THE COPYKAT

Unauthorised sampling - the CJEU adds some clarity

The core issue in this all important case between the German electronic music pioneers Kraftwerk and and hip-hop producers Moses Pelham and Martin Haas in 1999 over the Sabrina Setlur song “Nur Mir”, which revolves around thse sample a two-second snippet of Kratfwerk's “Metall auf Metall” used as a loop was whether a license is required for sampling and could non-pursual of the same violate the phonogram producers rights? The AG's opinion which was released in December and 2018 gave an affirmative view to the same arguing that the “reproduction in part” does not require copied portions to be original. The CJEU in its decision (according to IPKAT and the Press Release) has stated that the reproduction of a sound sample by a user even if a very short clip must be regarded as a reproduction in principle “in part” and falls in the realm of the exclusive ownership of the phonogram producer. However the court went on to add that a rational respect towards freedom of artiatic expression in music must be recognised when the sampled portion is creatively played with to the extent that it is unrecognisable to the ear in another phonogram. In that case it won’t be a reproduction.  So the CJEU has now said that sampling a sound recording, however short a snippet the sampler takes, needs approval from the copyright owner of the original track and in accordance with the same it held the German Legislation allowing for an exception in the case of sampling as incompatible with the EU law, and it imperative to harmonize this substantive phonogram producers exclusive right irrespective of the fundamental right grounds claimed by the national jurisdiction. 

5 Seconds of Summer accused of copying by Hungarian songwriters

Moving from sampling to allegations of plagiarism, A Texas court recently saw a case where the Aussie pop group Five Seconds of Summer had been accused of ripping off a 2018 hit called “Younghood” from a song composed by Hungary based musicians David Henderson, David Toth and Peter Ferencz called “White Shadows”. It has been alleged by the applicants that the success of this rip-off has substantially taken to band to new heights virtually single-handedly, as reported by Complete Music Update. It has been alleged that the first melodic phrase of “Youngblood” shares virtual identicality with the similarly placed phrase from “White Shadow” and are both repeated equal number of times in the songs i.e. 4 times. The lay-listener has been used to allege an infringement by the Hungarian composers. It has further been alleged that the worldwide acclaim and substantial revenue which has been garnered by virtue of Youngblood, is a result of exploitation and appropriation and the applicant’s deserve accreditation and compensation in lieu of the same.

Take a listen - with the Applicant’s song is here https://youtu.be/7zMzXQU5dkA and the allegedly infringing song here https://youtu.be/-RJSbO8UZVY . In a second major case, a jury has now ruled that the Katy Perry song Dark Horse does plagiarise a Christian rap song. After two days of deliberations, the jurors concluded that Perry's team had likely heard 2008 release 'Joyful Noise' before writing 'Dark Horse', and that the latter was sufficiently similar to the former to constitute copyright infringement.

Now NIKE sues Kawhi Leonard - claiming exclusive rights on its Logo!

Nike has filed a countersuit against NBA star Kawhi Leonard, arguing that it holds exclusive rights to the claw logo that its “talented team of designers” created and claims its distinct from the design that Leonard had sketched and provided to the company, his “Klaw” logo, which he had conceived and created in college drawing on his hands. Although it has been admitted by the NIKE legal representatives that  Kawhi Leonard had submitted a design, they have gone on to state that it is a false claim that the design was the “Claw” design, as reported in the Bulletin. In the form of a counter claim, NIKE has gone on to now allege copyright infringement and breach of contract. This has been done in lieu of the use of the claw design on non-Nike apparel in the NBA finals. Nike had already served notice to Leonard’s lawyers in lieu of the same which was responded with non-agreement and compliance. Nike has further argued as reported in NiceKicks.com that Leonard had on an earlier occasion claimed that “I drew up the rough draft and sent it over and they made it perfect. They refined it and made it look better than I thought it would ever be, and I’m extremely happy with the final version.” Further, Nike has produced the initial sketch in the court which was given by Leonard which looks like an amateur drawing as has been reported by the Bulletin. Also, Nike does not claim any ownership over this initial rough design, rather merely on the final refined version.

