The CopyKat: splattering times

TorrentFreak tells us that Google processed an astounding 16.68 million takedown notices in just one week in August, unsurprisingly the highest number ever seen in a seven day period. To compare - this contrasts with  just 158,000 takedown requests in a week in Aughust 2011. By November 2012 this had grown to 2.2 million in a week. The takedown notices are usually issued under the US Digital Millennium Copyright Act complaints against the Google search engine, requesting that links to copyright infringing material be removed from its database so that they no longer appear when users search for certain key words - with music takedowns being a significant chunk of this.

On the matter of safe harbours,  PRS's Head Of Legal, Policy & Public Affairs, Frances Lowe, told the Westminster Media Forum that a lack of clarity over what services could and should be protected by (US and) EU 'safe harbour' provisions disadvantaged both rights owners and propery licensed platforms: "The UK's songwriters and composers play a significant role in the UK economy and its exports", she said. "And the EU is their most important market. And their current priority is securing fair income from the use of their music across the online ecosystem, so that careers can be sustained". "Songwriters are currently being squeezed", she added, before targeting in particular the "user-upload platforms that are unlicensed or under-licensed" because they claim they are protected by safe harbours. This means they pay nothing or less for the songs they use, "despite the fact that without those songs they would not be able to raise capital, or pay their shareholders, or make a profit". The PRS recently lauched litigation against music streaming platform SoundCloud and Lowe said "Online services built on user-upload platforms which make content available to the public should not be able to plead safe harbour".

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The BBC says its planning to launch a ‘New Music Discovery Service’ streaming service which will take on the likes of Apple Music, Tidal and Spotifywhich would make the 50,000 tracks broadcast by the BBC every month available to stream for a limited period. This digital platform will go one better than the ‘BBC Playlister’ initiative launched in 2013, which allowed listeners and viewers to transfer playlists of radio DJs’ shows to Spotify and other services. What those currently reviewing the BBC and the Licence Fee on behalf of the UK Government as part of charter renewal will make of a fully-fledged online music streaming service, owned and hosted by the Beeb, remains to be seen - but the BBC justify the move as an 'enhancement' to current services saying "Through this digital music offer, we would reinvent our role as a trusted guide, in partnership with our audience and with the UK music industry" addding "Together, the BBC and its audiences would curate music in new ways, enabling the discovery of more of all the music we play across the schedules of our many radio stations and TV channels" and  the service would also be "fully open and integrated with other digital providers", with users "able to transfer playlists between digital music products, and access them after BBC availability has expired through third-party providers". The BBC is already facing vocal criticism for unfairly squezing local news providers and "completely crowding out national newspapers" , as well as producing highly commercial programming like Strictly Come Dancing, Great British Bake Off and Top Gear to take on the likes of ITV in unnecessary prime time battles. The BBC's spend on its online operations as well as BBC3 and BBC4 are thought to be at risk. However, MBW reports that all three major labels are some way off licensing the new service– and have expressed early concerns about permitting a completely free music streaming service to use their catalogue.   Comment here. 


The Australian federal government has been urged on to stop the process of implementing an ISP copyright code.  The Internet users rights group Electronic Frontiers Australia has confirmed it wants the process to be halted, with its call coming in the wake of the introduction of new anti-piracy website blocking laws. The EFA said today that while it does not condone copyright infringement, international experience shows that copyright notice schemes are of “marginal value at best in addressing online copyright infringement" and puts the blame for infringement on a lack of legitionate services delivering what consumers want. EFA Executive Officer Jon Lawrence said the process should not continue until the government has conducted a “detailed cost-benefit analysis to ensure that it is not an unnecessary additional regulatory burden that will further harm competition in the sector and result in higher connectivity charges for Australians.” More here and here.


