THE COPYKAT - in the wake of "Blurred Lines" - more blurred lines

There have been two major US decisions in the word of music and sound recordings with a win for Kraftwerk and a loss for Katy Perry, and in the background a third (the Led Zepplin "Stairway to Heaven" case waits for an upcoming an en banc appeal in the Ninth Circuit, and a fourth involving Ed Sheerhan in turn waiting for that decision (Sheerhan v Townsend) with Judge Louis L Stanton acknowledging that as the appeal judges will be considering some copyright technicalities that are very relevant to the 'Thinking Out Loud' action, even if not binding, to proceed with Sheerhan case in "wilful ignorance" of their conclusions would be "folly". 

First off - sampling: The European Court of Justice sided with German electronic music pioneers Kraftwerk, ruling that unauthorised sampling of even brief clips of a sound recording can constitute copyright infringement as long as they are recognisable, in a long running case that has added some clarity to how sampling should be treated in the European Union. Kraftwerk brought the action against hip-hop producers Moses Pelham and Martin Haas in 1999 over the Sabrina Setlur track “Nur Mir”, which revolves around a two-second snippet of Kratfwerk's “Metall auf Metall” used as a loop.

In 2012, Germany's Federal Court Of Justice found in favour of Kraftwerk, in part on the basis that Pelham could have easily recreated the sound he sampled, so clipping the snippet out of 'Metal On Metal' was just laziness. Four years later the German Constitutional Court overturned that judgement, deciding Pelham's "artistic freedom" had to be considered - and that the negative impact on Kraftwerk caused by the uncleared sample wasn't sufficient to outweigh the sampler's artistic rights. The case was then referred to the CJEU.

Making clear the difference between sampling a recording and copying part (or all) of a song, Advocate General Maciej Szpunar wrote in his opinion "A phonogram is not an intellectual creation consisting of a composition of elements such as words, sounds, colours etc. A phonogram is a fixation of sounds which is protected, not by virtue of the arrangement of those sounds, but rather on account of the fixation itself" adding "Consequently, although, in the case of [other creative works], it is possible to distinguish the elements which may not be protected, such as words, sounds, colours etc, from the subject-matter which may be protected in the form of the original arrangement of those elements, such a distinction is not, however, possible in the case of a phonogram".

In the second major case, a jury has now ruled that the Katy Perry song Dark Horse does plagiarise a Christian rap song. After two days of deliberations, the jurors concluded that Perry's team had likely heard 2008 release 'Joyful Noise' before writing 'Dark Horse', and that the latter was sufficiently similar to the former to constitute copyright infringement.

Both producer Dr Luke, a co-writer on Perry's hit and Perry herself said they had never heard of 'Joyful Noise' nor heard of the artist behind it, the rapper Flame, real name Marcus Gray - before they started work on their song and recording. Gray's team argued that there had been many opportunities for Perry and her co-writers to to have heard 'Joyful Noise' and argued that whilst the copying may not have been deliberate,  her team had subconsciously infringed the earlier work. Gray's legal team also also pointed to the similarities between the two songs - each share a distinct musical phrase consisting of four C notes followed by two B notes. Perry's legal team argued that this was a very common musical phrase that couldn't possibly be protected by copyright. Luke added that if the court did indeed decide that a musical phrase of this kind enjoyed copyright protection, it could set a dangerous precedent that would impede the music making process.

They're trying to own basic building blocks of music, the alphabet of music that should be available to everyone," said Katy's lawyer Christine Lepera during her closing arguments in court last week, but the jury has accepted that this was copyright infringement. The case now goes to a penalty phase, where the jury will decide how much Perry and other defendants owe for copyright infringement.  Jurors found all six songwriters and all four corporations that released and distributed the songs were liable, including Perry and Sarah Hudson, who wrote the song’s words, Juicy J, who wrote the rap he provided for the song. Other defendants found liable included Capitol Records as well as Perry’s producers: Dr. Luke, Max Martin and Cirkut, who came up with the song’s beat.

A wide array of artists – including Korn, Tool, Sean Lennon, Linkin Park and  Jason Mraz have joined the amicus brief submitted in the ongoing ‘Stairway To Heaven’ case, supporting the British rock band in their arguments and calling on the judges in the Ninth Circuit appeals court to uphold the earlier ruling that Led Zeppelin did copy ‘Taurus’ when they wrote their 1971 classic. In total 123 artists support the amicus brief saying that if the original ruling in the ‘Stairway to Heaven’ case is overturned it could create a dangerous precedent that would be hugely detrimental to songwriting and an assumption that “trivial and commonplace similarities between two songs could be considered to constitute the basis for a finding of infringement” and that this would confuse artists, stifle creativity, and result in “excessive and unwarranted” litigation by artists and lawyers seeking to profit from ambiguities in the law.

