The CopyKat

Video-sharing website Vimeo LLC cannot be held liable for copyright infringement for unknowingly hosting older music uploaded by its users, a U.S. appeals court ruled, dealing a blow to record labels seeking broader protections. In a victory for internet service providers, the 2nd U.S. Circuit Court of Appeals in New York also held that the mere fact that Vimeo employees had viewed videos with copyrighted sound recordings was not enough to prove the company ignored red flags of infringement. The case, pursued by Capitol Records and Sony Corp units, was closely watched in Silicon Valley, with Vimeo's appeal drawing support from Facebook Inc, Twitter Inc, Alphabet Inc's Google, and other companies.

A new letter, signed by a host of recording stars including Lady Gaga, Sir Paul McCartney, Ryan Adams, Cher, Sir Elton John, Fall Out Boy, Yoko Ono Lennon, Bette Midler, Queens Of the Stone Age, Pink, Maroon 5, Mark Ronson, Elton John, Bon Jovi, Rod Stewart, Lionel Richie, Aerosmith's Steve Tyler (pictured) Pusha-T, Sade, Gwen Stefani, Sting and Beck has been sent to Congress asking lawmakers to "please protect" future artists and songwriters by enacting "sensible reform" of DMCA - adding that the current version of the YouTube-shielding ' safe harbor' law "simply doesn't work" and has allowed tech companies to generate “huge profits” while the earnings of artists and songwriters “has plummeted”

Pirate Bay co-founder Peter Sunde has been ordered by the Helsinki District Court to pay E350,000 ($395,000) to record labels including Sony, Universal, Warner and EMI, after their content was shared illegally via the platform and costs of around $62,000 (55,000 euros) - the payment has to me mad to the local branch of IFPI. Sunde also faces a fine of one million euros if the content continues to be shared via The Pirate Bay but - as he says he is now unconnected to the site - how he is supposed to do anything about that isn’t clear.

A building design firm is suing Lion Enterprises, Inc., Bastian Homes Ltd. and Eugene J. Bastian, citing alleged copyright infringement. Design Basics LLC filed a complaint on in the U.S. District Court for the Middle District of Pennsylvania against the defendants, alleging that they violated Copyright Act and the Architectural Works Copyright Protection Act by publishing, distributing, marketing, and advertising certain architectural designs for residential homes similar to the plaintiff's Plan No. 2316 – Franklin – and Plan No. 6715 – Sycamore. The defendants allegedly violated and continue to violate the plaintiff's exclusive rights in each of the copyrighted works. Design Basics is asking for a jury trial and and injunction prohibiting the defendants from further infringing on its copyrighted works, an order directing the U.S. Marshals Service to impound all copies of the copyrighted works in possession of defendants, and an award for all damages, costs and reasonable attorney’s fees and for such other relief as it may show itself to be entitled.  U.S. District Court for the Middle District of Pennsylvania Case number 1:16-cv-00922]

TechDirt reports on two more decisions from the US Courts that confirm "legal threats against alleged infringers, based on nothing more than IP addresses" will not succeed in the courts.  In the first case, New Jersey Judge Kevin McNulty disagreed with Malibu Media's request for default judgment, pointing out that the limited info it was working with could not rule out a successful defense being raised by the accused infringer. In the second case brought against defendant Thomas Gonzales, Oregon Magistrate Judge Stacie Beckerman said The only facts Plaintiff pleads in support of its allegation that Gonzales is the infringer  is that he is the subscriber of the IP address used to download or distribute the movie, and that he was sent notices of infringing activity to which he did not respond. That is not enough. Plaintiff has not alleged any specific facts tying Gonzales to the infringing conduct. While it is possible that the subscriber is also the person who downloaded the movie, it is also possible that a family member, a resident of the household, or an unknown person engaged in the infringing conduct."

And finally, the Walt Disney Company is taken legal action against three Chinese companies over the animated film “The Autobots” which Disney claims infringes the Disney copyright in the hit animated movie “Cars”. According to Reuters, the three defendants are the production firm Blue MTV, media firm Beijing G-Point and online content platform PPLive Inc. A notice on the Shanghai Pudong New Area People’s Court website states that Disney are suing for copyright infringement and unfair competition.

