The CopyKat - appealing to copyright fans far and wide!

The Shaghai Daily tells us that China's copyright regulator has strengthened its law enforcement policy against alleged piracy in cloud-storage services, which, despite a previous crackdown, "had long provided Internet users a covert channel to download movies and TV series." As part of the 'Sword Net' initiative, cloud-storage services have been ordered to prevent users from uploading, storing or sharing files that may infringe copyright, pursuant to a regulation from the National Copyright Administration (NCA) dated October 14th 2015. The new move was published after a meeting Tuesday attended by leading online data hosting services such as Baidu, Qihoo360, Tencent and Huawei. The new regulation means that cloud service providers must deal wuth those copyright offenders by putting them on blacklist, or suspending or terminating their services. Service providers should also notify copyright holders how to lodge complaints, and commit to handling complaints in a timely manner.

An Illinois couple who own several recording companies specializing in doo-wop, jazz, and rhythm and blues have filed law suit against the major satellite and Internet radio companies in the US over their playing of pre-1972 songs. Following on from the actions from Flo & Eddie of the Turtles and and RIAA, it's the third lawsuit that seeks to obtain payment for use of sound recordings under state copyright laws. Arthur and Barbara Sheridan filed two lawsuits in New Jersey federal court: one against Pandora and Sirius XM (PDF) and another against iHeartMedia (PDF), the parent company of online music service iHeartRadio. Their lawsuits seek class action status, looking to represent owners of pre-1972 songs. The action says that the companies have derived "significant benefits," including "millions of dollars in annual revenue," by playing those songs without permission, the suit alleges. In an action brought by ABS Entertainment, which owns the recordings of Al Green, among others, terrestrial radio broadcaster CBS has argued that not only does state law not apply to their use - a matter the recorded music industry had until recently accepted this interpretation of the law - CBS also says that as it only plays re-mastered versions of pre-1972 sound recordings, these actually have a post 1972 copyright copyright saying "In fact, every song CBS has played in the last four years has been a post-1972 digital sound recording that has been re-issued or re-mastered".  Meanwhile Pandora has confirmed that it has reached a settlement with the major labels over its use of pre-1972 sound recordings. The streaming platform follows the lead of US satellite radio service Sirius which, back in June, agreed to pay $210 million to the three majors - Universal, Sony and Warner - and ABKCO Music, which is best known for controlling the early Rolling Stones catalogue, with Pandora paying the labels $90 million for past and future usage of pre-1972 repertoire More on ArtsTechnica here and the Hollywood Reporter here.

Adolf Hitler's ‘Mein Kampf”  falls out of copyright next year when the term of the copyright, owned by the State of BAvaria, expires. is almost certainly going to re-published and it seems annotated German and French reprints are being prepared. Last week a Paris publisher, Fayard, confirmed in a statement it was going ahead with an annotated French print, after pondering on it for the past four years. A German-language reprint will be handled by the government-funded Institute of Contemporary History in Munich, which emphasizes the book’s historical importance. It too, will be annotatated. More on the Times of Israel here.

The Supreme Court of India has held that no copyright exists on the "title" of a literary work, reversing the decision of the Bombay High Court: "No copyright subsists in the title of a literary work and a plaintiff or a complainant is not entitled to relief on such basis except in an action for passing off or in respect of a registered trademark comprising such titles. The Times of India has more.

The 'Dancing Baby' case is not over - with BOTH sides aiming for a rehearing: Whilst at the time of the appelate court's judgement, the EFF called it “an important win for fair use,” but now both the EFF (which is representing the plaintiff, Stephanie Lenz, who filmed her then toddler dancing to Prince's "Let's Go Crazy" ) and Universal Music Corp. have requested an en banc rehearing from the Ninth Circuit. It seems the EFF are looking to strengthe the case for 'fair use' by breathing new life in section 512(f), which allows the targets of illegitimate takedowns to sue the people who sent the invalid notices - potentially arguing that on the facts of this case, Universal could not possibly have acted in 'good faith' when issuing a DMCA takedown' notice  The Universal petition claims that Lenz had no standing for an appeal in the first place because she was not injured by the takedown. UMG will also ask the court to clarify some of the language in the opinion.