Rolling Stone magazine published the article Why All Your Favorite Songs Are Suddenly Being Sued? asking asking why is so much music being hit with lawsuits, in a trend a trend that shows no sign of slowing. You can find that here and more comment and analysis here (from Professor Edward Lee in the Washington Post) 

Major US broadcasters ABC, CBS, Fox and NBC Universal have filed a lawsuit against an upstart online TV service offering free over-the-air digital TV service. The suit filed in U.S. District Court in New York alleges Locast owner, New York-based non-profit advocacy group Sports Fans Coalition violates broadcaster copyrights streaming content to users for free. The suit is similar to 2013 litigation brought by studios against Aereo, the defunct OTT service that transmitted digital signals to subscribers via over-the-air antennas. The litigation also pits broadcasters against AT&T, which owns and operates WarnerMedia — although the telecom is not party to the lawsuit. More here and here. 

And more from the US: Bloomberg Law reports that a battle over banana costumes continues in federal court with one manufacturer under order to stop selling full-body banana suits because they likely infringe another’s valid copyright.  The U.S. Court of Appeals for the Third Circuit affirmed a lower court’s order stopping Kangaroo Manufacturing Inc. from selling banana costumes that are confusingly similar to plaintiff Rasta Imposta’s copyrighted design. Rasta’s copyright is valid because it didn’t “monopolize the underlying idea” of a banana, the court said. More here. 

And finally - copyright notices - serious business yes? It seems not always! Techdirt have been doing some digging and have found some very amusing notices that certainly do not fit in with the prescribed formats: How about ""No part of this publication may be reproduced, stored in a retrieval system, cookie jar or spare room... Unless you want to write the whole thing out in green crayon, in which case feel free." and "This book is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, re-sold, hired out, carried across the country by relay, fired into space, turned upside down, eaten... On pain of death."

Kraftwerk Image Nigel Hardy https://www.flickr.com/photos/92352391@N00/35441036106

THE COPYKAT

Unauthorised sampling - the CJEU adds some clarity

The core issue in this all important case between the German electronic music pioneers Kraftwerk and and hip-hop producers Moses Pelham and Martin Haas in 1999 over the Sabrina Setlur song “Nur Mir”, which revolves around thse sample a two-second snippet of Kratfwerk's “Metall auf Metall” used as a loop was whether a license is required for sampling and could non-pursual of the same violate the phonogram producers rights? The AG's opinion which was released in December and 2018 gave an affirmative view to the same arguing that the “reproduction in part” does not require copied portions to be original. The CJEU in its decision (according to IPKAT and the Press Release) has stated that the reproduction of a sound sample by a user even if a very short clip must be regarded as a reproduction in principle “in part” and falls in the realm of the exclusive ownership of the phonogram producer. However the court went on to add that a rational respect towards freedom of artiatic expression in music must be recognised when the sampled portion is creatively played with to the extent that it is unrecognisable to the ear in another phonogram. In that case it won’t be a reproduction.  So the CJEU has now said that sampling a sound recording, however short a snippet the sampler takes, needs approval from the copyright owner of the original track and in accordance with the same it held the German Legislation allowing for an exception in the case of sampling as incompatible with the EU law, and it imperative to harmonize this substantive phonogram producers exclusive right irrespective of the fundamental right grounds claimed by the national jurisdiction. 

5 Seconds of Summer accused of copying by Hungarian songwriters

Moving from sampling to allegations of plagiarism, A Texas court recently saw a case where the Aussie pop group Five Seconds of Summer had been accused of ripping off a 2018 hit called “Younghood” from a song composed by Hungary based musicians David Henderson, David Toth and Peter Ferencz called “White Shadows”. It has been alleged by the applicants that the success of this rip-off has substantially taken to band to new heights virtually single-handedly, as reported by Complete Music Update. It has been alleged that the first melodic phrase of “Youngblood” shares virtual identicality with the similarly placed phrase from “White Shadow” and are both repeated equal number of times in the songs i.e. 4 times. The lay-listener has been used to allege an infringement by the Hungarian composers. It has further been alleged that the worldwide acclaim and substantial revenue which has been garnered by virtue of Youngblood, is a result of exploitation and appropriation and the applicant’s deserve accreditation and compensation in lieu of the same.

