Judge Tells LimeWire to Disable Its Software

Judge Kimba M Wood in the Federal District Court in Manhattan has issued a permanent injunction that will essentially shut down LimeWire, the music file-sharing service that has been embroiled in a four-year legal struggle with the music industry. The case has already resulted in the company and its founder being found liable for potentially hundreds of millions of dollars in damages (see More Freshly Squeezed Lime, 18th June 2010 and Squeezing the Lime Dry , 12th June 2010 on this Blog) The company says that it will continue negotiations with the major music companies in an effort to offer music legally for sale with a subscription service but in her ruling, the Judge ordered the company to disable “searching, downloading, uploading, file trading and/or file distribution functionality” of the company’s file-sharing software.

Visitors to LimeWire’s Web site were greeted with a legal notice and the text: “downloading or sharing copyrighted content without authorization is illegal.” In a statement the Recording Industry Association of America, the music industry’s trade group that had led the legal action, said: “For the better part of the last decade, LimeWire and [founder Mark] Gorton have violated the law. The court has now signed an injunction that will start to unwind the massive piracy machine that LimeWire and Gorton used to enrich themselves immensely.” In May, Judge Wood ruled that the company had violated copyright law and was liable for damages. The court is scheduled to decide early next year the amount the company and Mr. Gorton will be forced to pay. “In January, the court will conduct a trial to determine the appropriate level of damages necessary to compensate the record companies for the billions and billions of illegal downloads that occurred through the LimeWire system,” the RIAA said in its statement. Music publishers have brought a separate action led by EMI Music.

http://www.nytimes.com/2010/10/27/technology/27limewire.html?_r=1 http://www.computerworld.com/s/article/9193499/Like_Grokster_LimeWire_felled_by_secondary_liability_law?taxonomyId=70

Don’t forget the magic word . . .

A German court has ordered a museum to take down photographs of a Joseph Beuys performance work, The Silence of Marcel Duchamp is Overrated, originally staged on live TV in 1964. The court held that the performance piece is protected under copyright law and that the photographs were infringements – as unauthorized adaptation or transformation (Article 23 of Germany’s copyright law). The museum is appealing on the basis that the photos are not artistic transformations or adaptations of the original work but are documentary in nature. The claimant, Beuys’s widow, says the exhibition misrepresented her husband’s work.

The Cardozo Art Law Society blog wonders how else performance art should be documented. With permission, perhaps?

Meeting Alert!

The WIPO Global Meeting on Emerging Copyright Licensing Modalities focusing on "Facilitating Access to Culture in the Digital Age" will take place November 4 & 5 in Geneva.

According to WIPO's press announcement:

"The meeting will gather governments, national and international public institutions, academics and an array of stakeholders involved in different copyright licensing practices. The goal of the meeting is to raise the awareness of Member States on the complexities underlining a vast variety of licensing practices in different sectors, including the online market for music, the software industry and open access publishing. The target topics will be analyzed and discussed from an intellectual property and a competition law perspective."

WIPO Director General Francis Gurry (pictured, left) will address attendees at the Opening Ceremony and Harvard Law School professor Lawrence Lessig will present the Keynote Address. The featured panels will be presented by many highly respected members of the global IP Community.

Registration is possible through this link. This blogger will be stateside at the time of the event; if you attend, please feel free to share your thoughts about the program in the comments section or via email.

"Cast your seeds upon the database ..."

Which one is the seed ...?

In Beechwood House Publishing Ltd (t/a Binley's) v Guardian Products Ltd and another [2010] EWPCC 12, Judge Colin Birss QC gave judgment in a database right dispute in the Patents County Court. In an application for summary judgment, in which the defence was that the dispute had already settled, the court persuaded the parties to agree to treat the application as the trial of the settlement issue and then decided it properly, achieving a substantial saving of both time and expense.

The database in which infringement was alleged was "Binley's Database of GP Practices", which began in 1994.  This consists essentially of the names and addresses of individuals (such as nurses and doctors) associated with general medical practices. The edition allegedly infringed apparently names 159,576 individuals, located at 11,480 general practices within the UK. In pre-database right days this would have been a traditional copyright infringement claim.  Anyway, as the judge, explained:

"4 In August 2007 the claimant found clear evidence that the first defendant was using information from the claimant's database. This was because the claimant puts a few seeds in its database. The seeds are dummy entries which do not correspond to real people. They are fictitious entries with addresses corresponding to the claimant's staff. Thus the claimant will find out if someone is using data from its database because a letter will be sent to one of the seed addresses. That is what happened in this case and this action ensued.