The CopyKat - The Pirate Bay on new Swedish advertising blacklist

The Pirate Bay and several other locally significant 'pirate' sites have been placed on an advertising blacklist. The initiative is the result if a collaboration between anti-piracy group Rights Alliance and the national association of Swedish advertisers which has  more than 600 member companies. As Torrent Freak says, this “follow the money” approach is gaining momentum worldwide and is largely centered on the companies financing pirate sites with their advertising spend.

Acording to daya presented by the Motion Picture Association at a conference focused on online law enforcement in Southampton last week, 504 web blocking injunctions have been issued in Europe: Italy tops the list of orders against  internet service providers requiring them to block consumers access to copyright infringing websites, with 238 injunctions now issued. The UK comes second with 135 web-blocks now in place. More here.

Aurous, which MBW likened to the new Grooveshark last week and which was also called the 'Popcorn Time for music', and which we highlighted in the last CopyKat, has pulled its attempted crowdfunding on IndieGogo citing "unwanted attention"

Raanan Katz , the real estate mogul and owner of the Miami Heat basketball team, has learned about copyright law the hard (and expensive) way. Irina Chevaldina,an unhappy former tenant of Katz’s company, copied a rather unflattering photograph of Katz taken by photographer Seffi Magriso onto her blog which was highly critical of Katz. Unhappy about this, Katz acquired the photo’s copyright, and then claimed Chevaldina had infringed his newly acquired copyright. The District Court gave the claim short shrift - and applying the standard tests they found fair use, and in particular found: The nature of the use was non-commercial - Chevaldina used the photo to criticise, ridiule and satirize Katz; and because Katz acquired the photo to block any publication, Chevaldina's use could not have any effect on the marketplace:  "Due to Katz’s attempt to utilize copyright as an instrument of censorship against unwanted criticism, there is no potential market for his work", concluding "“every reasonable factfinder would conclude the inclusion of the Photo in her blog posts constituted fair use.” Chevaldina was awarded her attorney's fees. 

Shares of in Pandora Media, the Internet radio company have jumped by 5.3% after the firm received good news in an ongoing fight over royalties. The company said it "was pleased that the U.S. Registrar of Copyrights agreed that the company's pact with Merlin Network, a global rights agency for independent musicians, was admissible as a benchmark in royalty proceedings before the Copyright Royalty Board  according to a Reuters report. In May The Federal Communications Commission gave Pandora Media permission to buy a small radio station in South Dakota in a move to obtain lower royalty rates. ASCAP's objection to the acquisition of the terrestrial radio station was finally put to rest by the FCC last week .The agency rejected the performance rights organization's request for reconsideration of its original ruling.

The cabinet reshuffle in Canberra has seen the Australian Attorney-General George Brandis not only lose his position as the Minister of Arts, but his responsibilities for copyright and content classification - which have been moved from his office to that of newly appointed Communication Minister Mitch Fifield.

And finally, the he much delayed extradition hearing of the former management team of MegaUpload has begin in New Zealand, despite lawyers for MegaUpload founder Kim Dotcom and his former colleagues again trying to get their clients' extradition case pushed back, not least as court imposed restrictions on funds mean Dotcom and his colleagues cannot hire U.S based experts in U.S. copyright and criminal law. 

The CopyCat - the final furballs of 2013

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The CopyCat - as Blockbuster sinks, the Pirates set sail again

The games world is up in arms after what appeared to be concerted effort by content owners to target fan generated postings on YouTube, using YouTube's Content ID takedown system. Player-created videos on YouTube have been subject to copyright crackdowns in the past, but gamers say not on this scale - with Nintendo (perhaps unfairly) taking the brunt of the initial blame, with reports of thousands of videos being flagged over the last few days for alleged copyright violations. The videos - which range from YouTubers playing the games or providing commentary, or simply showing a trailer and talking about the game, are often monetized - and some gamers earn a living from recording game videos. YouTube responded to the furore by saying "We recently enabled Content ID scanning on channels identified as affiliates of MCNs. This has resulted in new copyright claims for some users, based on policies set by the relevant content owners. As ever, channel owners can easily dispute Content ID claims if they believe those claims are invalid."

