The CopyKat - please take notice!

Torrentfreak has released details from a report from the Motion Picture Association Of America which says that the US movie industry is unconvinced by the USA's graduated response programme for combating online piracy saying that it is having limited results, though the MPAA continues to endorse the so called Copyright Alert System and feel it is yet to reach an appropriate scale. The system sees ISPs send warning letters to suspected file-sharers identified by content ownesr. The programme launched in early 2013 - with increasing sanctions if users fail to comply in a 'six strikes' programme. Despite the lack of impact overall, the report says that there is evidence a substantial number of  file-sharers sent warning letters do  appear to stop using monitored file-sharing networks, though it is not sure if that's because those users are opting for licensing content services instead, or if they then switch to file-sharing platforms that are more difficult to monitor.

Rightscorp are back in the news -  but this time its not from one of their own press releases - its a lot of angry Canadians who don't like the fact that with Canada's 'Notice and Notice' system just two weeks old, the  U.S.-based anti-piracy firm "has been using the system to send notifications to subscribers that misstate Canadian law, citing inapplicable U.S. damage awards and the possibility of Internet termination to sow fear among Canadians so that they might pay a settlement fee." Torrentfreak reports that the letter to Canadians asks for a $20 settlement with the threat of a U.S. style $150,000 damages liability for each infringement. But the Canadian 'notice' approach does not feature any legal penalties for end users - no fines or damages, no internet slow down or suspension. Rather the notices are designed as educational tools to raise awareness of infringement allegations. what's more, when an ISP sends a notice, the personal information of subscribers is not disclosed to any third party. Of course if a copyright owner wants to proceed with further legal action they have the option of going to court to obtain an order requiring the Internet provider to reveal the identity of the subscriber but Canadian law now also limits potential liability for Internet users for non-commercial infringement, capping damages at C$5,000 for all infringements - although in an article in Billboard Michael Geist points to a loophole in the law that Rightscorp may be using - the 'notice and notice' scheme was launched in a bit of a rush - without accompanying (detailed) regulations. The Canadian Government seems less than impressed with Rightscorp and spokesman for Industry Minister James Moore said "These notices are misleading and companies cannot use them to demand money from Canadians”. That said, as CMU Daily opines "Rights owners might argue that it’s more than likely that recipients of these forms have indeed infringed, that a $20 fine is a fair deal, and that rights owners should be allowed to at least recoup the costs of running an anti-piracy programme" but adds "Though they still ought not bully that money out of alleged infringers by citing the wrong country’s law".

The International Federation of the Phonographic Industry (IFPI) says it is preparing to have several "infringing sites" blocked at the ISP level in Singapore. The move, which will target The Pirate Bay should it come back online, follows new legislation introduced last year aimed at smoothing the way for High Court injunctions.

The U.S. Supreme Court has asked the Obama administration to comment in on the huge copyright battle between Google and Oracle, which could develop into a major exploration of the legal boundaries of software protection. In an order the court asked the U.S. Solicitor General to submit a brief in the case, a common practice when the justices seek the federal government’s legal views in cases with national implications. Oracle has claimed Google’s Android operating system violated copyright protections by improperly incorporating parts of its Java technology. A federal judge initially found after a trial that the Java components in dispute (the so called APIs) could not be covered by copyright law, but the U.S. Federal Circuit Court of Appeals last year concluded that the technology could be protected.

The operators of Glasgow's now closed Avalon Bar in Glasgow have been ordered by the Court of Session to pay Sky more than £73,000 for unlawfully showing football matches. This copyright infringement award was described by Sky's lawyers as the largest award ever made against a pub landlord in actions of this kind. The Court of Session ruled in February 2014 that the pub owner was in breach of Sky’s copyright by showing a Celtic v Ross County game without a commercial agreement. The pub then flouted an injunction preventing them showing Sky Sports by playing the Scotland versus Belgium match in September 2013.
Sky Business deputy managing director Alison Dolan said: "Copyright infringement creates an uneven playing field for thousands of hardworking licensees who legitimately invest in Sky Sports, which is why we are committed to visiting thousands of pubs, as well as investigating suppliers, to protect our customers and ensure they are not left short-changed by illegal activity. The court awarded £10,000 damages and combined court fines of £7,000 in respect of the charge of contempt of court. The remaining £56,328.32 was awarded as costs. 

