The CopyKat - updates on Sherlock Holmes and Avatar, amongst other topical tails

NewsCorp CEO Robert Thomson has written to the European Union's Competition Commissioner Joaquín Almunia focusing on the ongoing allegation that Google continues to act in an anti-competitive way, exploiting its near 90% share of the web search market in Europe. Almunia has reopened the European Commission's long-running investigation into Google's search and advertising business, after efforts to reach an agreement with the web firm on how it might overcome competition law concerns faltered. Thomson writes: "The company has evolved from a wonderfully feisty, creative Silicon Valley startup to a vast, powerful, often unaccountable bureaucracy, which is sometimes contemptuous of intellectual property and routinely configures its search results in a manner that is far from objective". He goes on: "The shining vision of Google's founders has been replaced by a cynical management, which offers advertisers impressively precise data about users and content usage, but has been a platform for piracy and the spread of malicious networks, all while driving more traffic and online advertising dollars to Google. [It] has been remarkably successful in its ability to monetise users, but has not shown the willingness, even though it clearly has the ability, to respect fundamental property rights" and "The internet should be a canvas for freedom of expression and for high-quality content of enduring value. Undermining the basic business model of professional content creators will lead to a less informed, more vexatious level of dialogue in our society. Your decision to reconsider Google's settlement offer comes at a crucial moment in the history of the free flow of information and of a healthy media in Europe and beyond".

80 law experts from China's legal system, universities and research centres gathered in Beijing to discuss potential changes to the Internet Copyright Law. At a conference jointly held by Zhuoya Research Center, Tsinghua University and China Intellectual Property Society, experts agreed that China's Internet Copyright Law is in urgent need of revision to deal with increasing infringements and keep up with fast-changing technology. More here.

Talks of a new EU 'ACTA' have resurfaced after the Presidency of the EU Council (currently held by Italy) presented a "paper aimed at structuring the exchange of views on IPR enforcement". The paper notes that the European Commission carried out a consultation on copyright recently, and comments that "the current legislative framework is not necessarily fit for purpose in the digital environment." You can see the Presidency Paper Enforcement of intellectual property rights here.

A US judge has ruled in favour of director James Cameron, Twentieth Century Fox and Lightstorm Entertainment, finding that it could not be proven that they used copyrighted work for the 2009 blockbuster “Avatar” copied from the artist Roger Dean, a respected artist and designer who designed the iconic artwork for many Yes, Budgie, Uriah Heep and Asia albums, as well as albums for the London Symphony Orchestra and the London Philharmonic . We covered this story back in July 2013 in our blog Tales From Topical Oceans  


Dean had argued that  "the overall look and feel of [the Avatar world] Pandora substantially resembles a Roger Dean world in that Pandora's most striking and memorable features are those created by the Plaintiff"  Now United States District Judge Jesse M. Furman, in the Southern District of New York, has dismissed the suit by Dean saying "The works are indisputably similar insofar as they present the natural world in a fantastical way by depicting airborne land masses. But Plaintiff does not have a monopoly on the idea of floating or airborne land, an idea that has been around since at least 1726, when Jonathan Swift published his classic Gulliver's Travels" and the judge also poitnted to Led Zepplin's album Led Zepplin IV and the track Stairway to Heaven, adding "Suspending a landmass is a predictable — if not common — way to make a vista more sweeping, breathtaking, and fantastical, and is plainly subject to both the principle that ideas are not protected and the doctrine of scènes à faire. Put simply, Plaintiff cannot copyright the idea of levitation, a trope often used to suggest a magical or fantastic realm, cf. Williams, 84 F.3d at 589 (“[P]lacing dinosaurs on a prehistoric island far from the mainland amounts to no more than a scene a faire in a dinosaur adventure story.”), and a common feature of films utilizing three-dimensional technology, such as Avatar. Led Zepplin's Stairway to Heaven is subject to a quite separate copyright claim brought by the estate of Randy California, formerly of the rock band Spirit and who wrote the track 'Taurus' which it is alleged forms the basis of the later Stairway to Heaven. Led Zepplin have moved to have the suit dismissed

Bono (c) 2011 Glastonbury Festivals Ltd (Denis O'Regan)

It seems that Apple's relationship with U2 goes much beyond the much criticised automatic donation of the whole new U2 album Songs of Innocence to Apple iTunes users - whether they wanted it o not: It seems Bono and the band have also developed a piracy resistant music platform with Time magazine writing: "[Bono] hopes that a new digital music format in the works will prove so irresistibly exciting to music fans that it will tempt them again into buying music - whole albums as well as individual tracks. Apparently "It might just save the music industry". Hooray to that. Apple already has a Pandora-style service operating in the US called iTunes Radio and more recently invested $3 billion in Beats Music which included a fledgling streaming service.

