‘A Whiter Shade of Pale’ – copyright doesn’t fade over time

The House of Lords has today reversed the Court of Appeal’s decision over Procol Harum’s ‘A Whiter Shade of Pale’ (Fisher v. Brooker, here). ‘A Whiter Shade of Pale’ was recorded in 1967. Gary Brooker’s music was adorned by Matthew Fisher’s now world-famous organ solo (above), but Fisher proceeded to wait 38 years to claim his share of the copyright. The case involves a number of issues but the key question was whether Fisher should be entitled to future royalties on the song when he had left it so long to claim them.

The trial judge had granted three declarations: (1) Fisher is a co-author of the song; (2) Fisher is a joint copyright owner, with a share of 40%; (3) Brooker and Onward Music’s licence to exploit the work was revoked on 31 May 2005.

The Court of Appeal set aside (2) and (3) on the basis of delay (acquiescence and laches) – producing the bizarre result that Fisher would be a co-author with no copyright ownership. Although there’s no statutory limitation period to a copyright claim, delay is a potential bar to an injunction – which is granted at the discretion of the court. Mummery LJ argued that because Fisher’s ultimate goal was an injunction he should not be allowed the copyright interest that would provide the basis for it.

The House of Lords, however, distinguished between the property right and the potential injunction. Property rights are not discretionary. To refuse a property right because it might lead to an inequitable injunction would be ‘the tail wagging the dog’. If Fisher were to use his newly asserted property right to seek an injunction, the court would be free to determine whether to grant it. The Lords were unanimous in their decision – even tickled pink. Baroness Hale exclaimed as she danced the light fandango: ‘As one of those people who do remember the sixties, I am glad that the author of that memorable organ part has at last achieved the recognition he deserves.’

Tenenbaum filesharing trial opens in Boston

It’s not being streamed live but the Joel Tenenbaum file sharing case in the USA is certainly making the headlines. Tenenbaum, the 25 year old college student accused of illegally downloading and sharing music online, is in the public eye not least because of the ‘flamboyant’ (elsewhere described as ‘rambling’) presence of Harvard law professor Charles Nesson who opened the defence by holding up a rectangular piece of plastic foam wrapped in cellophane which he said represented the compact discs that record companies sold before digital music became available online. He then sliced open the wrapper with scissors and hundreds of tiny jigsaw pieces fell in a pile in front of the jury in US District Court in Boston with Nessom saying “You have the ability to share, and this physical object’’. The 70-year-old professor then paused and snipped open the foam commenting “suddenly broke into a million bits. Here it is. Bits. . . . Can you hold a bit in your hand? You can’t. . . . And suddenly you have songs being shared by millions of kids around the world.’’

Tenenbaum no longer denies that he shared music illegally but Nesson said his client was “a good kid’’ who admits using file swapping network Kazaa to share songs online but says he did it only because of his he love of music, not to make a profit saying "He was a kid who did what kids do and loved technology and loved music” adding “the Internet was not Joel's fault …. the internet sweeps in like the way the automobile swept into the buggy industry".

Timothy M. Reynolds, who represents four major record labels which are plaintiffs in the trial, said damages to the industry from free file-sharing are enormous and imperil “real people,’’ ranging from sound engineers to talent scouts saying “The defendant knew what he was doing was wrong at each step of the way, but he did it anyway,’’ said Reynolds, who added that Tenenbaum continued sharing music files on other peer-to-peer networks even after the recording industry filed suit. He also pointed out that Tenenbaum didn't initially admit he was the person using Kazaa at his IP address alleging that the student "tried to blame others for his conduct - he didn't take responsibility" and initially tried to pin blame on his friends, his sisters, a foster child living with his family and even a "burglar".

Wade Leak, a senior vice president at Sony and deputy general counsel, testified that illegal file-sharing has cost record companies profits and made it harder to nurture new artists, citing Bruce Springsteen as one performer who became a star only after releasing a couple of modestly successful records and Reynolds added that "The exact amount of harm is incapable of exact proof. But make no mistake about it: the defendant's activities caused significant harm". Nesson has said that the record industry is simply making an example of Tenenbaum’s activities - which are common practice amongst youth across the US saying "Everyone could download [songs] for free … and millions and millions did. Joel was one of those millions. In his way he's like every other kid. There's nothing that distinctive about Joel".

