Appeal filed in 'Blurred Lines' case

It comes as no surpise that Pharrell Williams, Robin Thicke and TI have fied their appeal against the verdict in the 'Blurred Lines' case that saw them ordered to pay $5.3m (reduced from $7.3 million) and pay over 50% of songwriting and publishing revenues to the family of Marvin Gaye, after a jury ruled last year that their song copied Gaye’s 1977 hit 'Got to Give It Up'. Lawyers for the trio filed their opening brief with the Ninth Circuit Court of Appeals on 24th August, arguing that “if left to stand, the Blurred Lines verdict would chill musical creativity and inhibit the process by which later artists draw inspiration from earlier artists to create new popular music” and at the heart of their appeal is the argument that the Judge and indeed the jury shoud have simply considered the sheet music – the “deposit copy” filed with the the US copyright office - and not been influenced by the actual reciordings of either song. The "Blurred Lines" writers assert that when the court examined the two songs before the trial,  Judge John A. Kronstadt shoud have ruled that the case was not worthy of trial.

The brief states: “What happened instead was a cascade of legal errors warranting this court’s reversal or vacatur for new trial .... At summary judgment, the district court entertained expert testimony by musicologists for the Gayes who based their opinions entirely on the sound recording, not the deposit copy. The court correctly filtered out non-deposit copy and generic musical features from their testimony, but then erroneously failed to compare what remained to Blurred Lines .... At trial, the district court made things worse. While correctly excluding the Got to Give It Up sound recording itself, the court erroneously allowed the Gayes’ experts to testify about the sound recording anyway, including by playing their own musical excerpts based on the sound recording. The court then instructed the jury that it could consider all this testimony in its substantial-similarity analysis.”

This writer was expecting an appeal well before the recent decison in the 'Stairway to Heaven Case' where Led Zeppling where found not to have plagiarised a song 'Taurus' by Spirit - a decision must have boosted the appellant's confidence.

http://www.rollingstone.com/music/news/pharrell-robin-thicke-ti-appeal-blurred-lines-verdict-w436116

http://www.theverge.com/2015/12/9/9877706/robin-thicke-pharrell-blurred-lines-marvin-gaye-appeal

http://www.wipo.int/wipo_magazine/en/2015/05/article_0008.html

https://thump.vice.com/en_uk/article/we-talked-to-a-lawyer-about-how-the-blurred-lines-verdict-will-impact-copyright-law-in-dance-music

Breaking News - 7th Circuit confirms that Sherlock Holmes and Dr Watson are in the public domain

Today the US Court of Appeals for the 7th Circuit issued its decision in Leslie Klinger v Conan Doyle Estate, in which upheld the decision of the US District Court for the Northern District of Illinois - Eastern Division that Mr Klinger was free to use material in the 50 Sherlock Holmes stories and novels that are no longer protected by copyright. Writing on behalf of the Court, Circuit Judge Richard Posner recalled the decision in Silverman v CBS, in which the 2nd Circuit held that when a story falls into the public domain also its story elements - including its characters - do. Works derived from earlier works whose copyright has expired may nonetheless be protected, but copyright will only extend to the "incremental additions of originality contributed by the authors of the derivative works." 

Much more from Eleonora on the IPKat here

Background here http://the1709blog.blogspot.co.uk/2013/12/the-return-of-sherlock-holmes.html and here http://the1709blog.blogspot.co.uk/2013/09/the-expiring-detectives-last-case.html and here http://the1709blog.blogspot.co.uk/2013/03/sherlock-holmes-and-case-of-copyright.html 

The CopyKat - Tenenbaum, Teutonic Trolls and Tipis top our treats

The First Circuit Court Of Appeals has rejected the appeal by file sharer Joel Tenenbaum and has upheld the original damages awarded to the Recording Industry Association of America (RIAA) against the post graduate student of $675,000, rejecting the argument that being ordered to pay $22,500 in damages for each of the 31 songs that were illegally uploaded was excessive. The US Supreme Court had refused to consider the case. The court said: "Tenenbaum carried on his activities for years in spite of numerous warnings, he made thousands of songs available illegally, and he denied responsibility during discovery. Much of this behaviour was exactly what Congress was trying to deter when it amended the Copyright Act".