The Copyright Clearance Center has announced its findings from Open Access roundtable discussions with UK Institutions and Publishers - perhaps unsurprisingly the independent report finds a shared desire to simplify and standardise payment and tracking of article processing charges. The meeting was held at University College in London, and attendees examined a number of issues related to fragmentation, approach and processes, including ways vendors can play an expanded role in addressing the challenges. CCC published the group’s findings in a report written by Rob Johnson, Founder and Director of Research Consulting. More here.

A New York federal judge has largely rejected Sirius XM Holdings Inc’s request to reconsider her Nov. 14 decision in favour of members of the 1960s band The Turtles over the payment of royalties for songs made before 1972. U.S. District Judge Colleen McMahon rejected Sirius’ arguments that Flo & Eddie Inc, controlled by founding band members Howard Kaylan and Mark Volman, did not own copyrights in The Turtles’ recordings such as “Happy Together,” or gave it an “implied” license to play Turtles songs. Judge McMahon did, however, agree with the New York-based satellite radio company that Flo & Eddie could recover damages for copyright infringement only for the three years before it sued on Aug. 16, 2013, not six years as she had previously suggested. More here.

And finally, actor-director Steven Soderbergh has been getting a great deal of attention recently for posting his newly-edited versions of three classic films:  Psycho, Raiders of the Lost Ark, and, most recently, 2001: A Space Odyssey.  "Interesting and creative stuff, indeed".  But as a number of commentators have pointed out, Soderbergh has been a prominent supporter of copyright in the past, testifying before Congress on behalf of the Director’s Guild of America in favour of the “three strikes and you’re out” policy for online copyright infringers and litigating against an unauthorised alterations and edits to his own work in  Soderbergh et al v. Clean Flicks of Colorado et al. David Post has an interesting take here as does Mike Masnick on Techdirt here.

Canadian Copyright Modernisation Act due to be passed minus "notice-and-notice" provisions

According to a Privy Council document, Canadian Bill C-11 (known as the Copyright Modernisation Act) is due to be enacted on 7 November 2012. The Copyright Modernisation Act (see the summary here) will amend the existing Copyright Act to:

"(a) update the rights and protections of copyright owners to better address the challenges and opportunities of the Internet, so as to be in line with international standards;

(b) clarify Internet service providers' liability and make the enabling of online copyright infringement itself an infringement of copyright;

(c) permit businesses, educators and libraries to make greater use of copyright material in digital form;

(d) allow educators and students to make greater use of copyright material;

(e) permit certain uses of copyright material by consumers;

(f) give photographers the same rights as other creators;

(g) ensure that it remains technologically neutral; and

(h) mandate its review by Parliament every five years."

Most of the bill will come into force next week, including fair dealing reform, new consumer exceptions, caps on statutory damages for non-commercial infringement, a user generated content provision, and digital lock rules, however it has been noted that the much debated "notice-and-notice" rules for ISPs that were intended to be enacted at the same time as the rest of the bill will be delayed.

The proposed "notice-and-notice" regime will require ISPs to forward any notice of infringement they receive from copyright owners to the subscriber in question. Canadians are friendly people, and many of them were concerned that a stronger "notice-and-takedown" regime (favoured by so many other countries) requiring ISPs to block access to material upon receipt of a notice from a rights holder alleging infringement, "could create incentives for ISPs to remove content without warning or evidence of actual infringement, which can potentially lead to a stifling of free expression" (see here).

Others however have said that a "notice-and-takedown" system "is required to effectively deal with operators of pirate sites that infringe content on a substantial scale and to deal promptly with time-sensitive postings." The Industry Canada website argues that a "notice and takedown" regime would be ineffective in preventing peer-to-peer file sharing, as it "typically applies only to material posted on websites. It is not well suited to files shared on peer-to-peer networks, the most prevalent source of infringing material, since the files are actually located on the computers of the persons engaged in sharing."

Support has also been expressed for some form of graduated response regime (such as a "three-strikes" approach).

Despite these concerns the Canadian government settled on the "notice-and-notice" approach, which is favoured by ISPs, educational institutions and consumer groups and which is already being voluntarily used. The Canadian government has said that: "This approach to addressing online infringement is unique to Canada. It provides copyright owners with the tools to enforce their rights while respecting the interests and freedoms of users."

Implementation of these provisions has however been the subject of unseen lobbying over issues such as the fees for processing notices and the retention of subscriber information. So despite everything, the uniquely Canadian "notice-and-notice" provisions will not come into force next week with the rest of the bill.