Jay Z at Glastonbury 2008 (Nick Cordes)

US district judge Christina Snyder has abruptly dismissed the lawsuit against Jay Z and his producer Timbaland before it went to a jury at a federal court in Los Angeles, ruling that Osama Ahmed Fahmy, the heir of an Egyptian composer Baligh Hamdy, lacked the right to pursue a copyright infringement claim against Jay Z's Big Pimpin in a case that looked at copyrights, moral rights and chain of title. After hearing from experts in Egyptian law, The judge ruled that Egyptian law did not apply and that the case should not go to a jury. “Fahmy lacked standing to pursue his claim. In light of that decision, it will not be necessary to submit to the jury whether Big Pimpin’ infringed Khosara Khosara,” she said. The plaintiffs have said they will file an appeal

Mein Kampf heads for the public domain -- and maybe a readers' warning

As is well known, Adolf Hitler's book Mein Kampf (in English "My Struggle") is coming out of life-plus-70 copyright on 1 January 2016 (see earlier 1709 Blog posts here, here, here, here and here).

Given that this work will be in the public domain, where it can be freely copied and republished, and given that the book's notoriety is also a basis upon which calls for its suppression have been met by arguments founded on freedom of speech and on its historical and cultural significance, Hate Prevention, a French initiative, is calling for new versions of Mein Kampf to bear an appropriate "warning" with regard to intolerance and hatred of others.  Speaking for the initiative, Dr Jean-Marc Dreyfus, Reader in Holocaust Studies at the University of Manchester (right), mentions that it is in no way confined to cautioning with regard to antisemitism, since homosexuals, Sinti and Roma were also victims of the creed of Mein Kampf's author.

The CopyKat - trolling tonight

Freeplay, the US-based library music company, which has been providing music for bedroom filmmakers for their YouTube videos, has filed litigation against four 'multi-channel networks', accusing the the firms of abusing licences they had designed for user-generated videos to circumvent having to pay for the music used in their commercial content. The companies being sued include some of the big guns in the growing MCN space: Disney's Maker Studios, DreamWorks Animation's Awesomeness, Big Frame and BroadbandTV Corp. Two more - Machinima and Collective Digital Studio - which launched pre-emptive strikes against Freeplay last week, are set to receive countersuits from the music rights owner in due course. Freeplay offers a licence to amateur video makers that allows them to use music from the Freeplay library free of charge, on the condition Freeplay is able to subsequently monetise that content on YouTube using Google's Content-ID system to collect ad revenues. But Freeplay charges commercial content producers $250 a year for a licence - and says that licence is designed for personal Youtube channels - NOT MCNS. Freeplay say they used the audio fingerprint technology TuneSat to locate their music on numerous MCN-operated channels all being used without the right licence. The lawsuits allege that Freeplay contacted the four MCNs about licensing the music, but that they were not willing to negotiate. The suits seek unspecified monetary damages and demand that the infringement cease. Machinima and Collective Digital Studio argue that Freeplay is deliberately confusing amatuer video makers into using the free sync music from Freeplay's libraries - only to be subsequently invoiced, or threatened with legal action when the usage is classified as commercial. The MCNs go as far call Freeplay's approach 'copyright trolling'. More on Variety here.

And more on alleged trolling - this tme its all about a Australian wine maker called Stephen Moignard who has designed an algorithm called Plfer to hunt down "substantially similar" text across multiple websites and serve demand letters to alleged copyright infringers. TechDirt is of the opinion that Plfer's detection algorithm bears many similarities to commercial plagiarism detection software, albeit with a few tweaks that allow it to bypass web formatting and other obstacles that might throw off comparisons. TechDirt also have some queries about Mr Moignard's maths and interpretation of the law - and all in all its a very interesting read, even for luddites like the CopyKat. The beta site for Plfer is here and the value of copyright infringements currently 'detected' is a whopping $1,413,463,665.