Take a listen - with the Applicant’s song is here https://youtu.be/7zMzXQU5dkA and the allegedly infringing song here https://youtu.be/-RJSbO8UZVY . In a second major case, a jury has now ruled that the Katy Perry song Dark Horse does plagiarise a Christian rap song. After two days of deliberations, the jurors concluded that Perry's team had likely heard 2008 release 'Joyful Noise' before writing 'Dark Horse', and that the latter was sufficiently similar to the former to constitute copyright infringement.

Now NIKE sues Kawhi Leonard - claiming exclusive rights on its Logo!

Nike has filed a countersuit against NBA star Kawhi Leonard, arguing that it holds exclusive rights to the claw logo that its “talented team of designers” created and claims its distinct from the design that Leonard had sketched and provided to the company, his “Klaw” logo, which he had conceived and created in college drawing on his hands. Although it has been admitted by the NIKE legal representatives that  Kawhi Leonard had submitted a design, they have gone on to state that it is a false claim that the design was the “Claw” design, as reported in the Bulletin. In the form of a counter claim, NIKE has gone on to now allege copyright infringement and breach of contract. This has been done in lieu of the use of the claw design on non-Nike apparel in the NBA finals. Nike had already served notice to Leonard’s lawyers in lieu of the same which was responded with non-agreement and compliance. Nike has further argued as reported in NiceKicks.com that Leonard had on an earlier occasion claimed that “I drew up the rough draft and sent it over and they made it perfect. They refined it and made it look better than I thought it would ever be, and I’m extremely happy with the final version.” Further, Nike has produced the initial sketch in the court which was given by Leonard which looks like an amateur drawing as has been reported by the Bulletin. Also, Nike does not claim any ownership over this initial rough design, rather merely on the final refined version.

CASE Act passed by the Senate Judiciary Committee

As had been reported by PetaPixel, the long awaited CASE Act has been passed by the Senate Judiciary Committee - if passed, the bill will  go on to establish a small claims court for Copyright Infringement cases in the USA. There is yet to be a full vote on the Senate Floor. Currently, to defend one’s copyright, a direct action needs to be made before the Federal Court which is an expensive and an extremely formalistic procedure. However, this act if legislated successfully would establish a small claims tribunal within the US Copyright Office, simplifying defense of copyrights. The highest amount of damages which can be awarded by this court per infringed work would be $15,000 with the total being a maximum of $30,000. This definitely increases the efficiency and reduces a certain amount of burden on the Federal Court. It will involve the appointment of three full-time Copyright Claims Officers who will look after the same.

This bill has been extensively supported by the US photographers, illustrators, graphic artists, songwriters and authors as well as bloggers! Even the National Press Photographers Association went ahead to commend the pressing of this act in the Senate by saying ““This is a very positive step in addressing infringement issues, where previously individual creators felt they had a right with no remedy because of the high cost of copyright litigation”, as reported by PetaPixel. The only criticism which has been drawn however has been upon the unappealable nature of this tribunal and the high amount of $30,000 being involved as a punitive power. 

It will be interesting to see the voting view taken by the Senate floor.

DailyMotion denied safe harbour protection

Dailymotion has been ordered to pay €5.5m in damages to Italian broadcaster Mediaset with the Rome court saying that Dailymotion was “entirely aware” of copyright infringement. As reported by Complete Music Update, in a case brought in by the Italian TV company RTI against  Dailymotion, it was argued by the applicant that Dailymotion should be held liable for hosting copyright infringing content without a license, involving programmes of the applicant. The take-down commitments were fulfilled by Dailymotion, and upon serving a notice, it had taken down such alleged infringing material. However, the Rome Court, absolved the safe harbour protection available to such intermediaries like Dailymotion as it did not fulfil the criteria set out in the EU E-Commerce directive, which is the origin point of the EU Safe Harbour norms. It has been ruled to be an “Active Host”. For failing to have a filtering mechanism and a system to automatically remove all such infringing content, Dailymotion has been asked to pay 5.5 million euros in damages. This has greatly increased the responsibility of a user-upload based intermediary platform and has reduced the standard from actual knowledge to mere presence. The courts of Rome have further refused to involve the European Court to confirm and clarify the interpretation and applicability of the EC Directive. It has been held that the right holder did not have an obligation to provide URL’s for the content that the platform should remove in its take down request and a simple indication in the title of the video would be sufficient. This seems all the more as an absurd and a non-sustainable interpretation and it will be interesting to see how this case turns out in lieu of the pending cases on the interpretation of Article 14 of the EC Directive in the CJEU. Although, this decision has been hailed by Italian media Conglomerate wherein it has reportedly been stated by its Chief Executive that: “Today’s decision is therefore an authentic turning point in consolidated national and EU jurisprudence (repeatedly referred to by the Court in the judgment in question) aimed at protecting the work of publishers, which is under attack by diverse forms of online piracy: A phenomenon that destroys both economic value and jobs in journalism and publishing companies.” (Reported by IBC 365). More on this in the IPKAT.