Iggy Pop (c) 2007 Glastonbury Festivals Ltd

Another star, Iggy Pop, is taking a different tack. He will present the 4th annual John Peel lecture and Mr Pop's topic is "Free Music in a Capitalist tSociety" which takes place in Salford between 13-15 Oct and which sounds like fun  The talk will air live on BBC 6 Music and  will be on BBC4 on Sunday the 19th October. 

the WhoSampled app is now available for Android-powered phones from the Google Play store, enabling Android phone users to track what music has influenced and informed current tracks. The app, already available for iPhones,  "provides detailed information on songs, including what other songs have sampled them, what artists have covered music from other artists, and what remixes were then made for a track - WhoSampled allows users to explore the musical connections in their own music collection".

The U.S. Copyright Office is understaffed and could face additional strains in the future, according testimony by the head of the Office. Maria A. Pallante has brought up the staffing concerns to Congress before, and in prepared testimony for a House Judiciary subcommittee hearing she said that the office’s staff is “smaller than it should be to carry out the volume and complexity of work prescribed by Title 17.” The office has 360 full-time employees, she writes in her testimony. The most pressing concern, according to Pallante’s testimony, is the number of registration staff -  she has forty-eight vacancies out of a staff of 180 experts - and about 25% of the registration specialists remaining are approaching 
retirement.

Grand Rapids lawyer John J. Bursch, who represents the estate of Sir Arthur Conan Doyle, is hoping he can convince the U.S. Supreme Court to protect the copyright surrounding the author’s most famous character - Sherlock Holmes. Bursch, a partner with the Grand Rapids law firm of Warner Norcross & Judd, is leading a team of attorneys that hopes the Supreme Court will grant a hearing in the copyright dispute between the Doyle estate and Leslie Klinger, the author and lawyer, who wants to use the Sherlock Holmes character in a book he has written. Bursch opines “The estate of Sir Arthur Conan Doyle absolutely has the right to protect the copyrights of the Sherlock Holmes character,”  arguing that Doyle’s stories are still protected under the 1919 copyright law that preserves an author’s copyright for 95 years. Doyle published his last of the 'in copyright' ten Sherlock Holmes  (with Dr Watson) stories in 1927 so the Estate argues that the character of Sherlock Holmes and all related copyright elements remain protected until 2023, drawn from the date upon which the final story published by Sir Conan Doyle enters the public domain (The Case-Book of Sherlock Holmes 1921-1927). Bursch said that conflicting rulings by several federal appeals courts made the case ripe for the Supreme Court’s consideration. The Doyle Estate is understandably keen to maintain it's licensing income from the characters and all of the famous detective in books still in copyright and any use in movies and television shows: on the other had Klinger has successfully argued he does not need to seek their permission prior to publication (unless he was actually using detail from the final ten books still in copyright). Bursch adds “This lawsuit affects so much more than 10 Sherlock Holmes stories,” Bursch told Michigan Live “Other affected characters include such treasures as A.A. Milne’s Winnie the Pooh, Dr. Seuss’ Cat in the Hat, Ian Fleming’s James Bond, DC Comics’ Superman and many others.” In June this year the US Court of Appeals for the 7th Circuit issued its decision in Leslie Klinger v Conan Doyle Estate, in which upheld the decision of the US District Court for the Northern District of Illinois - Eastern Division that Mr Klinger was free to use material in the 50 Sherlock Holmes stories and novels that are no longer protected by copyright. In that decision Judge Richard Posner recalled the decision in Silverman v CBS, in which the 2nd Circuit held that when a story falls into the public domain also its story elements - including its characters - do. Also in June, Supreme Court Justice Elena Kegan refused to issue a stay to prevent the Holmes stories from officially entering the public domain.

And finally, over on the IPKat Jeremy has a an update on Yoda - no, not the diminutive jedi knight from Star Wars but the newly proposed You Own Devices Act. Towards an Electronic Devices Flea Market in the Cloud? YODA says…YES! tells us that U.S. Representative Blake Farenthold (R-TX) announced last week that he has introduced a bill in Congress, the You Own Devices Act (YODA), which would amend Section 109 of the Copyright Act by providing that the first sale doctrine applies to any computer program enabling a machine or another product to operate. If YODA is enacted, owners of electronic devices would no longer be barred from selling them by the companies which manufactured the devices, as they claim that the software needed to operate the device was not sold, but licensed to the first buyer. Companies are doing so as they claim copyright ownership in the software. And more on Yoda (yes the software one) here.