And finally on this: Two people targeted by one of Rightscorp's anti-piracy programmes in the U.S. say that the somewhat controversial company has violated America's Telephone Consumer Protection Act by sending them automated calls and text messages without permission. In a lawsuit filed with the federal court in Georgia, Melissa Brown and Ben Jenkins deny downloading any copyright infringing content, but say Rightscorp broke communication laws by following up an initial letter with calls and texts attempting to gain a settlement for alleged infringements.

The Daily Mail reports that a German historical society is set to publish an annotated edition of Hitler's controversial tome Mein Kampf after the book's copyright expires later this year. The Munich Institute for Contemporary History (IfZ) says it will publish a two-volume edition of the book in which the Nazi leader outlines his anti-Semitic beliefs and plans for world domination. The new volume will consist of a total of 2,000 pages. However just 780 of these will contain Hitler's original text - the rest will be comments from contributors and the work will also contain a new introduction and index. Copyright in the book is held by the State of Bavaria. In January 2012 the 1709 blog reported that the District Court of Munich I (LG München I) had issued a preliminary injunction on behalf of the Bavarian state government, prohibiting the planned publication of commented excerpts of Mein Kampf by British publisher Peter McGee because of the copyright. The injuction was subsequently upheld. Bavaria also indicated that Germany's anti-Nazi laws might be a bar publication - now more pertinent as copyright expires 70 years after Hitlers death in 1945.  In Decmnber 2013, reversing a pervious postion, The Bavarian governor's chief of staff, Christine Haderthauer, said the book amounted to incitement to hatred and the government would file criminal complaints if anyone tried to publish the book when the copyright expired.  In 2012 the then President of Germany's Central Council of Jews said he hoped that the reprints would ‘demystify" the book. "I'm an Internet junkie myself" he said. "Everyone can already find the book on the Web." However, an American Jewish group countered saying the publication plans could be morally offensive and last year Dieter Graumann, president of the Central Council of Jews in Germany, said that he was strongly opposed to the book going on sale. 

Vivian Maier - self portrait

The epic battle over who owns the copyright in the photography of Chicago nanny Vivian Maier has had a couple of new skirmishes, Maier, who had a 'secert life' as a photographer, snapped over 150,000 images in and around Chigago from the 1950s onwards. Maier made no attempt herself to sell or exploit her intimate and often-gritty photography of everyday people, rich and poor, and often submitted the films she took for developing under false names. She never registered any copyrights in her images. A few years ago interest in her work exploded, and prints of her photographs from this bygone era have sold for thousands of dollars.John Maloof, a 33-year-old former Chicago real estate agent who features in and co-directs the Oscar nominated documentary Finding Vivian Maier and who has a large collection of her work, is facing a claim that might stop him exploitating the images and indeed the film. In 2007 Maloof bought a box full of Maier's negatives at auction for $380 from a repossessed storage locker and he now owns the vast majority of her work, more than 100,000 images that are mostly in negatives or undeveloped film. He traced Maier's whereabouts to the Chicago area in 2009, but too late - she had recently died at the age of 83. 1709 readers will know only to well that possession of the negatives and prints is not ownership of the copyright in those images.  the 1976 U.S. Copyright Act automatically gave federal copyright protection to works that were created but neither published nor registered before January 1, 1978 and that terj extends for 70 years after the death of the author. And Maloof seems to have found an heir who "assigned" him copyrights. Now enter Virginia-based David Deal, a longtime commercial photographer who read about Maier as he completed a law degree: he has sparked the legal fight by filing a notice in a Chicago probate court identifying a relative of Maier who lives in France, retired bureaucrat Francis Baille, a first cousin once removed who apararently had never heard of his increasingly famous relative. Maloof counters by saying  Maier's closest relative is one Sylvain Jaussaud, also described as a first cousin once removed. Jaussaud, who did know Maier and appears Maloof's film, apparently signed over the copyrights in Maier's work to Maloof. And now another party has joined into the tussle: Cook County, which represents Maier's estate (in the interim), woud seemingly hold all copyrights at the moment in the abscence of any assignment by Maier herself. It appears Cook County lawyers are speaking with Maloof and we can only hope that a sensble solution can be reached so this extraordinary body of work doesn't get locked away. More here and a September article on the IPKat by Marie-Andree Weiss here and on Art & Artifice here.

