The CopyKat - That Blurred Lines trial just keeps giving

Fancy yourself as a digital pirate? Well better get yourself a saucy moniker then - like being a 'Bookaneer' - the literary pirates of the nineteenth century who exploited the lack of international copyright agreements to publish 'counterfeit' editions in foreign countries. These buccaneers of the book trade were especially prevalent in the USA, reproducing new works by popular British authors such as Charles Dickens without bothering to pay for the privilege - the extent that Dickens had a very public battle with piratical American periodicals and satirised their activities in Martin Chuzzlewit, the serial parts of which were reprinted in the very publications he was lambasting. 'Bookaneer' was coined by the poet and author Thomas Hood in a letter in The Athenaeum of 22 April 1837 under the title 'Copyright and Copywrong' (a title still used in journals and blogs today!). Thank you Andy J for this tip off!

In Japan the Abe government is seeking to abolish wartime copyright extensions in negotiations on the protection of intellectual property rights as part of Trans-Pacific Partnership multilateral free trade talks. In talks with the United States, Japan is demanding that the special arrangements be scrapped if the period of protection for copyrighted works of art is extended under a TPP deal, informed sources said. Under wartime copyright extensions, the copyright protection period is set about 10 years longer than usual for music and literary works created in the victor countries of World War II, including Britain, the United States and France. Japan was required to honor the extensions when it signed the 1951 San Francisco Peace Treaty on the grounds that the copyrights of productions in the allied nations had not been protected in Japan during the war. Among the 12 countries participating in the TPP talks, the United States, Australia and New Zealand are covered by the wartime copyright extensions

A US-based lobbying group co-founded by Google and Pandora that aims to "drive down royalties paid to songwriters and artists" (or perhaps as MIC themselves say they are "committed to a rational, sustainable and transparent system that will drive the future of music and ensure that consumers and consumer-serving businesses, such as retailers, restaurants and hotels, have continued access to play music at affordable prices") has suffered a second high-profile member exit, with US broadcaster NPR withdrawing. Amazon quit the MIC Coalition in June.

The contested image on The Blacker The Berry

Top Dawg Entertainment  hasn't had a very good week when it comes to copyright claims. First of all was the news that one of it's artistes, Kendrick Lamar, was facing a claim of copyright infringement over an image of a woman breastfeeding two babies was used without the photographer Giordano Cipriani's permission on the artwork for "The Blacker The Berry", and this was followed by news that the label's YouTube page has been "terminated":  "Top Dawg Entertainment has been terminated because we received multiple third-party claims of copyright infringement regarding material the user posted," reads the message when attempting to access the TDE YouTube page.

The Judge in the 'Blurred Lnes' Trial has rejected a new trial and has 'trimmed' the damages awarded against Robin Thicke and Pharrell Williams to $5.3 Million (from $7.3 million).  U.S. District Judge John Kronstadt has accepted the Gaye family's contention that record labels including UMG Recordings, Interscope and Star Trak Entertainment should be held liable for their distribution of the song that was found to be a copy of Gaye's "Got to Give It Up" and he also ruled that Clifford "T.I." Harris Jr., the rapper who contributed a verse on the blockbuster "Blurred Lines" song was liable.  Judge Kronstadt denied the Gayes' bid for an injunction, but has granted a request for an ongoing royalty rate of 50 percent of songwriter and publishing revenues. The post trial order can be found here. In his order, Judge Kronstadt specifically stated that the damages awarded against Williams were excessive, as it had not been shown that Williams was a “practical partner” of Thicke’s, and thus is only liable for his share of the profits from the song. The damages were reduced down from $4 million to just under $3.2 million, while the award of profits from Williams was reduced from just over $1.6 million to $357,000.  An appeal is expected, at least from Thicke and Williams.

The CopyKat - the pain in Spain means no blocking - again

A  court in Spain has overturned a previous ruling that had led to the blocking for a number of file-sharing sites. Back in May this year the anti-piracy group FAP secured injunctions in court forcing internet service providers in the country to block various file-sharing set-ups, including SpanishTracker, PCTorrent.com, NewPCT.com, PCTestrenos.com, Descargaya.es and TumejorTV.com - but in a blow to the content industries - who had celebrated the earlier ruling - an appeals judge in the wonderfully named Court of Instruction No.10 (well that's according to TorrentFreak)  has said there are "insufficient grounds" for blocking the offending sites in order to protect intellectual property rights - although thus will no doubt prompt fresh calls to extend or revise the so called Law Sinde in Spain which was meant to have allowed web blocking as a remedy against internet piracy from March 2012. 

