In 1709 (or was it 1710?) the Statute of Anne created the first purpose-built copyright law. This blog, founded just 300 short and unextended years later, is dedicated to all things copyright, warts and all. To contact the 1709 Blog, email Eleonora at eleonorarosati[at]gmail.com
1709 Blog readers will
recall that last September the Court of Justice of the European Union
(CJEU) issued its decision in the importantMc
Faddencase[here and here], a reference for a preliminary ruling from Germany.
The CJEU ruled that the provider of a password-free, free WiFi can be requested
to have his internet connection secured by
means of a password.
Via 1709 Blog friend Mirko Brüß (Waldorf
Frommer Rechtsanwälte) comes the news that a German court (though
not the one that had made the Mc Fadden reference) has
recently applied the CJEU judgment, and the principles laid down therein [Mirko also wishes to let readers know that a new reference on the
right of communication to the public and filesharing was made by the Regional
Court of Munich on 17 March last (Case No. 21 S 24454/14): details are not yet available on the
Curia website, but as soon as they are this blog will provide relevant
Here’s what Mirko writes:
a judgment on 16 March 2017 the Higher Regional Court of Düsseldorf requested
the operator of an open WiFi (and a TOR exit node) to take action against
repeated copyright infringements by users of his IP-addresses (case no. I-20
appears to be the first time a German court has dealt with such a case after
the CJEU handed down its Mc Fadden decision on 15 September
2016 ... At least, this is the first publicly available decision.
ruling of the court does have wide implications for the operators of open WiFi
networks, so-called hotspots.
defendant was an operator of five so-called hotspots, ie access points that can
be used by anybody to log into the internet using the defendant‘s internet
connection. It remained disputed between the parties whether the defendant
operated his network commercially or privately, and whether or how users needed
to register themselves to be able to use the network. The defendant claimed
that users were asked to refrain from ‘illegal activities’, but did not
explicitly ask users to refrain from sharing copyright-protected material via
peer-to-peer networks. The defendant also operated a ‘TOR exit-node’ on his
IP-address, thus enabling anonymous users to access the internet via his IP
address (see this
infographic on general TOR functionality).
The claimant is the owner of copyright in a computer game. He had noticed the
defendant’s IP-address on several occasions as being the source of an
infringing download offer of other works via a BitTorrent network. After
obtaining knowledge of the defendant‘s name and address via the court
proceedings provided for such cases in Germany (§ 101 Abs. 2, 9
Urheberrechtsgesetz, = UrhG, German copyright code), the claimant sent several cease-and-desist
letters to the defendant in 2011, asking him to stop the infringing activities.
However, further infringements were found in 2013, even after the
cease-and-desist letters were served to the defendant. At this point, the
claimant took matters to court, and obtained a judgment of the District Court
of Düsseldorf, that enjoined the defendant from aiding third parties to make
available to the public the claimant’s game via peer-to-peer networks and via
his own IP-addresses. The court also ordered the defendant to pay the
claimant's out-of-court costs for EUR 651,80 (judgment on 13 January, 2016,
case no. 12 O 101/15).
The defendant appealed the decision. He claimed that unknown users of his
network were the culprits, and he had no way to identify them and no obligation
to stop their activities.
View of Düsseldorf
The Higher Regional Court‘s decision
Higher Regional court of Düsseldorf rejected the appeal and upheld the first
decision. While the Regional Court’s judgment was issued before the CJEU
decided Mc Fadden, the Higher Regional Court had knowledge of this
decision and applied it to the case.
In so doing, the court found that it did not matter whether the defendant
operated the hotspots commercially or privately. Furthermore, it did not matter
to the court whether the copyright infringements were committed by users of the
Hotspots or users of the TOR exit-node.
In all scenarios, the defendant was liable for the infringements and was
requested to take reasonable measures to prevent further infringements. To
justify this, the court cited Mc Fadden, especially paras 80 – 96.
The judges found that, because of the earlier infringements, the operator
should have taken reasonable measures to ensure that his users would not
continue to infringe third-party copyrights. With regards to the WiFi network,
the court sided with the CJEU and ruled that password-protecting
the internet connection may dissuade the users of that connection from
infringing copyright, provided that such users are required to reveal their
identity in order to obtain the required password and may not therefore act
anonymously. If this could have been asked of the defendant irrespective of
earlier infringements was left undecided by the court.
With regards to the TOR exit-node being the possible source of the
infringements, the court found that the defendant could have and should have
taken measures against copyright infringements by disabling peer-to-peer
communication via the TOR network. It remained undisputed between the parties
whether this is technically possible, so the court took such a measure for
As previously covered in the CopyKat here, a copyright infringement claim has been made against Beyoncé for samples taken from Messy Mya (Anthony Barré) – the singer has now responded by asking a federal judge in Louisiana to dismiss the claim. First, the filing claims that the sample amounts to no more than 10 seconds and falls within fair-use doctrine, especially as the raw material was then allegedly “transformed”. Secondly, and admittedly outside the scope of the application, it is claimed the material was licenced from Barré’s family. Source here.