The Oscars are out so a couple of film updates to finish: Director Dan Gilroy, Bold Films, Open Road Films and NBC Universal Media have been accused of copyright infringement amid allegations that the plot of the Oscar-nominated movie 'Nightcrawler' was lifted from a film by a Utah filmmaker Richard Dutcher. Dutcher has filed a lawsuit in Salt Lake City's US District Court, claiming Nightcrawler bears striking similarities to his 2007 movie 'Falling', about a freelance news videographer who scans police radio channels and captures footage of a murder in progress (which on paper sounds remarkably similar to the excellent Nighcrawler). Dutcher's film, which was written in 1999, only received a limited release in Los Angeles and Salt Lake City, but he is convinced it gave Gilroy the idea for his 2014 crime thriller, which stars the creepy but magnifcent Jake Gyllenhaal in the lead role. We shall see. 

 And a woman who filed a lawsuit against Disney’s ‘Frozen’ in late 2014 over alleged copyright infringement of her life memoirs (no, seriously!) has perhaps unsurprisingly  had her case thrown out by a Judge. Isabella Tanikumi decided to take legal action against Disney because, in her view, the film’s story ripped off her real-life memoirs, titled ‘Yearnings of the Heart’, which revolved around her family’s lives in the mountainous areas of Peru.  U.S. District Judge William Martini disagreed stated that the themes appearing in Frozen and Yearnings of the Heart are expressed differently. All the themes that Tanikumi listed are general plot ideas and themes that are not protected by copyright law and the judge noted no substantial similarities between the two works. More here.


At the Oscars, Birdman picked up best picture, best cinematography, best original screenplay and best dirrector (Alejandro González Iñárritu); 
Eddie Redmayne picked up best actor for his role as Dr Stephen Hawking in The Theory of Everything and Julianne Moore collected best actress for Still Alice. J K Simmons won best supporting actor (in Whiplash) and Patricia Arquette won best supporting actress (in Boyhood). Whiplash also picked up Ocsars for best editing and best sound mix and The Grand Budapest Hotel won Oscars for best production design, best costume design, best make up and best original music score by Alexandre Desplat . The Imitation Game won best adapted screenplay and Interstellar the award for achievement in visual effects .Best Song gong went to John Legend and Common for 'Glory', the theme song from 'Selma'  More here.

The CopyKat - Chinese walls, blocks, strikes and a football focus

More than 845,000 publications were registered in China for copyright protection in 2013, up about 23% year-on-year according to official statistics. A spokesman from the National Copyright Administration of China (NCAC) told a press conference that more than half of registrations were made in Beijing.The growth  was put down to the increased awareness of copyright protection and the use of copyright as an important financing device. Photographs accounted for more than half of registrations, and applications for software protection rose by about 18% in 2013, to more than 164,000. Tibet, Inner Mongolia and Xinjiang topped the list of growth regarding software, with applications growing by about 95% in Tibet.

Also in China, the popular video sharing website tudou.com has been ordered to pay two companies a total of 370,000 yuan ($61,129) for violating their copyrights in a film and a television programme.The claimants, EDKO Film Co and CNTV.cn, sued tudou.com for copyright infringement with the case heard at the Shanghai No.1 Intermediate People's Court. The court ordered Tudou to pay EDKO Film 125,000 yuan on January 17 for violating their agreement regarding the 2012 film Cold War. The production company, the sole copyright holder for Cold War on the Chinese mainland, pointed out that the film, which made 200 million yuan in the first 11 days of its release, was still playing in theaters at the time Tudou began showing it. In a separate case, the court ordered Tudou to pay CNTV.cn 248,000 yuan for violating the latter website's exclusive rights to show a popular food documentary series, A Bite of China, online, The series was first aired on China Central Television (CCTV) in May 2012.