CASE Act passed by the Senate Judiciary Committee

As had been reported by PetaPixel, the long awaited CASE Act has been passed by the Senate Judiciary Committee - if passed, the bill will  go on to establish a small claims court for Copyright Infringement cases in the USA. There is yet to be a full vote on the Senate Floor. Currently, to defend one’s copyright, a direct action needs to be made before the Federal Court which is an expensive and an extremely formalistic procedure. However, this act if legislated successfully would establish a small claims tribunal within the US Copyright Office, simplifying defense of copyrights. The highest amount of damages which can be awarded by this court per infringed work would be $15,000 with the total being a maximum of $30,000. This definitely increases the efficiency and reduces a certain amount of burden on the Federal Court. It will involve the appointment of three full-time Copyright Claims Officers who will look after the same.

This bill has been extensively supported by the US photographers, illustrators, graphic artists, songwriters and authors as well as bloggers! Even the National Press Photographers Association went ahead to commend the pressing of this act in the Senate by saying ““This is a very positive step in addressing infringement issues, where previously individual creators felt they had a right with no remedy because of the high cost of copyright litigation”, as reported by PetaPixel. The only criticism which has been drawn however has been upon the unappealable nature of this tribunal and the high amount of $30,000 being involved as a punitive power. 

It will be interesting to see the voting view taken by the Senate floor.

DailyMotion denied safe harbour protection

Dailymotion has been ordered to pay €5.5m in damages to Italian broadcaster Mediaset with the Rome court saying that Dailymotion was “entirely aware” of copyright infringement. As reported by Complete Music Update, in a case brought in by the Italian TV company RTI against  Dailymotion, it was argued by the applicant that Dailymotion should be held liable for hosting copyright infringing content without a license, involving programmes of the applicant. The take-down commitments were fulfilled by Dailymotion, and upon serving a notice, it had taken down such alleged infringing material. However, the Rome Court, absolved the safe harbour protection available to such intermediaries like Dailymotion as it did not fulfil the criteria set out in the EU E-Commerce directive, which is the origin point of the EU Safe Harbour norms. It has been ruled to be an “Active Host”. For failing to have a filtering mechanism and a system to automatically remove all such infringing content, Dailymotion has been asked to pay 5.5 million euros in damages. This has greatly increased the responsibility of a user-upload based intermediary platform and has reduced the standard from actual knowledge to mere presence. The courts of Rome have further refused to involve the European Court to confirm and clarify the interpretation and applicability of the EC Directive. It has been held that the right holder did not have an obligation to provide URL’s for the content that the platform should remove in its take down request and a simple indication in the title of the video would be sufficient. This seems all the more as an absurd and a non-sustainable interpretation and it will be interesting to see how this case turns out in lieu of the pending cases on the interpretation of Article 14 of the EC Directive in the CJEU. Although, this decision has been hailed by Italian media Conglomerate wherein it has reportedly been stated by its Chief Executive that: “Today’s decision is therefore an authentic turning point in consolidated national and EU jurisprudence (repeatedly referred to by the Court in the judgment in question) aimed at protecting the work of publishers, which is under attack by diverse forms of online piracy: A phenomenon that destroys both economic value and jobs in journalism and publishing companies.” (Reported by IBC 365). More on this in the IPKAT.

The functionality doctrine revisited in the Lego’s Copyright dispute against its British Competitor

The world famous toy maker from Denmark, Lego, has successfully won a copyright infringement suit against a British competitor in the US District court for the District of Connecticut. This dispute was launched in 2011 when Lego had sued Best-Lock for producing and selling infringing minifigurines. It was alleged, as reported by World IP review, that Best Lock’s advertisements had highlighted the well-known interchangeability of its figures and body parts with Lego’s. The main argument of the defendant in this case was the elements of Lego’s copyrighted work being functional. The court after confirming access, went on to conclude that the fact that some elements of the work are functional doesn’t render the whole work as non-copyrightable. The court said: “A comparison of the works makes clear that Best-Lock has copied protectable, expressive elements that are original to Lego”  Remember the case of Broderbund Software v. Unison World?

