The CopyKat - taking stock of a 'brief week'

A Sky News live feed of the debate between the US Republican presidential candidates, including Donald Trump, Jeb Bush, and Rand Paul on its YouTube channel focussed on the U.K. was shut down part way through, possibly after the intervention of U.S. sister channel Fox Networks. Both broadcasters are owned by News Corp. The YouTube feed was replaced by an error message: "This video is no longer available due to a copyright claim by Fox News Networks, LLC." although some commentators point to the fact that YouTube's own automatic copyright infringement identifying software might have instigated the take down. Sky's old YouTube channel remains blocked - Sky News has since switched over to a new YouTube URL. In the U.S.,  the Republican debate, which was hosted by Fox News in partnership with Facebook, was meant to only be available to those with a cable TV subscription.

Google, Facebook, Twitter, Tumblr and Yahoo! are amongst the signatories to a new amicus brief submitted to the New York court that is considering legal action filed by the Motion Picture Association Of America seeking an injunction forcing third parties to block, remove links and stop providing any services to the copyright infringing MovieTube website(s).  They say that the injunction the MPAA requests is too wide-ranging, hinders the sometimes controversial safe harbours provided to tech companies in the Digital Millennium Copyright Act, and is basically "SOPA by the back door" (SOPa was the much maligned Stop Online Piracy Act, ultimately put on the back burner by the legislature. The brief says: "Plaintiffs now appear to be repackaging the excesses of SOPA into the All Writs Act. Indeed, the injunction proposed here would require the same online intermediaries targeted by SOPA to engage in the same kind of content and domain blocking that would have been required under SOPA had it been enacted".

Police in the UK have hailed an operation to halt advertising on piracy sites as a “major success”. The Police Intellectual Property Crime Unit (PIPCU) claims that since it launched Operation Creative and the Infringing Website List (IWL) in summer 2013, there has been a 73% decrease in advertising from the UK’s ‘top ad spending companies’ on copyright infringing websites, with PIPCU heralding the success of its 'follow the money' approach. More on MBW here.

Back to SiriusXM and those pre-1972 sound recordings in the USA: As readers may remember, Sirius appealed both the decisions it has so far lost (New York and California) which held that state law DID protect pre-1972 sound recordings and Sirius couldn't therefor use them royalty free , and a similar case against Pandora is also on appeal in California. Last week, EFF, who argue that this effectively creating new public performance rights that might apply to all pre-1972 recordings and all types of broadcasters, filed a brief with the Second Circuit  Court of Appeals in New York, urging that court to reverse the decision. The National Association of Broadcasters, the New York Broadcasters Association, Public Knowledge, Pandora, and a group of law professors also filed briefs (it seems to be 'brief week') opposing the new right, with the EFF explaining to the court some of the many problems this ruling could cause if it’s not reversed. EFF argued that the courts should leave decisions about expanding copyright law to Congress and also saying that whilst public performance rights in sound recordings are common outside the US, and they exist for digital radio services in the U.S. - they come with important safeguards: explicit limitations like fair use, and statutory licenses that avoid the massive transaction costs that would come with having to negotiate with each rights holder individually. 

A report crunching more than six years of copyright lawsuits filed in the U.S. has revealed that Malibu Media is the country's most litigious plaintiff. The company, which TorrentFreak says demands thousands of dollars from individual file-sharers, has filed 4,332 lawsuits since January 2009, fifteen times more than its nearest rival. Overall, it's estimated that 90% of file-sharing cases are settled out of court. However 66 cases reached court with total resulting damages estimated at $3.05 million. The company set up to pursue illegal downloaders of the movie Dallas Buyers Club sits in second place, with a relatively measly 274 cases, fifteen times fewer in volume than Malibu.