The author of two books about South Africa’s political transformation is suing the makers of the documentary Miracle Rising: South Africa, which aired on the History Channel,  for over R2 million (approx £110,000) damages for allegedly adapting or reproducing from his work without his authorisation. Geoffrey Heald won the first round of his legal battle against Randburg production company Combined Artists CC when a North Gauteng High Court judge ruled that his claim would have to be tested by a trial court. Judge Bill Prinsloo dismissed Combined Artists’ exception that Heald’s claim did not reveal any cause of action against them.

Adolf Hitler's Mein Kampf is back in the news - with reports that a version, annotated with notes, will be published in 2016 following a reversal of a decision by the state of Bavaria which owns the copyright in te book and initially funded the annotated version,  to block any publications. The book itself will fall into the public domain in 2016. The Bavarian governor's chief of staff, Christine Haderthauer, had previously said that Hitler's anti-Semitic memoir amounted to incitement and the government would file a criminal complaint if anyone tried to publish the book. The state has now revised its ruling. “We have changed our minds,” said Ludwig Spaenle, the Bavarian Minister of Culture. He said Bavaria would not oppose the project because it was in the interests of “freedom of science” saying "the freedom of science to confront the topics which, in its view, are necessary is thereby not restricted". What would happen if the book was published in its original version in Germany remains unclear although the state stressed in a statement that it would seek to prevent any other full or partial publication of the 1924 book, written whilst Hitler was in prison.

Further to our update on possible criminal actions against 100 or more pubs in England and Wales who use foreign satellite services to show live Premiership football matches, the Telegraph reports that the Premier League is lobbying for an amendment to the Intellectual Property Act, currently making its way through the UK Parliament. FAPL has received backing from the record industry for an amendment to the Copyright, Designs and Patents Act 1988 that currently allows many venues – such as pubs or gyms, that do not charge patrons to enter their premises – to show broadcasts of video recordings without a licence from the copyright holder. Commenting on the Section 72(1) defence under the CDPA ("The showing or playing in public of a broadcast to an audience who have not paid for admission to the place where the broadcast is to be seen or heard does not infringe any copyright..."  for the recorded music sector David Harmsworth, PPL’s director of legal and business affairs, said: “It’s a very strange technological anomaly in the law that if music videos are broadcast rather than played from a system in the gym, then the gym doesn’t need a licence. Actually, the UK is in violation of European law on this. The discussions we’ve had with the Government on this suggest something will be done, although it may end up that the Intellectual Property Bill is not the vehicle.” See here for earlier comment on the IPKat on s72. 

The Dutch High Court has overturned a lower court order forcing two internet service providers in the Netherlands - XS4ALL and Ziggo - to block their subscribers from accessing the ever controversial music file sharing site The Pirate Bay. Calling the blocks "ineffectual", the court stated that the blocks would "constitute an infringement of [people's] freedom to act at their discretion".Blocking orders have been upheld in the United Kingdom, France and Belgium and the AG's opinion UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH und Wega Filmproduktionsgesellschaft GmbH (see Jeremy's blog here)  was that Member States are to ensure that copyright holders or holders of related rights are able to apply for an injunction against intermediaries whose services are used by a third party to infringe their rights - and that specific blocking measure(s) imposed on a provider relating to a specific website are not, in principle, disproportionate.