Roger Dean v James Cameron: You decide!

and then we have that Led Zepplin cover, Angel Island from Sonic the Hedgehog and Gulliver's Laputa ........

And whose flying Lizards anyway?

More Roger Dean album covers here. Dean sought to introduce anonymous Internet commentary to support his claim for infringement and the similarities between a plaintiff's artwork and the colourful flora and fauna featured on Pandora in the hit movie Avatar but the judge held this to be “irrelevant" saying that a substantial similarity inquiry focuses on the works themselves and not on public discussion of those works and that the only relevant inquiry was whether, as a whole, there was a substantial similarity between Avatar and the protectable elements of Dean's paintings. From a straw poll of comments on the Yesfans website and a number of gamers websites  - most seem to think Avatar IS, on balance,  at least influenced by Dean and many think it is a 'rip off' - but the gamers are more open and don't think Dean has a monopoly on floating islands, stone arches and flying lizards. More on the decision here .

A Collection of Copyright Carry Ons with the CopyKat

The House Judiciary Committee, which launched a “comprehensive review” of copyright law earlier this year - continues with it's epic task. The Subcommittee on Courts, Intellectual Property, and the Internet has now had a hearing on the role of copyright in innovation although commentators noted that the line up before the Committee was a little 'one sided' with the Washington Post noting "innovators are almost entirely absent from the list. The witnesses include the executive directors of the Copyright Alliance and the American Society of Media Photographers, and the general counsel of Getty Images. These groups represent established copyright interests that are likely to resist any serious reforms to copyright law. Slightly more innovative: the co-founder of an independent music record and distribution company (Yep Roc Records and Redeye Distribution), and the president of Stereo D, a company that produces 3-D versions of 2-D films. One website pointed out that completely absent were: representatives from the information technology industry, whose innovations have transformed the market for copyrighted works over the last two decades, and who have repeatedly argued that overly-broad copyright law has stifled innovation" as well as actual creators - who often end up with very little from the copyright pie but in whose name much is argued. More here and here and here. 

Queensland Health Minister Lawrence Springborg has defended a letter from his Director-General threatening to sue the Nurses Union for breach of copyright if it failed to destroy anti-privatisation brochures which use an image of the Sunshine Coast University Hospital.

Youngsters from Downham Academy, in East Anglia, have had to call off their production of Flowers for Algernon due to a copyright wrangle between English and American companies. The 23 pupils were due to take to the stage to showcase the two months of hard work in rehearsal, and whilst the school had permission to perform the piece by the playwright – representatives of the original author of a short story on which it was based (Daniel Keyes) seemingly initially objected to the performances. Ironically, after calling off tour, which was due to take in Nordelph Village Hall, the Barn Theatre in Swaffham, and the Studio Theatre in Springwood before finishing at the Downham Academy, a text came through reversing that decision. But by then it was too late and only the final show could take place. Somewhat unsurprisingly the school said ““Next time, we will do a classic text, such as Shakespeare, which is out of copyright, to avoid these problems”. Hooray for copyright?

Copyright reform is back on the agenda in China with news that the Government will look at whether parodies should be exempt from legal liabilities, “as long as they do not make money or damage copyright owners' economic interest”. The South China Morning Post says “Unlike last year when both the government and legislature were due for a change, the current atmosphere is less politically charged. A three-month consultation can provide the platform for rational discussion” and looks to strike a balance between freedom of expression and copyright protection.

Here's something I didn't know but Bradford Brady and John Maron from On The Record did : Knowledgeable gentlemen! U2's live album  “Under a Blood Red Sky” was edited intentionally and some 27 seconds from the middle of “The Electric Co.” were removed: On the original vinyl album, as the band falls quiet, Bono sings to the crowd to the tune of Stephen Sondheim’s “Send in the Clowns” from the musical “A Little Night Music.” When the vinyl album was first released, this use was without permission and it seems no royalty was paid: Sondheim asserted his rights, and the band had to pay over $50,000 and agreed to excise the clip from all future versions of the album.  