5 The underlying facts are not in dispute. The mailing to the seed entry took place in about August 2007. The letter was sent by the first defendant. The first defendant obtained the data it used from the second defendant and the second defendant in turn obtained the data in March 2006 from an organisation called Bespoke Database Organisation Ltd ("BDOL"). The data from BDOL included the seed entry. There is no doubt that the BDOL data includes at least one entry from the claimant's database, that is the seed. There is also no doubt that BDOL used the claimant's database as one of the sources for the BDOL data. There is however an issue as to the extent of that use  ... If ... the claimant has a good claim to ownership and subsistence of database right and if ... the BDOL mailing list includes or consists of a substantial part of the claimant's database then it is not in dispute that the defendants infringed the claimant's database rights".

But what evidential value can be placed upon the fact that one or more seeds received a mailing from the defendant? Does this raise an inference of substantiality of the degree of copying? How many seeds were there in relation to the database a a whole? And suppose the defendant mailed only to seeds and not to genuine entries. Anyway, the judge addressed the seed issue thus:

"75 I am ... struck by the claimant's statement that there are "a few" seeds in the database. The claimant has not stated how many "a few" means and has so far refused to tell the defendants how many there are. No doubt that is for the claimant's own good commercial reasons. However it seems to me that one way of gauging the number of entries derived from the claimant's database might be to ask what proportion of the seed entries ended up with the defendants. Such an exercise would no doubt have to be treated with caution but it at least might shed some light on the matter. For example just because only one seed came to light does not mean others were not present. However if only one seed from hundred was present that might suggest a lesser fraction derive from the claimant whereas if "a few" means only 3 or 4 seed entries then that might suggest a rather higher fraction. Although substantiality is not necessarily a purely quantitative matter, some idea of numbers would be a start".

The case will now continue. The 1709 Blog expects events to accelerate since Judge Birss has said plainly that he expects the case to be dealt with very quickly and economically.

"TIGAR, TIGAR burning bright ..."

The World Intellectual Property Organization (WIPO) has come up with some cheering news here: according to a media release "Stakeholders’ Platform Launches Project to Facilitate Access by VIPs to Published Works", issued on Saturday,

"An unprecedented initiative to facilitate access to published works by the visually impaired and the print disabled was ... in New Delhi, India at the 5th meeting of WIPO’s Stakeholders’ Platform, which was set up in January 2009 to explore the specific needs, and concerns, of both copyright owners and reading impaired persons and brings together representatives of the visually impaired persons (VIPs) community as well as publishers. The Platform approved the launch on November 1, 2010 of TIGAR - the trusted intermediary global accessible resources project – which will enable publishers to make their titles easily available to trusted intermediaries. These intermediaries will create accessible formats and share them amongst each other and with specialized libraries.

It is estimated that only 5% of the world’s one million print titles that are published every year are accessible to the some 340 million around the world who are blind, visually impaired or who live with other print disabilities. Specialized organizations globally, such as libraries for the blind, have taken on the task of adapting these books into Daisy, Braille audio or special digital formats at great expense. The TIGAR project is the result of close collaboration between WIPO and organizations representing authors, publishers and blind and low vision persons, including the World Blind Union (WBU) and the International Publishers Association (IPA), and promises to provide access to a wider range of accessible books. WIPO will provide the technical support for this project".

TIGAR doesn't seem to have its own website yet (presumably we have to wait till next week's launch), but WIPO's Vision IP portal, which invites the taking of initiatives by the copyright community, is here.

Book review: more arrows than Agincourt

A handsome new fourth edition of Intellectual Property and Media Law Companion, authored by Alasdair Bleakley (Addleshaw Goddard LLP), Edward Baden-Powell (Michael Simkins LLP) and Jeffrey Eneberi (Just-Eat), was published earlier this year. As the publishers state, this is the only title in the UK market that combines intellectual property and media law in a single book. While this is true, it may be fairer to categorise it as first and foremost a media law text, but with a useful quantity of some of the main and/or more media-relevant bits of IP to provide some helpful reinforcement.  According to the web-blurb:

"Lawyers, media and technology professionals, and students of the law, alike, will benefit from the clear layout and style of this book – making it a ‘must have’ for your bookshelf. This book should be your first point of reference when advising your clients or colleagues, or for enabling you to excel in your particular field of media or technology.

With case and legislation citations included throughout, this is a user-friendly starting-point for researching primary sources".