And finally, the Writers Guild of America West has added its thoughts to the debate on reforms to US copyright laws, with TorrentFreak saying that not only calls for a balance in copyright law, but stresses that censorship, surveillance and chilling of critical speech have no place in copyright policy. Interestingly the writers oppose moves by the Hollywood studios and the recorded music sector to put in place new penalties in the digital age - the studios argue that high damages are needed as a deterrent, and are looking at a proposal which would make streaming of copyrighted videos a felony. Noting the 'chilling effect' of the latter, the WGAW warn that the current legislation stifles innovation as people may be hesitant to start innovating businesses, fearing that copyright holders may come after them. With regard to the DMCA, the WGAW suggests that the Government could set up a common template for takedown notices, making them easier for smaller copyright holders to issue and for websites to process and finally, the writers warn against the voluntary anti-piracy agreements that have emerged recently, including the six-strikes Copyright Alert System - saying that these initiatives are not always in the best interests of consumers.

The CopyKat - and a yankee doodle dandy to you sir!

A copyright infringement lawsuit against the US Government filed in 2012 by Apptricity, an Irving, Texas-based provider of software solutions has been settled for $50 Million according to the plaintiff’s press release.  The complaint filed in U.S. Court of Federal Claims (Case 1:12-cv-00080-TCW)  claimed that the US Army had improperly installed Apptricity’s software on 98 servers and 9063 devices. According to the company, Apptricity software was used to manage logistics related to troop and supply movements in theatre operations around the world. The complaint states that the US Army originally purchased Apptricity’s software in 2004 for a maximum of 5 servers, 150 stand-alone devices, and for the use of this software by 1,500 named users. The relief requested was for a judgment awarding $224 million in damages. 

Brad & Carrie

A US federal judge has ruled that a "song-theft" lawsuit against country superstars Brad Paisley and Carrie Underwood over their duet “Remind Me” can move forward. Judge Aleta Trauger has ruled that songwriter Amy Bowen, who performs as Lizza Connor, had established a plausible claim of copyright infringement by performers Paisley, Underwood and songwriters John Kelley Lovelace and Charles DuBois. According to Bowen’s complaint, she wrote a song called “Remind Me” in 2007 and then went on to perform it during a country music songwriting workshop at which Lovelace and DuBois were advisors. No decision has been made on the substance of the claim, More in the Tennessean here. 

And now for a couple of of non-US updates:

There may be trouble in store for the Musical Society of Nigeria  (MCSN) after the Nigerian Copyright Commission (NCC) filed a six-count charge alleging the illegal collection of royalties . Justice Ibrahim Buba of the Federal High Court, sitting in Lagos, held that criminal charges filed MCSN over the enforcement of Section 39 of the Copyright Act were in order and that an application to dismiss the claims was "misconceived". On each charge, MCSN was accused of demanding royalties from a particular company and carrying on the businesses of soliciting and granting licences on behalf of copyright owners without the approval of NCC, thereby committing an offence contrary to and punishable under Section 39(4), (5) and (6) of Nigerian Copyright Act Cap C28 LFN 2004.

In Germany the chief executive of a software company has been found liable for copyright infringement after software developed by the company was amended in an open source environment to allow copyright-protected material to be accessed unlawfully. The Register reports that Appwork created "JDownloader2", a download management tool, but allowed any external developers access to the underlying code to test and upgrade the software. A beta-version of the software was adapted in an open source environment which could be used to circumvent an existing encryption tool that prevents the downloading of copyrighted material, and this tool was subsequently made available for download and use commercially. A regional court in Hamburg said it was an infringement of German copyright laws to circumvent the technological protection measure. It ruled that the chief executive of Appwork was liable for that infringement after finding that the company had opened the possibility for open source integration, allowed the infringing version to be labelled as Appwork's own product, and failed to provide any restrictions against the downloading of such unofficial, infringing versions of its software.

TPP Postponed - but maybe soon! The ministers and heads of delegation for the somewhat controversial Trans-Pacific Partnership countries have released the following statement:

"We, the Ministers and Heads of Delegation for Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States, and Vietnam, have just completed a four-day Ministerial meeting in Singapore where we have made substantial progress toward completing the Trans-Pacific Partnership agreement. 

Over the course of this meeting, we identified potential “landing zones” for the majority of key outstanding issues in the text.  We will continue to work with flexibility to finalize these text issues as well as market access issues.  