It seems that the major record labels have decided that the new EU wide term extension for sound recordings does not apply to unreleased material - well not with 'use it or lose it' provisions out and about anyway: Rather than full scale releases, some of the labels have decided on limited releases only: A new Sony collection of unreleased Bob Dylan recordings — concerts, radio and television appearances, and studio outtakes, all from 1963 — has just appeared in a limited edition of 100 copies, on six vinyl LPs - “The 50th Anniversary Collection: 1963”. Universal and Apple are being a lot more generous to fans:  Universal plans to release, on iTunes only, “The Beatles Bootleg Recordings 1963,” a compilation of 59 recordings, among them a handful of studio outtakes; a few dozen BBC performances, drawn from the same well as the recent “On Air” BBC two-CD set; and informal demonstration recordings of two songs the group gave to other artists — Paul McCartney and John Lennon’s acoustic guitar duet version of “Bad to Me” and a Lennon piano demo of “I’m in Love.” Some interesting comment on the labels' thinking can be found on the NY Times website here and on the Independent here.

The Tennessean (fast becoming a favoured read!) reports that pop star Ariana Grande, along with her publishing company and record label, are facing copyright infringement lawsuit related to her hit song “The Way.” The suit claims Grande and producer/writer/co-performer Mac Miller copied from the 1972 disco song “Troglodyte” when they recorded “The Way,” which became a major hit earlier this year and iTunes no 1 single, selling more than 2 million copies. The federal suit from  Minder Music claims Grande and Miller duplicated the vocal beginning to the Jimmy Castor Bunch’s “Troglodyte” when they recorded “The Way.” “Troglodyte" begins with Jimmy Castor speaking the phrase, “What we’re gonna do right here is go back, way back, back into time.”  “The Way” begins with the spoken phrase “What we gotta do right here is go back, back into time.”  The attorney in the claim is Richard Busch of King & Ballow who has previously successfully brought claims against samplers - in particular of George Clinton and Funkadelic and  on behalf of Bridgeport Music.

Pirates Ahoy! Having been registered in Greenland, Iceland and most recently in the Caribbean island of Sint Maarten, it seems the Pirate Bay's domain name set sail yet again, this time to Ascension Island, located somewhere in middle of the South Atlantic Ocean, and hopefully (well for the Pirates at least) well out of the reach of those pesky rights organisations that represent the global sound recording and music publishing industries - and their artists. Oh, but that was not enough - less than a week later - anchors away - they are in Peru! a TPB spokesperson told Torrentfreak: "They should wait for our new PirateBrowser, then domains will be irrelevant. Once that is available then all links and sites will be accessible through a perfectly legal piece of browser software and the rest of it will be P2P, with no central point to attack via the legal system. By their actions [the entertainment industry] finally brought on the next generation of decentralised services".

CMU Daily reports that the  dispute between the Beastie Boys and American toy company GoldieBlox over the latter's use of a rework the former's track 'Girls' in an advert isn't going away, even though the toy maker swapped in an alternative piece of music on the ad and issued a positive statement professing admiration for the band. Whilst the surviving members of the Beastie Boys Michael Diamond and Adam Horovitz issued an open letter said they respected GoldieBlox's mission to make toys for young girls that break down gender stereotypes, they added, they had previously made a conscious decision to not license their tracks for use in advertising, so much so that the third Beastie Boy, the late Adam Yauch, stated that desire in his will. 

Those Girls

Before the Beastie Boys' open letter, GoldieBlox had issued a pre-emptive legal strike anticipating the band’s claim seeking court confirmation that, because their version of 'Girls' mocked the sexist lyrics of the original, that constituted parody, and therefore the toy firm was allowed to use the track without permission under the doctrine of “fair use”.  Interestingly it seems GoldieBlox had posted similar adverts online before, including music by Daft Punk and Avicii, presumed to be without the artist or their record label’s or music publisher’s permission. Reports now say that GoldieBlox management added a caveat to an offer to withdraw their legal action asking the Beastie Boys to commit to never launch their own copyright litigation against the company.  It seems the band declined to make such a commitment, and in return asked GoldieBlox to issue a more apologetic statement over its use of 'Girls' without permission, and to make a suitable donation to charity. With little progress having since been made, the Beastie Boys have now filed a countersuit that formally accuses GoldieBlox of copyright infringement as well as unfair competition and misappropriation of publicity rights - more about this from Miri on the IPKat here. 