Copyright Protection of Military Reports, of national importance

In a very important opinion issued by the CJEU on a reference made in context of litigation between the German Government and a newspaper over unauthorized publication of “Afghanistan papers” and certain confidential reports, wherein the question of interplay of Copyright and Freedom of Press was brought in before the CJEU. Basically, the question was can freedom of expression and information be a valid defense for copyright infringement? The AG opinion reflected reluctance in admitting copyrightability of military reports. However, the CJEU has gone on to rule that Freedom of Information and press are not justifiable grounds to derogate from rights of copyright holders beyond exceptions set out itself within the InfoSoc directive. The concept of external limitations is not viable in law. As on the question of whether military reports are copyrightable in the first place, the court went on to hold that it is upon the national courts to decide whether the conditions of copyrightability and intellectual creation showing free and creative choices are there in these reports or not. If fulfilling the criteria of being a “work”, no justification in the form of freedom of information is sustainable.

The court went on to finally hold that: “As is clear from the case-law of the European Court of Human Rights, for the purpose of striking a balance between copyright and the right to freedom of expression, that court has, in particular, referred to the need to take into account the fact that the nature of the ‘speech’ or information at issue is of particular importance, inter alia in political discourse and discourse concerning matters of the public interest. In those circumstances, having also underlined the way in which Funke Medien published the military status reports on the internet, the Court of Justice states that it is not inconceivable that such use may be covered by the exception concerning current events reporting provided for in the Copyright Directive.” More on this once the judgment is available  on IPKAT.

And finally - trolls get a bashing

A High Court Judge has torn apart a trolling application made against Virgin subscribers in the United Kingdom - Douglas Campbell QC's can be found on TorrentFreak and is well worth a read - here's a snippet: "“I do not accept that I should simply assume that a 9 year old expert report remains up to date, particularly one given in the field of computer software,” the Judge commented, noting that the report also lacked the required “statement of truth” to comply with civil procedure rules  ..... . 

This Copykat by Akshat Agrawal

THE COPYKAT

Internet service provider Cox Communications efforts to move the copyright infringement case it is facing from the American recorded music sector looks like it has failed after the judge in the case published a written statement explaining why he has resisted the shift. The case was filed in the Virginian court that had already heard the partially successful case brought by BMG Rights Management against Cox: BMG argued that Cox should be held liable for the copyright infringement of its customers, because it only paid lip service to its obligations under the Digital Millennium Copyright Act to be able to benefit from safe harbour protection. BMG prevailed at first instance and and whilst that ruling was set aside on appeal many felt the comments of the appellate court were more than useful to rights owners. Cox subsequently settled with BMG. Judge Liam O'Grady has declined to give the case up saying that it makes sense to hear the new action in the court where the BMG dispute was argued out, as many of the issues will be the same saying "Although defendants claim this court's ruling on the DMCA's safe harbour provision will not be relevant to this case, this court's prior ruling will at the very least touch on the issues presented here. The considerable judicial resources this court expended on reaching this ruling on an issue of first impression - a ruling that was upheld by the [appeals court] - cannot be ignored".  The 4th Circuit Court of Appeal said that 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" abd Cox wasn't entitled to rely on safe harbor because it did very little if anything even when told about repeat offenders.


Internet services company Cloudflare is also on the receiving end of another lawsuit in the US which could again test the liabilities of the net firm when it provides services to piracy websites - this suit from wedding dress makers Mon Cheri Bridals and Maggie Sottero Designs who are suing the net firm for contributory infringement because it allegedly provides services to websites based out of China that sell copies of the two companies' bridal wear to customers back in the US - and which uses pictures from the plaintiff's own websites to promote the counterfeit copies. The Recording Industry Association of America had previously accused Cloudflare of contributory copyright infringement and in a submission to a US government report on piracy, the RIAA states that: "[Piracy] sites are increasingly turning to Cloudflare, because routing their site through Cloudflare obfuscates the IP address of the actual hosting provider, masking the location of the site".