Germany has introduced new legislation that limits damages that copyright holders  can receive from individuals using illegal file-sharing sites to download music, films or TV series. The legislation limits individual claims to €1,000 ($1,300), meaning the warning fine for a first-time offender, to cover legal expenses, would be capped at around  €155 ($200). A poll by the Federation of German Consumer Organizations estimated that some 4.3 million Germans had  received warnings for infringement, some  demanding an average of $1,000 (€800) per offence: Germany’s Justice Minister  Sabine Leutheusser-Schnarrenberger said the move would stop company’s building ’business  models’ out of warnings.

And more from Germany and In what appears to be a trolling case, a German court has rejected a US film company's request to provide details of alleged illegal downloaders after deciding that there was no copyright in two pornographic films. The Munich regional court decided  that the "primitive" depiction of sex meant that Flexible Beauty” and “Young Passion” could not be protected by Intellectual property laws in Germany saying that the “primitive depiction of sexual processes” mean Malibu Media's films are classified as “pure pornography” and not a copyrighted work. But what about performers rights anyone?

The UK's Intellectual Property Office has announced  that it will provide £2.5 million to the City Of London Police to fund a specific policing unit focused on intellectual property crime, including online piracy. Announcing the new IP crime unit, which is expected to be up and running by September, IP Minister James Younger said "Intellectual property crime has long been a problem in the world of physical goods, but with the growing use of the internet, online intellectual property crime is now an increasing threat to our creative industries. These industries are worth more than £36 billion a year and employ more than 1.5 million people".  The City of London Police have worked with the international recorded music trade body the IFPI to persuade credit card companies and other online payment processors not to accept monies for websites involved in providing access to pirated goods.

Universal Music Publishing has mandated the Australasian Performing Right Association (APRA) and its mechanical rights sister body AMCOS to licence its songs catalogue to digital services throughout almost all of the Asia Pacific region, excluding Japan. The landmark arrangement means APRA/AMCOS will be the first collecting society to represent a major  publisher's catalogue in multiple territories in the Asia Pacific market.

Keef Rocks Glastonbury

Five songs into the Rolling Stone's Glastonbury set, and Mick Jagger introduced a "new" song, written for a girl "in cut-off jeans" he claimed to have met at the Festival on Friday night. It was, according to the BBC, a swampy country-rock number called Glastonbury Girl, and featured the refrain "Waiting for my Glastonbury Girl". In was in fact a re-working of Factory Girl which appears on their 1968 album Beggars Banquet and is it seems published by ABKCO Music Inc (originally Mirage Music) and administered by Alfred Music Inc. But with Sir Mick and Keith Richards having recently re-signed their music publishing rights to BMG, its interesting to see who will be collecting royalties for the lyrics of this "new" song which features references to  wet wipes, inhaling nitrous oxide, camping and ecstasy:  Original lyrics which said a young Mick was "Waiting for a girl who's got curlers in her hair; Waiting for a girl, she has no money anywhere; We get buses everywhere; Waiting for a factory girl" were replaced with a 69 year old Mick who was "Waiting for a girl, helped put up her tipi, waiting for a girl she took all my ecstasy, now she's off with Primal Scream, waiting for a Glastonbury girl". The Rolling Stones official website has the lyrics set out in full, but gives no clues as to who owns what either.

Image: Nick Cordes 2013

European Court of Human Rights rejects Pirate Bay founders appeal

Two of the founders of the Pirate Bay have failed in what I presume is their final appeal against their convictions for copyright infringement in the Swedish criminal courts, with the European Court of Human Rights finding that Sweden had rightly convicted the pair.

Fredrik Neij and Peter Sunde were sentenced to one year imprisonment by the Stockholm District Court in April 2009 for crimes against the Copyright Act. Together with two other defendants they were also found liable for damages of approximately K30 million (US$4.3 million). Their prison sentences were reduced in November 2010 by the Svea Court of Appeal, but the joint damages were increased by that court to K46 million (US6.8 million). The Swedish Supreme Court denied them an appeal hearing in February 2012. 