The functionality doctrine revisited in the Lego’s Copyright dispute against its British Competitor

The world famous toy maker from Denmark, Lego, has successfully won a copyright infringement suit against a British competitor in the US District court for the District of Connecticut. This dispute was launched in 2011 when Lego had sued Best-Lock for producing and selling infringing minifigurines. It was alleged, as reported by World IP review, that Best Lock’s advertisements had highlighted the well-known interchangeability of its figures and body parts with Lego’s. The main argument of the defendant in this case was the elements of Lego’s copyrighted work being functional. The court after confirming access, went on to conclude that the fact that some elements of the work are functional doesn’t render the whole work as non-copyrightable. The court said: “A comparison of the works makes clear that Best-Lock has copied protectable, expressive elements that are original to Lego”  Remember the case of Broderbund Software v. Unison World?

Copyright Protection of Military Reports, of national importance

In a very important opinion issued by the CJEU on a reference made in context of litigation between the German Government and a newspaper over unauthorized publication of “Afghanistan papers” and certain confidential reports, wherein the question of interplay of Copyright and Freedom of Press was brought in before the CJEU. Basically, the question was can freedom of expression and information be a valid defense for copyright infringement? The AG opinion reflected reluctance in admitting copyrightability of military reports. However, the CJEU has gone on to rule that Freedom of Information and press are not justifiable grounds to derogate from rights of copyright holders beyond exceptions set out itself within the InfoSoc directive. The concept of external limitations is not viable in law. As on the question of whether military reports are copyrightable in the first place, the court went on to hold that it is upon the national courts to decide whether the conditions of copyrightability and intellectual creation showing free and creative choices are there in these reports or not. If fulfilling the criteria of being a “work”, no justification in the form of freedom of information is sustainable.

The court went on to finally hold that: “As is clear from the case-law of the European Court of Human Rights, for the purpose of striking a balance between copyright and the right to freedom of expression, that court has, in particular, referred to the need to take into account the fact that the nature of the ‘speech’ or information at issue is of particular importance, inter alia in political discourse and discourse concerning matters of the public interest. In those circumstances, having also underlined the way in which Funke Medien published the military status reports on the internet, the Court of Justice states that it is not inconceivable that such use may be covered by the exception concerning current events reporting provided for in the Copyright Directive.” More on this once the judgment is available  on IPKAT.

And finally - trolls get a bashing

A High Court Judge has torn apart a trolling application made against Virgin subscribers in the United Kingdom - Douglas Campbell QC's can be found on TorrentFreak and is well worth a read - here's a snippet: "“I do not accept that I should simply assume that a 9 year old expert report remains up to date, particularly one given in the field of computer software,” the Judge commented, noting that the report also lacked the required “statement of truth” to comply with civil procedure rules  ..... . 

This Copykat by Akshat Agrawal

THE COPYKAT reaches out to a new public

Howzat! (C) 2018 Ben Challis

There has been plenty of recent comment on the decision by the CJEU in C‑161/17 Land Nordrhein-Westfalen v Dirk Renckhoff where the court found that users who publish content which is already available on the internet would  still need the further consent from the rights owner in question saying “The posting on a website of a photograph that was freely accessible on another website with the consent of the author requires a new authorization by that author”. We have already posted Eleonora's analysis of of CJEU's thought provoking decision and this blogger, a very keen sports photographer, is rather pleased with the CJEU's reasoning which he feels has some resonance - but the decision has stirred up widespread criticism. To me the fact remains when I post a photo on my sports photography Facebook page - for example the one to the left on this very blog - it's targeted to a specific audience for a specific reason - and I would not want to see my photo re-used on a third party website without my consent - being pointed at a 'new' audience whether that's free or perhaps supported by advertising. I certainly would want the right of further consent  should that image used for a different purpose such as in advertising.  And the case is being seen as a pro-copyright with Reuter's headlining with "EU's top court backs copyright holder in landmark ruling" - not least as the Court went against the Opinion of Advocate General Campos Sanchéz-Bordona. More here and others may have different opinions to this CopyKat's thoughts above. 