It seems Amazon is trialling a 'Spotify' type service which will allow Kindle users to subscribe for ebooks - paying $9.99 a month to have access to 640,000 books and nearly 7,000 audio books. Richard Mollet, the Chief Executive of the Publishers Association in the UK has said that it is essential that any subscription service properly rewards writers and publishers. Kindle Unlimited joins Scribd, EnTitle and Oyster - but with the potential a far far bigger library of books available to subscribers - although no books from any of the 'big five' publishing houses (Penguin Random House, Simon & Schusterm, Harper Collins, Hachette and Macmillan are featured in the prootional video which had been seen by Gigam - although Lord of The Rings, books from the Harry Potter series and Life of Pi were apparently seen in the video.

And Google is possibly experimenting with a new system that would see adverts for legitimate content platforms positioned at the top of searches for unlicensed movies or music. Google has been widely criticised by the music and movie industries for not doing enough to steer web-users to legitimate rather than illegal sources of content.

Bornstein & Bornstein, a firm of attorneys in San Francisco are being accused of censorship after reportedly using a DMCA copyright takedown notice to remove a controversial and secretly filmed video from YouTube. A certain Jackson West had attended one of the firm's sessions  on how to progress local evictions of longterm tenants, and video taped people protesting at a seminar given by the lawfirm . However you can still see the video via Vimeo - for now - from a link on TechDirt.

US fashion and make up blogger and YouTube star is facing a copyright infringement action from Ultra Records and Ultra International Music Publishing, home of Calvin Harris and Deasmau5. The case, filed in the United States District Court in Los Angeles, makes it clear the label has only begun its search of Phan’s many online productions, but has so far uncovered dozens of infringements, according to the complaint. Those videos have been viewed more than 150 million times, the plaintiffs said. However at lest one Ultra artist, Kaskade, the globally renowned US DJ who was nominated for a Grammy last year, is not happy with his label's stance tweeting "Copyright law is a dinosaur, ill-suited for the landscape of today’s media.”   “I’m not suing @MichellePhan + Ultra Records isn’t my lap dog. I can’t do much about the lawsuit except voice my support for her.".

And finally, Malibu Media, perhaps wrongly accused of being a copyright troll, has succeeded in an infringement action against Don Bui, an immigrant from Vietnam who is now a naturalized US citizen, after the judge in the case gave short shrift to his explanation that the reason he downloaded and kept 57 Malibu Media porn movies from Kickass Torrents was because he had no idea how torrents work - and saw nothing wrong in "ordering movies" from Kickass Torrents. The erotic film studio has filed thousands of lawsuits against "John Doe" defendants in the U.S., in many cases "collecting a couple of thousands of dollars from "scared file sharers who do not want to go to court." US District Judge Robert Jonker reportedly said this "Defendant has some quarrels with the details of how BitTorrent works, but nothing that the Court sees as a fundamental or material issue of fact. Even as Defendant describes the facts, using BitTorrent technology, he ultimately winds up with 57 unauthorized copies of Plaintiff's works--copies that did not exist until Defendant himself engaged the technology to create new and unauthorized copies with a swarm of other users. True enough, the process is not identical to the peer-to-peer file sharing program in Grokster. It is, however, functionally indistinguishable from the perspective of both the copyright holder and the ultimate consumer of the infringed work. In both situations, the end user participates in creating a new and unauthorized digital copy of a protected work. It makes no difference from a copyright perspective whether the infringing copy is created in a single wholesale file transfer using a peer-to-peer protocol or in a swarm of fragmented transfers that are eventually reassembled into the new infringing copy." Bui's attorney also suggested his client was a "poor immigrant" who didn't understand English very well" - that argument was shot down as well. More on TechDirt.

French minister of culture speaks of Google, Amazon and Loi Hadopi

Aurélie Filippetti

Earlier this week Italian newspaper Corriere della Sera featured an interview with French minister of culture Aurélie Filippetti. 

As her surname clearly suggests, Mme Filippetti is of Italian descent. This week she was in Umbria to attend some celebrations in honour of her grandfather Tommaso, who left Italy after WWI to work as a miner, first in Luxembourg and then in France. 