Billboard reports that Russian police have opened a probe into the collecting society RAO, which allegedly embezzled 500 million roubles ($7.4 million at the current exchange rate). The probe is centered on allegations that RAO, Russia's sole state-accredited collection society for authors’ rights royalties, embezzled some of the royalty fees it had collected by buying real estate and later transferring it to a shell company. According to reports, between 2007 and 2011, RAO purchased four buildings in central Moscow, which later changed hands several times, ending up in the possession of several other companies and individuals. The investigation comes at a time when the Russian government is controversially pushing RAO to merge with two other state-accredited collecting societies, VOIS (which deals with neighbouring rights) and RSP (which collects a one-percent tax on imports of electronic devices that can be used for copying content).

Where copyright leads .... others follow. The number of private prosecutions, once lonely road walked by copyright owners and not many others, is on the rise in the UK - with an estimated 300-500 private prosecutions last year - with the least three years seeing a 30+% rise year on year. The BPI, Sky TV, the Federation Against Copyright Theft and the Premier League have used private prosecutions as a useful tool against  alleged infringers - often succeeding even where the Police and the CPS have shown little interest. Now private prosecutions have been used in cases involving traffic offences, fraud and even domestic violence - the families of two women who were killed in the Glasgow bin lorry tragedy are threatening to bring a private prosecution against the driver of the lorry.

And finally - can you copyright an ink splatter? Well it seems Getty Images thinks you can: The Register reports that "Venerable hacker publication 2600 is fighting off what looks like an early candidate for the most egregious copyright infringement accusation of 2015". It seems that 2600 used an ink-splatter effect in 2012 and now group called Trunk Archive – ultimately owned by Getty Images – claims the image is theirs and the use was spotted by their crawler bots - and the use is infringing - with 2600 saying "We thought it was a joke for almost an entire day until one of us figured out that they were actually claiming our use of a small bit of ink splatter that was on one of their images was actionable". The ink splatter is in the bottom right section of the 2600 publication. In a twist, BoingBoing say that the ink spaltt isn't even Getty's - tracing the source of the ink splotches to a Finnish artist. More here.


Getty are also facing flak after demanding nearly $1,000 for one year's use of an image of a penguin that is actually part of a 'semi-popular' internet meme, better known as the Socially Awkward Penguin from a German Blog. Itb seems the issue is that the penguin itself could have been plucked from a photograph taken by George Mobley for National Geographic - although its now just a simplified cartoon penguin. Getty justified its actions to the DailyDot saying “Getty Images has an immense responsibility to the 200,000+ artists we work with to ensure that their work is properly licensed when used by commercial entities. Bear in mind that many artists themselves are small businesses, and are entitled to be paid for their work.” and pointing to the image embed tool that it launched last year.

PRS for Music begins legal action against SoundCloud

PRS for Music has written to it's members saying it is beginning legal action against online music streaming platform SoundCloud after "five years of unsuccessful negotiations". The PRS says:

"SoundCloud actively promotes and shares music. Launched in 2008, the service now has more than 175m unique listeners per month. Unfortunately, the organisation continues to deny it needs a PRS for Music licence for its existing service available in the UK and Europe, meaning it is not remunerating our members when their music is streamed by the SoundCloud platform.". The PRS letter goes on to say: "We have asked SoundCloud numerous times to recognise their responsibilities to take a licence to stop the infringement of our members’ copyrights but so far our requests have not been met. Therefore we now have no choice but to pursue the issue through the courts."

The letter explains that whilst SoundCloud has taken down some of PRS repertoire,  a recent list of some 4,500 musical works which the PRS say were being made available on the service and which they were asking SoundCloud to licence  or remove resulted in this: "SoundCloud decided to respond to our claim by informing us that it had removed 250 posts. Unfortunately, we have no visibility or clarity on SoundCloud’s approach to removing works, so it is not currently clear why these particular posts have been selected by them given the wider issue of infringement that is occurring. Ultimately, it is SoundCloud’s decision as to whether it starts paying for the ongoing use of our members’ music or stops using these works entirely."
   
The letter from Karen Buse, Executive Director, Membership and International at PRS for Music, ends by saying "We remain hopeful that this matter can be resolved without the need for extended litigation. Members will appreciate that this is now a legal matter and our ability to communicate around it is therefore limited by the legal process. However, we will try to share information and updates whenever we can."

