1709 Blog: for all the copyright community

Friday, 25 April 2014

Manolito is not the next Spanish summer hit

The 1709 Blog thanks guest blogger Valentina Torelli for the following analysis of a case that has begun to attract a good deal of attention in recent days. The decision in question comes from the Court of Appeal, Madrid, and deals with file-sharing. This is what Valentina says:
A few days ago, following the results of the Observatory of Privacy and Digital Content Consumer Habits for 2013 report, Eleonora wondered about the situation of piracy in Spain, in particular the data suggesting that 84% of content consumed in Spain is said to be from unlicensed sources and that more than half of internet users appear to embrace commonly illegal downloads.

This report was presented by a coalition of companies from the cultural sector on April 9 last and it immediately provoked a reaction of the Spanish Ministry of Culture, which published on its website a communication rejecting the Observatory's conclusions and detailing encouraging figures in the fight against piracy: 349 out of 406 complaints were resolved, with 162 websites suffering removal of unlawful content and 23 being completely closed down.

On the same day, the Court of Appeal of Madrid published its judgment in the controversial Pablo Soto case (here). In Spain, music is one of the creative industries that has been most affected by piracy, suffering not only from illegal downloads but also from the unfair competition of P2P platforms, which are not generally liable for the unlawful activities of their users.

This case started in 2008 when Promusicae (the collecting society representing the music producers in Spain) together with Universal Music Spain SL, Warner Music Spain SL, Sony BMG Music Entertainment Spain SA and EMI Music Spain SA brought an action before the Court of First Instance of Madrid against Mr Pablo Soto Bravo and the two companies solely directed by him, namely OPTISOFT SL and PIOLET NETWORKS SL plus the company M PUNTO 2 PUNTO TECHNOLOGIES SA.

The plaintiffs sought removal of Blubster, Piolet and Manolito both in their free-of-charge and pay-for versions. These sites consisted of an advanced development of the P2P protocol, whereby the search and the sharing of contents are decentralized, meaning that they can be run on the internet within the users' computers, once those applications are downloaded or bought from the defendants' webpages, without any direct involvement of the latter. The problem is that those programs did not provide any specific filter that would allow to distinguish between authorised and unlawful contents to be reproduced and shared between the internet users. Consequently , the plaintiffs also requested that www.blubster.com, www.piolet.com, www.manolito.com and www.mp2p.net be shut down.

The case, which dealt with copyright infringement and unfair competition claims alike, was dismissed both at first instance and on appeal.

In its judgment of 31 March last, the Court of Appeal provided a helpful description as to current state of art regarding copyright enforcement in Spain, pending the entry into force of the recent changes to the Spanish Copyright Act and in particular the introduction – as per Article 138.2 of the draft reform – of contributory and vicarious liability for digital copyright infringement.

Given the decentralised nature of the P2P applications under examination, the court stated that:
1. As to the direct liability for copyright infringement of the defendants:

The online reproduction and the sharing of copyright-protected content is lawful in so far as no copyright-protected material is involved or where the internet users can rely on the authorisation of the right holders. Moreover, the P2P applications should be considered in the light of the principle of the neutrality of technology. Accordingly the applications' creators and/or distributors cannot be considered liable for the unlawful use made out of them.

In the present case, the defendants cannot be defined as ISPs. Thus the related liabilities, provided by the Information Society Services Law (Ley 34/2002 LSSI) implementing the e-Commerce Directive, cannot be applied. The defendants only created and commercialised P2P applications on the internet, without carrying out any acts of mere conduit, caching, hosting and linking. The court added that it was not possible to ascribe direct liability for acts of copyright infringement to them: the defendants neither reproduced nor made available the music files to the public, nor did they harm the TPMs applied to the music files.

2. As to an indirect liability of the defendants for copyright infringement:

Indirect liability for copyright infringement, in the forms of vicarious and the contributory liability, is a controversial matter in Spain. At the moment the judges have no legal grounds upon which they can ascribe liability for indirect infringements.

The court held that, according to indirect liability doctrine, while a third party has infringed a right (i.e. an IP right) the defendant [the indirect infringer] must not only be aware of such illegal activity of but must also have substantially participated in the infringement, by inducing, causing or materially contributing to the infringement (i.e. contributory liability), or by exerting the right/authority of control over the infringer to get a direct financial benefit from the infringement (i.e. vicarious liability). In the Spanish system, unlike in the US legal framework, no typified conduct of indirect liability currently exists.

