THE COPYKAT

STORING INFRINGING GOODS IN WAREHOUSES, CRIMINALLY ACTIONABLE- RULES SWEDISH SC

The Supreme Court of Sweden has reportedly, post a CJEU referral, confirmed in a recent case that storage of infringing goods with a view to selling the same may pave the way for both kinds of liabilities- civil as well as criminal. This case has been reported in detail by IPKat. The CJEU had, having established that storing counterfeit goods falls within the scope of Article 4(1) of the InfoSoc Directive, left it for the Swedish courts to determine the question of criminal liability. Due to this clarification, the Swedish SC held the scope of Section 2 and 53 of the Copyright Act to include storage of goods, for commercial purposes within the scope of the distribution right. Hence, an intention to distribute has been held to be sufficient to establish Criminal Liability. More can be read upon this here, here and here.

STAIRWAY TO HEAVEN COPYRIGHT CASE TO BE REHEARD BY THE APPEALS COURT!!

Very interestingly, it has been reported by The Rolling Stones magazine that Led Zeppelin’s Stairway to Heaven will be reheard by an 11-judge panel in the 9^th US Circuit Court of Appeals. The question raised all importantly in this dispute is whether the rock and roll band plagiarized its opening riff from Spirit’s 1968 song called “Taurus”. Last year, a decision was given by the US court of appeals, wherein the case was remanded for a new re-trial due to erroneous instructions given to the jury – which had decided in favor of the defendant. Due to sufficient proof of “substantial access” to Spirit’s work, it was held that jury instruction on the inverse-ratio rule was inappropriate. For a detailed analysis of this, one can read this informative post on Spicy IP. Holding a lack of substantial similarity, the jury had in 2016, ruled that there was no Copyright infringement. This re-trial will bring a number of important issues, regarding Copyright Infringement in musical works in light. The legality and viability of the inverse ratio rule is hopeful to be discussed at length in this trial.

PEPE THE FROG COPYRIGHT DISPUTE SETTLED!!

As covered in the last edition of the CopyKat, the Pepe the frog Copyright infringement suit has been doing the rounds for a while. However, Infowars has agreed to settle this dispute by paying $15,000 to the creator of the cartoon. The creator of Pepe the Frog – Matt Furie, had sued Infowars over alleged similarity and use of this character. The lawyer for InfoWars has reportedly stated that they were sued for millions initially, but they have agreed to settle the matter upon payment of an honest licensing fee which has been determined to be $15000. More can be read upon this on the reporting website Channel 3000.

TEXAS APPEALS COURT HOLDS THAT COPYRIGHT INFRINGEMENT IS NOT “PROPERTY TAKING”

As the government is immune from copyright infringement claims in the United States, Jim Olive a photographer, intending to claim compensation for the use of his photograph, argued in the Texas district court that infringing his copyright amounted to taking away his property which is actionable. Olive had sued The University of Houston, for the alleged taking, under the US constitution. The claim was concerned with a photograph clicked by Olive from a helicopter in 2005. Such use by the University was discovered 3 years later by Olive who was seeking just compensation for the unlawful taking. The question of enforcement of Copyright against government enterprises is an issue, wherein the legal authority is divided and scant. The federal district court, however, had held in a patent infringement suit that such infringement does not amount to property taking. No constitutional right has been established to be violated in this case – was held by the court. Not only does this gives the state complete immunity against Copyright infringement claims, it creates a bizarre situation wherein the State can infringe any person’s work without a claim for compensation being available. It will be interesting to see how the further Appeals court takes on this decision. More on this can be read here. The ruling can be found here.

COPYRIGHT DISPUTE OVER ABORIGINAL FLAG

As reported by the World IP review, the exclusive rights holder for the flag had issued a cease and desist notice to aboriginal-owned businesses using the flag sign and design on their products for commercial purposes. The flag in question has been designed by artist Harold Thomas, to recognize and protest for land rights and as a symbol of the race of the Australian aboriginals. A copyright was granted for the same in 1997. Normally, a flag representing a community is held to be in the public domain, however, an exclusive right has been granted herein. There is a worldwide discussion on who is to be given the ownership of the flag and the community members are actively involving themselves in this discussion. A change.org petition started by Spark Health, whose brand Clothing the Gap raises money for Aboriginal health, states: “This is not a question of who owns the copyright of the Flag. This is a question of control.” It will be interesting to see how the government and the court take this matter ahead.

