Further comment here on ZDnet.
Sunday, 28 February 2010
Friday, 26 February 2010
"Collecting societies, small businesses and individuals will soon find it simpler, cheaper and quicker to resolve disputes about copyright licensing schemes through the Copyright Tribunal. Simplified and modernised rules of procedure, on which licensing societies, industry and consumer groups were consulted last year, will come into effect from the 6th April 2010.Of all these things, I'm most pleased about the promise of 'robust case management' -- particularly if has the effect of reducing the volume of technical analysis relating to royalty calculations, market impacts etc which some of us have been known to pretend to understand before preparing to flip a coin ...
These changes seek to
* Promote the effective resolution of disputes in a fast-changing business environment by introducing procedures in line with the Civil Procedure Rules 1998.
* Improve access to the Tribunal for small businesses and individuals by introducing a small applications track for quick and economical resolution of small cases.
* Reduce costs and delays in large-scale litigation by providing for active and robust case management. ...
The revised rules will enable the Tribunal to deal with cases justly and fairly but more rapidly. This will be done by ensuring the parties are on equal footing; saving expense; dealing with cases on a proportionate level according to the complexity, amount of money, and financial position of each party; and by dealing with cases quickly, fairly and with the best use of time and resource.
The revisions to the Tribunal's Rules of Procedure take into account recommendations made by the then Innovation, Universities and Skills Select Committee in its Report of March 2008, recommendations made by an internal Intellectual Property Office Review of 2007, and comments made by stakeholders in response to these reviews".
Thursday, 25 February 2010
* "Beware of the blog", by Rita L. Berardino and Jessica M. Kiser, who explore the spectrum of content and infringement liability risk associated with corporate blogging;
* "The case of the copied photograph", claiming that "a landmark Italian decision has established that producing a painting of a photograph may result in copyright infringement". The authors are Edith Van den Eede and Luca Trevisan (Trevisan & Cuonzo Avvocati);
* "How litigation changed peer-to-peer file sharing", penned (as if anyone uses a pen these days ...) by the Arnold & Porter duo of Richard Dickinson and Alex Watt.
Wednesday, 24 February 2010
Baidu’s usual (and so far successful) defence that it only provides links to infringing sites failed on the facts of this case as the lyrics were actually posted and published on Baidu’s site (rather than linked to) next to links to MP3 search functions. Baidu plans to appeal.
Harvard Law School professor Charles Nesson, who along with a team of his students is defending Joel Tenenbaum, the post graduate student ordered to pay the recorded music industry the combined sum of $675,000 for downloading and sharing songs online has asked a federal judge to reduce the penalty or order a new trial. Nesson’s latest argument is that Tenenbaum only caused the companies to lose a total of $21 when he failed to pay 99 cents charged online for each of the 30 songs in question – and this should be the limit of his damages. Tenenbaum, a Boston University student admitted to downloading music and was penalised in July after being found guilty of violating copyright rules for downloading songs between 1999 and 2007 (see previous blogs on this site). His lawyers have appealed against the "severe" and "oppressive" damage award, asking that it be reduced to 99 cents for each song. The recording labels have described Tenenbaum as a "hardcore" infringer. Interestingly I asked my own students about the latest appeal and a straw poll revealed that sympathy had actually swung to the record labels! The idea of a ‘infringe now, pay iTunes if you are caught’ policy really did strike them as somewhat preposterous – it would be fascinating if Nesson’s defence actually sparks sympathy for the Recording Industry Association of America, routinely reviled and mocked in the blogworld for ‘suing its own customers. Times, they are a changin!
Tuesday, 16 February 2010
In 2008 Gamecock, a publisher of video games, entered into a $10-million contract with CDV, a distributor of video games, for seven games: Dementium, Insecticide, Mushroom Men, Velvet Assassin, Hail to the Chimp, Pirates vs Ninjas and Stronghold Crusader Extreme. Gamecock was in financial difficulties, got behind with paying developers and behind on its delivery schedule. CDV consequently terminated the agreement in respect of four of the games. Gamecock said the games were not late and that the termination was a repudiatory breach of the agreement. Gamecock then set about exploiting the games itself with its new parent company, SouthPeak US.
In November 2009, Mrs Justice Gloster held that CDV had been entitled to terminate the agreement in respect of three of the games and that the agreement had not been repudiated. Consequently, Gamecock found itself both in breach of contract and infringing CDV’s exclusive licence to distribute the games.
The question that arises in last week’s judgment is: was Gamecock’s parent company, SouthPeak, liable for authorizing copyright infringement under s. 16(2) CDPA. Although generally speaking it is relatively hard to find liability for authorizing infringement in English law, there is a species of liability for indirect infringement by ‘participation in a common design’. This line of authority (passing via CBS Songs v Amstrad and Unilever v Gillette) is ‘a bold step, since it applies a common law doctrine to the interpretation of a statute’ (MCA v Charly Records).
SouthPeak, it was held, was infringing by being involved in distributing Gamecock’s games. It was irrelevant that SouthPeak didn’t seem to have intended to infringe. By contrast, SouthPeak was not liable for inducing Gamecock to breach the contract, as that liability requires the offender to know he is inducing a breach.