ZDNet reports that the Australian Attorney-General has commissioned a cost-benefit analysis of proposed digital copyright reform, which will encompass an economic analysis into the Australian Law Reform Commissions's (ALRC) recommendation to adopt a flexible fair use provision in regards to digital copyright in Australian law, seemingly as the the AG is concerned about the costs to both rights holders and rights users. A new Australian fair use provision would mean the fair use of a copyright material would not constitute infringement, based on a series of as yet incomplete fairness factors -- including the purpose of the use, nature of the material, amount of the material used, and the use's effect on the material's value: in addition research for the purposes of study and education as well as news reporting, review, criticism, satire, parody, quotation, non-commercial private use, professional advice, incidental or technical use, library or archive, and access for people with a disability would be exempted from copyright infringement provisions. The ALRC have said that the reforms are needed to promote the digital economy in Australia, although AG Brandis is seen as a friend to the content industries and unconvinced that despite changing technology, major law reforms are necessary, saying in late 2013 "I want to reaffirm the government's commitment to the content industries. It is the government's strong view that the fundamental principles of intellectual property law, which protect the rights of content creators, have not changed merely because of the emergence of new media and new platforms."

The CopyKat - Friday's feline feast

The Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA) have both sent letters to the Internet Corporation for Assigned Names and Numbers (ICANN) urging the organization to take strong action against the use of domain names for illegal and abusive activities including those related to copyright infringement. The RIAA had said it was disappointed with ICANN’s treatment of copyright abuse complaints and urged ICANN to make domain name registries and registrars investigate copyright abuse complaints and take swift action, not least because when ICANN recently opened up top-level domains, it included a provision in its contract with the registries of the new top-level domains which was called the Public Interest Commitment - agreeing that they would only do business with domain name registrars that prohibited its customers from distributing piracy, trademark and copyright infringement (amongst other things). More on Techspot here.

Here's an interesting take on copyright reform in the EU: "The reform of copyright also concerns linguistic precision - a distinction should be made between Anglo-American copyright and continental European authors' rights. With copyright exploitation rights are not necessary reserved for the creator." Its from Dietmar Köster, the European Parliament's EPP group shadow rapporteur looking towards a renewed consensus on the enforcement of intellectual property rights in the EU: That debate is being led by the rapporteur for parliament's legal affairs committee, Julia Reda, of the Greens/EFA group.

City University are organising a copyright-related seminar to be held at City Law School on Wednesday 1st April 2015, College Building, Room AG 02. The speaker is Professor Stavroula Karapapa (University of Reading), who will talk about "The Concept of 'Public' in Copyright Law" and will look at "what amounts to an actionable communication of copyright works to the public. Recent rulings of the Court of Justice of the European Union uphold that infringement takes place not only where an unauthorised communication reaches the public but also where a communication is addressed to a «new public», i.e. a public that copyright holders had not taken into account when authorising the initial communication of the work. This newly developed doctrine does not refer to a public or a private circle in a copyright sense, but develops a sui generis legal fiction that fundamentally changes the communication right; it both restricts and expands its scope in ways that were not foreseen when the right was first introduced in international law, European copyright and the national laws of Member States. In its unnecessary complexity and complicated logic that challenges the credibility of copyright, the concept of the “new public” indicates that the extremely broad scope of the communication right is unworkable and counter productive, and invites a principle-based approach in examinations of infringement." More here.

CMU Daily reports that the City Of London Police's IP Crime Unit (PIPCU) has shut down a copyright infringing karaoke website following a complaint by PRS For Music. CMU tells us that KaraokeWorld was a BitTorrent site with a specific focus on accessing unlicensed karaoke tune. The service had a commercial element, with VIP memberships on offer from £5 to £90, which will have heightened the case for taking criminal rather than civil action against the operation. A 46 year old man believed to be the operator of the website was arrested as part of the shutdown. PIPCU Detective Chief Inspector Danny Medlycott told reporters: "The public needs to be aware that by accessing sites like this, they are putting money directly in the hands of criminals, which often then funds other serious organised crime, as well as putting their own financial and personal details at risk of being compromised and used for other fraudulent scams. These websites are stealing from the creative industries that employ thousands of people and PIPCU will continue to work closely with our partners to tackle the criminals behind these sites and bring them to justice".