This CopyKat by Akshat Agrawal

THE COPYKAT

This CopyKat from Tibbie McIntyre

The UK Copyright Officers survey – deadline 3^rd April

If you work at a UK library and educational/cultural institution, your organisation is warmly invited to take part in a survey about copyright officers and copyright education here. The survey is available until 3^rd April.

The UK Copyright Literacy page states that the research is regarding “copyright officers or similar specialists in UK libraries and educational / cultural institutions. We want to find out more about the value and status of these positions, the responsibilities that they entail and the ways in which copyright education is delivered. … The findings should be of interest to organisations wishing to benchmark the copyright training and advice services they currently offer.”

Even if your UK library and educational/cultural institution does not have a dedicated copyright officer, your organisation is still invited to participate, as there are questions designed to determine how copyright is managed in the absence of a designated copyright post.

If you have any questions about the survey, please contact ukcopyrightlit@gmail.com.

You can find the survey here until 3^rd April.

Australia NOT to grant safe harbour to Google, Facebook, at al.

The Australian government had recently been seeking to extend its safe harbour provisions to online intermediaries (including Google and Facebook) that rely on user-generated content. The move would have given immunity to online intermediaries for infringing content uploaded onto platforms by users.

Across Europe and the U.S., online intermediaries already enjoy such a safe harbour (European legislation can be viewed here, American here). However, safe harbour provisions have generated much heated debate, with copyright holders arguing that it has led to the copyright ‘value gap’. For example, rights holders have argued that platforms that benefit from the safe harbour rule facilitate nearly half of all music consumption on the internet but represent only around 4% of the revenue generated by the industry.

Also, platforms are only under an obligation to remove infringing content when notification is given by the rights-holder. This leaves copyright holders in the position of eternally having to search YouTube, Facebook et al. for instances of infringement – an eternal game of ‘whack-a-mole’. This topic is coveredhere and here, and reports on controversial measures proposed by the EU to overcome the ‘value gap’ can be found here.

TorrentFreak reports that “Due to what some believe amounts to a drafting error in Australia’s implementation of the Australia – US Free Trade Agreement (AUSFTA), so-called safe harbor provisions only apply to commercial Internet service providers.” This means that platforms allowing the upload of user-generated content may be found liable for infringing content uploaded by 3^rd parties.

Communications Minister Mitch Fifield confirmed in a statement that the amendment had been dropped: “Provisions relating to safe harbour were removed from the bill before its introduction to enable the government to further consider feedback received on this proposal whilst not delaying the passage of other important reforms”.  

Lobbying from a consortium on copyright holders to drop the safe harbour amendment has been intense. The Australian has published a series of articles against implementation of the safe harbour rule, arguing that Google et al. are “ruthlessly exploiting” safe harbour rules in the US and Europe (no links are available as the content is behind a paywall).

What are the implications for platforms that allow 3^rd parties to upload content?

There is legal uncertainty – platforms may be found liable for any acts of infringement by their users. There are a number of options from which the platforms can choose;

1.      Run the risk of being found liable of copyright infringement because of the actions of 3^rd party users, having to pay penalties to copyright holders.

2.      Enter into agreements with copyright holders on a pre-emptive basis, licensing content that 3^rd party users might upload onto the platform.

3.      Implement filtering technology, identifying and blocking infringing content when it is uploaded. (This is also a live issue in Europe.)

4.      Exit the Australian market altogether.

The exemption from liability enjoyed by platforms is an important issue worldwide, and it should be interesting to observe how events unfold in Australia in the coming months.

