THE COPYKAT

The fallout from the BMG v Cox case in the USA continues, with a court denying ISP Grande Communications the benefit of safe harbour protection in a case brought by the Recording Industry Association Of America (RIAA). In the earlier case, BMG had accused ISP Cox Communications of running a deliberately ineffective system for dealing with repeat infringers,  At first instance the jury awarded $25 million against Cox when they found the broadband carrier liable for piracy by its subscribers. The US appellate court reversed that verdict in what might have been seen as a defeat for the record label - but many said at the time that a careful look at the judgment, decided on a technicality, was actually a win in the battle against piracy. The 4th Circuit took a long hard look at how and why Cox would be protected by US  "safe harbor" provisions that protect service providers from liability when users infringe copyright. - and here the Court ruled against Cox on a key point. The DMCA provides a degree of protection to ISPs and other platforms that respond expeditiously to takedown requests. But one of the requirements is that the ISP and other intermediaries to have "adopted and reasonably implemented … a policy that provides for the termination in appropriate circumstances of subscribers … who are repeat infringers." The appeals court said that as it stood, Cox wasn't entitled to rely on safe harbor because it did very little if anything even when told about repeat offenders - an important precedent. Grande had been accused of operating a similarly ineffective system for dealing with infringers and infringement, and the RIAA pursued the ISP arguing that Grande should be liable for its users' infringement. Now a US Court has agreed with that position in a summary judgement that quotes BMG v Cox and affirms that those seeking safe harbour protection in the US must "reasonably implement" a policy for disconnecting repeat infringers or they will lose safe harbour protection in circumstances where the "ISP has not 'reasonably implemented' a repeat infringer policy if the ISP fails to enforce the terms of its policy in any meaningful fashion". The new decision noted the December Magistrate Judge's opinion in this case, which concluded that the "undisputed evidence shows that though Grande may have adopted a policy permitting it to terminate a customer's internet access for repeat infringement, Grande affirmatively decided in 2010 that it would not enforce the policy at all, and that it would not terminate any customer's account regardless of how many notices of infringement that customer accumulated, regardless of the source of the notices, and regardless of the content of a notice". The court agreed, saying Grande's systems were even worse that Cox's:  "Grande thus did even less than Cox to 'reasonably implement' the kind of policy required for the protections of ... safe harbour ..... if lax enforcement and frequent circumvention of existent procedures disqualifies a defendant from the safe harbour's protections, the complete nonexistence of such procedures surely must do likewise"

A federal appeals court has partially sided with real estate giant Zillow in important decision involving the long-running copyright battle with photography company VHT over how property photos can be used online. The 9th U.S. Circuit Court of Appeals ruled that Zillow did not willfully infringe on copyrights for 28,000 real estate photos for its home improvement section, now known as Zillow Porchlight in a turnaround in the case from when Zillow lost a jury trial in 2017 and was ordered to pay $8.3 million in damages to VHT. U.S. District Judge James L. Robart had already reviewed the Seattle jury's decision and had ruled that “the jury had no rational basis on which to conclude” that 22,109 of those photos violated VHT’s copyright and reduced the damages award down to a little over $4 million. However Judge Robart upheld a piece of the original verdict that held Zillow liable for willfully infringing on 2,700 photographs, a key victory for VHT and the basis for keeping the damages at around $4 million: the appeals court also sided with VHT when it maintained the prior ruling that several thousand tagged, searchable photos displayed on Zillow did not constitute a “fair use” but criticised VHT's methods of dealing with the infringements before filing their suit.   “We are pleased with the results of this appeal,” Zillow said in a statement. “We take copyright protection and enforcement seriously and will continue to respect copyright permissions across our platforms.” One final consideration is whether the infringing use is as a 'compilation' - so one infringement - or multiple infringements of each image used with the appellate court saying:  “If the VHT photo database is a ‘compilation,’ and therefore one ‘work’ for the purposes of the Copyright Act, then VHT would be limited to a single award of statutory damages for Zillow’s use of thousands of photos on Digs. But if the database is not a compilation, then VHT could seek damages for each photo that Zillow used.

A real peloton (Ben Challis, (C) 2018)

Have you seen the Peloton advert? A 'committed' female cyclist called Rachael pedalling at her home, alone, on a fixed bike being encouraged along to greatness and success by a video simulator. Yeah, great job, you smashed it. Well now a group of music publishers have brought a legal action against the streaming-exercise-class company Peloton for using music from artists like Katy Perry and Drake in thousands of exercise videos without the proper permissions - and are seeking more than $150 million in damages alleging that the uses lack the necessary synchronisation licences.  “Unfortunately, instead of recognizing the integral role of songwriters to its company, Peloton has built its business by using their work without their permission or fair compensation for years,” said David Israelite, president and CEO of the National Music Publishers’ Association adding “It is frankly unimaginable that a company of this size and sophistication would think it could exploit music in this way without the proper licenses for this long, and we look forward to getting music creators what they deserve.”