Neij and Sunde complained that their convictions infringed their freedom of expression under Article 10 of the European Convention in Human Rights and that as their website facilitated the exchange of information, they could not be held liable for their user’s infringing acts. The ECHR had to balance Article 10 - the freedom of expression (even if such included material that infringed copyright) with the legitimate interests of copyright owners. The Court held that sharing, or allowing others to share, files of this kind on the Internet, even copyright-protected material and for profit-making purposes, was covered by the right to 'receive and impart information' under Article 10.  However, the Court considered that the domestic courts had "rightly balanced the competing interests at stake and that the necessity to protect copyright rightly prevailed over the rights of the applicants to receive and impart information when the applicants were convicted": Since the shared material was protected under the Swedish Copyright Act, the ECHR held that the interference with the freedom of expression by the Swedish authorities had been prescribed by law.

In particular the court looked at the nature of the information shared and said "In this connection, the Court would also underline that the width of the margin of appreciation afforded to States varies depending on a number of factors, among which the type of information at issue is of particular importance. In the present case, although protected by Article 10, the safeguards afforded to the distributed material in respect of which the applicants were convicted cannot reach the same level as that afforded to political expression and debate. It follows that the nature of the information at hand, and the balancing interest mentioned above, both are such as to afford the State a wide margin of appreciation which, when accumulated as in the present case, makes the margin of appreciation particularly wide".   In addition the Court held that considering that Neij and Sunde "had not removed the copyright-protected material from their website despite having been requested to do so, the prison sentence and award of damages could not be regarded as disproportionate". And that "Therefore, the interference with the right to freedom of expression had been "necessary in a democratic society”. 

The seven judge court unanimously rejected the application as "manifestly ill-founded". 

Neij continues to evade Swedish justice, living in Laos. Sunde lives in Berlin. The third defendant, Gottfrid Warg was deported from Cambodia on visa irregularities and is currently in custody in Sweden. The fourth defendant, millionaire Carl Lundstrom, has made a relatively small ($35,000) payment towards the damages owed, and served his four month sentence under house arrest in Sweden.

http://arstechnica.com/tech-policy/2013/03/european-court-of-human-rights-unanimously-rejects-pirate-bay-appeal/

http://en.wikipedia.org/wiki/The_Pirate_Bay_trial

YouTube just got smarter says YouTube

YouTube says that it has been steadily improving its ability to manage content, especially infringing content, and the company has now showcased some major changes resulting from this process - some which will please content owners, some of which will please YouTube users.

Starting with the latter, YouTube has now implemented an appeals process for material taken down via the "Content ID" system, YouTube’s own copyright protection system. Content ID enables some 3,000 approved rights holders to upload videos to a central reference database, where they are digitally fingerprinted. There are some 500,000 hours logged. When YouTube detects content with a fingerprint match but uploaded by someone else, it enables the rights holders to automatically take it down, or place ads on it. Now the system has been updated with YouTube saying: "Users have always had the ability to dispute Content ID claims on their videos if they believe those claims are invalid. Prior to today, if a content owner rejected that dispute, the user was left with no recourse for certain types of Content ID claims (eg monetize claims). Based upon feedback from our community, today we’re introducing an appeals process that gives eligible users a new choice when dealing with a rejected dispute. When the user files an appeal, a content owner has two options: release the claim or file a formal DMCA notification. 

YouTube also says that it has introduced smarter detection of "Unintentional Claims". Pointing out that content owners have uploaded more than ten million reference files to the Content ID system, YouTube "accepts that mistakes can and do happen". To address this, YouTube say "we've improved the algorithms that identify potentially invalid claims. We stop these claims from automatically affecting user videos and place them in a queue to be manually reviewed. This process prevents disputes that arise when content not owned by a partner inadvertently turns up in a reference file. A recent example was NASA's footage of the Mars landing being taken down because the footage was subsequently used in a new service who logged the footage as their own, despite the fact the original video was on NASA's own YouTube channel - and they owned it - and had put it in the public domain! Hopefully a 'human' review element might improve this, although this in turn may slow valid take downs.  