There are more stairs? – Stairway to Heaven saga continues

This saga has previously been reported on the 1709 blog here and on the  IPKat here. This case deals with the potential infringement of a song by Spirit, ‘Taurus’, by Led Zeppelin in their ‘Stairway to Heaven’.

A 90 page brief was recently filed to the 9^th Circuit Appeals court by the agent of Michael Skidmor, trustee of Spirit guitarist, Randy Woolfe (California). The brief asks the court to reverse the previous finding, where the jury found unanimously in favour of Led Zeppelin in June 2016. This brief also asks for remand for a new trial, including striking the bill of costs.

Copykat will issue updates as and when they come.

By Alf van Beem (Own work), via Wikimedia Commons

Compulsory Licences for “cable systems” do not apply to TV streamers

The 9^th Circuit delivered its ruling in the Fox Television Stations v Aereokiller case on 21 March. The case relates to the TV streaming services provided by FilmOn.

FilmOn provides a service that uses antennas to capture over-the-air broadcast programming – much of it copyrighted – and then uses the internet to retransmit this programming, utilising both subscription and ad-based methods of revenue generation. Essentially, it enables you to watch TV on your computer.

The dispute centred on section 111 of the U.S. Copyright Act (17 U.S.C. § 111), which provides that a “cable system” is eligible for a compulsory license. Such a compulsory licence allows “cable systems” to retransmit “a performance or display of a work” originally broadcast by someone else without having to secure the consent of the copyright holder.

In order to maintain its compulsory licence, the “cable system” must pay a statutory fee to the Copyright Office – as well as complying with other regulations.

FilmOn contended that its services fall under the “cable system” definition and it should therefore be granted a compulsory licence.  

A group of broadcasters (including, inter alia, Fox, NBC Universal, ABC, CBS and Disney Enterprises Inc.) argued that the services provided by FilmOn do not fall under the definition of “cable system” as provided under § 111 and it should therefore not be granted a compulsory licence.

A statement on page 7 the ruling sheds further light on why this issue was so hotly contested by the parties:

“Compulsory licences are highly coveted, in no small part because, according to the Copyright Office, the royalty payments the Act requires cable companies to pay are “de minimis” when compared to the gross receipts and revenues the cable industry collects, a gap suggesting that the government-set rates fall well below market levels.”

Unfortunately, court found itself at an impasse: “The text of § 111 is written in broad terms, and both sides can make plausible arguments about the statute’s purposes and legislative history.”

The court goes on to state “that the meaning of § 111 is ambiguous on the precise question before us”.

To overcome this impasse, the decision hinged on arguments brought by the Copyright Office and the weight the court was willing to give those arguments. The court utilised the Skidmore framework (precedent that allows the court to rely on the arguments of a government agency in cases where there is no clear law).

The Copyright Office argued that FilmOn’s services do not fall under the definition of “cable systems”. Historic Copyright Office arguments have posited “that a provider of broadcast signals [must] be an inherently localized transmission media of limited availability to qualify as a cable system.” Significantly, Congress has for years been aware that the Copyright Office views internet-based retransmission services as not falling under the definition of “cable systems” and has never moved to amend or comment upon this view.

The arguments presented by the Copyright Office were therefore afforded significant deference in this case, since the statute was found to be ambiguous on the issues at stake and the Copyright Office proffered cogent arguments to address matters. The court noted that “To the extent the legislative history provides relevant evidence of § 111’s meaning, we would defer to the Copyright Office’s interpretation of it, seeing as the Copyright Office has a much more intimate relationship with Congress and is

institutionally better equipped than we are to sift through and to make sense of the vast and heterogeneous expanse that is the Act’s legislative history.

In summary, it was on the strength of the arguments brought by the Copyright Office, that court found that “a service that captures copyrighted works broadcast over the air, and then retransmits them to paying subscribers over the Internet without the consent of the copyright holders, is not a “cable system” eligible for a compulsory license under the Copyright Act.”

This story will continue, as FilmOn is arguing two similar cases at the D.C. Court of Appeals and the 7^th Circuit Court of Appeal.