Monday, 15 February 2010
"At many of the local bars in Campustown, Thursday is karaoke night. With special thanks to cyclobenzaprine, I offer the following commentary on the public reaction to the Amazon/Macmillan kerfluffle, aka AmazonFail 3.21 [see eg here, here and here] — and in particular, to those who took Amazon's side because e-books should never cost more than $9.99:
Karaoke -- sung, slightly off-key, to the tune of Dire Straits' "Money for Nothing"
Sunday, 14 February 2010
1. Does Article 15 of the E-Commerce Directive prohibit an injunction compelling an ISP to filter P2P communications because it would be 'a general obligation to monitor'?
2. If not, should the Belgian court impose such an injunction on Scarlet?
To save even more time, the ECJ could pass on the second question because it has already provided courts with a guideline in Promusicae: the Copyright Directive (including injunctions) should be interpreted in accord with fundamental rights (e.g. rights to property, private life and freedom of expression) and other general principles of Community law (e.g. proportionality). In Sabam the court would balance the copyright owners' property right against users' rights to privacy and freedom of expression; then consider the proportionality of any measures (e.g. effectiveness). Furthermore, Recital 59 of the Copyright Directive says that the conditions and modalities relating to injunctions against digital intermediaries should be left to the national law of the Member States. The ECJ could decline to take on a general obligation to monitor injunctions.
That would leave just the one question – can ISPs be placed under an obligation to filter?
The answer to this question isn't spelled out in black and white in the E-Commerce Directive. It is a policy question that needs to be answered in the context of today's internet, not that of 2000 when the E-Commerce Directive was created. The copyright problem is on a different scale in 2010 (Napster was new on the block in 2000). Privacy concerns about 'monitoring' need to be reviewed in the context of the internet's mass voluntary waiver of privacy via Adwords etc. Concerns about whether ISPs can bear the financial burden of filtering need to be objectively reassessed in the light of real profits made by ISPs today.
How is the ECJ likely to respond? If this leaked document concerning ACTA is anything to go by, the ECJ will not authorize a filtering obligation – nor is it likely to be created by ACTA (see here). Although the issue in ACTA would be a general statutory obligation rather than a single injunction, as in Sabam, the effect of a single unlimited injunction would be comparable. Interestingly, in the consultation process that has culminated in the Digital Economy Bill, the British government looked at a general obligation on ISPs to impose filters (BERR Consultation on Legislative Options to Address Illicit P2P File-sharing, July 2008, Option A4) but in the Government's response of 29 January 2009, that option had disappeared without trace.
Filtering seems to be deemed politically incorrect but is it really such a dud idea? Currently individual rightsholders must scan the endless vistas of the internet in the hope of spotting an infringement. Then they enter the longwinded, expensive process of removing it, knowing that they are only fire-fighting as it will only be the tip of the iceberg. ISPs, by contrast, have a birds-eye view of everything.
If a restaurant has a health and safety problem, who is best placed to fix it? The one-off customer who gets food poisoning? Or the restaurant owner who exercises day-to-day control over the restaurant's premises and practices?
"On the appeal, the Judge was limited to considering whether the Copyright Tribunal had erred in law, not whether the decision was one he would have made based on the evidence. Naturally the company is extremely disappointed that the Judge found there was no error of law although he identified some problems with the decision of the Tribunal. This leaves PPL with tariffs that it believes substantially undervalue the rights of its performer and record company members.”http://www.ppluk.com/en/News--Events/Latest-News/PPL-STATEMENT-ON-APPEAL-DECISION-TO-HIGH-COURT-AGAINST-DECISION-ON-COPYRIGHT-TRIBUNAL/
Friday, 12 February 2010
Now Google has dipped a toe into this very murky swamp in what critics are calling "musicblogocide 2010". It seems Google has deleted at least six popular music blogs that it claims violated copyright law under the US Digital Millennium Copyright Act. The sites, hosted by Google's Blogger and Blogspot services, received notices only after their sites – and years of archives – were wiped from the internet according to a reports in the Guardian and elsewhere. The sites, which included Pop Tarts, I Rock Cleveland, To Die By Your Side, Masala, Living Ears and It’s A Rap all posted up MP3 files (often sourced from record labels and artists) alongside reviews and other materials but were told
"We'd like to inform you that we've received another complaint regarding your blog ….. Upon review of your account, we've noted that your blog has repeatedly violated Blogger's Terms of Service ... [and] we've been forced to remove your blog. Thank you for your understanding."
Bill Lipold, the owner of I Rock Cleveland, who clearly wasn’t very “understanding”, cited four cases in the past year when he had received copyright violation notices for songs he was legally entitled to post saying to Google saying "I assure you that everything I've posted for, let's say, the past two years, has either been provided by a promotional company, came directly from the record label, or came directly from the artist". He told Cleveland newspaper The Plain Dealer: "It's difficult to get across ... that there's a difference between someone working with the blessings of the artists and the labels and someone who leaks Bruce Springsteen's entire discography. They don't see the distinction between someone who's adding value and someone who's facilitating piracy. That goes to the root of this whole mess".
As the story broke Google rushed to assure bloggers that there was an appeals process for “DCMA complaints” and that bloggers could file a DCMA counter claim to show that use of MP3 files was authorised or “official”, although bloggers countered saying that the notices they receive contain no details of infringing tracks and rather worryingly for Google that it was “treating bloggers like Big Brother … shoot first, ask questions after."
Picture and opinion at http://www.crunchgear.com/2010/02/11/googles-sudden-music-blog-purge-and-its-implications/
Thursday, 11 February 2010
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.
Tuesday, 9 February 2010
Saturday, 6 February 2010
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.
Friday, 5 February 2010
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.
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.
Monday, 1 February 2010
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.