The final witness of the day was Tenenbaum's father, Dr Arthur Tenenbaum, who was called by the RIAA to testify and who told the court that he had once called his son at college, in 2002, to warn him he may be sued if he continued to use the P2P client. He told the court his son responded: "You only get sued if you do it a lot". The trail judge, Nancy Gertner, has already ruled out any form of ‘fair use’ defence and with the admission of guilt it is difficult to see what Nesson will achieve beyond perhaps minimising damages - but with a jury, who knows! That said, in the recent Jammie Thomas-Rasset trial the jury awarded dmages of $1.92 million. The case continues, with Judge Gertner saying she would like it all wrapped up by Friday.

http://www.boston.com/news/local/massachusetts/articles/2009/07/29/opening_statements_made_in_civil_suit_over_swapping_songs/
http://news.cnet.com/8301-1023_3-10298079-93.html

http://copyrightsandcampaigns.blogspot.com/2009/06/gertner-nixes-barlow-as-tenenbaum.html

Photo: Professor Charles Nesson in his trademark turtle neck top

Scottish judge refuses to bar architect's copyright infringement claim

Eagle-eyed Scot-watchers will have noticed that rarest of events, the posting of a Scottish copyright decision on the Scottish Courts website. The decision is that of Lord Bannatyne (Outer House, Court of Session) in Donal Toner v Kean Construction (Scotland) Limited and CRGP Architects and Surveyors [2009] CSOH 105. The decision is difficult for we non-Scots to follow on account of its terminology, but Mark Cruickshank (Maclay Murray Spens) has furnished us with a splendid explanation. he writes:

"Toner alleged infringement of copyright by Kean and CRGP in respect of architectural plans which he had prepared. He argued that he had not been fully paid for his work and that, therefore, there was no implied licence granted to Kean and CRGP to use the plans. He alleged that CRGP had directly infringed copyright by using a substantial part of the plans to obtain an amendment to a planning consent, while Kean had indirectly infringed by constructing a building in conformity with those plans.

Kean and CRGP requested a Debate (ie a hearing on the legal merits of the claim) to argue that Toner's case against them was not competent and that it was neither legally relevant nor specific enough to make out a case and should be dismissed. They raised a number of competency arguments, all of which involved fairly technical issues of law and/or related to compliance with Scottish procedural rules on pleadings. They included the arguments that Toner had no title to sue, that there was no competence to sue more than one defender [that's the term used in Scotland for 'defendant'] in the same action with a separate and independent basis for each claim, and that there were no pleadings setting out the statutory/common law basis for raising the action. In terms of the relevancy/specification arguments, again there were a number of submissions made by the defenders, for example that the damages claimed against each defender amounted to 'double counting', that Toner's case on damages was not properly set out and that it was not possible to sue for damages for copyright infringement when also seeking to affirm the contract or for damages and additional damages under the same pleading claim.

The judge, Lord Bannatyne, took a common sense approach and criticised the defenders' attacks as resulting from taking aspects of the pleadings in isolation rather than reading them in context. Also, for example, on the inclusion of more than one defender in the same action he took the view that the two cases were clearly intimately connected, which pointed to it being in the interests of justice/convenience that the cases both be in the same action. Lord Bannatyne then rejected all of the defenders' arguments and found firmly in favour of Toner.

This sensible decision should discourage such future attempts to knock out cases based on highly technical arguments. This is not the end of the matter, however, and the matter will proceed towards a full trial with Toner having to prove his case of copyright infringement based on the facts".

Many thanks, Mark, for the explanation.

Peer-to-Peer: a new book

Cometh the hour, cometh the book. Peer-to-Peer File Sharing and Secondary Liability in Copyright Law, edited by the distinguished academic and practitioner Alain Strowel, is a title that has "flavour of the month" stamped all over it, as it is launched for the benefit of a readership currently struggling to make sense of the Pirate Bay drama, the debate over "three stripes and you're out" and the martyrdom of Jammie Thomas-Rasset.

This book is one of those curious little beasts that is very much a product of its time. Five years ago it would have been unimaginable; in five years time it will probably be history. But right now it provides a valuable, readable and sometimes provocative set of insights into the issues that now drive copyright pundits to distraction and copyright-based businesses to possible extinction.

