A moral conundrum

Above: Training Ground in the course of installation

Last Wednesday the US First Circuit issued this judgment over an intriguing moral rights question. It concerns Training Ground for Democracy, an elaborate installation piece by Christoph Büchel at the Massachusetts Museum of Contemporary Art. The work was being constructed by a team who were following instructions emailed by the artist. Museum and artist fell out but the Museum continued work on the piece and went ahead with exhibiting it. The First Circuit, reversing a district court's summary judgment, held that it was open to a jury to find that:

1. continuing to work on the piece in a manner that was contrary to instructions infringed the artist's moral rights.
2. the Museum had violated the artist's right to publicly display.

The moral right in question is the right of integrity (right to prevent intentional modification of the work that would damage the artist's reputation). Somewhat discomfortingly, those who were hired to modify the work are now being sued for modifying the work...

Paterno on Paternity - which Walsh?

Joe Walsh (left and right) - which one has life been good to?

IP litigators, bound to adopt a serious tone on behalf of their clients, may envy the tenor of the recent letter before action on behalf of The Eagles' Joe Walsh to Republican Congressional candidate for Illinois, Joe Walsh. According to Billboard Joe Walsh (candidate) has co-opted the song "Walk Away" by Joe Walsh (musician and songwriter) - albeit with new lyrics - for use in his (Joe Walsh's) election campaign.

Confused? Peter Paterno, The Eagles' Joe Walsh's LA-based lawyer thinks you might be. Or as Paterno puts it in his letter to the the candidate: "Given that your name is Joe Walsh, I'd think you'd want to be extra careful about using Joe's music in case the public might think that Joe is endorsing your campaign, or, God forbid, is you."

Paterno then goes on to tell Joe Walsh a thing or two about US copyright law: "It says a lot of things, but one of the things it says is that you can't use someone else's song for your political campaign promotion unless you get permission from the owner of the copyright in the song. As far as we can tell you didn't do that. Maybe you got so busy with the campaign that you just forgot. But that's not OK.

"Second, under that same United States Copyright Act, you're not allowed to take someone's song and change the lyrics. This is not to say you're not allowed to write silly lyrics, you just have to write them to your own music. Now, I know why you used Joe's music -- it's undoubtedly because it's a lot better than any music you or your staff could have written. But that's the point. Since Joe writes better songs than you do, the Copyright Act rewards him by letting him decide who gets to use the songs he writes."

On January 28th, Joe Walsh wrote an open letter in reply to Peter Paterno about Joe Walsh, which, while emphasising how much Joe Walsh would like to "sit down" with Joe Walsh, included such gems as "first, I am a political candidate, not a rock star (though always dreamed of being one)" and the reassurance that " to be honest, and I mean no disrespect, I am not in this race to win the approval of a Hollywood entertainment attorney." Charming. Joe Walsh goes on to say: "Peter, I have to say that I’m surprised you and Joe Walsh (the rockstar) even made an issue of this. I encourage you and everyone else who is learning about this in the media (because, again, that’s where we first learned of it!) should go watch the video and determine for yourself what it’s all about. I must admit, I’m beginning to think that because I’ve been out there for a few months as a “tea party conservative” candidate, all you liberals out in Hollywood are using this to attack someone whose beliefs you don’t understand and always disrespect (can you say Sarah Palin?). "

Joe Walsh does, however, refer Peter Paterno and Joe Walsh to Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) - the adaptation vs parody dispute over Roy Orbison's Oh Pretty Woman. But you will be unable to judge for yourselves because the YouTube video link carried on the Rolling Stone site has been removed.