AND FINALLY - AND coincidently set against the backdrop of the news that Sarah Brightman is working with Andrew Lloyd Webber on new material to perform in space -  this from a anonymous contributor who The CopyKat shall name only as 'Major Tom'.....

'Stimulated by Sarah Brightman's intention to be propelled into space in September, the EU has launched a Public Consultation into the collective administration of rights in extraterrestrial broadcasting. "We have asked her to delay her flight for an indefinite period - possibly several aeons - while we consult and decide on the cross-planet implications of the licensing of her performance', said an EU spokesperson. Elsewhere (George) Lucas Grange, supremo of Universal Music, said 'We are called Universal for a good reason. We have an exclusive arrangement with Ms Brightman and her ex-husband, with his Soyuzful Music Corporation, to handle all the publishing and artistic rights. People laughed at us when we signed everything for the Universe, but they are now laughing on the other side of their galaxies.' This claim was dismissed by Sergey Brin. 'Ms Brinman's voyage will take place in Google Rocket, propelled by Google Zoom. Her Google Watch will stream her singing via Google Play and Universal can go and sing for their royalties. Her destination was Google Moon, but if she fails in her mission then she and the royalties will fall into a Google Black Hole.' Speaking from a black hole in Brussels, an EU spokesperson stated that all modalities would be taken into consideration. The CEO of a central European collecting society, who wished to remain anonyme, said 'all public performance royalties from Ms Brightman's performances that cannot be distributed (and that means all of them) will be sucked into our black box, as is customary'.

To infinity ...... and beyond!

The CopyKat - last Christmas you ......

As Eleonora reports over on theIPKat, Google has announced that it will be permanently shutting down the Spanish version of Google News, effective from December 16, 2014. The shutdown comes in direct response toamendments to the Spanish intellectual property law (Ley De Propiedad Intellectual) imposing a compulsory fee for the use of snippets of text to link to news articles, by online news aggregators that provide a search service. Google says its news service makes no profit and so hasd decided to pull the service out of Spain.  Richard Gingras, Head of Google News, said "[t]his new legislation requires every Spanish publication to charge services like Google News for showing even the smallest snippet from their publications, whether they want to or not. As Google News itself makes no money (we do not show any advertising on the site) this new approach is simply not sustainable."

Finland has decided to ditch copyright levies on digital devices. Instead a special government fund will be set up to compensate artists for private copying of music and movies. Following a Parliamentary  vote, Finnish MEP Henna Virkkunen said the new system would be “fairer to consumers and better better for artists because they will get more compensation this way”. Even Veronique Desbrosses, general manager of GESAC, which represents authors’ rights, agreed that increased compensation for artists was a positive element, saying “private copying compensation is part of the ecosystem and is essential”.

Chief Judge
Alex Kozinski 

With the eleven person en banc Ninth Circuit panel set to begin to re-hear arguments in Garcia v. Google case today in Pasadena, a number of Silicon Valley technology companies are amongst those resisting Cindy Lee Garcia's quest to "scrub the internet of her 5-second appearance in the controversial trailer for Innocence of the Muslims". Those against actors gaining a recognised copyright in their performances include Netflix, and the remaining amici range from law professors to news organizations, public interest groups to the Screen Actors Guild-American Federation of Television and Radio Artists—the last being the lone brief endorsing Garcia's copyright position. But interestingly no other major content owners from the film, TV or recorded music sectors have joined the battle: yes they want Google to take down infringing items - but no - they don't want performers and recording artists having any rights that might restrict their own commercial objectives. Google, the California Broadcasters Association and the American Civil Liberties Union all "foresee dire consequences if a U.S. appeals court doesn’t overturn a first-of-its-kind ruling" given by Chief Judge Alex Kozinski that gave actress Cindy Lee Garcia a copyright interest in her performance. Small filmmakers have also weighed in, backing Google; Jack Lerner, an assistant clinical professor at UC-Irvine School of Law, helped write an amicus brief on behalf of the International Documentary Film Association, other independent film groups and filmmakers including Morgan Spurlock, whose "Supersize Me" was nominated for an Academy Award. The California Broadcasters Association said that if the February ruling stands, it will open the floodgates to demands by minor players in movies for the removal of their performances from the Internet. More here.