Techdirt have posted a fascinating insight into the somewhat complex set of cases involving a woman named Shirley Johnson, who posted videos to YouTube that were critical of the New Destiny Christian Centers and Paula White Ministries. This in turn resulted in a lawsuit from Ms Paula White et al for copyright infringement. So far so good. But things did not go smoothly for Ms White. Her case seemed to ignore the fairly obvious defence of fair use - and indeed as time progressed the case was dismissed, and then Johnson counter sued for "malicious prosecution" and she also filed DMCA s512(f) abuse claim. That claim is ongoing by techdirt now reports that  the court awarding Johnson $12,500 against White for the "emotional harm" from the 'bogus' copyright claim. Remembering it was Paula White Ministries (et al) who started this battle, the court was fairly scathing of how White treated the litigation as time went on, saying that Paula White Ministries "have exhibited a patent disregard for the Court’s discovery orders and processes" and "maintained that they did not have to comply with discovery, demonstrating a preordained belief that they were above this process" and  "The Court now finds that the interests of justice require default judgment as the only effective remedy" awarding very limited costs to Johnson (who represented herself) and awarding  $12,500 for emotional harms, although this was limited because Johnson seemingly did not seek medical treatment for the harm.

Another expensive (with hindsight) mistake seems to have been Ludlow Music's efforts to protect the 'copyright' in the iconic US song ‘We Shall Overcome’. Ludlow have now been handed a legal costs bill of $352,000 after conceding earlier this year that the work was public domain in America. The case was settled in January and Ludlow declared that both the melody and lyrics of ‘We Shall Overcome’ are “hereafter dedicated to the public domain”. Now Judge Denise Cote has said that Ludlow should cover the other side’s legal fees - despite the fact that Ludlow’s defence wasn’t “objectively unreasonable” CMU says that the Judge awarded legal costs to reward the Plaintiffs for enabling public access to “an American treasure”. The judge stated: “The degree to which plaintiffs succeeded in this litigation, and the inestimable benefit they have conferred on the public through doing so, renders this the type of lawsuit that should be encouraged in order to promote the purposes of the Copyright Act”.

More from the USA: The Music Modernization Act, which quickly passed the House unanimously in April, and the through the Senate Judiciary Committee, looked in some trouble after an objection by collection society SESAC (formerly known as Society of European Stage Authors and Composers) and the Harry Fox Agency which administers licenses that would be affected by the operations of a new blanket licensing collective in the legislation. Owners Blackstone persuaded Senator Rafael E. “Ted” Cruz (R-Texas) to halt the bill’s progress in the full Senate and things looked tricky until a compromise clarified that the new organization only will administer a particular kind of license, and will have exclusive purview only over blanket licenses - and according to industry sources the Harry Fox and other organisations will still be able to control individually negotiated licenses. before the compromise both the Nashville Songwriters Assn. International and the Songwriters of North America had encouraged their members to speak out against SESAC’s effort to get changes made to the bill, but now the NSAI have said “Reaching consensus within the music industry, on what may be the most important songwriter legislation in history, is a win for American songwriters and the broader music community. We are pleased to have put our differences behind us and support this bill in unanimous harmony. The Nashville Songwriters Association International has been a friend and fan of SESAC’s for decades and that is how our relationship will immediately resume”.

He may have passed but he is still in the news: A takedown notice of the iconic 2016 fan singalong video of 'Purple Rain' that was shot just hours after the singer’s death, has now been withdrawn and the video has been reinstated. After Prince’s death in thousands of fans congregated in the streets of Minneapolis to mourn and one of the most iconic moments from that night involved a video of those fans singing “Purple Rain” together. The video, shot by the Star Tribune’s Aaron Lavinsky, quickly went viral with his video tweet receiving over 14,000 retweets and 17,000 likes. Universal Music then filed a DCMA takedown of the video but after a social media storm at the end of July with Lavinsky saying  on Twitter "This is very disturbing: Universal Music filed a DCMA takedown on a video I shot of thousands of Prince fans singing Purple Rain the night of his death. This was clearly fair use and UMPG and Twitter are in the wrong"  UM have relented and the video is back online prompting a tweet from Lavisky saying "Update: Prince faithful can rejoice -- UMPG has retracted their DCMA takedown of my video and it has reappeared in the original tweet. PURPLE RAIN, PURPLE RAIN!".