The Court of Appeal observed that US case-law that construed indirect liability in the Betamax, Napster and Grokster cases could be applied in this domestic dispute. In particular, the provisions in Spanish copyright law outlining the regulation of the TPMs and the DRMs could not be such as to allow applicability of indirect liability doctrine to copyright infringement cases.

3. As to the defendants' liability for unfair competition:

The offer of a P2P application does not imply the misappropriation or taking unfair advantage of the right holders' content where no plan to sink and to unbalance the right holders was conceived.

According to the court, in the case under exam no unfair competition acts of imitation could be ascribed to the defendants, since they solely developed an advanced P2P software in the full exercise of their entrepreneurial and commercially strategic powers. Not even the general clause of goodwill could serve as a legal ground in this dispute: the applications were created for the sharing of all types of audio files, without any control over the unlawful traffic of copyright materials on part of the internet users, given the decentralised nature of the P2P platforms allowing the users to share music files without intermediaries. The defendants did not play any role in deactivating the DRMs applied by the music producers to the music files, thus avoiding any copyright infringement. During the trial it was largely proved that not only were the contested P2P applications completely in compliance with the music files' DRMs but also that on the defendants' websites a copyright notice to prevent IP rights' infringement was placed in a prominent position.
It is apparent that the Spanish piracy situation is causing much concern to the cultural industries inside and outside this country. It is arguable that this critical condition cannot solely be linked to legal technicalities. Spanish judicatures have often claimed that the legal tools in their power are insufficient to fight against the piracy phenomenon, even after the introduction of a judicial-administrative proceeding by means of the Sinde-Wert Law (Ley Sinde) which was passed in 2011 and established an ad hoc antipiracy section within the Intellectual Property Commission. At the time of its adoption, the idea was that this new procedure would have speeded up copyright enforcement, although its targets are only the ISPs. It is also arguable that the provision of accessible legal offers is still insufficient. It is however hoped that the draft Reform Act of the Intellectual Property Law, approved on 14 February last, together with the introduction of new business models applicable to the cultural industry will definitely contribute to finding a new direction for the protection of cultural content.

The ACI Adam and UPC Telekabel judgments: time to legalise file-sharing?

From Joao Quintais and Christina Angelopoulos comes the following note, with a timely reminder concerning the forthcoming Information Influx event. They write:
In Case C-435/12 ACI Adam BV and Others the Court of Justice of the European Union (CJEU) ruled that the private use copying exemption allowed under Articles 5(2)(b) and 5(5) of Directive 2001/29 (the InfoSoc Directive) is limited to reproductions made from lawful sources. This affects how private copying levies can be calculated: the number of reproductions made from unlawful sources can no longer be taken into account. At least as importantly, it also means that a significant number of acts of reproduction made by end-users are now clearly qualified as infringing, such as downloads of movies and music from unlicensed internet sites. Does this strengthen or weaken the case for the legalisation of file-sharing for non-commercial uses?

At the Institute for Information Law's upcoming Information Influx International Conference (Amsterdam, 2-4 July) an expert panel considers the ramifications and potential impact of this and other recent CJEU judgments. IViR researchers will also present the preliminary results of a survey of the Dutch public's views on alternative compensation systems (details here).

In another panel at the same conference entitled “Filtering Away Infringement: Copyright, Injunctions and the Role of ISPs” the focus will lie on the related question of the role of intermediaries in stopping illegal file-sharing. The private copying judgment has repercussions for ISPs too. In Case C-314/12, UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH, the Austrian referring court queried, among other matters, the relevance of the exact parameters of the private copying exception with regard to the interpretation of Article 8(3) of the InfoSoc Directive. That provision treats intermediaries whose services are used by a third party to infringe a copyright or related right as being subject to injunctive relief. The Court concluded that uploaders of infringing content “use the services of intermediaries” in the sense of Article 8(3), which opens intermediaries up to injunctive action. In this way the CJEU avoided discussing the private copying exception in that context. The ACI Adam judgment however would indicate that, even in cases where the Court’s logic in UPC Telekabel would not apply, intermediaries would still not be shielded from injunctions, as the downloader (who indubitably does use the services of her access provider) must also be considered to be participating in the infringement. The implications would be substantial and no doubt will give rise to a lively debate at the conference.
This looks good; this blogger is curious to know what the conclusions of the expert panel might be, and hopes to hear all about it after the event.