UK cyber commentators are buzzing with the news that David Cameron's voluntary agreement with the leading ISPs to block pornography might also be used to block copyright infringing sites as well, and customers might (at least) be able to turn off links to file sharing sites.

Medical news: Does this worry you - not as a lawyer - but as a possible patient? "Doctors and medical researchers are seemingly scrambling to adapt to the recent assertion of copyrights in a popular screening method that has been used for decades to measure cognitive impairment. Although the assertion of this particular set of rights is relatively new, doctors are increasingly facing copyright claims in a variety of tests, including those for depression and for pain" and "Doctors and researchers are quietly acquiescing to the demands of those asserting copyright in medical tests, for fear of becoming entwined in lengthy and expensive legal proceedings" : hmmmmm - very interesting - as is the clash of copyright law and patent law - and there much more on the IPWatchdog here. 

And turning to teeth - here's a salutary tale from ArtsTechnica of when legal agreements go horribly wrong: Dentist Dr. Stacy Makhnevich, the “Classical Singer Dentist of New York", reportedly made patient Robert Lee sign an agreement back in 2010 that included provisions that the patient would refrain from publishing any “commentary” online or elsewhere: The contract, created by a firm called Medical Justice,  also specified that Lee should “not denigrate, defame, disparage, or cast aspersions upon the Dentist.”  and if Lee did write such reviews, the copyright would be assigned to the Dentist. Of course you can guess what happened - Lee was a very unhappy customer and subsequently posted a Yelp review saying "Avoid at all cost!” and  alleging “Scamming their customers! Overcharged me by about $4000 for what should have been only a couple-hundred dollar procedure.” In September 2011, staff members acting on behalf of Dr. Makhnevich sent DMCA takedown notices to Yelp and another website called DoctorBase to have the messages removed:  In response in November 2011, Public Citizen, acting for Lee, filed a lawsuit seeking class action status (others had also complained about the Medical Justice 'Mutual Agreement to Maintain Privacy') arguing that Lee’s reviews were fair use and non-defamatory. The lawsuit also alleged that Makhnevich’s “don’t criticize me” contracts were violations of New York business laws and dental ethics rules. But somewhat quickly Medical Justice withdrew the Mutual Agreement from use, and Dr Makhnevich closed her practice and disappeared - it seems even her own lawyers don't know where she is, and US District Judge Paul Crotty has now held a case conference to decide if the dentist's lawyers should be allowed to withdraw from the case - although Lee is seemingly left nursing $3,000 in legal costs to date.

The Associated Press said Monday that it has settled a US copyright-infringement lawsuit against digital news distributor Meltwater and that the two companies will begin developing products together.  

Australia has reportedly  recommended changes to copyright law that would allow Australians cheaper access to IT hardware, software and digital downloads after a parliamentary inquiry found no good reason for prices to be so high Down Under - prices for computer products are often 50 percent higher in Australia than elsewhere. Adobe has claimed that its products cost more because of local packaging and transports costs, while Apple cited copyright fees. The report suggests a handful of potential moves to rectify the problem, such as removing restrictions on imports and changing the Copyright Act to "secure customers' rights to circumvent technological protection measures." There is also mention of creating a "right of resale" for digital goods.

Six-time Grammy Award winner Toni Braxton has been unsuccessful in her bid to buy back ownership of some of her most famous hits - including 'You're Making Me High,' 'How Many Ways,' and 'Always' - after making an agreement to resolve her bankruptcy issues. As part of the agreement, Braxton was given the opportunity to buy back some of her personal property by paying monthly instalments and enter an auction to purchase the copyright of 27 songs for $20,000 when they were put up for sale on July 15 - as long as as no one out-bid her. However, buyer Ross M. Klein doubled the offer made by the 45-year-old singer and gained ownership.

Literary agent Samuel Pinkus, who was accused of engaging  in a scheme to dupe Harper Lee, the author of To Kill A Mockingbird, out of the valuable copyright to her book, has indirectly answered criticisms in a defence filed in a separate action where he is being sued by literary agency of McIntosh & Otis, which is demanding almost $780,000 and asks to being appointed as a receiver of Pinkus' company's assets. According to a motion that was filed on behalf of Pinkus and his companies: "Ms. Lee's assignment of the Mockingbird copyright specifically retained to her 'all rights to any revenue, financial benefit, royalties, or any benefit whatsoever derived from the exploitation of the Property, now or in the future.' The inconvenient real facts make for a much less interesting story." 