The CopyKat

There is yet another copyright lawsuit against the appropriation artist Richard Prince, after Dennis Morris LLC, the London-based photographer’s corporation, filed a complaint on the 3rd June in a Californian federal court seeking unspecified damages and any profits the artist and his dealer Gagosian Gallery made from Prince’s alleged use of three photographs of the 1970s punk rock band the Sex Pistols. According to the complaint, Prince used the images in work included in the 2011 exhibition Untitled (Covering Pollock) at Guild Hall in East Hampton. The claim says that Prince made "derivative works” and accuses the defendants of “producing and distributing large scale reproductions incorporating those derivative works” based on Morris’s photos of Sex Pistols bass player Sid Vicious. Morris is seeking a jury trial and demanding, among other damages, all of Prince and Gagosian’s profits from sales of the disputed works. The complaint also alleges that Prince used Instagram to promote the work for sale and includes a screenshot of a post (since deleted but pictured, left) on Prince’s Instagram account, featuring one of Morris’s best known photos of Vicious who died in 1979 from a drugs overdose.

Arts Technica reports that the lawyers behind the Prenda Law "copyright trolling" enterprise have lost their key appeal and will have to pay more than $230,000 in sanctions. The US Court of Appeals for the 9th Circuit issued a 12-page ruling upholding the sanction order that began Prenda's downfall, issued by US District Judge Otis Wright in 2013. The ruling wholly supports Wright's sanction and dismisses John Steele and Paul Hansmeier claims that due process rights were violated: "These consolidated cases began as minor copyright infringement suits, until courts nationwide started catching on to the plaintiffs' real business of copyright trolling," the ruling states. "Prenda Principals were found contradicting themselves, evading questioning, and possibly committing identity theft and fraud on the courts" and "The Prenda Principals have engaged in abusive litigation, fraud on courts across the country, and willful violation of court orders," the opinion states. "They have lied to other courts about their ability to pay sanctions. They also failed to pay their own attorney’s fees in this case." The third appellant, Paul Duffy, died last year.

All three major record labels, along with 50 other rights owners and platforms, including Spotify, Pandora, SACEM and YouTube, have committed to creating a new system to “dramatically simplify the way that music creators and rights owners are identified and compensated”. The new initiative will hopefully replace and surpass the stalled Global Repertoire Database - and provide a 'one stop' centre for users who want to use songs and sound recordings. The Open Music Initiative (OMI) has been founded by Berklee College of Music’s Institute for Creative Entrepreneurship (BerkleeICE), and has been publicly backed by Universal, Sony, Warner and many more – although as MBW points out - despite Google's YouTube being on board, Apple’s name is conspicuous by its absence.

The European Commission's public consultation on "neighbouring rights" for publishers  - otherwise known as the 'Google tax on snippets' CLOSES TODAY.  The right could potentially allow publishers to demand payment from search engines and content aggregators where they include short snippets that link to the original text. You must use the questionnaire on the EU website to respond. 

And the latest battle in what the difference is between 'inspiration' and what is 'appropriation' has kicked off in Los Angeles, where Led Zeppelin stand accused of copying of a song called “Taurus,” written by Randy Wolfe and performed with his band Spirit, into their epic "Stairway to Heaven". Those who have listened to recordings of each of the songs might think there is a strong similarity, but the legal team attorney for Zeppelin’s front man, Robert Plant, and lead guitarist, Jimmy Page, said any similarities were because the two songs both relied on “basic musical devices that are completely commonplace” and found in songs dating back centuries.  "Taurus" was released three years before “Stairway to Heaven” surfaced on Zeppelin’s untitled fourth album, commonly referred to as “Led Zeppelin IV.” In the wake of the jury decision in the "Blurred Lines" case, its unsurprising Plant and Page cancelled sows to attend the trial.   