One of the most striking things about the contributions in general is that their authors have resisted the temptation to navigate by crystal ball and have based so much of their analysis on existing (if largely recent and sometimes unfamiliar) case law. Another striking thing is the geographical focus of the debate: the fact that peer-to-peer issues were identified and discussed so swiftly in the United States, as well as the easy availability of American case law, information and scholarship, sometimes leads the reader to wonder whether this is really an American debate to which the rest of the world is kindly invited to respond. If this is so, we Europeans have only ourselves to blame and it is for us to play catch-up.

The contents of the book are as follows:

1. Liability of Users and Third Parties for Copyright Infringements on the Internet: Overview of International Developments: Allen N. Dixon

2. Legal Issues in Peer-To-Peer Filesharing, Focusing on the Making Available Right: Michael Schlesinger

3. Secondary Liability for Copyright Infringement with Regard to Hyperlinks: Alain Strowel and Vicky Hanley

4. Copyright Control vs. Compensation: The Prospects for Exclusive Rights after Grokster and Kazaa: Jane C. Ginsburg

5. Global Networks and Domestic Laws: Some Private International Law Issues Arising from Australian and US Liability Theories: Graeme W. Austin

6. A Bipolar Copyright System for the Digital Network Environment: Alexander Peukert

7. Sharing Out Online Liability: Sharing Files, Sharing Risks and Targeting ISPs: Bob Clark

8. A Reverse Notice and Takedown Regime to Enable Public Interest Uses of Technically Protected Copyrighted Works: Jerome H. Reichman, Graeme B. Dinwoodie and Pamela Samuelson

The 1709 Blog hopes this book does well, and looks forward to what will undoubtedly be its many sequels as the world of peer-to-peer continues to evolve.

Bibliographic details. Publication date 2009. xviii + 322 pp. Hardback, ISBN 978 1 84720 562 9. Full price £ 79.95 (with publisher's online discount £ 71.96). Web page here.

Flotsam and jetsam

Here’s some copyright news and flotsam and jetsam that has been washed up in the Internet’s surf this week:

On Thursday South Korea brought in a tough new ‘three-strikes’ anti-piracy law allowing authorities to cut off alleged infringers and to shut down websites (Korea Times).

HADOPI has been delayed yet again (Reuters).

Canada has launched a copyright consultation. Michael Geist has launched a website to discuss it.

The ownership of a famous yodel has been settled, the Guardian reports.

Are LexisNexis and Westlaw infringing copyright in briefs? (Legal Research Plus)

Public Knowledge have published a report saying that internet copyright filtering doesn’t work. Filters are systems for ISPs to automatically detect and block certain types of content, such as copyright-infringing content.

The American Library Association has created online tools to check if you’re within US fair use rules: the Fair Use Evaluator and the Exceptions for Instructors eTool. Anyone want to create a UK equivalent?

Michael Carroll at Washington College of Law has been speculating on the copyright implications of machines being authors.

Low Tolerance for P2P Larkin' About in Hull

Perky, music news site CMU Daily today (24 July) highlights one UK telcoms provider that is simply disconnecting filesharers who access unlicensed content via the local broadband service, Karoo. According to reports from BBC Radio Humberside, Hull-based Kingston Communications, the monopoly supplier of the Hull telephone system is, via its ISP Karoo , disconnecting broadband users accessing or sharing content unlawfully when alerted by content owners. Disconnected subscribers to Karoo are required to sign an agreement undertaking not to repeat the behaviour in order to have their service reinstated. Karoo can take advantage of its unique position in the Hull marketplace - they provide the only ISP in the area via Kingston Communications' telephone system - not even British Telecom operates lines in Hull.

This is a disconnection policy that may be desirable from a content owner's perspective but is less desirable for the residents of Hull who have no option but to obtain telcoms supply from Kingston and Karoo. It is also a policy that, in the view of the Open Rights Group, is unacceptable. And what would the Competition Commission or OfCom make of it, we wonder.

To close on a balanced note , Karoo should perhaps be congratulated on the quality of their system. New technologies added to BitTorrent protocols can now encrypt data to prevent an ISP being able to identify that a file is a torrent file - but not in Hull apparently.