Universal Music has taken legal action over podcasts published by a global website for poker fans - PokerNews - which they say infringes their copyrights by including tracks controlled by the major label without permission. The major has sued PokerNews owner iBus Media (actually incorporated in the Isle of Man, a self-governing British Crown dependency in the Irish Sea between Great Britain and Ireland) for wilful copyright infringement in the Californian courts. The lawsuit states that: "Among the content made available by iBus Media on PokerNews, and through other forums, are hundreds of podcasts that intentionally incorporate significant portions of plaintiffs' copyrighted musical works". On the Pokernews website it does say “All Content published by PokerNews on the Site (apart from User-submitted Content), including, without limitation, images, photographs, graphics, animations, videos, audio and text . . . are owned by PokerNews and/or its licensors and is protected by copyright and other intellectual property or other proprietary rights.”  UMG clearly disagrees!

New Zealand's Minister of Commerce and Consumer Affairs Hon Kris Faafoi, has released an issues paper marking the first stage of public consultation on changes to the Copyright Act 1994, saying all Kiwis should consider taking part. “Copyright affects all New Zealanders. We create copyright works when we take a photograph, record a video, or write an email, and we use copyright works by watching a sports broadcast, streaming a movie, listening to music, or reading a book,” says the minister.

A group of Satanists who sued Netflix and Warner Bros for $50 million (£38 million) in a copyright row over the TV drama series Sabrina have "amicably" settled the lawsuit. The Satanic Temple claimed the entertainment giants copied its depiction of goat-headed deity Baphomet in The Chilling Adventures Of Sabrina. The only publicly released terms was that "The unique elements of the Satanic Temple's Baphomet statue have been acknowledged in the credits of episodes which have already been filmed."

MBW reports that  YouTube’s Global Head of Music, Lyor Cohen has called the implications of 'Article 13' into question within a monthly newsletter sent to a large group of industry executives as YouTube and Google continue to fight back against the planned copyright reforms in the EU. Cohen warned of what he sees as dangers surrounding the passage of the new European Copyright Directive – including provision Article 13, which would see platforms like YouTube become legally liable for copyright-infringing content uploaded by its users saying "“we believe that the current proposal will create severe unintended consequences for the whole industry. We still have a couple of weeks to work together towards a better final version of the law concluding that songwriters and recording artists might earn LESS money in the future if the reforms are implemented without change. In reply five major European music-industry trade organisations including the IFPI, the  ECSA  and IMPALA  fired off a strongly worded collective response titled “YouTube’s Fact Free Fear-Mongering" saying "“YouTube’s campaign against Article 13 of the Copyright Directive shows a lack of respect for the EU democratic process of law making ....[T]he revisions to the Directive have been under discussion for over four years already and the three main institutions of the European Union have all given their position. The Commission, Council and Parliament have all reached the same conclusion, that there is a value gap, also referred to as a transfer of value, where user upload services are making vast sums of money on creators’ content uploaded by their users, but not paying the right holders who own that content fairly. The result is a serious distortion in the European digital market place which harms right holders, other digital services and citizens. To correct that situation, platforms like YouTube should have to take responsibility for the content they use and monetize, by fairly remunerating their creators and right holders."  

One thing to add would be that even if YouTube were paying over a 'fair share' to the recorded music sector - are they in turn paying over a 'fair' share to the actual creators - the recording artistes? Many would say they receive a pittance and a tiny tiny share of digital revenues and little improvement has been made. Much still to think about! And does 'Big Content' need YouTube more than YouTube needs Big Content? More on this and the EU reforms from a BoingBoing perspective here .

A judge in the U.S. has issued a somewhat scathing opinion in connection with the activities of an alleged 'copyright troll'. In response to an early discovery request by Strike 3 Holdings, Judge Royce C. Lamberth describes the plaintiff as a "cut-and-paste" serial litigant whose lawsuits "smack of extortion". The company runs away at the first sign of a defense, he added, while noting his court is being used "as an ATM". TorrentFreak says that Strike 3 Holdings is one of the most active copyright trolls in the United States, filing more than 1,800 copyright infringement cases in the past 13 months. “Its feigned desire for legal process masks what it really seeks: for the Court to oversee this high-tech shakedown. This Court declines,” the Judge concludes.

