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 - of takedowns, trollls and transformation

There should be a limit on exemptions for parody, says the Hong Kong Copyright Concern Group. The umbrella group of 14 organisations, which includes the record labels body the IFPI and the Federation of Motion Film Producers of Hong Kong, was offering its own opinions as part of a public consultation on whether parody should be exempted from copyright if the instigators do not make money from their work or damage the economic interests of others. The consultation was launched by the government in July and is now running until November 15. The Concern Group also said that any exemptions for parody must follow the Agreement on Trade Related Aspects of Intellectual Property Rights.

And over on the IPKat, Eloneora has been looking at planned reforms to the Irish copyright system - her lastest blog is on the Review Committee's thoughts on fair use  - to "[e]xamine the US style ‘fair use’ doctrine to see if it would be appropriate in an Irish/EU context" and it's well worth a read - particularly as the Irish proposals might well be in immediate conflict with constraints posed by Article 5 of the InfoSoc Directive. 

The Beatles have topped a list of artists whose music is not being taken down from file-sharing websites (or at least not effectively) which has been complied by anti-piracy service MUSO which  compiled its top ten by monitoring websites which are compliant with takedown requests meaning that the illegal files counted could easily be removed. The Beatles had 187,687 files available illegally on the sites surveyed, over 115,000 more than the number two act, Fleetwood Mac. MUSO estimated that these illegally available Beatles tracks would be accessed around 190 million times per year, with some of the files online for over five years.

A 30-year-old Chinese law graduate has received a three year suspended prison sentence and fined 10,000 yuan for copyright infringement in Jiangyin, Jiangsu. The Jiangyin People’s Court found that the defendant, Zhang, an enthusiastic movie fan, had devoted himself to translating non-mainstream art films and selling them online. Zhang learned English, French, Japanese, German, Russian and Korean to help him in his work. Zhang claims he was motivated by a market need that he discovered in discussions on online forums. While many people expressed a desire to watch foreign art movies it was a niche not supported by the mainstream market in China. It was, however, also illegal.

Jay-Z is facing another sampling claim. A lawsuit was been filed against the rapper, Roc-A-Fella Records and  Atlantic Recording Corp by Manhattan record label Tuf America, which claims that the track "Run This Town" with Kanye West and Rihanna illegally samples New Orleans soul singer Eddie Bo's 1969 number "Hook & Sling, Part 1." The plaintiffs are seeking proceeds from "Run This Town" and damages, and are asking for a court order to halt "further distribution and exploitation" of the recording. 

The 'Prenda Law' copyright trolling saga rumbles on. Now another US federal judge has entered the fray and has ordered AF Holdings Inc, one of the firms used to file lawsuits which pushed for settlement from individuals accused of illegally downloading online porn, to return money paid in settlement of the infringement claims.  AF Holdings filed five different lawsuits and four of those cases quickly settled for sums ranging from $US3,500 to $US6,000. Judge Franklin Noel is forcing AF Holdings to return the settlement cash after finding the company couldn’t prove it held the copyright to “Popular Demand” and “Sexual Obsession” finding “AF Holdings failed to produce any credible evidence that the [copyright] assignments were authentic” adding that his Minnesota “court has been the victim of a fraud perpetrated by AF Holdings, LLC.” Judge Noel also found that AF used a forged signature on a copyright-assignment agreement. The name on that agreement was of Alan Cooper, a caretaker at the Minnesota cabin of John Steele, one of the lawyers involved with AF. Cooper testified that he never signed the agreement or held a position with AF Holdings. Lots about this and other Prenda news here http://www.techdirt.com/blog/?company=prenda+law - according to Techdirt it seems copyright is off the agenda, and one ex Prenda lawyer is now targeting websites with alleged Americans with Disabilities Act (ADA) violations - and looking for prompt settlements, 

This guest post by Jeff Price, Founder & CEO of TuneCore on Hypebot: "While the major music companies' revenue from music sales has gone down, they have a brand new increasing income stream: revenue generated from the sale of other people's music. In the past five years, hundreds of millions of dollars of songwriter royalties have been generated and never paid to the songwriter, or have been given to Warner Bros, EMI, Universal, Sony and others based on their market share - estimates put this new income at over half a billion dollars" and in particular "The complexity of copyright law, the total lack of transparency by the collection agencies and the inability to audit anything, and you have a perfect storm for global copyright infringement with hundreds of millions of dollars of other people's money getting siphoned off and/or not paid to the millions of rightful copyright holders". If you write or record songs, or own a small catalogue or label .... read on : It is a bit of an advert for Tunecore, but a good read - More here.