Torrentfreak now reports that the Motion Picture Association Of America is now looking to secure web-blocks in the U.S without requiring new U.S. legislation. It seems having originally investigated how it might resurrect the web-block elements of SOPA/PIPA in Congress without causing so much controversy (which seems to have been a fanciful hope!)  - the MPAA has now opted for seeing if it can find a way to secure web-blocks in the American courts under existing laws, without requiring new legislation to be passed.

For the past three Decembers, a new musical tradition has been quietly taking root in the recorded music sector, stemming from the 2012 revision to European Union copyright law providing that sound recordings would be protected for an extended 70 years (rather than 50). But attached to that extension was a crucial proviso: in order to qualify for the extra 20 years of protection, the recordings had to be released within the first 50 years after they were made. Now Bob Dylan is said to be releasing a nine-LP box set of unreleased material from 1964, to keep the recordings from entering the public domain. The Beach Boys, The Byrds and The Kinks  are also due to release material although a number of websites noted that Universal Music is running out of time if it wants to reboot the copyright in any unreleased Beatles recordings from 1964. This time last year the major and the band's Apple Corps released 'The Beatles Bootleg Recordings 1963' onto iTunes. 

The one-time pirate website FilesTube has been officially "un-blocked" in the UK after relaunching itself as a licensed video aggregator. UK internet service providers were ordered to block their users from accessing  the site by the High Court in an action brought by record industry trade body the BPI in October last year. A relaunched Filestube is now as an aggregator of only legitimate content. and according to Torrentfreak, FilesTube's Poland-based operators had anticipated having to go the English High Court to get their domains unblocked, but the BPI had been monitoring the situation and voluntarily requested the block be removed. Indeed the BPI's General Counsel Kiaron Whitehead told TorrentFreak: "We are pleased that the block has encouraged FilesTube to change its business model so that it no longer appears to infringe music rights. Accordingly, we have agreed to un-block the site, which the ISPs will implement over the next few weeks. We hope that other sites which are subject to blocking orders will follow suit and help to support the development of legal digital entertainment".

Following on from our last blog and from TorrentFreak comes the opinion: "The Pirate Bay was taken offline in a police raid in Sweden. It may only have been the front-end load balancer that got captured, but it was still a critical box for the overall setup, even if all the other servers are running in random, hidden locations. Sure, The Pirate Bay was old and venerable, and quite far from up to date with today’s expectations on a website. That tells you so much more, when you consider it was consistently in the top 50 websites globally: if such a… badly maintained site can get to such a ranking, how abysmal mustn’t the copyright industry be?

The CopyKat - Bently blocked in bizarre bite sized ball battle

Research from the Motion Picture Association Of America (MPAA) claims that web-blocking in the UK is proving a substantial deterrent to online piracy - even where proxy sites enable users to access blocked services. An internal MPAA report , seen by Torrentfreak, shows that that visits to infringing sites UK sites that had been blocked declined by more than 90% in total during the measurement period or by 74.5% when proxy sites are included. The research is referenced in a report being prepared for the Australian government which is currently considering new anti-piracy measures, including web-blocking. Though Torrentfreak wonders if the fact the MPAA is conducting research of this kind suggests that it is planning on pushing for web-blocking in the US once again.

And UK Culture Secretary Sajid Javid has warned internet search engine companies legislation could be introduced if they do not make "real progress" in clamping down on links to pirate websites. He told the Annual General Meeting of the record label's trade association the BPI that he and Business Secretary Vince Cable had written to leading firms such as Google requesting they work with record firms in finding a way to stop giving easy access to sites which violate copyright saying  " No industry - and no Government - can let this level of infringement continue on such a massive, industrial scale" noting that without enforceable copyright there would be “no A&R, no recording studios, no producers, no session musicians, no publicity, no artwork. None of the vital ingredients that take the music created made by talented artists and turn it into something the whole world can enjoy. It’s what our past success was built on, and it’s what our future success depends on” adding "Copyright infringement is theft, pure and simple".