AND finally....If you watch YouTube videos without a YouTube Premium subscription, you might have seen a recent pop up advert warning about article 13! And not to be left out of a strong reaction to the planned reforms,  and specifically Article 11, Google is threatening to (possibly) shut down Google News once news aggregators were subject to the 'link tax'.

THE COPYKAT

This CopyKat from Mateusz Rachubka

Increased Royalty Payments for Songwriters in the US

The US Copyright Royalty Board decided to increase the amount of royalty payments that companies such as Apple, Spotify, Amazon, Google and Pandora would have to make to songwriters and music publishers over the next five years. The streaming companies would now be required to pay 15.1 percent of their revenue, comparing to the previous rate of 10.1 percent. As described by NMPA President & CEO David Israelite, in practical terms “the CRB raised rates for songwriters by 43.8%” and this decision also allows the songwriters to benefit from any agreements concluded by record labels in the free market. As a result the ratio between what “labels are paid by the services versus what publishers are paid” will now significantly improve. Additionally, the CRB has introduced a late fee, up to 18 percent annually, in case any royalty revenue is not paid on time by the streaming company. Although music creators did not manage to get ‘per-stream rate’, the songwriters consider increase in overall rates as a success in the market which is currently dominated by the streaming companies. 

US Senate Introduced the CLASSICS Act 

Senators, both from Republican and Democratic parties, have introduced the CLASSICS Act (Compensating Legacy Artists for their Songs, Service, & Important Contributions to Society), which would impose an obligation on digital services to pay both rightholders and artists for the use of recordings that were created pre-1972. Under the current legal framework, the way in which digital music services pay to use recordings made after 1972 is covered by federal copyright law, whereas the use of works created before 1972 is regulated by state law. This situation has led to many questions and complicated litigation in several states. With the versions of CLASSICS Act introduced in the Senate, now the rates for the use of both pre and after 1972 recordings for digital services will be the same and paid in an identical way. Introduction of the bill will also enable digital platforms to settle any outstanding claims with rightholders, in California. This will allow services to avoid state infringement lawsuits. Nevertheless, in order to do so digital music services would have to pay three years’ worth royalties at the current statutory rate for all the music they have used across the whole country.

The Big Entertainment Companies are Campaigning For Changes in Copyright in NAFTA Negotiations

Recently we have reported that the debate over introduction of ‘Safe Harbour’ provisions to NAFTA agreement is heating up. Now Public Knowledge has explored the proposals that were suggested by the lobbyists for the big entertainment companies. One of the ‘wildest ideas’ was a recommendation not to include ‘Safe Harbour’ provisions into NAFTA. In the view of the lobbyists, they “facilitate child pornography and human trafficking” by allowing internet intermediaries to avoid responsibility for any content that is published on their services. This argument according to Gus Rossi is highly misleading. He argues that without a legal framework exempting online platforms from responsibility for context posted by their users, the intermediaries “would be obligated to censor and control everything their users do on their platforms”.

Another argument proposed by the entertainment industries is that exceptions and limitations are unnecessary in trade agreement, claiming that they are “a barrier to the protection of American artists”. Rossi, again, considers this proposal as widely inaccurate. In fact, in the digital age the US copyright system would not be able to work without fair use provisions. Therefore, the author suggests that with the importance of current negotiations of NAFTA, which may be used in the future as a standard of ‘American-sponsored free trade agreements’, it is important to fight any misconceptions and protect a balanced approach to copyright.

Is the Current Copyright Law Framework in Australia a Deterrent for Creators?