For all TPP countries, an ambitious, comprehensive and high-standard agreement that achieves the goals established in Honolulu in 2011 is critical for creating jobs and promoting growth, providing opportunity for our citizens and contributing to regional integration and the strengthening of the multilateral trading system. 

Therefore, we have decided to continue our intensive work in the coming weeks toward such an agreement.  We will also further our consultations with stakeholders and engage in our respective political processes.

Following additional work by negotiators, we intend to meet again next month."

Finally, but importantly, the German state of Bavaria has said that it will seek to block any publication of Adolf Hitler's Mein Kampf when the copyright expires in 2015 - 70 years after Hitler's death. The state owns the copyright in Mein Kampf, The move represents a change of tactics - Bavaria had previously intimated that it would allow publication with "critical commentary". The Bavarian governor's chief of staff, Christine Haderthauer, said Hitler's anti-Semitic memoir amounts to incitement and the government will file a criminal complaint if anyone tries to publish the book in the future. 

Eleonora's blog from January 2012 on British publisher Alberta's Peter McGee plans to sell excerpts from Hitler's Mein Kampf in Germany can be found here http://the1709blog.blogspot.co.uk/2012/01/copyright-ban-over-hitlers-mein-kampf.html

"Mein Kampf" - The Unreadable Book Remains Unreadable

"Mein Kampf" - An unreadable book?

In the ongoing struggle between the Free State of Bavaria (claimant) and British publisher Peter McGee (defendant) over Adolf Hitler's infamous book "Mein Kampf", the Regional Court of Munich I (LG München I) today handed down a judgment confirming its preliminary injunction of 25 January 2012 (press release available here; for the history of the dispute, see previous 1709 Blog and IPKat posts here and here).

In his opposition against the preliminary injunction banning him from publishing annotated excerpts from "Mein Kampf" under the title "Das unlesbare Buch" ("The Unreadable Book"), defendant had argued that despite Bavaria's fervent attempts to prevent publication, the book was legally available in many countries. He contended that "Das unlesbare Buch" constituted a scientific work, which quoted as little as 1% of the original work in order to provide examples for Hitler's propagandistic line of thought and the considerable inconsistencies and confusion immanent in the original text. Consequently, defendant put it to the court that copying the relevant portions of the text was justified under the quotation exception to copyright laid down in § 51 German Copyright Act (UrhG).

 

However, the court held that the planned publication went beyond the scope of the quotation exception. In the opinion of the judges, the presentation, content and market orientation of "Das unlesbare Buch" led to the overall impression that the publication consisted of a copy of excerpts from the original "Mein Kampf", accompanied by informed annotations. The annotations only served the purpose of providing a supplementary explanation of the original text. Primarily, the original text appeared to be supposed to speak for itself.

The court criticised that the formal arrangement of original text and annotations, which had been chosen on purpose, did not ensure a close connection between quotations and annotations. On the contrary, readers would be able to consume the original passages from "Mein Kampf" without having to pay any attention to the annotations. Consequently, there was no sufficient interrelation between quotations and annotations. 

 

Defendant also argued that the Free State of Bavaria had not prevented the reproduction of "Mein Kampf" in previous cases of a similar nature, and therefore granted an implied licence. As a result, it would have to treat defendant in the same way (i.e. grant him a licence). The judges did not share this point of view, distinguishing a work by another author that defendant had produced in evidence as "fundamentally different" from defendant's planned publication.

The judgment (reference: 7 O 1533/12) is not final, so there is bound to be another instalment of the "Mein Kampf Struggle" before long. Why defendant does not just wait for 1 January 2016 is anyone's guess, but it is certainly kind of him to subsidise the legal profession...

Preliminary Injunction against 'Mein Kampf'

As German newspaper Frankfurter Allgemeine Zeitung (FAZ) reports (here), the District Court of Munich I (LG München I) today issued a preliminary injunction (case reference: 7 O 1533/12) on behalf of the Bavarian state government, prohibiting the planned publication of commented excerpts of Adolf Hitler's notorious 'Mein Kampf' by British publisher Peter McGee. 