Thursday, 24 April 2014

Supreme Court's decision in Aereo could have a significant impact on other technologies

In the recent oral hearing, U.S. Supreme Court appeared a little unsure of whether to rule against Aereo Inc in the major copyright case brought by a group of US broadcasters against the controversial start up.  Several justices raised concerns about how a ruling in favour of broadcast networks could affect increasingly popular cloud computing services - and with both liberal and conservative justices split on what the way forward should be. That said, Aereo, backed by media mogul Barry Diller, could be forced to shut down if the Supreme Court rules for the four major television broadcasters, with the broadcasters saying the service violates copyright law. Aereo charges users a low monthly fee to watch live or recorded broadcast TV channels on computers or mobile devices. Aereo, which launched in 2012, offers the public a means to view broadcast TV over the internet, providing an alternative to expensive cable TV services and say all they do is enable people to access the airwaves with tiny TV antennas, and for this reason the company says they don't have to license broadcasts.

Several Supreme Court justices expressed scepticism at the Aereo business model at the Tuesday hearing, saying that it looked like the company had created to a "technical workaround" to bypass copyright laws: "Your technology model is based solely on circumventing legal prohibitions” Chief Justice John G. Roberts said to Aereo’s attorney David Frederick and asked if there was any particular reason why the company uses thousands of individually assigned antennas - except to avoid copyright fees owed to broadcast networks: “It looks as if somehow you are escaping a constraint” other companies are held to under copyright law, Justice Stephen Breyer said and Justice Ruth Bader Ginsburg noted that one lower court judge’s dissenting opinion stressed that Aereo appeared to be a technology entirely conceived as a legal workaround saying “You are the only player so far that doesn’t pay [a] royalty”.  Retransmission fees are expected to reach $3 billion in the U.S. this year.

But some justices also raised concerns that a decision siding with the television broadcasters could have far-reaching effects on new Internet, cloud and other technologies - from companies such as Google, Microsoft, DropBox and Box, which would then be swept up in other questions about the reach of copyright laws. Justice Stephen Breyer told the networks' attorney, Paul Clement, that his legal argument "makes me nervous about taking your preferred route" and that  he was concerned about what a decision “will do for other technologies.” Justice Sotomayor continued this line of thought, citing different technologies–Dropbox, iCloud, Roku and Simple.TV - and asked lawyers for both sides to make distinctions between them and Aereo. At one point she gave the example of a coaxial cable supplier and asked Clement, “How do I avoid a definition [of ‘public performance’] that might make those people liable?”

The company's fate was placed in the hands of the Supreme Court when ABC network, CBS Broadcasting, Comcast's NBCUniversal and Twenty-First Century Fox appealed a decision by the 2nd U.S. Circuit Court of Appeals in April 2013 that denied their request to shut Aereo down while litigation moved forward.

The Electronic Frontiers Foundation (EFF) commented "The Court will probably decide the case by late June. Yesterday’s oral arguments didn’t give much indication of how the Supreme Court will ultimately rule. But they made clear that the Court is rightfully concerned about side effects of too broad a ruling. It's only in the most narrow sense that Aereo is a case about dime-sized antennas. Fortunately, the Court seems to realize that the issues it raises are much, much larger."

Following the oral arguments,  counsel for Aereo, David Frederick, said, "The court's decision today will have significant consequences for cloud computing. We're confident, cautiously optimistic, based on the way the hearing went today that the Court understood that a person watching over-the-air broadcast television in his or her home is engaging in a private performance and not a public performance that would implicate the Copyright Act."  

New York University School of Law Professor Chris Sprigman explains the copyright law behind the Supreme Court case with 'billions of dollars' of re-transmission fees at stake - and what the decision may mean for the television industry going forward on Bloomberg Television’s Market Makers http://www.bloomberg.com/video/aereo-broadcast-television-and-u-s-copyright-law-QcnU7kRoQQueVRpa30L9cg.html 

More on the Washington Post here and the EFF here

Wednesday, 23 April 2014

The CopyKat - on World Book and Copyright Day

Tom Lehrer in 1960
A fascinating post on TechDirt on the refreshing attitude to copyright from Tom Lehrer,  the American singer-songwriter, satirist, pianist, and mathematician, best known for the pithy, humorous songs he recorded in the 1950s and 1960s. In particular the article looks at what would happen to fan sites after he died. Tom's position on copyright after his death? "Well, I don’t need to make money after I’m dead" and on being asked if he would establish a foundation or charity or something similar before he died to look after his legacy he replied "No, I won’t. They’re mostly rip-offs." He's the man! However, and as one comment says,  the problem for the fan sites is that Tom won't be in control of his copyright after he dies ...

