The CopyKat

Despite a $25 million rebuke by a federal jury in December for contributing to piracy on its Internet service, Music publisher BMG says that Cox Communications has not learned its lesson. BMG said Cox's network continues to be used by its customers for massive copyright infringement, undermining BMG's music sales. The company asked U.S. District Judge Liam O'Grady in Alexandria, Virginia, to grant a permanent injunction to force Cox to stop the illegal file sharing saying  “Now, more than a month later, Cox’s network continues to be the site of massive, ongoing infringement of BMG’s copyrights,” the music publisher complained.  “This ongoing infringement inflicts irreparable harm on BMG.” For its part Cox wants the jury's decision reversed as ‘a matter of law'.

In another frustrating day for the music industry, but possibly another nail in the coffin of the current tech friendly 'safe harbour' rules, another German court judge has sided with Google’s YouTube in its battle with German music performing right society GEMA, again confirming that the platform is not responsible for what its users upload. The higher regional court of Munich has now rejected GEMA’s claim for damages to the tune of around €1.6 million ($1.75 million). The court upheld a judgement by the lower regional court in Munich, which said YouTube is just a host for uploaded video.

TechDirt tells us that one of the worst abusers of copyright law (and US copyright law specifically) to censor critical speech is the government of Ecuador - focussing on the activities of Ares Rights, a Spanish company that has been regularly sending DMCA notices in the US to try to suppress any kind of criticism of Ecuador's government (and also on criticism of Ares Rights). TechDirt goes on to say "this should certainly reinforce the fact that copyright is frequently used for censorship. Sometimes it's censorship that many people approve of, such as blocking someone merely making use of someone else's work -- and sometimes it's used to censor political criticism. Until people recognize, however, that copyright is absolutely (and regularly) used for censorship, it's difficult to have any realistic discussion of how to prevent the abusive kind of censorship with kinds that people may find more reasonable."

A task force set up by the US Department of Commerce has rejected the need to introduce a compulsory license to deal with the issue of remixes although it has suggested the development of negotiated guidelines providing greater clarity as to the application of fair use to remixes; It has also recommended not to change the existing regulation on the first sale doctrine, which could have allowed digital copies of works to be traded without compensation for rights holders, and suggested a series of changes in the field of statutory damages including incorporating into the Copyright Act a list of factors for courts and juries to consider when determining the amount of a statutory damages award.   More on Music Week here and on the EFF's website here and of course on this blog - from Marie-Andree!

Ukraine's parliament is considering a bill that would require hosting services and Internet service providers to block websites violating copyright - without any form of judicial oversight. Approved in first reading on January 28th, the bill is reported;y the latest in a series of attempts by a group of lawmakers to introduce “anti-piracy” norms into legislation aimed at protecting the Ukrainian cinema, television and video industries. But the latest round of the proposed amendments could impact a broader number of online platforms and Internet users than past policies.

And now selfies ...... yes again! Firstly back to that black macaque Naruto: Remember that animal rights organisation PETA argued that non-humans like Naruto should be deemed the author of the selfie he took under the US Copyright Act and PETA would look after the macaque's rights and would use the proceeds from licensing if the photograph to benefit Naruto, his family, and his habitat? Well Judge William H. Orrick disagreed and granted a motion to dismiss the suit. But the judge has now said PETA can have a second chance and has given PETA leave to file an amended complaint—meaning that Naruto the macaque will have a second shot at claiming his copyright.

And secondly - a photo competition with a £2,000 holiday prize from Thomson Holidays has ended up in a real spat between the winners, The Bellis family whose son Jacob took a picture of himself and his dad, David, with a gurning Betty the horse in the snap - and Betty's owner, Nicola Mitchell. The Bellis' say Betty photobombed their son's selfie, which was taken on a public path, but Ms Mitchell says that even though she didn't know about the competition, she is entitled to a share of the prize as the Bell's should have asked for her permission before they took a picture of her horse saying "I didn't give him permission to use our horse in a competition" and that she would be phoning Thomson Holidays to "tell them I'm not happy". Now this is an interesting conundrum - what rights DOES Ms Mitchell have over her horse's image - or indeed what claim could she possibly have over the resultant selfie taken by a three year old boy?

Fair use is your friend ...

From Stacey Jackson-Roberts (American University Washington College of Law) comes news that the American University Washington College of Law’s Program on Information Justice and Intellectual Property and AU's Center for Social Media, in collaboration with Stanford Law School's Fair Use Project, are launching a new video explaining how online video creators can make remixes, mashups, and other common online video genres with the knowledge that they are staying within United States copyright law. The video, Remix Culture: Fair Use Is Your Friend, explains the Code of Best Practices in Fair Use for Online Video, a first-of-its-kind document coordinated by AU professors Pat Aufderheide and Peter Jaszi, which outlines what constitutes fair use in online video. The code itself was released July 2008. Pat Aufderheide is quoted as saying: 

“This video lets people know about the code, an essential creative tool, in the natural language of online video. The code protects this emerging zone from censorship and self-censorship. Creators, online video providers, and copyright holders will be able to know when copying is stealing and when it’s legal”. 

Like the code, the video identifies six kinds of unlicensed uses of copyright material that may be considered fair, under certain limitations:

• Commenting or critiquing of copyright material
• Use for illustration or example
• Incidental or accidental capture of copyright material
• Memorializing or rescuing of an experience or event
• Use to launch a discussion
• Recombining to make a new work, such as a mashup or a  remix, whose elements depend on relationships between existing works

For instance, a blogger’s critique of mainstream news is commentary. Adds Jaszi:

 “The fair use doctrine is every bit as relevant in the digital domain as it has been for almost two centuries in the print environment. Here we see again the strong connection between the fair use principle in copyright and the guarantee of freedom of speech in the Constitution”. 

Remix Culture: Fair Use Is Your Friend is a collaborative project of the Program on Information Justice and Intellectual Property—a program of AU's Washington College of Law and the Center for Social Media—a center of AU's School of Communication—along with Stanford Law School's Fair Use Project.  

The 1709 Blog notes that this project has been funded by Google. What inferences, this blogger wonders, may be drawn from this item of information in the light of recent developments involving Google Book?

Comment from Creative Commons here