A spokesperson for the publisher said they would wait for the written arguments of the court before deciding on possible next steps. Bavarian state officials confirmed that they would continue to use Bavaria's copyright in 'Mein Kampf'. Bavaria derives its copyright claim in 'Mein Kampf' from the fact that it is the legal successor of Hitler's publisher Eher-Verlag, which was liquidated upon instruction of the Allied Forces in 1945, though it has been argued that upon its liquidation copyright should have reverted to Hitler's heirs (apparently there is a second cousin and a few other relatives, according to an article by the Tagesspiegel available here).

Mr McGee does not challenge Bavaria's copyright as such, but argues that the publication of excerpts accompanied by critical comments falls within the scope of the quotation exception/limitation in § 51 German Copyright Act (UrhG):

Reproduction, distribution and communication to the public shall be permitted, to the extent justified by the purpose, where
1. individual works are included after their publication in an independent scientific work to illustrate its contents;
2. passages from a work are quoted after its publication in an independent work of language;
3. individual passages from a published musical work are quoted in an independent musical work.

It remains to be seen which event will occur first, the final resolution of the legal dispute or the passing into the public domain of 'Mein Kampf' on 31 December 2015...

Also see previous 1709 and IPKat posts here and here

Copyright ban over Hitler's Mein Kampf

As reported by Der Spiegel, British publisher Alberta's Peter McGee wishes to sell excerpts from Hitler's Mein Kampf in Germany.

Plans to re-publish an annotated version of Hitler's autobiography for educational purposes in schools and universities in 2015 (when the copyright currently held by the Bavarian state government expires) had been announced back in 2010. However, since then, the Bavarian government has opposed the plan, citing respect for victims of the Holocaust. The Bavarian Finance Ministry said that permits for reprints would not be issued, at home or abroad and the republished book might be banned as Nazi propaganda, reports Wikipedia. 

The first of three 16-page extracts from the Alberta proposed publication, accompanied by a critical commentary, will be published later this month with a print run of 100,000 each and distributed as a supplement to the Alberta's existing weekly publication, a controversial series called Zeitungszeugen, or "Newspaper Witnesses", which reprints pages of Nazi newspapers from the 1920s and 1930s, along with a commentary. The authorities in the state of Bavaria confiscated more than 3,000 copies of Zeitungszeugen and pressed charges against McGee for publishing the texts. However, in 2009 a Munich court ruled that, although the publication of Nazi propaganda is illegal, McGee was not infringing the law because his intention was not to whip up racial hatred. The judges also ruled that printing Nazi swastikas from the original mastheads, which are generally outlawed in Germany, was legal in an educational context, reports The Local.

The front cover of Alberta's Mein Kampf should feature a photo of Hitler with a black bar obscuring his eyes and a headline that translates to "The unreadable book." This would be the  first publication of the book in Germany since 1945.

"It is a sensitive subject in Germany but the incredible thing is most Germans don't have access to 'Mein Kampf' because it has this taboo, this 'black magic' surrounding it," said McGee to Reuters. "We want 'Mein Kampf' to be accessible so people can see it for what it is, and then discard it. Once exposed, it can be consigned to the dustbin of literature," 

The Bavarian state finance ministry opposes Alberta's plans, claiming that the publication of Mein Kampf would be tantamount to copyright infringement. "The Bavarian finance ministry is currently considering legal steps against this publication" a spokesman for the ministry said in a statement.

McGee regards this as nonsense, reports Der Spiegel. "Mein Kampf is an extremely bad book, it is badly written, has awkward language and no internal logic" he said. "The thoughts are strewn across the whole book." But he added that one can only recognise its insanity if one confronts the text.

The President of Germany's Central Council of Jews said he hoped that the reprints would ‘demystify" the book. "I'm an Internet junkie myself" he said. "Everyone can already find the book on the Web." However, an American Jewish group on Tuesday said the publication plans may be morally offensive.