It seems there is an ever growing list of comedians, artists and other creators who want to take a pop at @FuckJerry and owner Elliot Tebele , the wildly popular Instagram meme account that does seem to be very good at finding material for its users, but doesn't seem to be very good at crediting or compensating people when they use their works. First in line with a complaint about alleged violations is a complaint filed in the Southern District of New York on behalf of Nigerian-based Twitter user and Instagrammer Olorunfemi Coker, who has 133,000 followers on Twitter and over 62,000 followers on Instagram. The lawsuit alleges that FuckJerry posted a screenshot of a January tweet by Coker to its Instagram account without Coker’s permission and used it to advertise its JAJA tequila brand. (The post no longer appears to be on the FuckJerry Instagram page.) According to Coker’s lawyer, this is the first case of its kind brought against FuckJerry. But it's not as simple as it seems - jokes are a thorny issue when it comes to proving appropriation - especially when the 'idea' of a joke has been borrowed - but expressed in a new way. This one could be interesting! Jerry Media took some flak for its role in promoting the disastrous Fyre Festival and, after controversy over how the @fuckjerry account was crediting third party works, Tebele said that the account would no longer post images if the original creator couldn’t be identified saying: “In the past few years, I have made a concerted, proactive effort to properly credit creators for their work ..... [W]e have also updated our policies to make sure we are responsive to creators whenever they have reached out to us about posts.”

The EU Parliament will vote next Tuesday (March 26th) on whether to endorse an overhaul of the EU’s two-decade old copyright rules as Google and internet activists stepped up their criticism of a requirement to install copyright filters. Websites and businesses across Europe are protesting controversial changes to online copyright being introduced by the European Union. Ahead of a final vote  a number of European Wikipedia sites are going dark for a day, blocking all access and directing users to contact their local EU representative to protest the laws. Other major sites, such as Twitch and PornHub, are showing protest banners on their homepages and social media. Meanwhile, any users uploading content to Reddit will be shown a #saveyourinternet message.

Key Ingredient in Ethiopian Cookbook Copyright Infringement Claim Found Missing by Federal Judge

District Judge Brian M. Cogan from the Eastern District of New York granted on July 19 the motion to dismiss of the author of an Ethiopian cookbook, who had been sued for copyright infringement by the author of another Ethiopian cookbook. The case is Schleifer v. Berns, 1:17-cv-01649.

Plaintiff had published in 2007 a cookbook of vegetarian Ethiopian recipes. A second edition was published in 2016. Plaintiff registered the work with the Copyright Office in December 2016. The two editions of the book, however, are not similar, as the book published in 2007 was done using a word processing program and its binding was a plastic spiral. Judge Cogan even found that it “is hardly even a book; it is closer to a pamphlet.” The book published in 2016 is done in a more professional way, but the two books are different in number of pages and recipes. Plaintiff claims the two versions are identical.  

Defendant published a cookbook of vegan Ethiopian recipes in 2015. Plaintiff filed a copyright infringement suit against her, who moved to dismiss.

No substantial similarities between the two works

The elements of a copyright infringement claim are (1) ownership of a valid copyright and (2) copying of constituent elements of the work that are original, Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., at 361. If plaintiff is not able to provide direct evidence of copying, he must show that defendant had access to the original work and that there are substantial similarities of material which can be protected by copyright in the two works. Ideas are not protected by copyright and so copying an idea is not copyright infringement.

Judge Cogan evaluated whether there was substantial similarities between the two cookbooks, as such a review is allowed at the pleadings stage on a motion to dismiss. In the Second Circuit, the standard test for substantial similarity between two works is “whether an ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard [the] aesthetic appeal as the same,” Yurman Design, Inc. v. PAJ, Inc., at 111.

However, if the original work incorporates elements which are in the public domain, then the court must undertake “a more refined analysis” and look for “substantial similarity between those elements, and only those elements, that provide copyrightability to the allegedly infringed [work],” Boisson v. Banian, Ltd., at 272.

In our case, Plaintiff failed to show that there were such substantial similarities. Judge Cogan used a table to compare elements of both works (see p. 7). He found that the common words used in both books to describe Ethiopian foods, ingredients, or culinary traditions were not protectable by copyright.

“To the extent the two works have general similarities – including the fact that both are about vegetarian or vegan Ethiopian cuisine, the inclusion of illustrations of prepared dishes, and descriptions of foods as spicy, spongy, or the like – these elements simply do not amount to a claim for copyright violation.  Instead, they are “scènes à faire,” or “unprotectible elements that follow naturally from [the] work’s theme rather than from [the] author’s creativity.”  MyWebGrocer, LLC v. Hometown Info, Inc., 375 F.3d 190, 194 (2d Cir. 2004).”

Not an original compilation either

A compilation of facts which are not protected by copyright can by protected “if it features an original selection or arrangement of facts, so that the selection or arrangement possesses at least some minimal degree of creativity,” MyWebGrocer at 193.  

However, Judge Cogan found both books to be “substantially dissimilar.” He noted that Defendant’s cookbook contained “ more than 185 pages of content, including cultural history, ingredients lists, shopping lists, over 140 recipes, and over two-dozen pages of photographs and illustrations” while Plaintiff’s 2007 cookbook contained “ only 46 numbered pages, including 12 recipes, six pages of commentary, a three-page interview, and nine pages of black-and-white photographs.”

Judge Cogan also found the “total concept and feel” of the two books to be distinct. As “the abstract similarities that “follow naturally” from the works’ common theme of vegetarian Ethiopian cooking are not protectable” (Lapine v. Seinfeld, at 83 (2d Cir. 2010)), the two works were not similar. In Lapine, the two books were explaining how to incorporate pureed vegetables into recipes.

Image is courtesy of Flickr user Jackie Finn-Irwin under a CC BY 2.0 license.