MegaUpload boss Kim Dotcom has secured an important victory in New Zealand with news that personal assets seized by the New Zealand authorities when Dotcom's home was raided amidst the US-led action against MegaUpload in 2012 could be returned to him within the next two weeks. The Auckland High Court has decided not to extend an order to allow police to retain the items. IF no appeal is lodged, Dotcom will be be entitled to the return of personal property, several cars and around $10 million in cash early next month. Dotcom tweeted yesterday: "Breaking News: High Court ruling just now. Mona and I are getting our New Zealand assets back, unless the Crown appeals. The NZ asset ruling is HUGE. We've just filed a case in Hong Kong against unlawful seizure of MegaUpload. The US case is falling apart! Our assets were seized for 800 days and still I was able to fight back even with my hands tied behind my back. Imagine what I can do now!" Dotcom is still facing extradition proceedings to send him to the US to face criminal charges resulting from his previous MegaUpload activities.

South Korea, China, Russia and Mongolia have held four-way talks on copyright law and intellectual property, strengthening their cooperation on patents, trade secrets and trademarks. The workshop saw policymakers and academics from the four nations discuss progress on copyright protection in each country and ways to improve bilateral and multilateral cooperation. The workshop was jointly organized by the Ministry of Culture, Sports and Tourism (MCST), the World Intellectual Property Organization (WIPO) and the Korea Copyrights Commission. 

The major record labels are now suing Pandora for exploiting sound recordings made prior to Feb. 15, 1972. Last September, a similar lawsuit was filed against Sirius XM. The RIAA (Recording Industry Association of America) explains that the claim arises as sound recordings didn't begin falling under federal copyright protection until 1972 and therefore the streaming service might not be able to rely upon blanket licences from SoundExchange, the performance rights organization that collects digital and satellite royalties on the behalf of sound recording copyright owners. The record labels are testing this belief, now asserting New York state misappropriation claims over older music being streaming on Pandora saying "Pandora's refusal to pay Plaintiffs for its use of [Pre-72] recordings is fundamentally unfair" and the companies say in their complaint "Pandora's conduct also is unfair to the recording artists and musicians whose performances are embodied in Pre-72 Recordings, but who do not get paid for Pandora's exploitation of Pre-72 Recordings."  
Maori warriors perform a Haka by Erin A. Kirk-Cuomo

Back to New Zealand: Radio New Zealand tells is that the Ngati Toa tribe is to campaign for copyright legislation to cover its tribal haka, Ka Mate. The Government has already created a law to ensure commercial users credit the composer, Te Rauparaha. But Ngati Toa chair Taku Parai said his tribe has been pushing for stronger legislation. He said negotiators attempted to secure a copyright law as part of a Treaty settlement - and will try again in five years time.

And finally it seems April 23rd is World Book and Copyright Day. 23 April is a symbolic date for world literature. It is on this date in 1616 that Cervantes, Shakespeare and Inca Garcilaso de la Vega all died. It is also the date of birth or death of other prominent authors, such as Maurice Druon, Haldor K.Laxness, Vladimir Nabokov, Josep Pla and Manuel Mej√≠a Vallejo. The day celebrates the contribution of books and authors to our global culture and the connection between copyright and books. World Book and Copyright Day 2014 theme is "History and Stories".

Wednesday, 16 April 2014

The CopyKat - hoping to find a new public

It seems that 84% of all the content Spanish internet users consumed in 2013 was - well - illegal. The statistics come from a new report from a coalition of music, film, publishing and gaming firms who will no doubt be looking for the Spanish government to further step up its anti-piracy efforts. With that in mind, the Reports says that 28% of surveyed Spanish web users admitted to illegally downloading music on a regular basis, while over 40% access films illegally. Spain’s Ministry Of Culture played down Report saying their report was just a “rough opinion study commissioned by interested parties”.

In Saudi Arabia Arab News reports that the Ministry of Culture and Information has closed down 72 shops in Riyadh for copyrights violations of video games, movies and selling unlicensed software, local media reported. Ali Al-Bishi, head of the Copyrights Department in the ministry said that inspection teams had discovered instances of violation of copyrights and sent orders to close down 72 shops  periods ranging from seven to sixty days. The process authorizes a copyright violations committee to impose fines ranging from a minimum of SR7,000 (£1,115) to a maximum of SR50,000 (£8,000). Decisions can also include compensation for infringement, permanently closing down store and 'naming and shaming'. 

