The CopyKat

Kim Davis, the county clerk in Kentucky who was jailed for five days for refusing to give marriage licenses to same-sex couples may now face a copyright lawsuit. At a post-release rally with Republican presidential candidate Mike Huckabee, the Survivor recording of "Eye of the Tiger" was played to 3,000 people —and this immediately produced a furious reaction from a band member. "NO! We did not grant Kim Davis any rights to use 'My Tune -The Eye Of The Tiger" wrote Survivor frontman Frankie Sullivan on the band's Facebook page. Sullivan had previously sued Newt Gingrich (the Republican politician and Speaker of the House of Representatives who was a Republican presidential hopeful) in 2012 for using "Eye of the Tiger" at one of his political events - the case was later settled.

The EFF have filed a friend-of-the-court brief in the Court of Appeals for the Ninth Circuit, arguing against a district court decision that upheld state law copyrights in pre-1972 sound recordings. The EFF recently filed a similar brief in the Second Circuit - both cases were victories for  Flo & Eddie, aka The Turtles (pictured right) who successfully persuaded district courts that state copyright law restricts public performances of pre-1972 sound recordings in their battle against SirusXM. A similar action in Florda failed - here the court found there was no state law to protect pre-1972 sound recordings. 

Now here's a thing - hackers targeting pirates: TorrentFreak reports that several prolific torrent uploaders have received an alarming message claiming to be from the legal department at major label Warner Music UK. The email accuses the user of copyright infringement and urges uploaders to delete their torrents and accounts, which some have done in response. However .... on closer inspection the threatening email appears to be fake say TorrentFreak, who received a full copy of the grammatically inept message which was sent to email addresses associated with the uploaders’ torrent site accounts - although how the sender accessed those addresses is unknown. A few weeks ago KickassTorrents warned its users against phishing attempts, in which malicious parties attempt to obtain the personal details of users.

On June 11, 2015, the Advocate-General Pedro Cruz Villalón delivered his Opinion in HP Belgium v. Reprobel now pending before the Court of Justice of the EU (CJEU, case C-572/13). This Opinion and the underlying case raise one important issue: Is it permissible for a national copyright law to allocate a portion of the fair compensation for reproductions exempted under Article 5(2)(a) and (b) of the 2001/29 Infosoc Directive directly to publishers, although they are not listed among the initial holders of the reproduction right under Article 2 of the Infosoc Directive? Now the European Copyright Society, as a group of academics concerned about the copyright reforms envisaged in the European Union as well as by the interpretation and development of the law by the CJEU, has shared its view on this matter of principle: And its ALL HERE!

Piracy is still a big issue in New Zealand, but the recorded music, film and TV industries say the process to hold infringers accountable is too lengthy and too costly. Just one complaint has been laid, and upheld with the Copyright Tribunal so far this year, compared with 4 last year and 18 in 2013. To successfully complete a complaint against someone allegedly illegally downloading, rights holders have to identify the illegal downloader and file a notice with their Internet Service Provider (ISP). The ISP then passes the notice to the account holder with each notice costing $25. Three notices are required within a 12-months before a complaint can be laid with the tribunal and pay a $200 fee. It's all too complex and too expensive say content owners.

WORDS - they are important - we all know that: Now TorrentFreak has published an interesting opinion piece from Rick Falkvinge (a founder of Sweden's Pirate Party) on how words are used in the debate about the remit and reach of copyright: One mistake that geeks and techies often make, but PR professionals and lobbyists never make, is the observation that words don’t just have a precise meaning – they also have a positive or negative chime to them. Therefore, lobbyists try very hard to establish a language where everything they want is described in words with a positive chime." and Rick makes the point "This is why I insist on calling governmentally-granted private monopolies that interfere with property rights “industrial protectionism” - this and and much more here.

And finally, what is said to be the USA's largest illegal music file-sharing site, Sharebeast.com, has been seized and shut down by the Federal Bureau of Investigation (FBI). A US Department of Justice (DOJ) domain seizure notice first appeared on Sharebeast.com on Friday September 11th. Visitors to the domain arwew now confronted by a notice which states that the FBI has taken control of the site 'pursuant to a seizure warrant issued by a United States District Court'. Sharebeast's related sites such as mp3pet.com and albumjams.com also display the notice. More on MBW here.

The CopyKat - small, furry - and hungry

David Carson

There is a well written report on the Music Industry Newswire reporting on this year's Institute on Entertainment Law and Business, co-sponsored by the USC Gould School of Law and the Beverly Hills Bar Association and is a symposium on the wide variety of legal issues affecting everyone involved in any aspect of show business.  In particular the report on David.O.Carson’s presentation stands out - not least his wry commentary on some of the acronyms for proposed and enacted legislation. David,  General Counsel for the U.S. Copyright Office, asked - who came up with FECA (Family Entertainment and Copyright Act)? And what was the thinking that led to the wording of the Protecting Intellectual Rights Against Theft and Expropriation act (PIRATE)? David also provided a neat review of the ongoing Google Book Settlement. Other panels included “Understanding Social Media: We’ve got an App for That”, “The Economics of Touring,” “Understanding Digital Distribution,” and “Marketing Artists in the New Millennium.”