The real Joe Walsh here

The other Joe Walsh here

Other disgruntled rockers here

Australian content owners looks to courts for three strikes law

Australia's Federal Court is expected to fast-track a decision in a case brought by AFACT (the Australian Federation Against Copyright Theft) on behalf of a consortium of film and TV companies against the Australian internet service provider iiNet. The case centres on the ISP’s liability for illegal file-sharing committed by its customers. AFACT are suing for damages, and want iiNet to be forced to disconnect any customers it knows are illegally sharing music online. In France and Taiwan a ‘three strikes’ law is already in place and in the UK a similar regime is planned as part of the new Digital Economy Bill which Culture Secretary Ben Bradshaw believes will become law before the next election. Controversy still surrounds the role of ISPs and mobile companies in regulating their customers illegal activities, and in the UK Talk Talk’s boss Charles Dunstone has said he might fight the three-strikes law in court if his lobbying efforts to stop the anti-piracy system becoming law fails.

In all the countries where the new system is in place it has been brought in by the legislature, although in the US MGM v Grokster held that those who induce infringment are liable for the resulting acts of infringement by third parties. In Australia it seems that the content industries are looking to a civil action, hoping that a successful action against an internet provider over the issue will set an important precedent – which the legislature could then formalize. There is ,of course, no guarantee that the claim will succeed. In the UK the BPI have been hesitant to take a civil law action against the organisers of the Oink file sharing service, accepting a case would probably have to go to the Supreme Court for a final ruling. Indeed criminal charges against founder Alan Ellis failed in the Crown Court and a recent claim by the IFPI against Baidu in China for providing links to infringing sites failed in the Beijing No. 1 Intermediate People's Court.

AFACT and iiNet had both presented their arguments in court last October and a ruling on the matter was not expected until later this year. However it was announced yesterday that a judgment will now be made next Thursday. Following the court hearings last Autumn, iiNet's CEO Michael Malone told reporters he was confident his company would win the case, saying: "We do not, and never have supported, encouraged or authorised illegal sharing or downloading of files in breach of the copyright laws". Even if iiNet win, it is likely the government will give some time to reviewing copyright rules, which might result in a three-strikes system being introduced in all events - although I imagine Australian ISPs and mobile companies will be as vocal as Dunstone has been in the UK, telling reporters that if the Digital Economy Bill does become law his company will refuse to send out warning letters and will consider "all options" for challenging three-strikes through the courts saying "I think there is a problem if an industry thinks its business model will be saved by legislation. While the music industry focuses on getting these laws through, it won't be concentrating on reinventing its business - which it obviously needs to do as its model is out of date. Its customers have gone on strike and turned to piracy because the old model doesn't work. There is no need to pursue this letter-sending and disconnection policy, when [record companies] can just individually prosecute people who have violated copyright rules".

http://www.telegraph.co.uk/technology/7079982/TalkTalk-would-fight-Digital-Economy-Bill-in-court.html
http://newsblog.thecmuwebsite.com/
http://news.bbc.co.uk/1/hi/england/tees/8461879.stm

The topsy turvey world of US damages ....

I have to say that from a personal UK perspective I find the damages awarded by US juries in both the Joel Tenenbaum and the Jammie Thomas-Rasset file swapping cases extraordinarily high. That the two defendants were unlucky enough to get caught in the first place and then perhaps foolish enough not settle was bad enough. To then face damages of $675,000 and $1.92 million respectively seems somewhat harsh, to say the least. The sums awarded to the record industry are also, it would appear, wholly unrealistic and will never be paid. Tenebaum, a student, made it clear that he would (pending an appeal) probably seek bankruptcy protection and single mum Thomas-Rasset made it clear she didn’t have the nearly two million dollars sum lying around to pay the labels. That said, the awards fell well within the statutory tariffs set by US law. Tenebaum’s appeal, which is still ongoing, prompted a filing from the The US Department of Justice defending the $675,000 damages award arguing that Tenenbaum's actions caused "great public harm" saying "In establishing the range [of copyright damage amounts: $750 to $150,000 per infringement], Congress took into account the need to deter the millions of users of new media from infringing copyrights in an environment where many violators believe they will go unnoticed" and the DOJ filing notes "The harms Congress sought to address, moreover, are not negated merely because an infringer does not seek commercial gain. Accordingly, the statutory range specified by Congress for a copyright infringement satisfies due process."

