting panel member Judge Sidney Thomas said that the record was "not sufficient to establish that Joe Shuster's siblings had the authority in 1992 to revoke and supersede his 1938 copyright grant" saying that copyright law in 1992 was such that "no one except the surviving spouse or child could exercise the right of termination"  and that it was not until 1998, "six years after the parties executed the agreement at the center of this appeal," that "Congress extended the termination right to authors' executors, administrators, personal representatives, and trustees".

More on DMCA takedown notices being used to stifle free speech.  Gordon Klingenschmitt, a former Navy chaplain running for office in Colorado had already used the YouTube's takedown system to kill the account of Right Wing Watch, a group that was critical of Klingenschmitt and his politics. TechDirt report that earlier this week, YouTube restored Right Wing Watch's account, after "realizing that he [Klingenschmitt] was clearly using their copyright takedown system to stifle criticism, not for any legitimate copyright purpose." Klingenschmitt then immediately filed yet another "bogus" copyright claim with YouTube, getting their account taken offline again. Moves are afoot to ask YouTube to revitalise it's systems to prevent serial takedown abusers taking accounts offline - and let's not forget those s512(f) actions under the DMCA for false takedowns which can result in damages and legal costs for the injured and non-infringing party - and we blogged about these here - certainly something for Right Wing Watch to consider if Mr Klingenschmitt is indeed materially misrepresenting infringement. Our earlier blog on copyright and free speech here.

The Beastie Boys are seemingly less than impressed with a 'parody' produced by a new toy company called Goldieblox - a video of three girls playing with a Rube Goldberg-type invention and singing alternative lyrics to the Beastie Boys song "Girls." Since the video went up online it has been viewed more than seven million times. Having received a letter alleging copyright infringement, Goldieblox are now seeking declaratory relief in the federal court in the United States District Court in the Northern District of California. It seems lawyers for the Beastie Boys claim that the GoldieBlox Girls parody video is a copyright infringement, is not a fair use and that GoldieBlox's unauthorised use of the Beastie Boys intellectual property is a 'big problem' that has a 'very significant impact.' It might be one to watch as clearly the 'parody' is to promote a commercial concern and sell toys - although it may well have also stoked up a debate on young girl's interest in science and scientific careers. In the original song, the Beasties sang: "Girls -- to do the dishes/ Girls -- to clean up my room/ Girls -- to do the laundry/ Girls -- and in the bathroom/ Girls, that's all I really want is girls." The video replaces those lyrics with: "Girls -- to build the spaceship/ Girls -- to code the new app/ Girls -- to grow up knowing/ That they can engineer that/ Girls. That's all we really need is girls." Despite the fact the video really is a very clever advert for 'toys for future engineers', GoldieBox say that they created the video with specific goals to make fun of the Beastie Boys song, and to further the company's goal to break down gender stereotypes and to encourage young girls to engage in activities that challenge their intellect, particularly in the fields of science, technology, engineering and math. The GoldieBlox Girls Parody Video has gone viral on the Internet and has been recognized by the press and the public as a parody and criticism of the original song." Responding to that claim, Beastie Boys have now said that they simply contacted the company to discuss the matter, because while they agree with the sentiment of the commercial, they do not allow their music to be used in any adverts ever. In fact Adam Yauch who died recently felt so strongly about this that he had it written into his will.  In an open letter to the company, published in the New York Times, surviving members Mike D and Adam Horowitz said: "Like many of the millions of people who have seen your toy commercial 'GoldieBlox, Rube Goldberg & the Beastie Boys', we were very impressed by the creativity and the message behind your ad. We strongly support empowering young girls, breaking down gender stereotypes and igniting a passion for technology and engineering". However, they continued: "As creative as it is, make no mistake, your video is an advertisement that is designed to sell a product, and long ago, we made a conscious decision not to permit our music and/or name to be used in product ads. When we tried to simply ask how and why our song 'Girls' had been used in your ad without our permission, YOU sued US".

Two of the world's biggest news agencies, Getty Images and Agence France-Presse, have been ordered to to pay $1.2 million to a freelance photojournalist for their unauthorized use of photographs posted to Twitter. The jury found that AFP and  Getty wilfully violated the US Copyright Act when they commercially used photos Daniel Morel took in his native Haiti after the 2010 earthquake that killed more than 250,000 people and which had been made available to the public through social media. U.S. District Judge Alison Nathan had already found the two agencies liable for infringement and the trial was to set the level of damages - the jury set the maximum allowable despite the fact AFP had argued the the editor who took the pictures made an innocent mistake, and had thought the pictures were available for reuse. AFP argued that the Twitter user who posted Morel's photos without attribution bore responsibility for the error. 

Hit Me With Your Rhythm Stick is by Ian Drury & The Blockheads

Takedown Piracy: a reader asks

A correspondent has emailed The 1709 Blog to ask if it knows anything about Takedown Piracy, which he describes as a "new business model of our times: the outsourced DMCA takedown bounty-hunter".

"Are such operations starting to change the landscape of piracy?" asks our reader, who observes:

"These guys make it their business to actively seek out infringing content/links/torrents on behalf of their clients, and issue takedown notices: something they claim that, because they specialise in it and because they have considerably automated the seeking-out process, they can be significantly better (and cheaper/more efficient) at than the average content owner.

In this blog post, one such takes credit for the recent demise of Cheggit, said to have been the single largest adult-content bittorrent site on the internet -- which they claim to have brought down through the sheer volume of DMCA takedown notices they served on the site.

Their FAQ also has some interesting Q&As, eg:

Q. Piracy seems pretty rampant, why even try?
Q. You say you only monitor 500 or so sites, why not 100,000?

I was wondering, does this kind of appointed agency on behalf of the copyright owners legally work in the UK/EU as well?

It seems almost the natural ecosystem response to the likes of the Megaupload reward program (Black hats outsource/crowdsource the provision of links to their content to specialists for cash --> white hats outsource/automate the following of such links and the serving of take-down notices to a countering cottage industry for cash)

The DMCA take-down system is often declared "useless" by those pushing for ever shinier new laws. But does this claim by a (self-promoting, far from uninvolved) takedown agent suggest that just possibly it may not be so ineffective after all?"

I must confess that, till I received this email, I had not heard of Takedown Piracy, and wonder whether readers have any experiences of its operations within and outside the United States.