RIAA face up to third Thomas-Rasset trial

I imagine that the mention of the names Joel Tenenbaum and Jammie Thomas-Rasset, the two high profile and currently convicted file swappers in the USA, probably drum up nothing but despair in the offices of the Recording Industry Association of America (RIAA) in light of the ongoing negative press the record labels face for ‘suing their own customers’ etc etc. Even so, the RIAA has rejected a judge's order reducing the damages awarded against convicted file-swapper Jammie Thomas-Rasset from $1.92 million to $54,000, meaning that the Minnesota single mum will now face a third trial on the issue of damages

In her first trial, a jury found Thomas-Rasset guilty and ordered her to pay $222,000 in damages for copyright infringement. However, the judge later said he had erred in his instructions to the jury and ordered a new trial. In the second trial the jury again found Thomas-Rasset guilty, but this time awarded $1.92 million in damages. Then last month the judge from the second trial, Judge Michael Davis, sided with Thomas-Rasset's attorneys and reduced that jury award to $54,000, representing $2,250 for each song that Thomas-Rasset was found guilty of sharing - triple the statutory minimum of $750, but far far less than the statutory maximum of $150,000. To end matters, the RIAA then offered Thomas-Rasset an even lower settlement (thought to be $25,000) provided she ask the judge to vacate his ruling that lowered the damages; she refused that offer. The RIAA have now said that they “find it impossible to accept a remittitur that could be read to set a new standard for statutory damages - essentially capping those damages at three times the minimum statutory amount of $750 saying “this far-reaching determination is contrary to the law and creates a statutory scheme that Congress did not intend or enact." Let round three (and a half) commence.

http://www.dmwmedia.com/news/2010/02/10/fileswapper-headed-third-trial-copyright-charges

Google plans superfast highway

Are Google's new broadband plans the death knell for the content industries as we know them - or a brave new world with ever increasing opportunities for interacting with consumers?

Google has announced plans to launch a new optic fibre network delivering broadband speeds of up to 100 times those currently available to consumers - one gigabit per second. This is on top of the $7.2 billion (£4.6 billion) promised by President Obama for broadband infrastructure in the US. The new Google networks, to be trialled in up to 500,000 homes in a number of cities in the USA, will mean that users can download a high definition full length feature film in just a few minutes - although luckily it seems also true that that rural clinics in the USA will be able to (legally) send 3D medical images over the networks, or so press reports say.

Content owners will watch this one carefully - and this topic is just going to get more and more interesting, especially in light of the SABAM v Tiscali reference to the European Court Justice, the Australian Federal Court's decision that Internet Service Providers cannot be held liable for copyright infringements committed by their subscribers and the various adoptions of 'three strikes' laws in France, South Korea and Taiwan. Clearly the decisions of courts and governments are going to be critical in underpinning (or undermining) the future business models for record, film and TV companies, games companies and ISPs, mobile companies and other intermediaries.

http://www.telegraph.co.uk/technology/google/7207160/Google-to-trial-its-own-ultra-fast-fibre-optic-network.html

Logorama drama

Thank you, Arthur Heard (HarperCollins) for letting us know about Logorama, a short animated film that received critical acclaim at the 2010 Sundance Film Festival. Written and directed by the French H5 team of François Alaux and Herve de Crecy, the film is effectly crafted from a plethora of highly recognisable brand logos and corporate mascots -- as well as fictional icons such as the Buy N Large logo from Pixar’s Wall-E. Disappointingly, the use of brands extends only to the visual dimension of this imaginative work: for the sake of consistency -- though it would probably irritate the hell out of viewers -- the sound-track did not consist of stitched-together jingles.

A film of this nature inevitably involves fascinating legal issues. Copyright in trade marks extends to logos but not generally to single words, and whether the use made of the logos here is regarded as transformative, fair per se, marginally infringing or as a pernicious stain on the integrity of the logo itself is a matter that varies as between the subjective view of copyright lawyers as well as the country-by-country rules that determine inherent protectability and the scope of protection (all of this is to say nothing of the issues arising from trade mark law and from infringement of Community design rights). As ever, readers' comments are welcomed.

You can watch the film, which lasts about quarter of an hour, here.

Latest ECDR

Issue 1 for 2010 of the bimonthly European Copyright and Design Reports, published by Sweet & Maxwell, features an English translation of Bonnier Amigo Music Norway AS v Telenor Telecom Solutions AS, a November 2009 decision from the District Court of Asker og Baerum (Norway) which held that an internet service provider was not liable as a contributory copyright infringer, since its role is not an "unlawful contributive" one, contributing in a "merely physical" manner only. This case arose following an application by various rights owners for a preliminary order that internet service provider Telenor block customer access to The Pirate Bay.

False hope for Google Book Settlement?

The US government filed a statement setting out its views of the Amended Google Book Settlement on Thursday, again rejecting it as it did the original Settlement. Again, the Government said it fails to satisfy the requirements of the class-action procedure and is anti-competitive. Again it has therefore effectively pronounced the Settlement dead but then goes on to say it really wants to see it happen and presents a number of somewhat conflicting options for the court to explore.

