The CopyKat - and let the copyright year begin

One of the key moments which is missing from Selma, the new film about Martin Luther King, Jr. are the actual words spoken by King. This is because it seems the King estate would not license the copyright in the speeches, including the iconic 1963 “I Have a Dream”, to filmmaker Ava DuVernay. According to the Washington Post, the King estate has licensed the film rights to King's speeches to DreamWorks, with Steven Spielberg producing any resulting films. DuVernay said that she never even asked for the rights to King's speeches "because we knew those rights are already gone, they're with Spielberg." She added that she knew that there were strings attached to the rights: "with those rights came a certain collaboration." In other words says one commentator, the King estate uses its control over the copyright to control how King is portrayed - or as gigaom puts it "the King family aggressively enforces copyright at all turns, unleashing lawyers in the direction of anyone who seeks to use the civil rights icon’s speeches or images without permission." The fact that the words of one of the most important speeches ever given, at the time to over a quarter of million civil rights protesters in Washington, is potenially being restricted by copyright law might surprise some - and horrify more. 

The top 10 Domains subjected to DMCA Piracy Takedowns in 2014 according to torrentfreak.com and  google.com are (with lead complainant and number of requests)

1 4shared.com   8,345,559  (BPI labels)
2 rapidgator.net 7,838,757 (NBC Universal)
3 uploaded.net 5,412,519 (FOX_
4 dilandau.eu  4,913,298 (BPI labels) * 
5 GoSong.net 4,484,310 (BPI labels)
6 zippyshare      3,074,988  (Topple Track)
7 Muzofon.com 2,835,660 (BPI labels)
8 myfreemp3.cc 2,699,706 (BPI labels)
9 myfreemp3.eu 2,453,694 (BPI labels)
10 vmusice.net 2,303,615 (BPI labels)
[*site dead]

Forbes have an interesting list of top 10 music industry predictions for 2015 including (1) Apple launching a new music service, (3) The digital pie getting larger and (4) Downloads continuing to slide. More interestingly and in at (6) in the prediction: "Artists find the right villain. Numerous artists see the various streaming platforms as the ones responsible for their tiny royalty payments, but many begin to see the light that it’s really the record label middle man that enjoys the majority of that income. As a result, artist’s attorneys negotiate new agreements with record labels to make the split a bit more equitable, but the record labels still continue to be favored. I doubt the last but! Labels do indeed take the lions share of digtital revenues but many of those artistes who have challenged old contracts have ended up with settlements which are - even without the benefit of hindsight - appalling and hardly equitable with the major labels clinging onto old fashioned (and hugely beneficial to the labels) 'per unit sold' royalty rates wherever possible.  More here and here

A new report released reveals that core copyright industries in the U.S. generated over $1.1 trillion dollars of economic output in 2013, accounting for 6.71% of the entire economy. The study, Copyright Industries in the U.S. Economy: The Report, also details that the core copyright industries employed nearly 5.5 million workers in 2013, accounting for over 4% of the entire U.S. workforce, and nearly 5% of total private employment in the U.S. These workers earn on average 34% higher wages than other U.S. workers. More on Mi2N here.

Indian composer Ilayaraja has alleged that acclaimed film director Shankar has violated his copyright by “remixing and rearranging ”Ooru Vittu Ooru Vandhu" in the recently released film Kappal without permission. The song was originally used in the 1989 hit film Karagaattakkaaran. Whilst the Hindu reports that Shankar had entered into an agreement with Agi Music Pvt Ltd to acquire the licence to remix the song, the plaintiff says "Agi Music Pvt Ltd has no ownership or publishing rights in respect of the song."

And Beijing Today reports that popular romance screenwriter Qiong Yao won her lawsuit against fellow screenwriter Yu Zheng for plagiarism in the Third Intermediate People’s Court of Beijing. The court  (25.12.14) found that Yu’s Gong Suo Liancheng was an unlicensed adaptation of Qiong’s popular Meihua Lao and awarded her 5 million yuan and a public apology from Yu and four other defendants named in the lawsuit.