Now a US judge has intervened in the Thomas-Rasset case and whilst Judge Michael Davis rejected the defendant’s request to reduce the fine to the legal minimum of $18,000, he did cut the award by ninety seven percent to about $54,000. What’s significant is that the decision did not make any ruling on points of law, but rather adjusted the amount to what the judge considered an appropriate penalty. Judge Davis, chief judge for the U.S. District Court for the District of Minnesota, said the original fine was “monstrous and shocking” and that the new amount was more appropriate, being “significant and harsh” but at an appropriate level to act as both punishment and deterrent, with Judge Davis saying that that a jury acted irrationally in deciding upon the size of an award, perhaps a first in a copyright case.

Despite what many might consider to be a ‘victory’ over the Recording Industry Association of America, Thomas-Rasset’s doesn’t seem very impressed with the result and one of her lawyers told reporters that the reduced amount was like “the difference between Joseph Stalin and the Khmer Rouge” and that they are still considering a constitutional challenge using the argument that the law itself is unfair. There is also the possibility of a further challenge by the Recording Industry Association of America which may argue that the judge had no right to use remittur in the case. That said, the RIAA seem to be stuck between a rock and hard place – the possibility that bringing appeal might generate yet more bad publicity – but to accept Judge Davis decision might set an unwanted precedent.

http://www.p2pnet.net/story/34476 and http://news.cnet.com/8301-31001_3-10439636-261.html

Snow copyright infringement?

Earlier this year it was impossible to escape from the snow. Not only was it lying on the ground outside or falling from the heavens above but websites and newspapers were full of photos of the stuff which illustrated in equal measure the picturesque nature of snow, the fun millions of people had in it whilst they bunked off from work (I mean, were snowed in) and the annoyance it caused to the poor souls who got trapped in or had to abandon their cars.

Peter Zabulis took a snow-related photo of the picturesque variety. On 3rd January he uploaded the picture, of tyre tracks etched across a snow-covered field, onto Flickr and tagged it as having "all rights reserved". You can see it here.

Imagine Peter's surprise when, on 5th January he visited the Independent's website and found his photo being used in a section showing photos of snowbound Britain, without his consent. He complained to the paper and since he didn't initially get the answer he desired, he put all of the correspondence between the paper and himself on a separate Flickr page entitled "Breach of Copyright - the Independent".

The correspondence makes interesting reading. The Independent stated that it had not copied the photo. Instead, it had taken a photostream from Flickr and incorporated it into the Independent's website via an API (an application programming interface, more about these here). Effectively the Independent had provided its readers with a sophisticated link to Flickr which, rather than making the reader leave the Independent's website to view the photos, enabled readers to view the Flickr photos from the Flickr website whilst remaining on the Independent's website.

The Independent's initial reply signed off with "We did not take the photo from Flickr, nor present it as anything other than as it is shown there. I do not consider, therefore, that any copyright has been breached or any payment due". However, the matter was eventually resolved with payment being made by the Independent to Peter.

Whilst it does seem likely that the paper breached the Flickr terms of use and shouldn't have used the photo without Peter's consent, 1709 is interested to know whether any of its readers think there was an infringement of Peter's copyright. No copy was made, but had the Independent's website communicated the work to the public?

If there was no infringement of copyright it seems to 1709 that a potential loophole may exist here. The implication would be that a website could incorporate works in which copyright exists from another website via an API without permission from the copyright owner, without infringing any copyright. In some cases this may not be a problem (for example where the owner of the works is happy for them to be distributed as widely as possible), but if the "incorporating" website is generating (for example) ad revenue the "incorporated website" may have objections and may wish to enforce its rights.

1709 is especially interested in this subject because last night it was told (by a reputable source) that the three initials "API" were going to be very important in terms of Internet developments over the next few years, so one could expect issues such as this one to become more widespread.