"The next generation of wars over knowledge, culture, drawings, information, and data is just around the corner, and it’s going to get much uglier with more stakes involved on all sides. We have gotten people elected to parliaments (and stayed there) on the conflict just as it stands now. As this divide deepens, and nothing suggests it won’t, then people will start to pay more attention. And maybe, just maybe, that will be the beginning of the end of these immoral and deeply unjust monopolies known as copyrights and patents." An interesting article. 

The UK's Copyright Licensing Agency and the China's Written Works Copyright Society have signed an agreement which will, for the first time, place numerous Chinese written works in the British market, including books, articles in newspapers and magazines and academic papers. Yan Xiaohong, deputy chief of the Chinese National Copyright Administration, said the agreement marks a milestone in copyright protection for Chinese works in overseas markets saying "It will encourage more Chinese writers and publishers to produce more high-quality copyright works appealing to foreigners, and guarantee their economic benefits" adding "Also, it will serve as a trailblazer for more agreements of its kind to be signed with copyright collective management agencies in other countries and regions of the world. Eventually, this kind of cooperation will boost Chinese cultural exports." The CWWCS is the only valid organization approved by the National Copyright Administration to collectively manage and operate copyright in China. Richard Mollet, chair of the UK Publisher's Association and the UK Alliance for Intellectual Property, and UK Minister for Intellectual Property Baroness Lucy Neville-Rolfe also attended the signing ceremony.

And finally ..... and with echoes of Lawrence Lessig's tussle with Liberation Music over the use of a clip of a Phoenix track in a presentation on cultural and technological innovation - comes news that Professor Lionel Bently has similarly had a video temoved from YouTube - because the English Football Association Premier League claimed that it infringed their copyrights. TechDirt reports that the clip was used by Professor Bently at the Institute for Information Law (IViR) July Information Influx event, which included a panel discussion on "Who Owns the World Cup?" discussing the very question of copyright and sports clips.

It is reported (though this Kat can't confirm) that Professor Bently was arguing in favour of better copyright protection for sporting events - an area where the FAPL have struggled in their battle to prevent unauthorised broadcasts with courts finding that only certain elements of live match transmisisons protectable (logos, anthems and clips from past matches). In the Lessig case, Liberation Music reached a settlement with Lessig. The settlement included an admission that Lessig had the right to use a track by the band Phoenix, and Liberation admitted Lessig's use of the song was protected by fair use - and Liberation agreed to adopt new policies around issuing takedown notices. I wonder if, in the different regime of fair dealing, and with the newly revised S30A "quotation" exception not yet in place in the UK (due 1st October 2014 I believe), the Premier League will take the same approach in the UK - or maybe just apply some common sense? Whatever the FAPL do or don't do, the phrase that most springs to my mind (and others it must be said) is 'own goal'.  

There is more on this story on the Kluwer Copyright Blog  "Premier League claims copyright on football matches shown in copyright debat"  by Thomas Margoni, Institute for Information Law (IViR)

The FatCat CopyKat - it's all about the money

Loads of money!

The economic contributions of U.S. copyright industries reached new heights last year, for the first time contributing more than $1 trillion to the USA's gross domestic product and accounting for 6.5% of the nation's economy. A new report from the International Intellectual Property Alliance, a private coalition representing the Motion Picture Association of America, the Recording Industry Association of America and others in the computer software, video games, books, newspapers, periodicals, radio, TV and journals sectors, says those industries contributed $1.01 trillion in value-added services to the nation's GDP in 2012. The study is apparently based on data from the Bureau of Economic Analysis and other government statistics.