Writing on the official YouTube blog, Thabet Alfishawi, YouTube's Rights Management Product Manager said “There is still a lot of work ahead of us, but we believe that these are significant steps forward in our efforts to keep YouTube a vibrant place where the rights of both content owners and users are protected and everyone can control their original content and make money from it – money which can be put towards the production of more great content.”

Tenenbaum damages upheld

The latest stage in the Joel Tenenbaum saga has resulted in another court loss for the self confessed file sharer after a federal appeals court upheld the award of damages of $675,000 previously made by a jury. 

Tenenbaum was accused of illegally downloading 31 songs from a file-sharing Web site and distributing them, and was sued by the Recording Industry Association of america (RIAA) on behalf of the major record labels in the USA. US District Court Judge Rya W. Zobel rejected Tenenbaum's request for a new jury trial, saying jurors had appropriately considered the evidence of Tenenbaum's actions -- downloading and distributing files for two years despite warnings -- and the harm to the plaintiffs and noted that the penalty is at the low end of the range for wilful infringement and below the limit for even non wilful infringement, and thus was not excessive. Although having been previously refused a Supreme Court hearing, Tenenbaum's attorney Charles Nesson said that he plans a further appeal. 

More at CNet and E-Commerce and background on the 1709 here and here 

Image: freefoto.com (Ian Britton)

IFPI welcomes court ruling finding vKontakte liable for copyright infringement

The IFPI and the global recording industry have welcomed the verdict of the Russian appeal court (17th May 2012) that confirmed social networking and downloading site vKontakte is liable for copyright infringement. The case against vKontakte was brought by SBA Music Publishing and SBA Production and members of the Gala Records Music Group, a subsidiary of EMI in Russia. The cases were based on vKontakte making many of Gala’s music compositions and sound recordings available without licensing agreements in place. 

The judgment by the Saint Petersburg appeal court upheld the earlier ruling by the commercial (“Arbitrazh”) Court of Saint Petersburg in January.Frances Moore, chief executive of IFPI, said : “This judgment sends a clear signal to those in Russia that seek to build their businesses on the back of other people’s content. We urge vKontakte to take immediate steps to stop its service being used to infringe copyright on a massive scale" adding “Widespread digital piracy is preventing Russia from developing a thriving legitimate digital music sector and this in turn denies Russian artists a chance of success and starves them of investment by producers.” 


The IFPI say that the Russian market has declined substantially since 2007, from US$191 million to US$76.6 million. During that time, the digital market has grown, yet last year saw a substantial fall even in digital revenue, which the IFPI attribute to piracy vKontakte is Russia’s most popular online entertainment platform with more than 110 million registered users and is one of the top 50 most visited sites in the world, attracting more traffic than BBC Online or CNN.com. Its valued at upwards of $1.5 billion (though in facebook world, who knows what its worth today - or what it might be worth tomorrow!). The unlicensed vKontakte music service allows streaming of music from an extensive catalogue of Russian and international sound recordings and encourages software developers to create apps for illegal downloading of content using vKontakte.

source: www.ifpi.org

Viacom lodge Google appeal

Viacom will appealed in the $1 billion copyright infringement lawsuit it brought against Google's YouTube in 2007, which a federal judge dismissed earlier this year. U.S. District Judge Louis Stanton ruled in June that YouTube should be considered a service provider under the provisoins of the Digital Millennium Copyright Act (DMCA), and therefore not liable for copyright infringements committed by users of the service under the 'safe harbour' principle. Judge Stanton also noted YouTube's good faith efforts to remove copyrighted videos when presented with valid takedown notices from copyright holders (http://the1709blog.blogspot.com/2010/06/youtube-wins-viacom-copyright-suit.html) It is understood that Viacom's appeal, argues that Judge Stanton ignored the fact that YouTube knew it was hosting copyrighted material, but did nothing because that copyrighted content was attracting more viewers than its user-generated videos.

http://www.dmwmedia.com/news/2010/12/03/viacom-files-appeal-1-billion-youtube-copyright-lawsuit and see the IPKat at http://ipkitten.blogspot.com/2010/06/breaking-news-google-wins-1-billion.html