This story was flagged to 1709 in yesterday's Guardian, in an article about the merits of the current copyright regime. You can read it here (note that the Guardian was careful not to use a copy of Peter's photo) and make your own mind up as to whether you agree with the views of the author of that piece.

One can only imagine that appropriation and use of photos which are in the public domain is a fairly common issue nowadays. In fact, the first comment this morning under the story in the Guardian is from a blogger who had his photos used (without consent) by amongst others the Daily Record. You can read more here.

ps photo is the author's own - all rights reserved!

Compulsory licensing and civil jurisdiction in India

Amit Jamsandekar has just sent me a copy of the judgment of the Division Bench of the Bombay High Court, which last week decided an important issue relating to the jurisdiction of a civil court in matters relating to compulsory licensing of sound recordings for broadcasting. The Single Judge of the Bombay High Court in Music Choice India Pvt. Ltd v Phonographic Performance Limited, MIPR 2009(1)329; 2009(111) Bom LR 609 held that the jurisdiction of the civil court to deal with such matters was barred by Section 31 of the Copyright Act 1956, which conferred jurisdiction to deal with compulsory licences upon the Copyright Board. The Single Judge further held that a civil suit for injunctive and declaratory relief pending an application for a compulsory licence was not maintainable in the civil court.

This judgment was challenged by Music Choice India Pvt. Ltd and the Division Bench, having heard the appeal, has now confirmed the view taken by the Single Judge.

You can read the decision of the Single Judge here and the ruling of the Division Bench here.

Liability tug of war

Attitudes towards liability seem to be pulling in opposite directions today.

On the one hand, a Chinese court has decided that search engine Baidu has not infringed copyright by providing links to illegal music file-sharing – Ars Technica reports here.

On the other hand, in Italy a new law may be giving ISPs and websites liability for third-party content, Reuters reports here. I think this must be the implementation of the Audiovisual Media Services Directive? It would seem to simultaneously unimplement the E-Commerce Directive...

Running P2P site can be a criminal offence, rules Spanish court

Via International Law Office comes a note by Ives Jadraque (Grau & Angulo) entitled "Murcia Court of Appeal Decision on Conduct Through P2P Networks". This describes a decision of that court last September as to whether the creation and administration of a website can be a criminal offence under Article 270 of the Criminal Code. The website in dispute here was www.elitedivx.com, which facilitated peer-to-peer file-sharing. While the trial court considered the provision applicable, the Murcia Court of Appeal took the opposite view. Comments Ives Jadraque:

"The appeal court gave no clear guidance on whether providing links to P2P systems with the aim of making a profit is a crime against intellectual property, stating only that "the conducts that are carried out through [P2P networks]" can be considered as a crime against intellectual property. The question is thus whether the conduct carried out by the defendants can be considered as having been carried out through P2P networks.

Decisions on the possible criminal nature of providing access to P2P platforms are contradictory. The September 30 2009 Alava Court of Appeal decision in the Infektor Case considered that such conduct can constitute a crime against intellectual property. Conversely, the September 11 2008 Madrid Court of Appeal decision in the Sharemula Case (referred to by the Murcia Court of Appeal in this case) declared that such conduct cannot be considered a criminal offence.

The decision is important because it expressly refers to the possible criminal nature of exchanging files through P2P platforms, stating in particular that such conduct implies reproduction and public communication (Article 270 of the Criminal Code) whenever that conduct causes detriment to a third party's rights (a feature of P2P exchanges, according to the appeal court) and has a profit-making aim.

The appeal court's considerations on the requirement for a profit-making aim, established in Article 270, are remarkable. The court considered this requirement to be fulfilled on account of the profit obtained by the defendants from the adverts on the website. This interpretation differs not only from that of the Cartagena Criminal Court, but also from other recent case law, where profits were also obtained from adverts. In these cases it was established that there had been no profit-making aim because such benefits were not directly linked to the provision of access to P2P networks".