SoundCloud has issued its own statement responding to the letter saying: “It is regrettable that PRS appears to be following this course of action in the midst of an active commercial negotiation with SoundCloud. We believe this approach does not serve the best interests of any of the parties involved, in particular the members of the PRS, many of whom are active users of our platform and who rely on it to share their work and communicate with their fanbase.”


“SoundCloud is a platform by creators, for creators. No one in the world is doing more to enable creators to build and connect with their audience while protecting the rights of creators, including PRS members. We are working hard to create a platform where all creators can be paid for their work, and already have deals in place with thousands of copyright owners, including record labels, publishers and independent artists.”

SoundCloud's content is currently uploaded by creators, marketing companies, record labels and even music publishers - and  whilst the PRS letter notes "When a writer or publisher becomes a member of the Performing Right Society, they assign certain rights to their works over for us to administer, so it’s our job to ensure we collect and distribute royalties due to them" this move certainly may irritate some of the PRS's own membership who see a real value in SoundCloud. A court case would almost certainly look at the European take on 'safe harbours' and how SoundCloud's take down policies would fit with that - but going forwards, and if SoundCloud is going to adapt to a streaming model more akin to Spotify, its hard to see why it would want a war with the PRS at this juncture.

The letter can be found here - an interesting analysis on MusicAlly here, and more comment and thoughts on Music Business Worldwide here - not least on the position of Warners Music Group and Universal Music here - presumed equity holders in SoundCloud - but through their publishing divisions - members of PRS for Music as well. 

The CopyKat - welcome to 2014!

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The Copy Cat - marvellous mousetastic morsels to muse over

Hot off the press comes news regarding the litigants in Meltwater. A media monitoring company has referred the Newspaper Licensing Agency’s pricing structure to the Copyright Tribunal because it says charities are required to pay "spectacularly unfair" fees. Cutbot, which provides media monitoring services in the form of online links to news stories, said the NLA’s pricing structure, which Cutbot said is based on the number of employees organisations have, was unfair on charities, which pay a combined total of more than £1m a year to the NLA.

And in other copyright news, Walt Disney Co’s Marvel Entertainment must go to trial to defend itself against a copyright claim by Gary Friedrich, who claims he now owns the comic book character “Ghost Rider”, a motorcycle-riding superhero with a flaming skull. Friedrich claims he first came up with the idea for Ghost Rider in 1968, then assigned his rights to Marvel, which published the first “Ghost Rider” comic book in 1972. Friedrich claims in his suit that the rights to Ghost Rider automatically became his after the initial copyright term expired in 2000. Marvell argued that Friedrich assigned his renewal rights to it in a work-for-hire agreement he signed in 1978. The U.S. Court of Appeals in Manhattan have now reversed a lower-court ruling by Judge Katherine Forrest in favour of Marvel, allowing Friedrich’s claim to go to trial.

Chinese national Xiang Li has been sentenced to 144 months in US federal prison on charges related to a website which distributed more than $100 million worth of pirated software.  U.S. Immigration and Customs Enforcement said this was one of the most significant copyright infringement cases ever uncovered. Between April 2008 and June 2011, Li engaged in over 700 transactions through which he distributed over $100 million worth of  pirated software to over 400 customers located in at least 28 U.S. states and over 60 foreign countries. These software products were owned by approximately 200 different American software manufacturers, ranging from large corporations to small businesses.  Li’s customers included those in embargoed countries in the Middle East, employees of foreign governments and federal government employees and contractors holding security clearances in the United States. More than one-third of the unlawful purchases were made by individuals within the United States, including small business owners, government contractors, students, inventors and engineers. Li will be deported to China after serving his sentence.

