The CopyKat - choppy waters ahead for 'safe harbor' ?

New Zealand Judge Nevin Dawson has said that Kim Dotcom does not have secret assets or pose a flight risk, rejecting prosecutors’ plea to send him to jail or wear an electronic monitoring bracelet. Dotcom is fighting attempts by the U.S. to extradite him on criminal copyright charges over his involvement with the Megaupload platform. After a three day hearing Dawson did tighten Dotcom's bail conditions by ruling he can no longer travel by private helicopter or boat, and must report to police twice a week.

In the US, BMG and Round Hill Music have filed a lawsuit that might prove to be an important test case on the obligations, or otherwise, of internet service providers in the ongoing fight against piracy. According to the Wall Street Journal, the two music rights firms are suing Cox Communications, the third largest cable TV company in the US. The music companies say that Cox should be held liable for the copyright infringement of its file-sharing customers because it has failed to respond in any way to notices alerting the company to the actions of its infringing users as provided by BMG and Round Hill's representative agency - the somewhat controversial Rightscorp Inc (described by techdirt as a "struggling copyright trolling operation") - and is therefor outside of DMCA 'safe harbor' protection, particularly when it comes to 'repeat infringers'.  According to the WSJ, the legal complaint notes: "Cox has had ... knowledge of ... repeat infringement by its subscribers [via Rightscorp]. Nonetheless, Cox has repeatedly refused to terminate the accounts of repeat infringers. The reason that Cox does not terminate these subscribers and account holders is obvious - it would cause Cox to lose revenue". Cox Communications was the one major player absent from the deal struck between the content owners and service providers back in 2011, the Copyright Alert System which did involved the likes of Cablevision, Comcast, Time Warner and Verizon. Cox has its own system. BMG and Round Hill are seeking damages for contributory and vicarious copyright infringement and a judicial order requiring Cox to "promptly forward plaintiffs' infringement notices to their subscribers."

Has UKIP got itself a Christmas present in the form of a copyright lawsuit ? Maybe, as it seems the British right wing anti-EU party has used a recent cartoon by political cartoonist Christian Adams as it's 2014 Christmas card - without permission. The cartoon UKIP seems to have purloined originally featured in the Telegraph newspaper, and features a cartoon of UKIP leader Nigel Farage driving a white van over the leaders of the three main party - in reference to the tweet by the now departed Shadow Attorney General Emily Thornberry MP that showed a white van in front of a house decorated with the flag of St George with the hashtag #Rochester. UKIP recently won the byelection in Rochester demolishing the Labour, Liberal and Conservative vote.  Asked on twitter why he hadn't put the UKIP card on his Facebook timeline - Adams himself tweeted that UKIP had a problem as they "DID NOT ASK PERMISSION"!  More here on the IBT and here. 

And finally, the  Electronic Frontier Foundation has released an opinion piece by Maira Sutton Copyright Law as a Tool for State Censorship of the Internet arguing "When state officials seek to censor online speech, they’re going to use the quickest and easiest method available. For many, copyright takedown notices do the trick. After years of lobbying and increasing pressure from content industries on policymakers and tech companies, sending copyright notices to take media offline is easier than ever" and going on to say "Now we're seeing a disturbing trend where governments and state-friendly agencies are abusing DMCA takedowns to silence political criticism." with an interesting and global list of alleged abuses of 'DMCA' takedown censorship from around the World. Worth a read and its all on the EFF website here.

The CopyKat - snippets of copy writes from around the globe

Russia’s State Duma, the parliament’s lower house, has approved a package of amendments to the anti-piracy law, which will cover video, books, music and software, but not photos.  Tass reports that rights’ owners can now demand suspension of Internet sources, which violate authors’ rights, for a period of court proceedings. Two couyrt defeats will lead to an closure of the offending website and the court will decide on a permanent blocking of a Web site. Among the amendments there is an initiative under which a Web site owner must delete during 24 hours any content, rather than limit access to it, upon an electronic request from a rights’ owner. “Our fundamental aim was to protect rights’ owners from professional pirates without creating serious problems for Web’s users, who may not be familiar with details of the law on authors’ rights and are authorized to use the whole content that is available,” Duma deputy speaker Sergey Zheleznyak said in his Facebook account.

The Turtles - happy again?

The Turtles, the 1960s pop band,  have  won a second victory against SiriusXM Holdings Inc. U.S. District Judge Colleen McMahon in Manhattan rejected Sirius' request to dismiss the lawsuit accusing the satellite radio company of playing pre-1972 songs from the band, best known for the hit "Happy Together" without permission or paying royalties. She said that unless Sirius raises any factual issues requiring a trial by December 5th, she will rule outright for the plaintiff, Flo & Eddie Inc, a company controlled by founding Turtles members Howard Kaylan and Mark Volman, and begin to assess damages. The Judge said "Of course, the conspicuous lack of any jurisprudential history confirms that not paying royalties for public performances of sound recordings was an accepted fact of life in the broadcasting industry for the last century. So does certain testimony cited by Sirius from record industry executives, artists and others, who argued vociferously before Congress that it was unfair for them to operate in an environment in which they were paid nothing when their sound recordings were publicly performed.... That they were paid no royalties was a matter of statutory exemption under federal law; that they demanded no royalties under the common law when their product as ineligible for federal copyright protection is, in many ways, inexplicable.  But acquiescence by participants in the recording industry in a status quo where recording artists and producers were not paid royalties while songwriters were does not show that they lacked an enforceable right under the common law - only that they failed to act on it  and Modern federal law supports the notion that an express carve-out is required in order to circumscribe the bundle of rights appurtenant to copyright.  More here and here. Digital Music News opines that based on Judge McMahon's comments  " Although the defendant in the case is a digital service, the ruling would appear to apply to any radio station, nightclub, or any other venue that plays recorded music in New York". So, traditionally free from paying royaties for recorded music in the USA  - is broadcast radio next???