U2 can appeal, Mr Tenenbaum

Joel Tenenbaum, who was ordered to pay $675,000 for infringing 30 sound recordings after his jury trial in the USA, is to ask for a re-trial. Among other claims, lawyers for Tenenbaum say that the verdict was unconstitutionally excessive - the argument being that a penalty of $22,500 a song is “obviously unreasonable” – although it is of course well within statutory limits. The US Copyright Act allows penalties ranging from $750 to $150,000 per infringement at the jury’s discretion. Indeed the jury’s decision in the Tenenbaum case is not without precedent: in the USA’s first major file sharing claim, single mum Jammie Thomas-Rasset was ordered by a Minnesota court to pay $1.92 million for file sharing 24 songs.

Now Charles Nesson, Tenenbaum’s attorney and Harvard academic (pictured in a rather fetching turtle neck ensemble) wants U.S. District Judge Nancy Gertner to reduce the damages to the minimum $750 a song or give the Boston graduate student a new jury trial saying “Given the fact that Tenenbaum was one of many millions of people sharing music and that the plaintiffs have failed to show any actual damages from Tenenbaum’s particular actions, this award is obviously “so severe and oppressive as to be wholly disproportionate to the offense and obviously unreasonable”. It is fair to say that the Recording Industry Association of America (RIAA) has now wound down its high profile campaign to sue individual file sharers and downloaders, but this doesn’t detract from the fact that Tenenbaum was convicted on his own admission and the jury’s award well within statutory parameters. It seems likely that whilst the judiciary may be unhappy about the level of damages awarded in both these cases, it is unlikely to take a proactive role in reducing them – leaving this to Congress. As for Congress, as the movie, television and music industries continue to ask for greater protection, it seems unlikely that the legislature bow to pressure to reduce statutory penalties. Nesson is also asserting that Tenenbaum’s 2004 file sharing on Kazaa and Limewire was protected by the US fair use doctrine — a suggestion that online file sharing is permissible. In Tenenbaum’s Massachusetts trial Judge Gertner would not allow this defence to proceed and quite frankly it’s hard to see why this would be allowed to proceed in a second trial. Dowloading files without paying is surely never going to constitute ‘fair use’.

In fact it seems likely that countries will in all probability move to stregthen rather than loosen copyright protection. In the US, the RIAA, the Motion Picture Association of America and others are lobbying Congress and internet service providers to adopt a “three strikes” policy in which internet access would be cut off for repeated infringement. This legislation exists in Taiwan, in New Zealand and (nearly it seems) exists in France – and has been included by Business Secretary Lord Mandelson in the Digital Economy Bill which is in the committee stage the UK. This week U2 frontman Bono heralded the intervention of the movie industry as a potential savior for the ailing music saying that file swapping and sharing hurt the creators of cultural products. Bono argued “the only thing protecting the movie and TV industries from the fate that has befallen music and indeed the newspaper business is the size of the files” pointing out that “the immutable laws of bandwidth” indicate that technology is just a few years from allowing viewers to download entire movies in just a few seconds adding “A decade’s worth of music file-sharing and swiping has made clear that the people it hurts are the creators—in this case, the young, fledgling songwriters who can’t live off ticket and T-shirt sales”! Interestingly the singer pointed out that the US effort to stop child pornography and China’s effort to suppress online dissent indicate that it is “perfectly possible to track” Internet content and felt that the movie and TV industries may succeed where the music and newspaper industries have failed saying “Perhaps movie moguls will succeed where musicians and their moguls have failed so far, and rally America to defend the most creative economy in the world, where music, film, TV and video games help to account for nearly 4 percent of gross domestic product”.

ISP TalkTalk's head of regulation Andrew Heaney responded by telling reporters: "It is outrageous to equate the need to protect minors from the evils of child pornography with the need to protect copyright owners. As a society we have accepted that it is appropriate and proportionate to intrude on people's internet use by blocking access to sites that host child abuse images. To suggest that sharing a music file is every bit as evil as child abuse beggars belief" adding "Bono obviously does not understand how simple it is to access copyright protected content without being detected. P2P file-sharing can be spotted (albeit at great cost) but there are dozens of applications and tools out there which allow people to view content for free and no amount of snooping can detect it". ISPs currently argue that it would cost each and every ISP customer about £25 a year to reimburse ISP’s for tracking and stopping net piracy.

http://www.wired.com/threatlevel/2010/01/riaa-verdict-is-unreasonable/
http://www.manilatimes.net/index.php/tech-times/8976-u2s-bono-calls-for-control-over-internet-downloads