Out in the field:  a new public?
Gizmodo tell us that "the US Copyright Office recently proposed a seemingly small addition to copyright law that bears some huge implications. It wants to enable copyright holders to protect unauthorised versions of their work from hyperlinks. You read that right: It could soon be illegal simply to link to certain content." That set their comments section on fire with one saying "Aren't hyperlinks the entire point of the internet?" whilst another mooted the Congress would see sense despite the lobbying efforts of the MPAA and the RIAA on behalf of the film and recorded music sectors adding "Hyperlinks are just a means of directing someone to a work. There is no copying and no supply of a copy. Before the Internet, you could tell someone where to go to find an infringing book or album or painting and the mere act of telling them wouldn't be copyright infringement. Hyperlinks do exactly that, albeit more efficiently". Readers will remember the recent Court of Justice of the European Union decision in  Svennson that held that the provision on a website of clickable links to works protected by copyright and  freely accessible on the ‘original’ website, constitutes an act of “communication to the public” as meant in article 3(1) of the Copyright Directive BUT to infringe, the communication must be directed at a “new public,” meaning a public that was not taken into account by the copyright owners when they authorized the initial communication to the public - so when providing hyperlinks to freely accessible (digital) works on a website, no permission from the copyright owners is required.

Party in a park - another new public?
I was pondering how an analogy to Svensson might be applied to that thorny issue of Sky TV's lucrative live transmissions of Premiership football in the United Kingdom  - and any possible ramifications on the decision in the Karen Murphy case which also went all the way to the CJEU andthen back to the Hugh Court and Court of Appeal, and  which found that Ms Murpy could use a Greek Nova decoder card herself to watch live football - but it's debatable if this can extend to public showings in her public house. Now then, is that because this is a communication to a 'new public' ?

Back in October 2011 I mused thus: Copyright MIGHT protect the FAPL though - for the protected elements of any programme: I am not convinced Karen Murphy is safe to show the NOVA feed in public as the ECJ said that this is communicating the public and a pub screening would be an unlawful, profit-making communication to the public of copyright works it would not have been taken into account or considered by the authors of the protected works. She can own the decoder and buy the NOVA service for her private use. 

One public is behind this goal
But where are we now? The Premiership (FAPL) make their content available in the UK via Sky as well as making it available live via other broadcasters elsewhere in the EU, and the content is therefor available to all Europeans. So who might a new audience (a new public) be? And why should Karen Murphy's customers be included (or excluded)? Remember the CJEU said this when applying competition law "A system of licences for the broadcasting of football matches which grants broadcasters territorial exclusivity on a Member State basis and which prohibits television viewers from watching the broadcasts with a decoder card in other Member States is contrary to EU law": Surely the public FAPL must had in mind is the whole of Europe. Now, unlike the material and content in Svennson, Sky's transmissions are protected by technology - as are most (all?) of the other European broadcasters carrying live Premiership football, and so decoders and decoder cards are needed: but does this matter? Ms Murphy did have a 'paid for' decoder card for her pub in Portsmouth - just one from Nova in Greece - not Sky in the UK: So, surely (and please DO shoot me down) it's arguable that the FAPL must accept that by allowing the signal to go out live anywhere in the EU, pan-European stylee, means that neither the Sky Audience nor the Nova audience can then be a 'new public' - because they are one public. One public, which comprises all (football loving) Europeans (with decoders).  With at least 100 British pubs using foriegn decoders to show live Premiership football  facing actions by FAPL, it's still an important question - and this blogger wonders where this one will go. And let's not forget Eleonora's very relevant December 2012 post on the Court of Appeal's musings in particular on the S72(1) defence on the IPKat - it's well worth a re-read and can be found here as is the paper on Communicating to the Public by Enrico Bonadio and Mauro Santo.

Back in January four people in the USA were charged in connection with pirate apps developed for Android devices. Now all four of these defendants have pleaded guilty to charges of conspiracy to commit criminal copyright infringement.

And finally, Google has called for content licensing in the European Union to be simplified: In its submission to the European Commission's public consultation on the review of copyright rules Google says: "We believe the [European] Commission should consider appropriate means of ensuring that rights that cover a single act of exploitation are licensed together" Google said in the response to the Commission's review of the EU copyright framework; "The lack of a single license for a single act of exploitation is an historical remnant, an attempt to use approaches to licensing analog products for digital ones" and has said that it is wrong that businesses should have to pay separate royalties to cover each of the "multiple rights" protected by copyright when making single use of that material - singling out digital music licensing and the role of collection societies for particular criticism saying music licensing was outdated and "structured by right holders as if a digital act of exploitation is a mixture of pressing a compact disc implicating the mechanical reproduction right and broadcasting implicating the performing rights/communication to the public right" and "In territories where different collecting societies administer each right, each society wants to be paid for the same activity by claiming that separate rights are implicated, including rights that have no independent economic value" adding "A collecting society in charge of managing the right of making available might claim royalties for the act of simply loading files to a server connected to the internet, even if no one ever accesses those files."  More on Out-law here.