Torrentfreak report that David León Marín, who ran a BitTorrent indexing site in Spain, is facing an eighteen month jail sentence after being found guilty of criminal copyright infringement. He was also fined 21,000 euros and banned from creating or managing websites for three years. Marín, who ran the site Bajatetodo, was originally arrested in 2007.

Music Week reports that  a group of European Parliament members have called for a review of The European Copyright Directive to overhaul a "licensing nightmare". MEPs Amelia Andersdotter (Pirate Party, SWE), Marietje Schaake (Social Liberal Democrats NL) and Pawel Zalewski (Christian Democrats, PL) hosted an event that was aimed at highlighting the need for change to the Directive with Andersdotter saying: “Infosoc has created a horrible licensing nightmare that no one is able to penetrate ... those who make use of culture – file-sharers, DJs, libraries, schools – live in a constant state of uncertainty" adding “It’s really difficult to find out what the freedoms and rights are of those who use culture. What is permitted and not permitted? When is someone at risk of getting sued? The law really needs to make that more clear.” A number of MEPs had previously sent a letter to the EU Commission president Jose Manuel Barroso saying that people of the EU "are concerned that the current copyright system is no longer for them" and lacks relevance in 2013 and Barosso had replied a saying that The Commission would continue to work to update the copyright framework to make sure it stays “fit for purpose in the digital environment”.

It seems that after a six-and-a-half-year crusade, and a recent decision denying class action status, the Premier League, the French Tennis Federation and a number of music companies have walked away from a long-running legal battle over copyright infringement with the Google-owned video-sharing website YouTube. That's all according to documents filed in New York and seen by the Guardian who suggest that with the content owners now extensively using YouTube's takedown provisions, the move is likely to lead to clubs being able to use the platform to show delayed highlights of their matches on their own YouTube channels. While the court case was ongoing they had been prevented from showing any on-pitch action and limited to behind-the-scenes videos and interviews. Both sides will pay their own costs after agreeing to a voluntary dismissal. 

And finally, the The US Supreme Court has decided not to hear the controversial copyright case between the photographer Patrick Cariou and the artist Richard Prince, who used a number of Cariou’s images of Rastafarians in 30 paintings in the series “Canal Zone”. The 2nd Circuit Appellate court held the use to be transformative in 25 of Prince's works. The case continues at the district level where the Andy Warhol Foundation for the Visual Arts and the Rauschenberg Foundation have submitted amicus briefs urging the consideration of the opinions of art historians in the formation of what's transformative. Five uses by Prince were not considered transformative and those were sent back to the lower court for a determination, using the appeals court standard for transformative use.

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.

PRS for Music and YouTube sign licensing deal

UK Publisher and songwriter collection society PRS for Music and YouTube have  signed a multi-year licence covers over 130 territories The licence covers the use of the "significant repertoire" represented by PRS for Music in videos streamed on the video platform e.g. official music videos and content, live footage, soundtracks and user generated content (UGC). The licence also includes the rights to a growing range of independent repertoire available through PRS for Music’s IMPEL initiative such as David Bowie (Bucks Music), Justin Timberlake (Imagem), Lou Reed (Spirit) and Goldie (Westbury) covering more than 130 territories in Europe, Middle East and North Africa.

Robert Ashcroft, Chief Executive PRS for Music, said, “Streaming is a key growth area for PRS for Music, helping drive our online revenues to over £50M in 2012. YouTube’s vast reach around the world offers our publishers and songwriters a unique stage and music lovers access to millions of songs. I am delighted we have reached such an important multi-territory agreement. The issue of remuneration from streaming services remains a key one for our members and the further evolution of our licensing relationship with YouTube will help ensure continued growth in royalties for our members from one of the world’s leading video platforms.”
 