A group of news agencies have reached an out-of-court settlement with a Croatian websitfor more than 50,000 Euros after the wesbite lifted their pictures and re-used them online without credit. The ten independent agencies, all members of the National Association of Press Agencies (NAPA), sued www.tportal.hr after finding photographs had been lifted directly, mostly from Mail Online, with no attempt having been made to obtain a licence or pay for usage. One image agency had invoiced and sent numerous reminders for the usage, but was constantly ignored.

The Hollywood Reporter tells us that the Russian government plans to form an agency in charge of copyright observance amid a series of moves aimed at cracking down on piracy. The Economic Development Ministry has submitted plans for an Agency for copyright control, which is to be formed on the basis of the existing Patent Agency, but will have much broader authority and would be report directly to government. 

Even more money

TorrentFreak reports that the film and music industries, in the guise of the MPAA and the RIAA, have commented on the U.S. Government’s Internet Policy Task Force' Green Paper. Among other things, the group proposed a “recalibration” of penalties for file-sharers, which currently reach $150,000 per shared file. The MPAA and RIAA, among others, have now responded to this suggestion, stating that the current punishments are proportional, and needed to deter others from file-sharing and related offences. More here.



Now here's an interesting story. It seems the company behind blogging website Wordpress is going to bring two actions under s512(f) of the USA's DMCA for receiving allegedly  bogus DMCA notices. Automattic, the company that runs the super popular blog hosting platform WordPress.com, has filed two separate lawsuits against third parties for "knowingly materially misrepresenting" a case of copyright infringement against two Wordpress blogs: Techdirt reports that the first involved an attempt to remove a series of articles on the RetractionWatch site, run by Ivan Oransky and Adam Marcus, that were critical of cancer researcher and physician Anil Potti, who at the centre of a medical research scandal. The second is against the the actions of the British anti-gay campaign group Straight Pride UK whose organisers gave an interview to student journalist Oliver Hotham, then decided that they didn't like the fact that they "sounded like idiots in the interview", and tried to use the DMCA to take down the article which included the quotes they had willingly given to Hotham in a 'press releaase'.  See our previous blog here. Automattic are seeking damages under s512(f). Automattic's General Counsel Paul Siemniski explains that the company, who were criticised for the Straight Pride UK takedown,  feels that it needs to step up and protect freedom of expression and fight back against DMCA abuse: Hotham, whose original interview revealed Straight Pride UK's admiration of Vladimir Putin "for his stance and support of his country's traditional values", says he is "extremely happy" with Automattic's decision.

We must be brief today - its the 50th Anniversary Dr Who show on British TV this evening and the CopyKat must prepare.  We even have friends who have even paid to go to cinemas to watch the (free to air) transmission live on the big screen. The episode, The Day of the Doctor, will also be broadcast in more than 90 countries at the same time as it airs on BBC One tonight. The 50th anniversary adventure stars Matt Smith, David Tennant and John Hurt as different incarnations of the Doctor.

A blogger investigates the TARDIS

And talking of Dr who, as far as we know there has been no resolution to the copyright claim against the Doctor's time travelling 'Tardis' - but it's all good publicity for the BBC (amazing coincidence the timing of that lawsuit  ..... wasn't it ......). In fact the BBC have been sued over the Tardis before - back in 1996 by the Metropolitan Police - and let's not forget the exterior of the Tardis IS a traditional blue London police box: The boys in blue brought a legal action to challenge the BBC's trade mark application for the shape of the box and the name TARDIS. The BBC Prevailed in 2002 and the hearing officer remarked that even if the police had built up any reputation in the blue police telephone boxes (and back in 1953 there were 685 in London), it would have only been in the area of policing and law enforcement and would not have extended into the goods and services which the BBC had applied to use it for adding "I bear in mind that for most of the period since the police call box was taken out of service, the only sight the public at large would have had of this item of street furniture has been in the TV programme Dr Who, provided by the BBC where it is a Tardis, a fictional time travelling machine with the external appearance of a police box."