THE BBC has halted its action against a pro-independence blogger following a row over alleged YouTube copyright infringements. The UK's public broadcaster had denied political bias after Stuart Campbell, who runs Wings Over Scotland, claimed his channel was closed without warning after the BBC complained about 13 videos that had been uploaded to it and that his use was 'fair dealing'.  Now the channel has been reinstated by YouTube and the BBC has said it will review its actions.

Techdirt is celebrating after it discovered the Finnish Bar Association is reprimanding Finnish law firm Hedman Partners for seemingly violating copyright law by sending out 'settlement letters' to supposed copyright infringers in what Techdirt opine is a classic trolling exercise. Hedman lawyer Joni Hatanmaa seems less concerned saying the firm's actions on behalf of its clients against suspected infringers will continue: "cases against infringers will continue. Plenty are still underway and the project continues to expand."

And finally The BBC reports that a US court has ruled that the plot of Oscar-winning fantasy film The Shape of Water was not copied from a 1969 play. Judge Percy Anderson has now dismissed the legal action that claimed Guillermo del Toro's film copied the story of Let Me Hear You Whisper by Paul Zindel. The late playwright's son sued del Toro, the Fox Searchlight studio and others in February and Zindel v. Fox Searchlight Pictures, Inc. et al, case number 2:18-cv-01435, filed in the United States District Court Central District of California, claimed the two works were "in many ways identical". In his ruling  the judge said they only shared "a basic premise". Del Toro's film, which won four Academy Awards in March including best picture, told of a mute cleaner who falls in love with an amphibious creature. David Zindel's suit claimed the film bore a number of similarities to his father's play, in which a cleaning lady goes to work in a laboratory where experiments are carried out on dolphins. Judge Anderson accepted that the plots were similar but ruled that the central concept was "too general to be protected".

THE COPYKAT

Safe as houses?

A new children’s book “Silent Days, Silent Dreams,” is billed as a fictional biography about James Castle, a self-taught artist whose works can be found in museums, art galleries and private collections all over the world. Written for children, the book contains about 150 illustrations by award-winning writer and illustrator Allen Say - but are those illustrations going to cause problems? They might do as the James Castle Collection and Archive (which has the largest privately held collection of Castle’s works) is suing Say and his publisher for copyright infringement in Boise federal court, alleging that many of Say’s illustrations “are intended to evoke and imitate the artistic style of James Castle but some two dozen of the illustrations “are far more than a tribute” and are “similar if not virtually identical copies” of Castle’s work (see left). An injunction is being sought. 

What a difference a decade makes! China's "core network copyright industry" has seen rapid growth over the past ten years, according to a recent industry report. In 2016, the scale of the industry exceeded 500 billion yuan (about $76.5 billion U.S. dollars), maintaining a growth rate of over 30 percent a year, according to a report by the country's Network Copyright Industry Research Centre. In 2006, the volume of the industry was just 16 billion yuan, the report said. The report focuses on China's "network industry," described as network gaming and online content, including video and music. Researcher Tian Xiaojun said "With the continuous increase of copyright protection in China and the upgrade of domestic consumption, China's network copyright industry will have huge market potential and is expected to contribute more to the country's economy growth".

Mike Palmedo and Sean Flynn have released the initial results of research based on  the Program on Information Justice and Intellectual Property of the American University Washington College of Law's Copyright User Rights Database. This research tool maps changes to copyright limitations and exceptions and other “user rights” from 1970 through 2016 in 21 countries of different development levels around the World. Palmedo and Flynn intend to continue adding data from additional countries, but feel that the current data allows us to begin demonstrating how differences in copyright user rights are associated with certain outcomes for innovative firms and researchers. The first results are based on tests of copyright limitation openness and although all countries are trending toward more open user rights, there is a clear gap between wealthy and developing countries. The research shows that developing countries in the sample are now at the level of openness that existed in the wealthy countries 30 years ago. Few countries, and almost no developing countries, have sufficient user rights most needed to support the digital economy, including for transformative use or text and datamining. The authors say "To date, there has been very little empirical work exploring how the structure of copyright limitations and other user rights shape outcomes in industries that rely upon them. One reason for this lack of empirical research on the impact of copyright user rights has been the absence of a tool to measure the key independent variable – changes in copyright user rights over time among a broad set of countries. We hope other researchers will find the Copyright User Rights database to be a useful tool for further empirical research on copyright user rights". More here. 