And finally and this time from Canada, a federal court has ruled that that a number of companies must temporarily stop selling TV boxes that allow consumers to access content via streaming sites as they face a court battle over alleged copyright infringement. The plaintiffs, who include Bell and Groupe TVA, allege the TV boxes come with pre-loaded software that allows consumers to view copyrighted programming from illegal streaming sites . MTLFreeTV, one of the defendants, argued the boxes are similar to a tablet or computer, and the company does not develop, produce, service or maintain the software that comes with the boxes. Justice Danièle Tremblay-Lamer ruled that the companies must stop selling pre-loaded products until a the result of a trail in the matter.

The CopyKat - food for thought

Whilst (and for an unexplained reason) numerous blogs including Boing Boing and TechDirt focussed on a 2013 ruling in Germany that "Germany Says Taking Photos Of Food Infringes The Chef's Copyright", The CopyKat was more intersted in the ruling in the the Australian Federal Court which dismissed an interlocutory application by Seven Network (Operations) Limited (Seven) to restrain the Nine Network (Nine) and production company Endemol from continuing to broadcast the kitchen reality TV show, The Hotplate. Seven alleged that, by producing and broadcasting episodes of The Hotplate, Nine was infringing Seven’s copyright in its program, My Kitchen Rules (MKR) - its format wars again folks! Seven had argued that key elements of MKR sufficient to constitute a substantial part of one or more of the MKR literary works had been incorporated into The Hotplate and that Endemol had access tho the MKR production 'Bible'.  The Court dismissed the application, finding that  the balance of convenience of either granting or withholding the interlocutory relief weighed in Nine’s favour, not least as if The Hotplate were halted, it would be increasingly difficult to re-start as successfully at a later date. This means that the remainder of the first season of The Hotplate can continue to be broadcast (at least until the next hearing).  Justice Nicholas did find that Seven has a reasonably arguable case that the formats of MKR and The Hotplate are very similar and that this close similarity was (at least to some extent) the result of copying by Nine.  Sonia Borella and Sam Berry (Holding Redlich) have some useful observations here.

The Motion Picture Association Of America has dropped their somewhat controvesrial request for a preliminary injunction that would have required U.S. internet service providers to block access to the copyright infringing MovieTube we mentioned in our last (catscratching) post.

Paul Duffy, one of the attorneys behind the somewhat notorious copyright 'troll' Prenda Law, has died. His death was confirmed by the  Cook County Medical Examiner. The cause of death is still pending and could take up to three months to confirm. The Madison Recorder noted that Duffy died at a Chicago hospital. He was 55. . US District Judge Otis Wright had Prenda's practices referred to the Internal Revenue Service's criminal investigation unit and in August 2014, the US Court of Appeals for the Seventh Circuit upheld judicial sanctions against Duffy and fellow attorneys John Steele, and Paul Hansmeier for engaging in “abusive litigation” and failing to pay attorney's fees to defendant Anthony Smith in a porn-downloading lawsuit. ArtsTechnica also say that in June this year US District Judge David Herndon ruled that Steele and Duffy had "engaged in unreasonable, wilful obstruction of discovery in bad faith" in its case against Smith. Herndon ordered Duffy and Steele to pay for the defence's discovery costs.

The Chinese State Administration of Press & Publications, Radio, Film & Television (SAPPRFT) has announced a regulatory notice to control reality television programmes that are “vulgar and damaging to social ethics”. The notice does not give details of mechanisms that will be used to define or ban problematic programmes. The notice may affect licensing of programme formats and content from overseas, for both on- and off-line screening. More here (in Chinese). This from the IPO's excellent monthly China IP Newsletter.

Kim Dotcom has posted a recording of a phone call he had with some Universal Music executuves a few years ago in which the major label men –- at that point major foes of the MegaUpload founder and about to shut him down - discussed the possibility of participating in a new venture he was experimenting with at the time called Megakey. CMU Daily have an interesting update on this here. 