DVD and games rental firm Blockbuster UK is set to close. Prevously a favoured destination for hungover students set for a day of horror flicks, the entire American Pie series in a day and dodgy romcoms, The chain first went into administration back in January and  initially it seemed like the company might survive but administrators Moorfields Corporate Recovery have confirmed that no buyer could be found, and that the remaining 91 Blockbuster shops in the UK would close this weekend, resulting in 808 further job losses.

American Music Theatre, which as the CopyKat had previously reported is being sued for copyright infringement over the unapproved use of material from The Producers, Billy Elliot, Wicked, Jersey Boys, the Lion King and Disney's Mary Poppins in its "Broadway Now & Forever" production, has filed it's defence saying that it has blanket license agreements with the American Society of Composers Authors and Publishers and Broadcast Music Inc. to perform "all allegedly copyrighted works at issue." The theatre also denies it will be violating copyright when it opens "Music of the Night: The Songs of Andrew Lloyd Webber" for a six-month run from April 2014. The Theatre now faces an action, in the Philadelphia federal court, to stop "Broadway Now & Forever" and prevent the upcoming Andrew Lloyd Webber focussed show featuring Cats,Les Miserables and Phantom of the Opera from opening. The Pennsylvanian1,600 capacity theatre on Lincoln Highway East has now said it's productions fall under the fair use doctrine saying "… use of the allegedly copyrighted works was transformative in nature, only an insubstantial portion of each alleged work was used in relation to each work as a whole ...". Among it's other defences, American Music Theatre also claims the plaintiffs were misusing their copyrights and are asking a judge to dismiss the case and have the plaintiffs pay it's legal costs. American Music Theatre has until December 20th to address the initial suit by Disney and other plaintiffs. The Theatre has also now said that specifically for the use of Spider-Man copyrights,  the Theatre has a license agreement to use Spider-Man and that  Stan Lee Media Inc. and not Disney or its Marvel division holds the Spider-Man copyright. But that's another battle.

Mind your metaphors: how to conceptualise your digital phenomena

"Metaphors, law and digital phenomena: the Swedish pirate bay court case" is the title of a fascinating article by Stefan Larsson which has been published in the most recent of Oxford University Press's International Journal of Law and Information Technology (Int J Law Info Tech 2013 21: 354-379). According to the abstract

"This article uses conceptual metaphor theory to develop the concept of ‘skeumorphs’ (re-use of old concepts for new phenomena) in order to analyse the Swedish The Pirate Bay court case [on which see, eg, earlier 1709 Blogposts here, here, here, here and here]. In line with conceptual metaphor theory, which states that abstract thinking is largely metaphorical, the article argues that this is true also for digital phenomena that, thus, are largely understood through metaphors and skeumorphs. Also, when attempting to understand and conceptualize new digital phenomena such as The Pirate Bay (TPB), law in a digital society is inevitably affected. Hence, new phenomena can be fought over in a ‘battle of metaphors’, in the TPB court case, for example, evidenced by the arguments of seeing TPB as ‘a platform’, ‘bulletin board’, or an ‘impure search engine’. This, here argued, was of key relevance for the outcome of the case".

This blogger has been fascinated by the use, and indeed the re-use, of metaphors ever since he heard Bill Patry's 2007 Stephen Stewart Lecture on the subject. But metaphor in IP is not the sole province of copyright: let's not forget the patent troll, or the concepts of dilution and free-riding in trade mark law.

European Court of Human Rights rejects Pirate Bay founders appeal

Two of the founders of the Pirate Bay have failed in what I presume is their final appeal against their convictions for copyright infringement in the Swedish criminal courts, with the European Court of Human Rights finding that Sweden had rightly convicted the pair.

Fredrik Neij and Peter Sunde were sentenced to one year imprisonment by the Stockholm District Court in April 2009 for crimes against the Copyright Act. Together with two other defendants they were also found liable for damages of approximately K30 million (US$4.3 million). Their prison sentences were reduced in November 2010 by the Svea Court of Appeal, but the joint damages were increased by that court to K46 million (US6.8 million). The Swedish Supreme Court denied them an appeal hearing in February 2012. 