Oracle's 2007 case against SAP, alleging that the latter’s Texas-based subsidiary TomorrowNow had illegally downloaded millions of copyrighted documents and programs from its customer connection website has finally bee settled. In 2010, a jury awarded Oracle $1.3 billion in damages based on the value of a hypothetical license that SAP should have negotiated for using Oracle’s copyrighted software. In response SAP filed a suit claiming that the amount should not be based on hypothetical licenses but on facts. In 2011, U.S. District Judge Phyllis Hamilton rejected the previous claim and settled the amount at $272 million.
Oracle then appealed to the 9th Circuit Court of Appeals to revert the amount to the original $1.3 billion. The court considered Oracle’s appeal and agreed that the second amount was too low. However, earlier this year, Oracle was ordered to either accept $356.7 million or file for another claim and Oracle has now settled the case for $359 million ($356.7 million plus $2.5 million in interest). 


The Federal High Court in Lagos has thrown out a case brought before it by the Musical Copyright Society of Nigeria (MCSN) seeking to restrain the Copyright Society of Nigeria, Coson, from declaring that it is Nigeria’s sole collective management organization for musical works and sound recordings. Justice O.E. Abang ruled against the MCSN In its battle for legitimacy against Coson and the Nigerian Copyright Commission (NCC). In the suit, MCSN had asked the court to declare that Coson fraudulently misrepresented particulars of its membership to the NCC, which particulars the NCC relied upon to grant approval to Coson. MCSN asked the court to revoke the approval and to declare that the approval of Coson as a sole collective management organization deprived MCSN, its members, assignors and affiliates of their fundamental and constitutional rights to freedom of association, freedom to own and enjoy property in copyright and access to justice and as such is unconstitutional, null and void.   Suit No. FHC/L/CS/377/2013. More on the Premium Times here.

The Brisbane Times reports that websites that host or link to copyright infringing movies and TV shows could soon be blocked if the Australian cabinet approves a government submission to tackle online copyright infringement. It seems Attorney-General George Brandis and Communications Minister Malcolm Turnbull are canvassing a range of options put forward in response to their online copyright infringement discussion paper released in late July and intend to present cabinet with their own submission before Christmas. The ministers will likely recommend government put a requirement on internet service providers to forward letters about alleged copyright infringement from movie and TV studios to their customers. It's also likely they will recommend making it possible for rights holders to seek an injunction in court to require multiple internet providers block websites hosting infringing content.

In New Zealand MegaUpload founder Kim Dotcom is facing a number of new temporary conditions to his bail over allegatiuons of multile breaches of previous conditions an an assessment that he may be a 'flight risk' Dotcom's full extradition hearing to the US on criminal copyright charges has been long long delayed - it's nearly three years since his controversial file-transfer business was shut down by the US authorities - and this will be subject to further delays after Dotcom's US lawyer confirmed that he and co-defendat Finn Batato had lost their legal team with New Zealand law firm Simpson Grierson and barrister Paul Davison QC withdrawing from the case. The new restrictions on Dotcom imposed by Judge Nevin Dawson in the Auckland District Court bans Dotcom from travelling more than 80km from his home, and from using helicopters or boats and he must hreport to police on a daily basis. Reports say that prosecutors have  called for Dotcom to be jailed again pending extradition, a proposal that will be considered by a judge next week.

And finally from China comes news that the Government is planning to create 3 Special IP Courts in Guangzhou, Beijing and Shanghai, where, according to a new update on the IPKat, the majority of Chinese IP cases are filed.  This is ostensibly to handle the growing backlog of cases in these jurisdictions and to address the special technical requirements and intricacies of IP cases. The new IP courts would be trial as well as appeal courts and it seems the Beijing IP court may focus more on administrative cases, while the other twocourts would  focus predominantly on civil infringement cases

MegaBoss stays inside

MagaUpload boss Kim (Dotcom) Schmitz has been denied bail by a court in New Zealand after prosecutors said there would be a real risk that he would flee New Zealand and evade extradition to the United States to face criminal charges. Schmitz's defence lawyers had argued that his passport had been seized, bank accounts frozen and his size (he is VERY large) made it unlikely he would be able to evade immigration officials. But prosecutors argued that the MegaBoss may well have other passports and other bank accounts, and that he had a history of evading criminal charges. Judge David McNaughton agreed with the prosecution, saying that "with sufficient determination and financial resources, flight risk remains a real and significant possibility which I cannot discount and bail is declined" adding that the unlicensed shotguns which were found at Schmitz rented mansion (he was apparently located by New Zealand Police locked in the mansion's panic room with a shotgun) suggested criminal connections, who could possibly aid an escape from the country. Schmitz holds joint Finnish and German nationality and it was feared he would escape to Germany, who perhaps might be less to hand over one of their own citizens to the US authorities. The bail decision will be appealed.

Schmitz will now be held in custody until February 22nd. The other three MegaUpload team members arrested in New Zealand last week were also remanded in custody, with each requesting separate hearings to present arguments to attempt to secure bail. Mystery remains about the role Swiss Beatz, Alicia Key's rapper and producer husband, played in the whole Mega business where it was thought he was CEO. US authorities have not named Beatz as a suspect, and cyber commentators claim the title was a 'courtesy' title.

In the wake of the arrests, a number of websites have taken steps to block unlicensed and infringing content with two, Filesonic and Fileserver, putting blocks in place so users can now only download content they themselves uploaded.

http://www.computerweekly.com/news/2240114316/Megaupload-boss-denied-bail

and http://www.guardian.co.uk/music/2012/jan/23/swizz-beatz-megaupload?newsfeed=true