John Tenniel  1820-1914

And finally some different perspectives on copyright law reform are buzzing around the internet - against the general feeling that it is the content industries who are driving copyright reform to protect their own interests, we have TorrentFreak telling us "Strangely unreported by mainstream media, there is a major revision of the copyright monopoly underway in the European Union. And the person in charge, Julia Reda, is a Pirate Party representative. The tide is turning" and Science 2.0 saying "Imagine you were asked to write a law that encouraged creativity.  What would it look like? Whatever your answer, it’s pretty clear that it wouldn’t look like copyright" and Cory Doctorow outlines "A New Deal for Copyright" here. Also in the news, Japan's copyright law revisions for e-books and digital publishing get some attention here and here - Canadian reforms get lots attention - some of it here and here and here and Spain is also in the news here and here.

The CopyKat - and the Ring of Fire

Google has received over 200 million requests to remove links from its search engine so far this year, up from 50 million in 2012.  In 2011 Google was asked to remove less than 10 million links from its search engine. According to TorrentFreak, their research shows that record label trade bodies the BPI and RIAA are the most active issuers of take down notices, issuing 31 million and 43 million respectively. The site most targeted by copyright holders with take downs is FilesTube, with over 7.5 million notices issued against links to it in Google's system. In 2012 Google issued its own statistics for the organisations issuing the most take downs, with the Microsoft then the leading player, followed by the BPI. Is piracy really booming to that extent? Or are the content owners just catching up with a backlog of what is already online - or maybe just getting better at adapting to the take down system and removing infringing content more efficiently?

The leaked IP section from the planned Trans Pacific Partnership Treaty has cause quite a stir: The Treaty, now being negotiated between the USA, Canada, Mexico, Peru, Chile, Australia, NZ, Malaysia, Vietnam, Brunei and Singapore, is ostensibly a free trade agreement which is promoted as one which will modernise copyright and harmonise IP - but opponents have said the Wikileaks documents show that treaty “Focuses on the United States' federal and corporate interests, while largely ignoring the rights and interests of consumers” with Wikileaks founder Julian Assange saying If instituted "the TPP's IP regime would trample over individual rights and free expression, as well as ride roughshod over the intellectual and creative commons. If you read, write, publish, think, listen, dance, sing or invent; if you farm or consume food; if you're ill now or might one day be ill, the TPP has you in its crosshairs" and it will be interesting to see if a secretly negotiated treaty could effectively fetter Congress's ability to legislate on IP reforms in the future.

There currently seems to be little cohesion between the ten nations, and whilst the text is slated as US dominated, the US is being opposed by many potential signatories and there seems a lack of common ground. However, some provisions are seemingly US driven such an increased term of copyright protection for sound recordings and films (Article QQ.G.6), infringement would include temporary storage in electronic form of copyright material (Article QQ.G.1) and Article QQ.I.1 promotes a voluntary ‘3 strikes’ system. Interestingly the treaty provisions on parallel imports seemingly contradict the US Supreme court in Kirtsaeng v. John Wiley & Sons, Inc and there is no mention of fair use as an exception - something commentators have used to suggest that the Hollywood studios and other content owners have been busy drafting Articles for the USTR. There is an excellent blog on the IP Kat by Angela Daly on this topic.

And finally to China where Baidu, the largest Chinese language search engine, is facing legal action for copyright infringement by those pesky Hollywood studios. The Motion Picture Association of America (MPAA) is seeking 300m yuan (approx £31 million) in damages claiming Baidu has been using an automated system to obtain their content without permission and that aidu provides online access to pirated material, in some cases directing Internet users with direct links to websites that traffic in pirated content. Alleging that Baidu and software maker QVOD make it easier for users to find and download pirated video, Wei Feng, president of MPAA China, said in a press release sent by the group "A large number of Chinese and foreign films and television productions are distributed on rogue video sites that are easily built using light content management systems."  The search engine said it "has always attached high importance to the problem of protecting copyrights in the online video industry" and that amongst other steps, Baidu said it handles complaints on piracy around the clock and has a filter that screens out illegal content.

The CopyKat: Kiwis, eagles and mockingbirds - all on this Kat's takeaway menu.