Corriere secured an interview with Mme Filippetti prior to her arrival in Italy. On that occasion, the Minister had the chance to clarify France's position as regards topics which are of sure interest to Google, Amazon, copyright enthusiasts and users of copyright-protected materials alike. 

As was reported by The 1709 Blog last month, France is thinking of following Germany and adopt a piece of legislation which would require news aggregation sites such as Google News to pay royalties on the newspapers' snippets and headlines that they display. As readers will remembers, Google is not particularly happy about this, and has indeed threatened to exclude French media sites from search results if France goes ahead with plans to make search engines pay for content. While the overall situation is heating up in Europe, in Brazil 154 members of the Brazilian National Association of Newspapers have already opted out from Google News. 

En garde Googlé!

Filippetti highlighted that culture is one of the most important resources to European economies and it would be foolish not to develop and sustain it. Hence, if by the end of this year French, Italian and German publishers do not achieve an agreement with Google, in January 2013 France will adopt a law which would require Google to pay royalties on the contents displayed on its News service. The underlying idea is that those who profit from the distribution of contents must also contribute economically to their creation. If this is true for TV networks, the same should apply also to providers, websites and digital platforms, said the Minister.

Not the kind of dumping
Amazon is interested in 

Filippetti also spoke of how internet giants like Amazon are threatening traditional publishers, eg Gallimard. She claimed that, although it is likely that Amazon will soon have a super-dominant position in Europe, the Commission does not seem to care. This is because this seems more interested in contrasting certain behaviours of small publishers who are just trying to cope with Amazon's threatening presence, rather than enquiring on Luxembourg-based giant whose business model is based on distance sales and unacceptable fiscal strategies involving price distribution dumping.

Mme Filippetti also spent a few words on controversial Loi Hadopi (on which see here, here, here, here ...), and said that the fight against piracy is best served not by laws like Hadopi, but by the development of fully licensed services such as Spotify and Deezer, although the royalties currently paid by these services are too low and should be increased.

Following this interview, there seems to be a lot to think about, as those addressed by Mme Filippetti are all topics which are currently at the centre of attention a bit everywhere in Europe ... What do readers think?

What is fair compensation? Amazon goes to the CJEU

A new case concerning copyright has made its way to the Court of Justice. This is Case C-521/11 Amazon.com International Sales and Others, a reference from the Oberster Gerichtshof (Supreme Court, Austria), concerning action for account and equitable remuneration for recording media - fair compensation for the purposes of Article 5(2)(b) of the InfoSoc Directive. As reported in the IPO's website, the case raises the following questions:

The judges of the CJEU clarifying what fairy compensation is

1. Can a legislative scheme be regarded as establishing 'fair compensation' for the purposes of Article 5(2)(b) of Directive 2001/29/EC, where:

a. the persons entitled under Article 2 of Directive 2001/29/EC have a right to equitable remuneration, exercisable only through a collecting society, against persons who, acting on a commercial basis and for remuneration, are first to place on the domestic market recording media capable of reproducing the works of rightholders,

b. this right applies irrespective of whether the media are marketed to intermediaries, to natural or legal persons for use other than for private purposes or to natural persons for use for private purposes, and

c. the person who uses the media for reproduction with the authorisation of the rightholder or who prior to its sale to the final consumer re-exports the media has an enforceable right against the collecting society to obtain reimbursement of the remunerations?

2. If Question1 is answered in the negative:

2.1. Does a scheme establish 'fair compensation' for the purposes of Article 5(2)(b) of Directive 2001/29/EC if the right specified in Question 1(a) applies only where recording media are marketed to natural persons who use the recording media to make reproductions for private purposes?

2.2. If question 2.1. is answered in the affirmative:
Where recording media are marketed to natural persons must it be assumed until the contrary is proven that they will use such media with a view to making reproductions for private purposes?

3. If Question 1 or 2.1. is answered in the affirmative:
Does it follow from Article 5 of Directive 2001/29/EC or other provisions of EU law that the right to be exercised by a collecting society to payment of fair compensation does not apply if, in relation to half of the funds received, the collecting society is required by law not to pay these to the persons entitled to compensation but to distribute them to social and cultural institutions?

4. If Question 1 or 2.1. is answered in the affirmative:
Does Article 5(2)(b) of Directive 2001/29/EC or other provision of EU law preclude the right to be exercised by a collecting society to payment of fair compensation if in another Member State - possibly on a basis in conformity with EU law - equitable remuneration for putting the media on the market has already been paid?