MPAA spare the rod with plundering nonagenerian pirate

Whilst the Australian film and TV industry group AFACT may have lost it's protracted battle with peer-2-peer file swappers who used Aussie internet service provider iiNet, their American cousin, the Motion Picture Association of America, seems singularly reticent to take any sort of action against one of the most prolific film pirates in American history - 92 year old retired stockbroker Hyman Strachman, who freely admits to copying many Hollywood blockbusters and sending out upwards of 300,000 pirate DVDs to American forces. It get worse - and proving that new is not always best - Strachman's distribution is just as efficient as the digital domain, as he uses a network of army chaplains to distribute the bootleg bounty to a willing audience of serving soldiers in Iraq and Afghanistan. The Times reports that the headquarters of the counterfeit champion known as 'Big Hy' by his affectionate customers is not some sleazy back alley sweat shop, but a "white clapboard house on the shore of South Oyster Bay, Long Island" where Mr Strachman can run off up to seven DVDs at a time. Whilst it seems the MPAA is fully aware of Mr Strachman's infringing activities, it has so far declined to take any action, although Big Hy acknowledges that "if I were younger, maybe I'd be spending time in the hoosegow [jail]". Mr Strachman's illegal day job is now drawing to a close as the US army prepares to withdraw its personnel from Afghanistan.

A Rose by Any Other Name

No matter what you call it or how you try to frame it, internet streaming is internet streaming.

Zediva tried to claim otherwise, setting up a rather elaborate system that attempted to get around the copyright law requirements for licensing movies streamed over the internet.  A lot of times this is how the law is figured out, attempts to get around it lead to law suits and court-issued clarifications.  (See the Napster/Grokster/Limewire string of cases.)  But in this case, the Zediva folks missed an important part of copyright law history, and the District Court for the Central District of California issued an injunction.

How Zediva tried to avoid licensing fees

First, I want to acknowledge that I was not able to locate a copy of the decision so my information is coming from various news sources, all listed at the end of this post.

Zediva set-up the service to mimic a video rental store.  Users rented a dvd that Zediva had purchased and the dvd was played in a remote dvd player also purchased by Zediva and shown to the customer via the internet.  One article mentions that users would sometimes get messages that movies were out of stock.  I’m guessing this occurred when customers had rented out all of the DVDs Zediva had purchased of that film. 

Rather than finding this system as a way of remotely renting purchased DVDs, the court found that this was just an annoyance and potential source of confusion for customers learning about video streaming. 

Zediva wasn’t paying licensing fees, trying to rely on the first sale doctrine saving their rental model.  But, as one law professor pointed out, Zedvia seemed to have missed the case where renting a video to be watched in a booth inside the store was infringement.  (That case was Columbia Pictures Indus. v. Redd Horne, Inc. from 1984.)  Even if Zediva could persuade the court that it was renting and not streaming movies, the facts are more similar to Redd Horne than to a regular video rental store.

However, the court did not buy the rental concept and instead found that Zediva was transmitting the performance to the public and thus infringing copyright.  Wonder if they’ll be another attempt at a work around…

Media Post News: http://www.mediapost.com/publications/?fa=Articles.showArticle&art_aid=155164

Read Write Wed: http://www.readwriteweb.com/archives/citing_copyright_law_judge_orders_movie_streaming_service_shut_down.php

CNET: http://news.cnet.com/8301-31001_3-20050579-261.html?tag=mncol;2n

US content industry and ISPs to inform and alert

After months of discussions, a large number of the major U.S. Internet service providers (ISPs) have signed up to an agreement to take action against users who violate copyright. AT&T, Cablevision Systems, Comcast, Time Warner and Verizon have agreed to participate in the scheme along with a number of content providers from the film, TV and music industry including the MPAA (The Motion Picture Association of America whose members include Disney, Sony, Paramount, Warner Bros and Twentieth Century Fox), the Recording Industry Association of America (representing the major labels including Universal, EMI North America, Warners and Sony) , the IFTA (representing independent producers & distributors of film & television programming) and A2IM which represents independent record labels.