Last week, Motherboard discovered that one of Google's machine learning algorithms was biased against certain racial and religious groups, as well as LGBT people. The Cloud Natural Language API analyzes paragraphs of text and then determines whether they have a positive or negative "sentiment." The algorithm rated statements like "I'm a homosexual," and "I'm a gay black woman," as negative. After the story ran, Google apologised. Now Motherboard are posing the conundrum: "Copyright Law Makes Artificial Intelligence Bias Worse - But it could be used to help fix the problem too" adding "Copyright law has historically exacerbated bias in artificially intelligent algorithms, but it also has the capability to vastly improve them. If companies knew they were protected legally, they would also be more likely to release the data their products were trained on, allowing academics and journalists to do their jobs."

Broadcaster ESPN have been forced to face a trial that alleges copyright infringement after a Mississippi federal judge denied the sports giant's motion for summary judgment. The dispute centers on two documentaries about the life of college football player Chucky Mullins, who was paralyzed during a 1989 game between University of Mississippi and Vanderbilt University while tackling Brad Gaines. Mullins died as a result of complications from his injuries in 1991. Charles Smith Jr. and his production company 38 Films us now suing ESPN and others for breach of contract, fraudulent misrepresentation and copyright infringement, among other claims. They say the 2014 ESPN documentary "It's Time: The Story of Brad Gaines and Chucky Mullins" used his footage without paying an orally agreed upon license fee or giving appropriate credit. Smith claims he understood the ESPN documentary to be about Gaines and he agreed in an oral contract to license footage from his film at a rate of $3,000 per minute used and Ginn gave Yamano their entire archive of digital files. Meanwhile, the defendants say their film is about Gaines, not Mullins, and that they didn't use any footage actually featured in Undefeated or owned by 38 Films.

And news of developments in the legal battle going between photographer Jon Tannen and the giant online media company CBS. After being sued by the photographer for infringing his photo copyrights, CBS has responded by filing its own copyright infringement lawsuit against the photographer… for sharing 59-year-old TV show still frames on social media. More here.  This is the second time the photographer has accused CBS Interactive's 247 Sports senior writer Alex Gleitman of misusing photos in his articles, initially tweeting "To Alex Gleitman. You're violating copyright law. Photo Jon Tannen" and "@Alex Gleitman You've used my photos illegally again. REMOVE THEM NOW. Never asked by permission. Your own logo.Are you stupid? @jtanne". Glietman responded by saying that he has been give the images by the player featured, and had subsequently added a credit. 

And talking of all things American Football and copyright, Eleonora Rosati has posed the question "Can a tweet containing an unlicensed photograph amount to a copyright infringement by the person who embeds such tweet on their own site?" on the IPKat. European readers will of course be familiar with the less than clear judgments in BestWater and subsequent case law, notably GS Media - and in Europe, linking can fall within the scope of the right of communication to the public within Article 3(1) of the InfoSoc Directive, although different considerations must be undertaken depending on the case at issue, including whether the link provider is aware of the unlicensed character of the content linked to and/or pursues a profit.  This very question is now being asked in the US, where a photographer working with Getty Images has raised issues of linking and copyright under US law: Justin Goldman, has sued a number of publishers over the unauthorised embedding, by their relevant publications, of a tweet containing an unlicensed image of American football quarterback Tom Brady that he had taken. Images from http://maxpixel.freegreatpicture.com/Sport-Quarterback-American-Football-Competition-67701/ 

Google is fighting on in the Equustek case, now in the US. Readers will remember that the Canadian Supreme Court in Google Inc v Equustek Solutions Inc, 2017 SCC 34 affirmed a decision from the Supreme Court in British Columbia and ordered Google to delist a tech company’s entire website worldwide. The web giant has now told a Californian court that that the ruling conflics with the freedom of expression rights contained within the First Amendment, and that the Canadian Supreme Court had no right meddling with the American constitution.  Google’s lawyer Margaret Caruso said “This is about whether a trial court in a foreign country can implement a law that is violative of the core values of this country … imagine if we got an order from North Korea that said we could not publish anything critical of Dear Leader. Imagine if Russia doesn’t like what people are saying about Putin. It would be very dangerous to deny relief in this instance”. Courthouse News says "Underscoring the bizarre nature of the proceedings, no attorneys for Equustek Solutions or the Canadian court system showed up, allowing Caruso to state her case to U.S. District Judge Edward Davila unopposed."

And finally, CMU Daily reports that "According to law firm RPC, the three leading claimants in the [UK's] High Court in the year up to 31 Mar 2017 were all in the business of copyright. And two of them music copyright." Leading the way with 106 cases to court was the UK's recorded music collecting society PPL, while its counterpart in music publishing, PRS, came in third with 27 cases. The Football Association is in second place having filed 39 cases, mainly seeking to protect its intellectual property rights against those illegally accessing or airing footage of football matches.