Friday, 11 April 2014

External competence to negotiate copyright protection treaties: who can do it for the EU?

Case C‑114/12 European Commission v Council of the European Union nearly escaped this blogger's attention completely, since there was no obvious giveaway in the title of this case to suggest that it had anything to do with copyright. The C-word however appears no fewer than 38 times in Advocate General Sharpston's Opinion. So what's it all about? As AG Sharpston explains:
"A dispute has arisen between the European Commission and the Council of the European Union about the competence to negotiate a Convention of the Council of Europe on the protection of the rights of broadcasting organisations.  On 19 December 2011, the Council and the Representatives of the Member States (meeting in the Council as representatives of their respective governments) authorised the Commission to participate in the negotiations for the Convention as regards matters falling within the European Union’s competence and instructed the Presidency to negotiate on behalf of the Member States as regards matters falling within the latter’s competence.

The Commission seeks annulment of the Decision on the ground that it fails to respect the European Union’s exclusive external competence in the area of protection of rights of broadcasting organisations. Furthermore, the Commission submits that the Decision should be annulled because it was adopted in violation of the applicable procedural rules and the principle of sincere cooperation".
In short, the AG agreed that the Decision should be annulled, for the following reasons:
* it violated both Article 218(2) TFEU, according to which it is for the Council alone to authorise the opening of negotiations concerning an international agreement and to adopt negotiating directives,

* it also violated Article 13(2) TEU, in that the Council cannot have recourse to alternative procedures and may not unilaterally derogate from the procedure in Article 218(2) TFEU by including the Member States, acting collectively in the Council, in its decision-making process.

* by adopting the Decision by common agreement, the Council violated Article 218(8) TFEU, because the Decision had to be adopted by qualified majority, this also being the general rule stated in Article 16(3) TEU.
There will be more to come, so watch this space.

Thursday, 10 April 2014

Private copying of unlawful reproductions: CJEU says "no!"

This morning the Court of Justice of the European Union gave judgment in Case C-435/12 ACI Adam BV and Others v Stichting de Thuiskopie, Stichting Onderhandelingen Thuiskopie vergoeding. The judgment is so far available in just five official languages of the European Union, none of which this blogger can handle, so he reproduces the Curia press release for your edification here:
"The amount of the levy payable for making private copies of a protected work may not take unlawful reproductions into account 
The fact that no applicable technological measure to combat the making of unlawful private copies exists is not capable of calling that finding into question

The Copyright Directive [ie Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society] permits Member States to lay down an exception to the exclusive reproduction right of holders of copyright and related rights so that private copies may be made (the private copying exception). It also provides that Member States which decide to introduce such an exception into their national law are required to provide for the payment of ‘fair compensation’ to copyright holders in order to compensate them adequately for the use of their protected works or other subject-matter.

ACI Adam and Others are importers and/or manufacturers of blank data media such as CDs and CD-Rs. Under Netherlands law, those companies are required to pay a private copying levy to a foundation, Stichting de Thuiskopie. The amount of that levy is determined by another foundation, ‘SONT’.

ACI Adam and Others take the view that, when determining the amount of the levy, SONT should not have taken into account the harm which may be suffered by copyright holders as a result of copies made from unlawful sources.

Against that background, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) decided to seek a preliminary ruling from the Court of Justice.

In its judgment delivered today, the Court points out that if Member States were free to adopt legislation permitting, inter alia, reproductions for private use to be made from an unlawful source, the result of that would clearly be detrimental to the proper functioning of the internal market [not sure about this: the whole point of copies for private use is, or at any rate was, the fact that each such copy had no impact on the market at all. If this is so, then it's difficult to see how consideration of the liability of an individual for making a private copy of an unauthorised, rather than a lawful, work would affect the functioning of any market, anywhere. Can someone please explain?].

Similarly, the objective of proper support for the dissemination of culture may not be achieved by sacrificing strict protection of copyright or by tolerating illegal forms of distribution of counterfeited or pirated works [but the toleration of the making by an individual of a copy for private purposes is not to be equated with the making or distribution of counterfeit or pirate works by commercial infringers].

Consequently, the Court holds that national legislation which makes no distinction between private copies made from lawful sources and those made from counterfeited or pirated sources cannot be tolerated.

First, to accept that such private reproductions may be made from an unlawful source would encourage the circulation of counterfeited or pirated works, which would inevitably reduce the volume of sales or of lawful transactions relating to the protected works and would consequently have an adverse effect on normal exploitation of those works [Why? The person making money from distributing and selling fakes doesn't isn't going to be more enriched, is he, when someone makes a private copy of "his" work than when it's made of the legimate copyright owner's?]. Secondly, the application of such national legislation may unreasonably prejudice copyright holders.