This book's strength does not lie in its extent of coverage of the law, which in around 550 pages including lists and the index was always going to be selective.  It lies in the book's sheer accessibility and confident guidance to the reader.  If you've got a library shelf full of authoritative texts spanning the entirety of IP and media law, this is not the book that will provide that penetrating insight on which you base your arguments to the Supreme Court.  It is however a very handy device for any lawyer who is working under the time pressure imposed on him by any commercial client who lives with deadlines and who, when he asks his lawyer a question, expects the answer by return (and at not much less speed than Roger Federer might be expected to return a serve).   With excellent diagrams and lists, more arrows than Agincourt and more bullets than the British Army will be able to muster after the spending cuts, this book rushes along at a breathless pace which suggests that it might be a good idea to get into training before reading it.

The best bits of this book are the chapters at the end, which are problem-based or industry-specific.  Content clearance, marketing, the music industry, TV and film --these give the authors a chance to demonstrate not only what the law is (and frankly there's not a lot of law on things like clearance of rights) but on what the problems are and how to tackle them head-on.  These are the zones in which Experience is King and the Law is a mere handmaiden. This reviewer bets that the bits at the back are the bits that get the heaviest usage too.

Bibliographical data: publisher, Bloomsbury Professional. ISBN 978 1 84766 042 8. Paperback, xxxvi + 521 pages. £35. Book's web page here.

It's All (Hopefully) Coming Back To Me Now

Back in September, blogger Hugo reported that Eminem sued his record label, Aftermath, over unpaid royalties in connection with sales of his music through iTunes.

Now comes news that the family of late country singer Keith Whitley is doing the same. The suit filed by Whitley's widow and children against Sony Music Entertainment alleges that SME failed to pay certain bonus royalties when Whitley's album reached various sales thresholds. The suit also claims that SME failed to pay the increased royalty rate for downloads that allegedly should have been considered licensed transactions.

The Eminem suit was heard within the jurisdiction of the U.S. Ninth Circuit Court of Appeals, which held that downloads were indeed licensed transactions subject to the higher royalty under Eminem's recording contract. The Whitley family's suit, on the other hand, was filed in New York State Supreme Court. If the case is transferred from state to federal court, it would fall under the jurisdiction of the U.S. District Court for the Southern District of New York and the Second Circuit Court of Appeals, where the Eminem case would be persuasive but not precedential (meaning that the court may choose to consider the Ninth Circuit holding, but is not required to do so).

If the Whitleys succeed in their claims for back-royalties from SME, two jurisdictions will have weighed in on the side of the artists. It is likely that other similar suits will not be far behind.

Spanish private copying levy case: some early responses

It all adds up ...

The IPKat has already posted on today's ruling of the Court of Justice of the European Union in Case C‑467/08, Padawan SL v Sociedad General de Autores y Editores de España (SGAE), which ruled that indiscriminate copyright levies fall foul of harmonised European Union rules under the InfoSoc Directice (2001/29).  This post draws the attention to some of the early comments on it.

Arstechnica's "Europe smacks "indiscriminate" copyright levies on blank CDs, DVDs" (by Nate Anderson) explains the problem as follows:

"Spain allows its citizens to make private copies of copyrighted works—but it compensates creators for the economic harm of this practice by laying down a levy on digital media and devices. If you purchase blank CDs or DVDs, or if you buy DVD burners or possibly even an MP3 player, you have to pay up. But what if "you" aren't a person at all? Imagine a nonprofit that needs to back up its donor records, or a business that wants to burn its own promotional CDs, or a government agency that buys some computers with DVD burners built in. They won't be churning out Bob Dylan CD mixes, so how can it be fair to make them pay the levy?"

The author adds:

"This raises an obvious question: how do you know if blank media or burners will be used for private copying or not? The court laid down a distinction. When sold to "natural persons for private purposes," the country can assume that private copying will take place and impose the levy. But when sold to businesses or other non-natural persons, they can't; no levy is allowed.

The decision would appear to have little impact on consumers, though it does mean that business who sell such digital media and devices won't have to pay levies on every item they sell. The distinction the court makes here seems a sane one, though true fairness would obviously mean that the levy is only paid on each piece of media or device actually used for private copying".

English-language Basque website EITB's feature, "Europe rules Spanish digital copyright tax 'illegal'", carries only a short summary but reminds readers it's still for the Provincial Court of Barcelona to determine whether the Spanish levy (or 'canon') is "imposed indiscriminately".

From Hollywood Reporter comes "Spain's Tax for Purchasing Equipment to Record Digital Content Ruled Illegal" by Pamela Rolfe. This piece goes into detail as to the actual sums levied and lists the recording devices which the levy covered: these include mobile phones as well as more conventional hardware.  Rolfe observes that last year the levy pulled in a handsome 100 millions euros for collecting societies, of which SGAE received 26%,