Fan subtitles illegal
The Amsterdam District Court has handed down a recent
decision in a claim made by the “Free Subtitles Foundation” (Stichting Laat
Ondertitels Vrij) against BREIN, the latter of which has been active in taking
fan subtitles and translations offline.
The lawyer acting for the Free Subtitles Foundation, Camiel
Beijer, had previously told TorrentFreak that the case revolved around two issues:
Whether the creation and publishing of film
subtitles is an act only reserved to the maker of the film work in question;
A review of the conduct of BREIN against people
who create and reproduce subtitles.
While hoping for an outcome which would favour fair-use, the
Court in fact reached the opposite decision and held that subtitles can only
be created and distributed after permission has been obtained from copyright
holders – anything else would amount to infringement. With the potential to set
a precedent for “fansubbing”, see here
for more details.
Dr Eleonora Rosati, a member of the 1709 Blog Squad, will be
speaking at the following events:
IPSoc’s event “Latest Developments in copyright”:
this will be held on Wednesday 10 May 2017 from 18:30 to 21:30 at Simmons &
Simmons offices at 1 Ropemaker Street, EC2Y 9SS, London United Kingdom. IPSoc
is a society for junior IP practitioners from all areas of intellectual
property which hosts CPD accredited educational and social events for members
to learn and socialise in a fun and relaxed environment. 2016/2017 membership
will need to be confirmed before you can sign up for this event, and will also
allow you to sign up to other events. The membership form and further
information on membership can be found at http://www.ipsoc.org/membership.htm.
For any queries relating to membership, please contact the Membership Secretary
ASK Centre (Art, Science and Knowledge) at Bocconi
University will be hosting a seminar “Second-hand Markets for Digital Copies -
An EU copyright chimera?” on Friday 5 May 2017 at 12:30pm in Room 32 via
Sarfatti 25. Registration is required here.
Call for Speakers – CopyCamp
The biggest conference about social and economic aspects of
copyright in Europe invites our prospective speakers to submit presentation
proposals on the following:
models, heritage digitization, remix
food, security, and exclusive rights
and data mining, machine learning, online education
of Things: autonomous cars, smart homes, wearables
government data, public procurement, public aid in culture
Deadline is 31 May 2017 – for more details and how to apply, see here.
Copyright or Wrong?
Finally, for those that may have missed it, copyright lawyer
and author Richard Taylor discussed copyright law in the digital age on BBC
Radio 4 last Friday – still available here for those who wish to
Appropriation art and fair use, the latest
twist – the estate of Andy Warhol sues photographer Lynn Goldsmith over
status of most (if not all) appropriation art cases within the U.S. hinge on
the court’s case-by-case analysis of the fair use doctrine. Many recent cases
have involved Richard Prince and his artworks (more information on this can be
found here and here). This writer has always found appropriation
art fascinating. From Handel’s famous borrowings to the ground-breaking
‘It Takes a Nation of Millions to Hold Us Back’, taking something old
and re-imagining it enriches our culture. Within the jurisdiction of the US,
the contentious issue has always been (and will always be) whether the new use
of the work falls under fair use, or whether it falls outwith the doctrine and
is therefore an infringement of copyright.
estate of Andy Warhol is at the centre of
the most recent twist relating to the interaction between appropriation art and
copyright law. In an interesting turn of events, the estate of Warhol has
pre-emptively filed suit against photographer Lynn Goldsmith. Goldsmith had
complained to the Warhol Foundation that Warhol’s 1984 ‘Prince’ series
infringes her copyright in a publicity photograph taken in 1981. Goldsmith reportedly stated in an email to Daily
News that, “I believe that Warhol infringed my rights and I will oppose their
action and counter claim for copyright infringement.”
the four causes of action in the complaint submitted by the estate, a declaratory judgement of fair use
is being sought. The complaint reads: “Although Warhol
often used photographs taken by others as inspiration for his portraits,
Warhol's works were entirely new creations… As would be plain to any reasonable
observer, each portrait in Warhol’s Prince Series fundamentally transformed the
visual aesthetic and meaning of the Prince Publicity Photograph.”
complaint is also seeking declarations that Warhol’s Prince Series does not
infringe Goldsmith’s copyright and that any potential copyright claims are
barred by the statute of limitations (set at three years under § 507
of the US Copyright Act) and the doctrine of laches. Therefore, if the court
action does eventually come to fruition, a fair use analysis may not be
necessary if the court finds in relation to any of the other causes of action.