The CopyKat - Part Deux

It's not often we report on the Pagan community, but the Wild Hunt tells us of concerns about Pagans violating copyright protections of Pagan books which have "resurfaced in a big way, with thousands of volumes being uploaded by the owner of one popular Facebook group". Authors and publisher’s agents who knew that no such permission had been granted have tried to get the files removed, and after several days those attempts appear to have been successful, to the disappointment of some group members. More here.

Rogers Communications wants the Supreme Court of Canada to reconsider a copyright ruling on pirated content that internet policy experts say could raise prices for law-abiding consumer. The Financial Post reports that the Toronto-based communications giant has filed for leave to appeal a Federal Court decision that stipulated internet service providers must turn over subscribers’ identities for free if copyright holders suspect them of copyright infringement. the Federal Court ruled internet providers could not recoup their costs because the fee could potentially make it too expensive for copyright holders to go after illegal downloaders. Instead, it suggested internet providers pass the costs along to all consumers – even those that do not infringe.

The Premier League in the United Kingdom is very very big business, with a large of the revenues provided by the commercial deal for match TV rights struck with Sky TV and BT.  and the FAPL will go to great lengths to protect those rights. With the start of the new Premier League season, the fight against illegal IPTV streams has stepped up, with ISPs being told to block streams of copyright content in real time - and this seems to have worked, with substantial disruption for viewers hoping to catch matches using these Kodi or web-based streams over the first weekend of the new season. TorrentFreak reports that several streams went dark within minutes of matches starting, leaving providers of the illegal streams to scramble to find new domains to host their content. With the recent closures of piracy-facilitating Kodi add-ons, it's looking like the days of being able to easily stream 'free' premium sports content might be coming to a close, although there are always people willing to use VPNs to evade the blocking abilities of the UK's ISPs. UPDATE - the Mirror says that 3 million watched the much hyped Mayweather / McGregor fight on at least 239 illegal streams. 
 
US President Donald Trump has instructed his trade envoy to examine China’s policies and practices concerning US intellectual property, a promise he made during the 2016 election campaign. The presidential memorandum signed tat the White House directs US Trade Representative Robert Lighthizer to “examine China’s policies, practices and actions” when it comes to transfer of US technology and “theft of American intellectual property” and use “all options” to protect US interests with Trump saying “We’re taking firm steps to make sure we protect the intellectual property of American companies and very importantly, of American workers” and “The theft of intellectual property by foreign countries costs our nation millions of jobs and billions and billions of dollars each and every year.”

The dispute between the major record companies and mixtape sharing app Spinrilla continues, with the former’s request for access to the latter’s source code high on the defendant’s current list of specific gripes. Interesting - the defs say this "The source code is the crown jewel of any software-based business, including Spinrilla. Even worse, plaintiffs want an ‘executable’ version of Spinrilla’s source code, which would literally enable them to replicate Spinrilla’s entire website. Any plaintiff could, in hours, delete all references to ‘Spinrilla’, add its own brand and launch Spinrilla’s exact website”.  More on CMU here. 

Songwriter groups in the USA and elsewhere have hit out at the Recording Industry Association Of America (RIAA) over its submission to an official review of the moral rights of creators in the US. The songwriter organisations, including BASCA in the UK, say that the major record companies in the US are pursuing an anti-songwriter agenda on this point, while concurrently relying on vocal support from the songwriting community when it comes to lobbying for safe harbour reform. Both the Motion Pictures Association of America (MPAA) and the RIAA are against the introduction of statutory moral rights for artists. They believe that the current system works well and they fear that it’s impractical and expensive to credit all creators for their contributions. Stark hypocrisy from the record labels in the US? Or too big a task to manage? BASCA say "even though the US signed up to the Berne Convention in 1989 it chooses NOT to recognise moral rights, saying they are confusing.  There really isn’t anything confusing about crediting the original creator of a song folks!!  So understandably the writer organisations in the US get very excised, rightly so, about this ongoing scenario.  The US Copyright Office this year conducted another study into the issue with some very strong statements from creators and submissions by writer organisations in support of the US finally recognising moral rights.  However the RIAA in its wisdom decided to continue to reject this position .... Thus writers from across the US, Canada, the UK and Europe – organisations representing many tens of thousands of songwriters and composers of all genres – have come together in an unprecedented alliance to explain to the RIAA why this is wrong and damaging to the very people whose works the music industry is built on."