Neij and Sunde complained that their convictions infringed their freedom of expression under Article 10 of the European Convention in Human Rights and that as their website facilitated the exchange of information, they could not be held liable for their user’s infringing acts. The ECHR had to balance Article 10 - the freedom of expression (even if such included material that infringed copyright) with the legitimate interests of copyright owners. The Court held that sharing, or allowing others to share, files of this kind on the Internet, even copyright-protected material and for profit-making purposes, was covered by the right to 'receive and impart information' under Article 10.  However, the Court considered that the domestic courts had "rightly balanced the competing interests at stake and that the necessity to protect copyright rightly prevailed over the rights of the applicants to receive and impart information when the applicants were convicted": Since the shared material was protected under the Swedish Copyright Act, the ECHR held that the interference with the freedom of expression by the Swedish authorities had been prescribed by law.

In particular the court looked at the nature of the information shared and said "In this connection, the Court would also underline that the width of the margin of appreciation afforded to States varies depending on a number of factors, among which the type of information at issue is of particular importance. In the present case, although protected by Article 10, the safeguards afforded to the distributed material in respect of which the applicants were convicted cannot reach the same level as that afforded to political expression and debate. It follows that the nature of the information at hand, and the balancing interest mentioned above, both are such as to afford the State a wide margin of appreciation which, when accumulated as in the present case, makes the margin of appreciation particularly wide".   In addition the Court held that considering that Neij and Sunde "had not removed the copyright-protected material from their website despite having been requested to do so, the prison sentence and award of damages could not be regarded as disproportionate". And that "Therefore, the interference with the right to freedom of expression had been "necessary in a democratic society”. 

The seven judge court unanimously rejected the application as "manifestly ill-founded". 

Neij continues to evade Swedish justice, living in Laos. Sunde lives in Berlin. The third defendant, Gottfrid Warg was deported from Cambodia on visa irregularities and is currently in custody in Sweden. The fourth defendant, millionaire Carl Lundstrom, has made a relatively small ($35,000) payment towards the damages owed, and served his four month sentence under house arrest in Sweden.

http://arstechnica.com/tech-policy/2013/03/european-court-of-human-rights-unanimously-rejects-pirate-bay-appeal/

http://en.wikipedia.org/wiki/The_Pirate_Bay_trial

Pirate Bay now sailing to the ECHR harbour

The Pirate Bay saga seems indeed destined to never end.

Earlier this year, Sweden's Supreme Court refused to hear Pirate Bay's final appeal and two of the founders and the funder of the (in)famous website were found guilty of copyright infringement (see Ben's post here). Parallel actions for copyright infringement brought in The Netherlands and the UK also ended up pretty badly for The Pirate Bay (see here, here and here).

Those more prone to discouragement might have thought that this series of adverse outcomes put the word "the end" to the business of Pirate Bay. But, apparently, the last word has not yet been said.

An enthusiastic Pirate Bay user
portrayed while exerting his
freedom of expression

As reported by TorrentFreak, today the lawyer of one of the founders of the website, Fredrik Neij, announced that he will now bring Neij’s case to the European Court of Human Rights (ECHR). Neij is now the only one whose fate is still unclear, as his fellow defendants in the litigation before Swedish courts have either settled or plead for clemency. The statement released by Neij's lawyer reads as follows (translation provided by TorrentFreak):

“According to Article 10 of the European Convention on Human Rights, which guarantees citizens of Sweden the freedom to receive and impart information, we believe that Frederick Neij’s right to freedom of expression has been denied him ... According to our complaint to the European Court, The Pirate Bay’s services – to transfer non-proprietary information among users through an automated process on the Internet – is protected under that article of the Convention.”

On this reading, The Pirate Bay is said to have never directly transferred or transmitted copyright-protected contents, as this was the sole responsibility of the site’s users. Indeed, the actual function of the website was “to allow the free dissemination of information via non-copyrighted torrent files.”

Desperate attempt of a lawyer to save his client -- or food for thought re the future of P2P file-sharing?