With the ongoing debate on potential reform of copyright law in Australia and adoption of fair use approach, recently two reports were issued, which show that the current framework allowing for narrow ‘fair dealing’ exceptions is considered as a barrier to innovation. Deloitte in its ‘Copyright in the Digital Age’ paper argues that digital technologies could contribute over $139 billion by 2020 to Australian economy if the legal framework will support innovation and allow to maximise opportunities. The study of Australian Digital Alliance revealed that the creators struggle to understand copyright law. For many of them the exceptions are often confusing and seeking permission to reuse copyrighted content often results in expensive fees and time delays. Therefore, suggestions have been made that Australia should reform its framework and follow such countries like the US, South Korea or Sri Lanka, which have broader exceptions to the use of copyrighted content. Fair use provides that each use is assessed on its own merits and does not need to fall within a specific predetermined category. The authors of the report claim that transition to fair use would enable innovation, facilitate new uses of copyright materials, particularly in such areas as data mining and cloud computing, and ultimately lead to “a more competitive and creative (…) society”.

Rightholders Want to Address ‘Value Gap’ Under the EU Copyright Directive

A coalition of rightholder organisations has addressed the new Presidency of the Council of the European Union, currently held by Bulgaria, to find a solution to the issue of ‘Value Gap’ (the Transfer of Value). The Value Gap arises in the situation where there is a “mismatch between the value that online User Uploaded Content (‘UUC’) website services extract from creative content and the revenues returned to the creative community”. With vast amount of content being uploaded by users, the UUC sites generate revenue from the infringing content. At the same time the UUC websites refuse to negotiate “fair or any copyright licences” with rightholders. Therefore, the creators believe that the proposal for Copyright Directive, which is currently being negotiated by the European Parliament and EU member states, should clarify two elements. First of all, that the “UUC services communicate to the public under the EU copyright framework and therefore are obliged to obtain licences for copyright protected works, unless eligible for e-Commerce Directive ‘safe harbours’”. Secondly, those UUC services that play an ‘active role’ in promotion of the content, should not be able to benefit from ‘safe harbour’ provisions.

The issue of Value Gap was also addressed by the President and Vice-President of CISAC. In their open letter to MEPs, Jean-Michel Jarre and Angelique Kidjo noted that the copyright reform offers “a historic opportunity to bring fairer remuneration for creators and drive economic growth and jobs in the creative industries”. Therefore, in their view the EU law should not shield UUC platforms, which “make vast revenues from creative works while not fairly rewarding the creators”. Thousands of artists and authors supporting the European Commission’s proposal believe that with a reform of safe harbour the new copyright Directive  will offer an opportunity to “shape fairer digital market for creators in the 21^stcentury”.  

For further debate on remedying the Value Gap under the proposal for Directive on copyright in the Digital Single Market go here, and here.

If you would like to support European screenwriters and directors in their call for a modernised EU Copyright framework, please click here.

Does One Have to be a Copyright Owner to Sue Over a False Copyright Takedown?

That was the question in the dispute between ISE Entertainment, and Civillico and Longarzo. ISE claimed that it owns rights to ‘The Weekend in Vegas’ ABC show, which until recently the viewers could also download on Amazon.com. The show was however removed following an infringement notice submitted by Civillico and Longarzo. According to Civillico he owned the rights in the show and ISE by being in breach of a deal had no authority to use his work. ISE sued both parties for allegedly violating DMCA section 512(f) by submitting a fraudulent takedown notice. The defendants argued that ISE had never registered the show for copyright, nor applied for a registration and therefore had no standing to make a claim under section 512(f).

This argument was rejected by the US District Court Judge Fitzgerald. DMCA section 512(f) provides that an ‘alleged infringer’ may recover damages from when harmed by misrepresentation that material or activity is infringing (here fraudulent takedown notice). In the view of the Court “neither copyright ownership nor registration are prerequisites to bring” action under section 512(f). Therefore, the Court concluded that ISE as an ‘alleged infringer’ had standing to sue and that ISE has stated a viable 512(f) claim.

Google Will Improve Attribution of Contributors’ Works in its Image Search

Google has reached agreement with Getty Images over a ‘multi-year’ licence, which will end the European Commission complaint, where Getty “had accused Google of effectively being a one-stop piracy shop”. Getty claimed that the users of Google could simply view and download “high-resolution, copyrighted content”, which accordingly enabled copyright infringement and piracy. As revealed by the parties, Google has agreed to reform its approach to copyright in its image search function. The search will now include more prominent copyright disclaimers and will remove view image links to the image URL. In return Google will be able to use Getty Images’ content in its products and services.