Pandora, the US based digital innovator that has just bought  FM radio station KXMZ-FM, in Rapid City South Dakota, seemingly for a seat at the table of the Radio Music Licensing Committee (RMLC) and presumably to attempt to reduced the online royalties it pays to the American music publishers via the music collecting societies, ASCAP and BMI, is facing a new legal challenge from BMI. Pandora itself launched legal action against ASCAP late last year when negotiations failed to go its way, and now Billboard reports that BMI has filed a lawsuit after Pandora terminated its licence with the collection agency in October last year, seeking a new agreement: BMI had proposed an increase in fees to Pandora that it felt were consistent with market rates and the growth in popularity of streaming music, and accounted for those music publishers which were withdrawing from the collective licensing system in the digital domain which included Sony who then directly licensed Pandora – but at higher rates than BMI.   http://www.billboard.com/biz/articles/news/digital-and-mobile/1566909/bmi-files-suit-against-pandora

Two Arab TV stations that allegedly broadcast pirated content have been taken off air by a major satellite provider, as legitimate media firms step up a campaign for better copyright enforcement in the region. Panorama Comedy is no longer broadcasting via the Nilesat satellite, while a related channel Panorama Action also came off the air this weekend. Industry figures allege that both channels, which are believed to be based in Egypt, are involved in illegal broadcasting of films to which they do not own the rights. 

As Russia braces itself for the introduction of a tough new anti-piracy law, the major labels have begun blitzing Russia’s social networks, including Russia’s main social networking site vKontakte, with copyright takedowns. The removal en masse of illegal music by the huge social networking site causing outrage among its users, who are now attempting to ‘encrypt’ their music uploads. Russian-hosted services – vKontakte included – will soon face a new legal environment due as responsibility for illegal uploads shifts towards them A new law approved by  the State Duma on Friday pushes the responsibility of swiftly removing infringing content to the services and service providers, who otherwise may find themselves blocked at the ISP level. VKontakte, with 40 million visits a day,  allows its users to upload music to their accounts for anyone to play and as a result the site has become one of the largest repositories of unlicensed music anywhere in the world. The scale of the takedowns become apparent when searches for popular artists such as Rihanna, Adele, Beyonce, Amy Winehouse and Coldplay all began to draw blanks. The user backlash was swift and vocal, with some complaining that their entire collections had been deleted. More on Torrent Freak.

The Screen Production Association of Australia has warned about a proposed easing of copyright laws with SPAA’s executive director Matthew Deaner blasting recommendations by the Australian Law Reform Commission (ALRC).  That “thinking is out of touch with commercial reality and shows no understanding of the issues facing our sector,” he told Screen Australia’s Jobs, Dollars, Hearts and Minds conference in Canberra. “These views, if left uncorrected, would undermine many legitimate sources of income.”

And finally - who can't resist this headline “This One Page Could End The Copyright War Over Happy Birthday” .

Is dancing baby takedown notice an abuse of the DCMA?

Tomorrow the Federal Court of California will be asked to decide whether a takedown notice issued by Universal Music in respect of a home video posted on You Tube is an abuse of the Digital Millennium Copyright Act.

The video is of a toddler dancing to "Let's Go Crazy", by Prince. In 2007, Universal Music claimed that this particular dancing baby video (and there are many many dancing baby videos on YouTube) infringed Universal's rights in "Let's Go Crazy".  Stephanie Lenz, the baby's mother, responded saying that the video was a fair use of the song. She asked for declaratory judgment that her home video did not infringe any Universal copyright, and also claimed damages and injunctive relief restraining Universal from bringing further copyright claims in connection with the video. In 2008 the court held that copyright holders cannot order the removal of an online file without first determining whether the posting reflects fair use of the material

The Electronic Frontier Foundation (EFF), an organisation which seeks to protect online free speech, will represent Stephanie Lenz in court tomorrow. It will ask the court to grant Lenz's motion for summary judgment and rule that Universal's takedown was improper and an abuse of the DCMA.

EFF has said that "Parents are allowed to document and share moments of their children's lives on a forum like YouTube, and they shouldn't have to worry if those moments happen to include some background music."

The pleadings and court orders so far can be found on EFF's website.