Furthermore, the Court states that it is for the Member State which has authorised the making of private copies to ensure the proper application thereof and to restrict acts which are not authorised by the rightholders.

National legislation which does not distinguish between lawful and unlawful private reproductions is not capable of ensuring a proper application of the private copying exception. The fact that no applicable technological measure exists to combat the making of unlawful private copies is not capable of calling that finding into question.

Furthermore, the levy system must ensure that a fair balance is maintained between the rights and interests of authors (as the recipients of the fair compensation) and those of users of protected subject-matter.

A private copying levy system, which does not, as regards the calculation of the fair compensation payable to its recipients, distinguish between the lawful or unlawful nature of the source from which a private reproduction has been made, does not respect that fair balance.

Under such a system, the harm caused, and therefore the amount of the fair compensation payable to the recipients, is calculated, according to the Court, on the basis of the criterion of the harm caused to authors both by private reproductions which are made from a lawful source and by reproductions made from an unlawful source. The sum thus calculated is then, ultimately, passed on in the price paid by users of protected subject-matter at the time when equipment, devices and media which make it possible to create private copies are made available to them.

Thus, all users are indirectly penalised since they necessarily contribute towards the compensation payable for the harm caused by private reproductions made from an unlawful source. Users consequently find themselves required to bear an additional, non-negligible cost in order to be able to make private copies".
There seems to be an awful lot of assertion here; this blogger looks forward to reading the full judgment in order to find out how much of it is based on anything more substantial.

Eleonora has posted a "breaking news" item on the IPKat blog here, but promises more to come once she has digested the ruling in full. We await her further thoughts with excitement.

Wednesday, 9 April 2014

Wednesday's CopyKat is an off-to-court Kat: how apealing

Variety reports that MGM and James Bond producers Danjaq have filed a copyright infringement suit against NBC Universal claiming that the studio’s planned “Section 6″ feature film is a rip off of the lucrative 007 franchise. The law suit, filed in U.S. District Court in Los Angeles, also names screenwriter Aaron Berg and says. “This lawsuit concerns a motion picture project, in active development, featuring a daring, tuxedo-clad British secret agent, employed by ‘His Majesty’s Secret Service,’ with a ‘license to kill,’ and a 00 (double-O) secret agent number on a mission to save England from the diabolical plot of a megalomanical villain”. I have to say that does sound familiar ......  mind you, it would also sound quite like the plots of the Johhny English films too. The suit goes on to say that the the project, which is planned to be directed by Joe Cornish and starring Jack O’Connell “misappropriates from the James Bond works far beyond the signature aspects of James Bond,” and that it copies “in detail nearly every aspect of the characters, plots dialogue, themes. setting, mood and other key elements of the copyrighted James Bond literary works and motion pictures.”  In 1995 a federal court in Los Angeles ruled in favour of MGM in its contention that a Honda commercial violated its copyrights with a commercial that evoked Bond, even though that name was not used. Injunctive relief is sought. 

The American Cable Association (ACA) has become the the latest trade body to come out in support of the legitimacy of the Internet TV streaming service Aereo in the upcoming appeal in the US Supreme CourtThe ACA – which represents some 850 smaller and medium-sized, independent cable companies – has filed an amicus brief urging the Court to uphold the legality of Aereo’s technology as safely fitting within the tradition of maintaining the public’s ability to access freely available local broadcast TV signals, and reject the copyright claims from broadcast companies to "protect business models and erect pay walls".  That said, the US Copyright Office general counsel Jacqueline C Charlesworth, speaking at the American Bar Association’s Intellectual Property Law Conference in Washington, told delegates that the legal basis for Aereo’s antenna-based online television streaming service was“fundamentally incorrect”. According to Law360, Charlesworth said the “very important case” had implications far beyond the particular business model, that really goes to on-demand or interactive streaming services in general. “Taken to its logical extreme … it would threaten a lot of existing systems where content owners are receiving royalties”. With the apparent variety of opposing opinions already highlighted in the US judiciary, surely it is time to revisit Cablevision?  

Not a work of art ......
The Gujarat High Court has dismissed a criminal complaint alleging copyright infringement against a shop owner, Hasmukh Panchal, who dealt in duplicate parts of Hyundai cars. The Court held saying that automobile parts cannot be treated as works of art for which Copyright Act can be invoked. Whist Charges under sections 63 and 65 can be used for works including to painting, sculpture, drawing, and photographs and on works of literature, its not for car parts. 