Viacom has asked for a new judge it its now seven year battle with YouTube saying in papers filed to the appellate court (Second Circuit) "Given the protracted nature of this litigation (the case is now well into its seventh year) and the evident firmness of the district court’s erroneous views regarding the DMCA, this Court should exercise its discretion to remand the case to a different judge 'to preserve the appearance of justice.” Viacom believes that the popular video sharing site  “made a deliberate effort to avoid guilty knowledge" - a fact-finding mission that Viacom believes deserves a trial.

YouTube co-founder Chad Hurley has told the Austrialian Financial Review that people should be able to see any program anywhere at anytime saying “I think the business models are breaking down and the companies that are going to win in this new world are the ones that make it as easy as possible for the consumers to consume the content wherever and whenever they want.”

Rather amusingly it seems that Microsoft has sent a series of takedown notices to Google asking the online giant to takedown ‘infringing material’ that happens to reside on its own official Microsoft websites, including Microsoft's official store, Microsoft's official support page, Microsoft's official Office page and the main Microsoft.com page. The DCMA takedowns were sent by LeakID on behalf of Microsoft. In other news, Google say that by adding up all the weekly takedown numbers it estimates that since January this year it has been asked to remove over 105,300,000 links to infringing URLs. Today, most of these URLs fail to appear in Google's search results. While the takedown requests appear to be levelling off a little, the 100+ million URLs is already double the number Google processed for the whole of 2012. And following in the footsteps of Google, Twitter says copyright takedown requests are up 76% on the final six month period of 2012.

Despite new laws to protect them, it seems most major German publishers have allowed Google to keep using their content on its news page. However, they insist that their dispute with the search giant over payment for content isn’t over. German publishers including Axel Springer – whose publications include the newspapers Die Welt and Bild – had lobbied for German copyright law to be extended to cover the snippets of stories Google displays in its News service. They also lobbied for search engines to pay publishers to display these news snippets. But it’s one of several big German publishers that have apparently opted into Google News.

Former Radio 1 DJ Judge Jules is joining London based firm Sheridans as a trainee in September. He said he plans to continue as a DJ in his own time.

The U.S. Department of Commerce has released a green paper on Copyright Policy, Creativity, and Innovation in the Digital Economy to advance discussion on a set of policy issues critical to economic growth. The report is a product of the Department of Commerce’s Internet Policy Task Force (IPTF) with input from the U.S. Patent and Trademark Office (USPTO) and the National Telecommunications and Information Administration (NTIA) who will solicit further public comments and convene roundtables and forums on a number of key policy issues. In the Green Paper, the IPTF proposes establishing a multistakeholder dialogue on improving the operation of the notice and takedown system under the Digital Millennium Copyright Act (DMCA) and soliciting public comment and convening roundtables on the legal framework for the creation of remixes; The relevance and scope of the first sale doctrine in the digital environment; The application of statutory damages in the context of individual file-sharers and secondary liability for large-scale online infringement; and the appropriate role for the government, if any, to help improve the online licensing environment, including access to comprehensive public and private databases of rights information. It also reiterates the administration's support for legislation creating a performance right for broadcasting sound recordings -- something broadcasters are strongly opposed to. http://www.broadcastingcable.com/article/494810-IPTF_Proposes_New_Look_at_Copyright_Fair_Use_Online.php

In our last CopyKat, we reported on House Judiciary Committee, which launched a “comprehensive review” of copyright law, and the Subcommittee on Courts, Intellectual Property, and the Internet’s hearing on “Innovation in America: The Role of Technology.”  Week One heard from content owners such as Getty Images whose business model is built on exploiting – and protecting – their copyrights: In contrast, in Week Two  the Committee had witnesses who included organisations that have employed alternative models to profit from the creation of works:  Indiegogo provides a crowd-sourcing platform that allows fans to support artists and their projects directly (while taking a 4 percent cut);  Rackspace developed with NASA an open source cloud computing system, OpenStack. Rackspace makes the OpenStack code and documentation freely available, and derives revenue from providing services built on OpenStack; SparkFun Electronics manufactures and sells 450 open source electronics components. For any component, SparkFun expects to have three months exclusivity before the component is copied by a competitor. Thereafter, SparkFun competes by improving the component and providing better customer support.  It incorporates innovations developed by competitors, and then adds its own. It maintains its market share through constant innovation rather than assertion of IP rights. It will be interesting to see what the Committee makes of such divergent models and the tension between the possibilities offered by new – disruptive – technologies, and traditional business models. Comment from DisCo – the DisruptiveCompetition Project -  here. And comment on New Zealand's proposed legislative reforms for copyright and IP in light of the TPP (Trans Pacific Partnership) negotiations here.