The Copykat will no doubt issues updates on this case as they come.
is now settled, with full details of the deal having been kept confidential.
according to the Hollywood Reporter, songwriting credits
on the BMI database relating to Ed Sheeran’s Photograph have now been updated
-the two plaintiffs Martin Harrington
and Thomas Leonard are now listed as co-authors alongside Ed Sheeran and Johnny
US Safe Harbour – moderators with actual or
‘red flag’ knowledge of infringement might disqualify platforms from safe harbour
harbour is the qualified limitation of liability for hosting providers which
host third party content, where users have uploaded infringing content (§ 512
of the US Copyright Act). Safe harbour was introduced through the Digital Millennium
Copyright Act (“DMCA”) nearly two decades ago.
Circuit recently issued a ruling in Mavrix Photographs v LiveJournal, which
states that; where volunteer moderators can be legally classified as agents of
a company, and that said moderators had actual or ‘red flag’ knowledge of
infringement in posts they reviewed and authorised, a company might lose its
safe harbour protection.
surrounds 20 photos belonging to celebrity news photo agency Mavrix. These photos had been published (without Mavrix’s permission) on the
gossip site LiveJournal, specifically, its blog ‘Oh No They Didn’t’ (“ONTD”). Of
significant importance to the case, the ONTD blog
content is uploaded by users. However, before this content is published on the
site, it is reviewed by a moderator to ensure adherence to site rules.
than issue a takedown request, Mavrix chose instead to file suit against
LiveJournal for copyright infringement. LiveJournal subsequently invoked the
safe harbour defence. LiveJournal’s downfall in this case was the fact that it
employs a team of volunteer moderators who review all posts according to the
website’s rules before any posts are published on the site. According to the
court, if the moderators can be classified as agents of LiveJournal, and the
agents had ‘red flag’ or actual knowledge of copyright infringement, the safe harbour
exception may not apply.
Paez states that “Although LiveJournal calls the moderators 'volunteers,' the
moderators performed a vital function in LiveJournal’s business model. There is
evidence in the record that LiveJournal gave moderators express directions
about their screening functions, including criteria for accepting or rejecting
posts. Unlike other sites where users may independently post content,
LiveJournal relies on moderators as an integral part of its screening and
posting business model.”
Electronic Frontier Foundation has criticized the decision, stating that “The DMCA does not forbid service
providers from using moderators … many online services have employees (or
volunteers) who review content posted on their services, to determine (for
example) whether the content violates community guidelines or terms of service.
Others lack the technical or human resources to do so. Access to DMCA
protections does not, and should not, turn on this choice."
is reminiscent of the Grooveshark case, where safe harbour protections
were denied where employees uploaded infringing content in order to attract
users to the service, as also the MP3tunes case, where thecompany’s inadequate repeat infringer policy
cost it its safe harbour protection.
Pornhub ordered to hand over details of
As a site
that relies on content uploaded by third party users, Pornhub falls under the
DMCA safe harbour protection. While most copyright owners submit DMCA takedown
requests as a means of controlling their copyright, Foshan Limited – known for
a particular type of porn brand – has obtained a DMCA subpoena compelling
Pornhub to hand over all information available on infringing individuals by 1
May. This includes names, email addresses, IP addresses, user and posting
histories, physical addresses, telephone numbers, and any other identifying or
account information. The subpoena was issued by a federal court in California.
Foshan Limited receives the information covered under the subpoena (that is, if
Pornhub doesn’t appeal), it may potentially launch legal action against the
asserts that, “As far as we’re aware, this is the
first time that a rightsholder has used a DMCA subpoena to obtain information
about Pornhub uploaders. And since it’s a relatively cheap and easy way to
expose infringers, this might not be the last.”
another recent case, Malibu Media,
LLC v Doe,
a similar subpoena has been issued to the Internet Service Provider of an
alleged infringer who has illegally uploaded pornography. This time,
proceedings took place in the district court of Connecticut.
case, the subpoena issued had several caveats to protect the identity of the
alleged infringer. As reported by William Dalsen, these are “First, the
court limited the subpoena solely to the name and physical address of any
subscriber associated with the IP address at issue, and not any additional
contact information. Second, the court required the ISP to delay its response
to the subpoena, pending notice to the subscriber of the lawsuit and of the
subpoena, notice to the subscriber that the ISP would comply with the subpoena,
and after allowing the ISP itself an opportunity to quash the subpoena. Third,
the purported defendant had 60 days from notice of the subpoena to move to
quash the subpoena. Fourth, the court would permit the purported defendant to
litigate the subpoena anonymously. Finally, plaintiff could not publicly file
any identifying information about the supposed defendant without further order
of the court.”
unusual caveats reflect the court’s concern that a defendant, having been
accused of distributing pornographic content, may feel coerced into settling
any lawsuit merely to avoid being publicly named in that
The photo of
Andy Warhol is courtesy of moscot, moscot.com under the CC BY-SA 4.0 licence.