Chris Maxcy, Director of Global Music Partnerships at YouTube continued, “We're delighted to renew our successful partnership with the PRS for Music. This means the UK's music publishers, songwriters and composers can continue to reach new and existing fans on YouTube and the passionate YouTube community can keep enjoying listening to music and discovering new artists online.”

This is from a press release - of course -  hence the glowing tributes - more at http://www.prsformusic.com/Pages/default.aspx

GEMA holds a mirror to the You Tube decision

Following on from Monika Bruss' excellent coverage and follow ups, collecting society devotees and You Tube employees may wish to read Der Spiegel's interview with GEMA CEO, Harald Heker.

Down Down, Deeper and Down.

What do Justin Bieber, Rhianna, Lady Gaga , Beyonce and Shakira have in common? Well you can make your own minds up about their music, but they are undoubtedly some of the biggest pop stars on the global music jukebox at the moment – and NONE of them are signed to iLCreation. Why do I mention iLCreation – well this entity managed to get videos by Bieber, Gaga, Shakira, Rhianna, Beyonce and others including Bruno Mars and Miley Cyrus taken down from YouTube. Seemingly rather easily.

Many of the artistes who whose videos were targeted had performed at the 2011 MTV Video Music Awards last Sunday (where Beyonce announced her pregnancy to the World)and according to Webpronews an unknown individual using the name iLCreation submitted a copyright claim on numerous videos including Miley Cyrus’ “Party In The USA”, Rhianna’s “What’s My Name” and. Lady Gaga’s “Bad Romance” and following its standard procedures, YouTube pulled down the video including Bieber’s entire Vevo channel, it seems without requiring any form of verification that the claimant had the right to request the take-down.

Vevo initially posted a statement that explained, “Someone is making false copyright claims against the Justin Bieber and Lady Gaga channels and YouTube has blocked access to the videos as a result. We are working with YouTube to resolve ASAP.” The videos could still be seen on Vevo’s own site. Vevo, part owned by major record labels Sony and Universal, issued a formal statement that read, “A few videos by Justin Bieber and Lady Gaga were briefly taken down by YouTube as a result of false copyright claims. This issue has been resolved.” Almost all of the video affected by the fake notices were restored within a couple of hours. As one commentator added “It’s particularly ironic for Bieber…. seeing as how Youtube is where he started”

YouTube uses several automated systems for removing unauthorized content, including ContentID, but copyright owners also can submit individual claims using an online form.

Shakira's "Waka Waka" has had 390 million viewers on YouTube. iLCreation is now the most “hated person on Twitter”. Allegedly.


http://www.webpronews.com/justin-bieber-lady-gaga-videos-pulled-from-youtube-2011-08

Viacom v YouTube

Follwing YouTube's summary judgment success in the Viacom litigation last year when Judge Stanton held that YouTube was able to benefit from the Safe Harbor provisions in the Digital Millennium Copyright Act because it did not have actual or constructive knowledge of every specific YouTube URL containing infringing material on the site, The IPKat now has a very good update and summary of Viacom's appeal in the US by Annsley Merelle Ward. Those of you who get the IPKat email updates will know this - and for those of you who don't subscribe to the IPKat - why not? Its marvellous and its free!

http://ipkitten.blogspot.com/2011/01/letter-from-amerikat-i-viacom-v-youtube.html

http://ipkitten.blogspot.com/2011/01/letter-from-amerikat-ii-viacom-v.html

PRS and You Tube Kiss and Make Up

According to Guardian reports the UK's PRS dispute with You Tube about fees for songwriters and composers' works on YouTube has been settled - and licence fees will be backdated to January. However The Guardian hints darkly about the fact that the deal is secret, covered by a non-disclosure agreement. PRS's press release can be found here but there is not a scintilla of an indication that the terms of the deal might be confidential.