CREATes need you!

The  School of Law and CREATe Centre at the University of Glasgow have Two CREATe-related roles now available at the University of Glasgow. There is an opportunity to join the School of Law and CREATe at an exciting point in our development, as part of the University of Glasgow’s ongoing investment in the creative economy. Two positions are now available, as Lecturer in Intellectual Property Law and Graduate Teaching Assistant, at the School of Law-hosted Centre for Copyright & New Business Models in the Creative Economy (CREATe), an international copyright research hub established in 2012 with research funding from the AHRC, EPSRC and ESRC. Please click here to read more about the roles  http://www.create.ac.uk/blog/2018/01/29/two-create-related-roles-now-available-at-the-university-of-glasgow/ 

Informal enquiries about both the above positions may be directed to Professor Martin Kretschmer (Professor of Intellectual Property Law and Director of the CREATe Centre).  Email: martin.kretschmer@glasgow.ac.uk and Tel: +44 141 330 3886

US appeals court tells ISP that safe harbor comes at a cost

A US appellate court has reversed a $25 million verdict against the US Internet Service Provider Cox Communications in what might be seen as a defeat for record label BMG, which had sought to hold Cox liable for copyright infringement for its subscribers who were sharing pirated files online. But looking at the judgment, and despite what looks like a set back for BMG Rights Management, it can be argued that its actually a win in the battle against piracy

The decision, by a three-judge panel of the 4th Circuit Court of Appeals, returns the case to the District Court for a new trial, based on a decision that there was an error in jury instructions. Irrelevant of arguments about safe harbor protection at the heart of the case, Cox might not been responsible for users' infringement as companies are only liable for contributing to infringement if the companies either know about acts of infringement, or are wilfully blind to them, and the appellate court ruled that the trial judge, District Judge Liam O'Grady, incorrectly told the jurors that they could find Cox liable if it knew or should have known about infringement by users. "The formulation 'should have known' reflects negligence and is therefore too low a standard," the appellate judges wrote. "Because there is a reasonable probability that this erroneous instruction affected the jury’s verdict, we remand for a new trial."

But, and its a big but, 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 judges said that as it stands, Cox wasn't entitled to rely on safe harbor because it does very little if anything even when told about repeat offenders, re-affirming the jury decision that sided with BMG and awarded $25 million against Cox when they found the broadband carrier liable for piracy by its subscribers. 

The entertainment industry will be delighted with the ruling by the appeals court in as much as it has upheld the federal judge's conclusion that the safe harbor provision of the Digital Millennium Copyright Act require a meaningful implementation of a policy that terminates the service of repeat copyright infringers.  The appellate judges agreed with BMG that Cox wasn't entitled to rely on the safe harbor protections, writing that the broadband provider's policy was lacking. Cox had in place a "13-strike" repeat-offender policy, meaning that the company would consider terminating subscribers after they received 13 notices of copyright infringement. In practice, it has been alleged the company went to great lengths to avoid disconnecting people with the court acknowledging  "Cox formally adopted a repeat infringer 'policy,' but ... made every effort to avoid reasonably implementing that policy ...... Indeed, in carrying out its thirteen-strike process, Cox very clearly determined not to terminate subscribers who in fact repeatedly violated the policy." It was alleged that Cox really maintained an "under the table policy purporting to terminate repeat infringers while actually retaining them as high-speed internet customers." 

The decision noted that in the two years before BMG sued, Cox only terminated a total of 21 people, and in 17 cases, the subscribers had failed to pay their bills on time or exceeded their bandwidth caps. During that time, Cox issued more than 500,000 email warnings and temporary suspensions, according to the decision.

"Cox failed to qualify for the ... safe harbor because it failed to implement its policy in any consistent or meaningful way -- leaving it essentially with no policy," the appellate court decided.