Filmakerz.org, one of the websites that was targeted by the recent wide-ranging web block order against 45 websites linking to infringing material issued by the Public Prosecutor of Rome to ISPs - has won appeal before the Court Of Appeals in Rome. Appeal judges ordered the blockade against the video sharing site be lifted on the basis that the whole site blockade was too wide and resulted in legitimate content on the Filmakerz.org platform being blocked too. The appeals court also said that web-block injunctions should only be issued against sites which are clearly profiting from the infringement they commit or enable.

And Singapore is looking to introduce blocking orders against websites which blatantly infringe copyright in proposed changes to the Copyright Act - in a move to give rights holders more effective measures to act against sites which host pirated content. A public consultation on the proposed new laws is underway till 21 April. The Media Convergence Review Panel's 2012 recommended a multi-pronged approach to address online piracy, comprising (a) public education, (b) the promotion of legitimate digital content services, and (c) the adoption of appropriate regulatory measures. 

More from PIPCU. The City of London's  Police Intelligent Crime Property Unit, who are targeting one of the most torrented, streamed and illegally downloaded TV series of all time, Game of Thrones: just one episode in series 3  racked up 4,280,000 illegal downloadsAs well as creating an "Infringing Website" list, officers are trying to replace advertising banners on illegal sites with a tailored message. Rights holders identified a total of 61 websites that provided unauthorised access to the show during its first episode of the new series. In response, PIPCU has sent deterrent notices to those domains, giving the sites the chance to remove the content. If a domain does not act in time, it seems PIPCU will contact advertisers and demand that all revenue to the infringing site be shut down.

A group of film studios including Twentieth Century Fox Film Corp., Disney Enterprises Inc., Paramount Pictures Corp., Universal City Studios Productions, Columbia Pictures Industries Inc. and Warner Bros. Entertainment Inc have filed a lawsuit in the U.S. District Court in Virginia against MegaUpload boss Kim Dotcom, Vester Limited, the majority shareholder of Megaupload Limited, Mathias Ortmann, the site's chief technical officer, and Bram van der Kolk, who oversaw programming. The suit alleged that the defendants encouraged and profited from copyright infringement of movies and television shows before they were indicted on federal criminal charges and Megaupload was shut down.

An interesting article in the Moscow Times from Elena Trusova (Goltsblat BLP, the Russian practice of Berwin Leighton Paisner) looking at how the new Russian "Anti-piracy law" is being used against Internet sites hosting illegal audiovisual works: there seem to have been more than a hundred applications against dozens of sites - the majority from Russian content owners rather than foreign firms, and the courts "frequently use quite a general wording to describe the measures applied to the defendant, such as: "desist from creating technical conditions allowing hosting, distribution and other use of a motion picture on a certain website". Elena explains that "This approach provides some freedom of action for both the plaintiff and Roskomnadzor, in charge of enforcing the ruling during the enforcement stage. In particular, on the basis of this wording, it is quite possible not only to block access to an individual link or separate page of web-site but also to the information source as a whole, if, for instance, all its contents are used for publishing illegal content or links thereto." You can click through to the article here . 

And finally a quick review of some interesting updates

The Prenda Law 'trolling' case: the appeal by three of the attorneys who were associated with Prenda, Steele Hansmeier PLLC and Alpha Law  goes from bad to worse as the oral hearing begins. More here .

Malibu Media: an adult film company also accused of trolling, has said that it will settle cases based on the outcome of a lie detector test. Documents filed in the Northern District of Illinois Federal Court say  "Malibu will dismiss its claims against any Defendant who agrees to and passes a polygraph administered by a licensed examiner of the Defendant's choosing". Malibu have “filed 268 cases within the Northern District of Illinois". More here

U.S. District Judge Henry Edward Autrey has awarded Warner Bros. $2.57 million for violations of their  copyrights in The Wizard of Oz, Gone with the Wind and the Tom and Jerry cartoon series by a number of 'collectibles' dealers who repeatedly infringed their copyrights - and submitted financial figures to the court which the judge clearly thought were unreliable at best. Judge Autrey said "This court finds statutory damages of $10,000.00 per infringement to be reasonable, considering: the factual history of this case, including defendants' failure to provide accurate records in order for plaintiffs to determine the profits made for the infringements; defendants' undisputed continued infringement after the initiation of this suit; the need for specific deterrence of the defendants' further copyright violations; the need for general deterrence for others who may consider engaging in copyright violations; and comparative awards of statutory damages by other federal district courts confronted with similar violations".More here.