Silly season: in our 16th August CopyKat we commented on the latest revelations on Prenda Law troll saga - and the TorrentFreak report that "evidence is stacking up that Prenda Law has been operating a honeypot in order to lure Internet users into downloading copyrighted material. The report highlighted that a subpoena returned by Comcast confirmed that a Pirate Bay user called “Sharkmp4″ is directly linked to the infamous anti-piracy law firm via Steel Hansmeier boss John Steele. TorrentFreak reproduced Comcast's response BUT - TorrenFreak then faced "a series of escalating legal threats" from Comcast's agents Cyveillance asserting copyright over the document. Thankfully sanity has seemingly broken out, with Cory Doctorow over on BoingBoing, who also covered the story, receiving an email from Comcast's Senior Director of Corporate Communications, Jenni Moyer, saying "I saw your post and wanted to let you know this notice was sent in error, and we have advised TorrentFreak to disregard it. We apologize for any confusion. Will you update your post with this information? Thanks.". All's well that ends well ....... hopefully!


 A Chinese court has ordered Sohu.com, one of China's biggest Internet portals,  to compensate the writer of romantic mobile phone messages for lost income after the Sohu sold his love notes without paying him his lawyer has revealed. The Shanghai No. 2 Intermediate Court ruled  that Sohu must pay writer Fu Zhanbei 100,000 yuan (approx US$13,000) for selling his work without permission and ordered the company to issue a public apology, his lawyer Wang Zhan said.

The California Copyright Conference has been tackling the thorny issue of the proposed settlement between the NMPA (National Music Publishers Assn.) and the major record labels which  will provide the labels with the opportunity to pay publishers possibly hundreds of millions owed for unpaid “pending and unmatched” copyright royalties and avoid 1.5% per month late fees that would otherwise apply. It seems many panellists and audience members questioned the deal including - and in particular whether a plan to distribute up to $174 million on a market share basis is fair to independent publishers - as well as questioning why there was an onus on artists for clearing up contractual problems - and the ongoing role of the huge US broadcast industry in extensive lobbying avoiding the implementation of legislation to make them pay to use sound recordings on their radio stations. More in the Conference Report here . 

Lawrence Lessig has filed a federal complaint after YouTube forced the Harvard University law professor and Creative Commons co-founder to take down a video of a lecture that featured people dancing to a copyrighted song. Supported by the Electronic Frontier Foundation (EFF), Lessig said: “The rise of extremist enforcement tactics makes it increasingly difficult for creators to use the freedoms copyright law gives them. I have the opportunity, with the help of EFF, to challenge this particular attack. I am hopeful the precedent this case will set will help others avoid such a need to fight.” The complaint stems from a 2010 lecture Lessig delivered in South Korea on cultural and technological innovation. He presented clips of user-generated videos showing people dancing to Phoenix’s single “Lisztomania” which was a popular meme at the time started by user “Avoidant Consumer,” who combined scenes of people dancing from several movies with the song playing in the background. The video went live last June but complaints from Viacom and Australian-based music publisher Liberation Music via the Digital Millennium Copyright Act prompted YouTube to remove Lessig’s lecture twice. Lessig filed a complaint disputing Viacom’s action to block the  video on YouTube and had the video restored on June 30th. That same day, Liberation Music filed a complaint to YouTube, and the video-streaming platform informed Lessig that it had again removed his lecture video. Lessig made another complaint to YouTube, but on July 8th, Liberation Music threatened to sue him if he did not retract his complaint, which he eventually did but it seems now fair use is (at least) in play and Lessig's lawsuit runs through the checklist of fair use, making a case for why his lecture falls under that distinction: he used a small proportion of the song, his lecture doesn't compete with the market for the song in any way, and the lecture is an entirely new creation. Phoenix wanted its song to entertain and make money; Lessig's lecture was educational, and neither he nor Creative Commons, the sponsor, made any profit.

Moraine Lake, Alberta: "No, tar"

In the same frame is the fight  between Travel Alberta, a Canadian tourist organization, and Andy Cobb and Mike Damanskis, two comedians.  The comedians started an Indiegogo fund to raise funds for them to travel to Alberta’s Tar Sands.  They describe the location as “the most environmentally destructive mine on earth.”  The duo also created a video and spliced a piece of Travel Alberta’s travel advertisement into the feature.  This four second splice and the slogan “Remember to Breathe” were seemingly enough, under YouTube’s understanding of the DMCA, to take the video down - but the two funsters weren't about to give up and the duo has filed a counter-claim based on fair use and are now awaiting YouTube’s decision.  In the mean time, the comedians will keep their video up on the Indiegogo page and continue to receive contributions for the trip. More on the EFF website here.

And finally: further to our last CopyKat posting, Billboard have reported that Robin Thicke allegedly offered a substantial six figure dollar payout to the family of Marvin Gaye even though he has since filed a lawsuit claiming his song 'Blurred Lines' is not copied from a tune by the late soul singer.