A Los Angeles federal judge has now scheduled the trial in a copyright-infringement case involving Led Zeppelin’s iconic rock anthem “Stairway to Heaven.” A lawsuit, filed last year in Philadelphia and subsequently transferred to Los Angeles, alleges that the guitar arpeggio opening of “Stairway,” released 44 years ago, was lifted from the 1968 instrumental “Taurus” by the long-defunct Los Angeles band Spirit who suppirted Led Zepplin on tour. The complaint was lodged on behalf of the estate of Spirit’s guitarist- songwriter Randy California, who drowned in 1997 off the coast of Hawaii. The trial is set to begin on May 10th.

And finally: So you're a farmer in rural America - the land of the free and the self reliant - and your John Deere 8520T tractor plays up - and needs a fix:  the problem is that it's all run by a computer and you can't actually do repairs as there's a digital lock on the software and only the autorised dealer can fix the tractor.  Tamper and you run the risk of a copyright infringement suit. Now farmers and mechanics are asking the Library of Congress' copyright office to review the law and make an exemption.  More here.

Rock Follies? heavy metal copying claims rock on

The dust has yet to settle on the 'Blurred Lines' litigation in the USA - with a review of the damages awarded to the Gaye family, a revised settlement, an injunction against Pharrell and Robin Thicke, a new trial and/or an appeal are all being mooted, who wrote what remains a big question, as does the the difference between appropriation and inspiration: the recent settlement by Sam Smith and his co-writers with Tom Petty and Jeff Lynne over allegations that "Stay With Me" plagiarised "I Wont Back Down" just adds to this confused conundrum, as does the recent news that Mark Ronson and Bruno Mars have added the five members of the Gap Band as co-writers of "Uptown Funk" because of similarities to 'Ooops Upside Your Head". Now its the turn of heavy metal:

The lawsuit  brought by the trustee of the late Randy California claiming that Led Zeppelin's 'Stairway to Heaven' was plagiarised from an obscure song 'Taurus' by the band Spirit has survived its first legal challenge.  In 1969, Spirit and Led Zeppelin shared the bill at several concerts. U.S. District Judge Juan Sanchez has now refused to dismiss the claim. If the suit succeeds, a three-year statute of limitations would limit the award to the most recent earnings. Judge Sanchez said he declined to dismiss the suit "in the interest of justice," because the improper venue could be fixed by sending the case to California. As to the location of any trial, in his order, he said the Led Zeppelin members weren't subject to jurisdiction in Pennsylvania, in part because they don't live there and hadn't appeared to specifically target the district for selling their music. Guitarist Jimmy Page had dismissed the claim as “ridiculous” but added nothing more. Before he died 1997, Spirit guitarist Randy California told a reporter: “I’d say it was a rip off. And the guys made millions of bucks on it and never said ‘Thank you’, never said, ‘Can we pay you some money for it?’ It’s kind of a sore point with me. Maybe someday their conscience will make them do something about it.” 'Stairway To Heaven' is said to be one of the most covered rock songs and its worth is estimated to be more than $560 million. Francis Malofiy, the lawyer for the late singer's estate, said, "Attribution is the most important thing'' adding  "What we want is for credit to be given where it's due. I'm a fan of Led Zeppelin, but in this situation, we want credit for Randy.''

The internet has been buzzing with comments of the similarities between Guns N' Roses' most enduring song - 1987's 'Sweet Child O' Mine' - and Australian Crawl's 1981 song 'Unpublished Critics', from their album Sirocco. Now this may well NOT be copied - but blimey, and as one commentator said - it really does have "the same chugging chord progression, a similarly-sweeping lead break, the verse melody, and the elongated one-syllable vocal in the chorus."  You can hear and compare the tracks on this webpage.

http://www.bloomberg.com/news/articles/2015-05-07/led-zeppelin-judge-declines-to-dismiss-stairway-to-heaven-copyright-suit

http://www.maxtv.com.au/news/is-sweet-child-o-mine-stolen-from-a-1981-australian-crawl-song.aspx

And more on Francis Malofiy, the attorney acting for Randy California and   can be found here

 http://www.phillymag.com/news/2014/10/24/lawyer-filed-stairway-heaven-suit-led-zeppelin-may-disbarred/