Giving the appellate courts decision and dismissing a number of Cox's arguments, Judge Diana Motz was clearly unimpressed with Cox's efforts to stem piracy by its customers saying  "Indeed, the risk of losing one's Internet access would hardly constitute a 'realistic threat' capable of deterring infringement if that punishment applied only to those already subject to civil penalties and legal fees as adjudicated infringers" and saying a "ISP has not 'reasonably implemented' a repeat infringer policy if the ISP fails to enforce the terms of its policy in any meaningful fashion. Here, Cox formally adopted a repeat infringer 'policy,' but ..... made every effort to avoid reasonably implementing that policy. Indeed, in carrying out its thirteen-strike process, Cox very clearly determined not to terminate subscribers who in fact repeatedly violated the policy." Motz added that failure to implement a consistent and meaningful repeat infringer policy essentially means it has no policy and can't be entitled to a safe harbor defence.

https://www.documentcloud.org/documents/4364615-Bmgcox.html

https://www.mediapost.com/publications/article/313895/court-reverse-25-million-copyright-verdict-agains.html

https://www.hollywoodreporter.com/thr-esq/appeals-court-rules-isps-copyright-trouble-not-enforcing-meaningful-repeat-infringer-policy-1080852

The CopyKat

TOO LATE!

During a review of the “legally verified” version of the Trans-Pacific Partnership (TPP) Jeremy Malcom, the Senior Global Policy Analyst for the Electronic Frontier Foundation (EFF) has discovered a significant change in the text which will reintroduce criminal penalties for the violation of copyrights protecting intellectual property.  Malcom said in his statement posted to EFF’s website that he believes this change substantially expands the criminal penalties for copyright infringing activities saying "In its revised form, the only criminal provision that a country is exempted from applying in those circumstances is the one to which the footnote is attached—namely, the ex officio action provision. Which means, under this amendment, all of the other criminal procedures and penalties must be available even if the infringement has absolutely no impact on the right holder’s ability to exploit their work in the market. The only enforcement provision that countries have the flexibility to withhold in such cases is the authority of state officials to take legal action into their own hands.”

A YouTube video that is part of a Harvard University online course on copyright law is once again accessible to students after Sony Music Entertainment unblocked it and released its copyright claim. Sony had the lecture taken down from YouTube on the grounds of copyright infringement. The videotaped lecture, which explains aspects of copyright law as it applies to music and licensing, is taught by William Fisher, the Wilmer Hale Professor of Intellectual Property Law at Harvard Law School. The lecture includes clips of several versions of the Jimi Hendrix song "Little Wing," which prompted Sony Music, which owns the rights, to have it removed. More here and here.


TechDirt tell us that the US Copyright Office "has decided to take a stance on copyright law that requires two slightly odd things. First, it requires ignoring what the Copyright Act actually says and then, separately, it requires pretending that the law says something that it clearly does not say. That's pretty incredible when you think about it. " Its a well written piece that looks at the 'making available' right in the USA concluding that when it comes to 'making available', it is "somewhat disappointing that the Copyright Office has decided that it can create a right that isn't written into the law and insist that must be what Congress meant all along, while at the same time ignoring the stuff that is written in the law and saying that couldn't possibly have been what Congress meant."

And don't forget that back at the end of December, the U.S. Copyright Office published a Notice of Inquiry seeking to “evaluate the impact and effectiveness of the DMCA safe harbor provisions” found at 17 U.S.C. § 512. Comments in response to the Notice of Inquiry are due in by March 21st, 2016, and the Office indicated it will hold public meetings to discuss the issues raised after the comments have been reviewed.

And finally, The Copykat notes that in Hong Kong, Secretary for Commerce and Economic Development Gregory So Kam-leung has said that if the copyright amendment bill does not pass next week, it will be withdrawn. At a press conference Secretary So said that the decision was made in the interest of society overall. He denied that it was an act of admitting defeat. So said that there were still many bills waiting to be discussed at Legislative Council, as he called pan-democratic lawmakers “selfish”, blaming them for wasting time and money.