It leaves it still uncertain as to whether an opt-out system could ultimately be acceptable in its eyes. It seems extremely difficult to imagine what new form the Settlement could take that would satisfy Google's business objectives and the Government's requirements.

Meanwhile Google is sitting on millions of unauthorized scans of books and continuing to use them to return results in Google Book Search. While this litigation has been trundling on over the last five years, Google's scanner has not been turned off. The scale of the copyright infringement has ballooned. Although it is heartening that the US government has rejected the Settlement, it seems intensely problematic that leaving the possibility of a resolution open could leave rightsholders in a virtually perpetual limbo while Google keeps its foot pressed down hard on the infringement accelerator.

The kookaburra wins down under

An Australian Court has found that Men at Work did copy Larrikin Music’s song Kookaburra Sits in the Old Gum Tree, written by Marion Sinclair in 1934, in their composition and recording Down Under. Down Under record company Sony BMG and publisher EMI Songs Australia had disputed the claim but today the Federal Court ruled in Larrikin's favour and Larrikin Music's lawyer Adam Simpson welcomed his win saying it was yet to be decided what percentage of earnings from the song they'd be seeking commenting “It depends. I mean anything from what we have claimed which is between 40% and 60% and what they suggest which is considerably less”. The judge also ruled that a Qantas advertisement which used a small similar section of the riff was not in breach of copyright laws. EMI said it was pleased with this decision but Larrikin Music's has said that it wasn't ruling out further legal action. In an interview with ABC Australia’s The World Today programme music lawyer Stephen Digby said he was surprised by the court's decision saying “ think it could have gone either way but my initial reaction and also looking at this case my initial reaction following it has always been that this is going to be a very hard case for Larrikin to win” adding “it is certainly an identifiable and discernable piece within the song but as a gut feel, my gut feel was that it was probably not a substantial, sufficiently substantial in the song as a whole. Clearly the judge disagreed with me” and Digby says that he is looking forward to seeing the judgment in full and “I'm hopeful that in that he might give us guidance on what he considers to be a considerable, a substantial part or not.” The judge in the case, Justice Peter Jacobson, ruled on the matter saying: "I have come to the view that the 1979 recording and the 1981 recording of 'Down Under' infringe Larrikin's copyright in 'Kookaburra' because both of those recordings reproduce a substantial part of 'Kookaburra'. I am also of the view that Larrikin is entitled to recover damages ... for the infringements". He added: "I would emphasise that the findings I have made do not amount to a finding that the flute riff is a substantial part of 'Down Under' or that it is the 'hook' of the song. Over in the USA a mighty mighty row is brewing over Black Eyed Peas' smash hit Boom Boom Pow - with a new claim that the song infringes Phoneix Phenom's Boom Dynamite. if you know your rice from your peas take a look at www.youtube.com/watch?v=0O0q_xBu2IQ and make up your own mind.

http://www.abc.net.au/worldtoday/content/2010/s2810101.htm

Australian court finds safe harbour for ISPs

Australia's Federal Court has ruled that Internet Service Providers cannot be held liable for copyright infringements committed by their subscribers, dealing a blow to content owners in a closely-watched lawsuit against Australian Internet Service Provider iiNet. Justice Dennis Conroy found that whilst it was shown that iiNet had knowledge that its customers were committing copyright infringement, this knowledge did not equate to "authorizing" the activities ruling “While I find that iiNet had knowledge of infringements occurring, and did not act to stop them, such findings do not necessitate a finding of authorisation. I find that iiNet did not authorise the infringements of copyright of the iiNet users”. The case was brought by AFACT (the Australian Federation Against Copyright Theft) on behalf of a consortium of film and TV companies and centred on the ISP’s liability for illegal file-sharing committed by its customers. AFACT had asked for damages and wanted iiNet to be forced to disconnect any customers it knew were illegally sharing music online. The ISP had refused to forward file-sharing warning notices to its subscribers on behalf of the studios, saying they violated privacy provisions in Australian law. Instead, iiNet had taken to forwarding the notices from copyright holders to the police, along with its own terms and conditions showing it prohibited copyright infringement.

It is now likely that the Australian government will review legislation with a suggested move to enact a three strikes system.

http://www.dmwmedia.com/news/2010/02/04/aussie-court-isps-not-liable-users039-copyright-infringement

GUIs go to Luxembourg: some background

Back in December this blog drew the attention of its readers to Case C-393/09 Bezpečnostní softwarová asociace (Security software association) v Ministerstvo kultury ČR (Ministry of Culture of the Czech Republic), a reference to the Court of Justice of the European Union relating to copyright in graphic user interfaces (GUIs).

I've now received an email from Slovakian blogger Martin Husovec, who writes that we might be interested in the background of C-393/09. You can read it here. Thanks, Martin, and good luck with Huťko´s IT & IP legal blog.