PolicyMic have an interesting blog on the role of the literary agent in the modern world. With the recent spat over the copyright in ‘To Kill A Mockingbird’ and the actions of  Samuel Pinkus, “the sleazy literary agent who took advantage of the 87-year-old Lee, tricking her into assigning him the copyright, worth millions a year", blog writer Frederica Hill suggests that Pinkus makes a compelling villain, but the story can also be read as a collision between two understandings of the principles and practices of an agent and Hill says “In the golden age of publishing, the ideal agent invested personally in what he represented: a book’s first reader and advocate, an author’s therapist, and the lowballing publisher’s worst nightmare. In this model was Eugene Winick, Harper Lee’s agent and lawyer for most of her career and the father-in-law of Sam Pinkus”. There’s much more and you can access the article here: 

http://www.policymic.com/articles/57877/to-kill-a-mockingbird-s-copyright-fight-is-an-important-lesson-for-all-writers

Google "demotes" repeat offenders

Google has taken a significant step against online piracy after saying it would alter its search algorithms to favour websites that offered legitimate copyrighted movies, music and television. Google said that beginning next week its algorithms would take into account the number of valid copyright removal notices sites have received and  sites with multiple, valid complaints about copyright infringement may appear lower in Google search results ........ like YouTube for example ..... no, I made the last bit up. 

The move is set against growing disquiet about whether or not "safe harbour" really is appropriate in the digital age - and this initiative is clearly on Google's terms, BUT it is a move forward for content owners. 

Google's Senior Vice President Engineering Amit Singhal said in a post on Google's official blog "We aim to provide a great experience for our users and have developed over 200 signals to ensure our search algorithms deliver the best possible results. Starting next week, we will begin taking into account a new signal in our rankings: the number of valid copyright removal notices we receive for any given site. Sites with high numbers of removal notices may appear lower in our results. This ranking change should help users find legitimate, quality sources of content more easily—whether it’s a song previewed on NPR's music website, a TV show on Hulu or new music streamed from Spotify." 

"Since we re-booted our copyright removals over two years ago, we’ve been given much more data by copyright owners about infringing content online. In fact, we’re now receiving and processing more copyright removal notices every day than we did in all of 2009 — more than 4.3 million URLs in the last 30 days alone. We will now be using this data as a signal in our search rankings. 

Singhal added more detail but also indicated that the search engine would not completely remove alleged infringing sites from searches saying "Only copyright holders know if something is authorized, and only courts can decide if a copyright has been infringed; Google cannot determine whether a particular webpage does or does not violate copyright law. So while this new signal will influence the ranking of some search results, we won’t be removing any pages from search results unless we receive a valid copyright removal notice from the rights owner. And we’ll continue to provide "counter-notice" tools so that those who believe their content has been wrongly removed can get it reinstated. We’ll also continue to be transparent about copyright removals." 

Unsurprisingly, organisations representing content owners in the entertainment sector were pleased with RIAA chairman and CEO Cary Sherman saying "Today Google has announced a potentially significant change in its search rankings that can make a meaningful difference to creators: sites that are the subject of large numbers of copyright removal notices may be ranked lower in search results than before. This should result in improved rankings for the licensed music services that pay artists and deliver fans the music they love. This change is an important step in the right direction – a step we’ve been urging Google to take for a long time – and we commend the company for its action" but added “As Google itself has acknowledged, this is not the only approach, and of course, the details of implementation will matter. Moreover, there are many more actions that we hope Google will take.”  On the other side of the digital divide, The Electronic Frontier Foundation said the new guidelines are too vague, millions of takedown notices later prove to be unfounded and there is no recourse for site owners who have been (wrongly) demoted. 

More on Techdirt here and from CNET here 

http://insidesearch.blogspot.co.uk/2012/08/an-update-to-our-search-algorithms.html