The voluntary “Memorandum of Understanding” is based on a system of Copyright Alerts, “a state-of-the-art system similar to credit card fraud alerts – that will educate and notify Internet subscribers when their Internet service accounts possibly are being misused for online content theft. This voluntary landmark collaboration will educate subscribers about content theft on their Internet accounts benefits consumers and copyright holders alike.”

The approach is intended to overcome one of the major arguments against disconnecting accounts that are being used for piracy, which is that often the person who pays the bill is unaware that illegal activity is occurring. In other cases, the accused infringer is unaware of the applicable copyright laws, or may be unaware that downloading copyrighted content from illicit sources is illegal and violates ISP’s terms of service. The Copyright Alert System is based on a consumer’s “right to know” when his or her Internet account may have been used improperly to download copyrighted content. The RIAA’s press release says that the new system addresses these problems with a series of early email alerts (up to six) notifying the subscriber that his or her account may have been misused to access illegal for online. It will also put in place a system of “mitigation measures” intended to stop online content theft on those accounts that appear persistently to fail to respond to repeated Copyright Alerts. The system will also provide subscribers the opportunity for an independent review to determine whether a consumer’s online activity in question is lawful or if their account was identified in error (there will be a small charge of $35 for this).

However, termination of a subscriber’s account is not part of this agreement. ISPs will not provide their subscribers' names to rights’ holders under this agreement although the new system of graduated Copyright Alerts means that consumers will have more advance warning and educational opportunities before extreme penalties are implemented. This will replace the current practice of DMCA violation notices being sent to the ISP, who then forwards them to the account holder.

The agreement also establishes a Center for Copyright Information to support implementation of the system and educate consumers about the importance of copyright.

Comment from the ISPs seems limited with Randal S.Milch, executive vice president and general counsel of Verizon saying “This is a sensible approach to the problem of online-content theft and, importantly, one that respects the privacy and rights of our subscribers”

Comment from the content industries was widespread (and rather verbose in places). Both Michael O’Leary, Executive Vice President for Government Relations at the MPAA and Cary Sherman, president of the RIAA said that piracy put the jobs of many creative industry workers at risk, and that the provisions of the new Agreement would lead consumers to discover the multitude of content now legitimately available online with O’Leary saying “Many people don’t realize that content theft puts jobs – and future productions of films, TV shows, music, and other content – at risk …. today, there are more ways to enjoy content legitimately online than ever before. This agreement will help direct consumers to legal platforms rather than illicit sites, which often funnel profits to criminals rather than the artists and technicians whose hard work makes movies, television, and music possible.”

James Assey, executive vice president of the National Cable & Telecommunications Association (NCTA) said “Consumers have a right to know if their broadband account is being used for illegal online content theft, or if their own online activity infringes on copyright rules – inadvertently or otherwise – so that they can correct that activity” adding “We are confident that, once informed that content theft is taking place on their accounts, the great majority of broadband subscribers will take steps to stop it. That’s why the educational nature of this initiative is so critical.” The International Federation of Phonographic Industries, representing the recording industry worldwide welcomed the agreement and the IFPI’s Chief Executive Officer, Frances Moore, said “It is very good news that ISPs in the US recognise their pivotal role in tackling online piracy and have committed to take proactive steps to achieve this. The agreement also sends an important signal internationally. It adds to the momentum already created by initiatives such as graduated response and blocking of infringing websites in other countries, and is the latest mark of recognition that ISP cooperation is the most effective way of addressing online piracy.”

A word of caution came from The Center for Democracy & Technology and Public Knowledge said the agreement met many but not all of their concerns regarding the rights of the average citizen, and that “close ongoing scrutiny will be required to ensure that the agreement achieves its purpose without unfair or disproportionate consequences for Internet users.”

Both the Center for Copyright Information and the Copyright Alert System are voluntary collaborations between the entertainment and broadband business communities. Participating ISPs will begin implementing Copyright Alerts in 2011 and 2012.

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