When lawfully seized items can't be retained

The 1709 Blog could easily have missed the ruling of Mr Justice Sharp in Scopelight Ltd and others v Chief Constable of Northumbria and the Federation Against Copyright Theft [2009] EWHC 958 (QB) in the Queen's Bench Division (High Court, England and Wales) a couple of months ago, were it not for the fact that I spotted it in the newly-published issue 4/2009 of the European Copyright and Design Reports (Sweet & Maxwell, 6 times a year). In short, this was a ruling that the police had no power to retain property under the Police and Criminal Evidence Act 1984 s.22 against the wishes of the person otherwise entitled to possession of it, once a decision not to prosecute has been taken, in order that a private body (in this case FACT) could consider whether to bring a prosecution, or indeed while that private prosecution was being brought.

This action was brought by the Vickermans, a husband and wife team who ran a video search engine website. This was not a file-sharing website, but it did provide thousands of links to third party websites which hosted videos. Following a complaint by FACT, a private commercial organisation representing the interests of the audio-visual industry, that this website was hosting two third party file sharing websites, the police obtained a warrant to enter the Vickermans' premises on the basis that there were reasonable grounds for believing that offences of conspiracy to defraud and money laundering had been committed. On this basis the police lawfully seized internet server equipment and associated documents. That property was later released by the police into the possession of FACT for the purposes of the police investigation.

When eventually the Crown Prosecution Service decided not to prosecute, the Vickermans asked for the return of the seized property. The police said they couldn't, since FACT was considering whether to bring a private prosecution. At this point the Vickermans sued for delivery up of the seized property as well as damages for conversion, while FACT began a private prosecution (still proceeding) in respect of various copyright offences.

So could the police retain the seized property under the Police and Criminal Evidence Act 1984 s.22 even after the CPS had decided not to prosecute, if the retention was for the purpose of assisting a private prosecution? The Vickermans argued that the police power to retain property ended once the CPS decided not to prosecute. The police and FACT both contended that retention was permitted because it was for use as evidence at a trial and forensic investigation for an offence which was the subject of an ongoing prosecution.

Sharp J ruled in favour of the Vickermans. He held as follows:

* The power of the police under the Act to seize, use and retain property was conferred on them for the better performance of their public functions and for law enforcement purposes: those purposes did not include the seizure, use or retention by the police of private property to assist private interests. Parliament never considered whether private property, once seized by the police, could be used by a private body for its own purposes (including considering whether it should bring a private prosecution or bringing a private prosecution).

* While the right of private bodies or individuals to bring a private prosecution was well established, it did not carry with it the automatic right to override private property rights in the absence of an order of the court, nor did it carry with it the powers conferred by Parliament by the police. Accordingly, the police had no power to retain property lawfully seized under the Act against the wishes of the person otherwise entitled to possession of it once a decision not to prosecute had been taken.

Big brother in a bother? Orwell that ends well

Thanks, Professor Hector MacQueen, for tipping the 1709 Blog off about the news that Amazon.com has promised to change its systems after it remotely deleted George Orwell's 1984 and Animal Farm from its customers' Kindle ebooks. This happened when the world's most popular source of reading matter discovered that those titles had been offered for sale without authorisation. Amazon's action, however purely motivated by considerations of copyright, generated the inevitable comparison with the unseen but all-seeing villain of 1984, Orwell's all-seeing Big Brother.

The first rumour was that Amazon had to retrieve the books after pressure from the rights-holder, which had apparently changed its mind about the e-vailability of these masterpieces of socialist theory versus practice. Amazon later denied this, explaining that the works uploaded by a publisher, reported to be MobileReference, which did not have the rights in the first place.

Customers have not been thrilled to discover that, when they purchase a book using Kindle, they do not necessarily own it for life. One wrote on Amazon.com's forum: "When I buy a book, I own it. Today i find that when I 'buy' a Kindle book, I am leasing it and it is subject to recall by the issuer". One particularly disgruntled customer is Justin Gawronski, who was reading 1984 on his Kindle for a summer assignment and lost all his notes and annotations when it simply vanished. "They didn't just take a book back, they stole my work", he is reported to have said.

Amazon is reputedly reconsidering its policy. Presumably it makes more sense to be on the customers' side. The easiest way to do this is to let them keep the illicit download and leave it to the copyright owners to take action against such parties as they can realistically sue.

Right: No-one asked the piggy if it wanted to be Kindled ...

Read all about it in the Guardian, the Telegraph, Pocket-lint, the Register and msnbc.