The CopyKat

Video-sharing website Vimeo LLC cannot be held liable for copyright infringement for unknowingly hosting older music uploaded by its users, a U.S. appeals court ruled, dealing a blow to record labels seeking broader protections. In a victory for internet service providers, the 2nd U.S. Circuit Court of Appeals in New York also held that the mere fact that Vimeo employees had viewed videos with copyrighted sound recordings was not enough to prove the company ignored red flags of infringement. The case, pursued by Capitol Records and Sony Corp units, was closely watched in Silicon Valley, with Vimeo's appeal drawing support from Facebook Inc, Twitter Inc, Alphabet Inc's Google, and other companies.

A new letter, signed by a host of recording stars including Lady Gaga, Sir Paul McCartney, Ryan Adams, Cher, Sir Elton John, Fall Out Boy, Yoko Ono Lennon, Bette Midler, Queens Of the Stone Age, Pink, Maroon 5, Mark Ronson, Elton John, Bon Jovi, Rod Stewart, Lionel Richie, Aerosmith's Steve Tyler (pictured) Pusha-T, Sade, Gwen Stefani, Sting and Beck has been sent to Congress asking lawmakers to "please protect" future artists and songwriters by enacting "sensible reform" of DMCA - adding that the current version of the YouTube-shielding ' safe harbor' law "simply doesn't work" and has allowed tech companies to generate “huge profits” while the earnings of artists and songwriters “has plummeted”

Pirate Bay co-founder Peter Sunde has been ordered by the Helsinki District Court to pay E350,000 ($395,000) to record labels including Sony, Universal, Warner and EMI, after their content was shared illegally via the platform and costs of around $62,000 (55,000 euros) - the payment has to me mad to the local branch of IFPI. Sunde also faces a fine of one million euros if the content continues to be shared via The Pirate Bay but - as he says he is now unconnected to the site - how he is supposed to do anything about that isn’t clear.

A building design firm is suing Lion Enterprises, Inc., Bastian Homes Ltd. and Eugene J. Bastian, citing alleged copyright infringement. Design Basics LLC filed a complaint on in the U.S. District Court for the Middle District of Pennsylvania against the defendants, alleging that they violated Copyright Act and the Architectural Works Copyright Protection Act by publishing, distributing, marketing, and advertising certain architectural designs for residential homes similar to the plaintiff's Plan No. 2316 – Franklin – and Plan No. 6715 – Sycamore. The defendants allegedly violated and continue to violate the plaintiff's exclusive rights in each of the copyrighted works. Design Basics is asking for a jury trial and and injunction prohibiting the defendants from further infringing on its copyrighted works, an order directing the U.S. Marshals Service to impound all copies of the copyrighted works in possession of defendants, and an award for all damages, costs and reasonable attorney’s fees and for such other relief as it may show itself to be entitled.  U.S. District Court for the Middle District of Pennsylvania Case number 1:16-cv-00922]

TechDirt reports on two more decisions from the US Courts that confirm "legal threats against alleged infringers, based on nothing more than IP addresses" will not succeed in the courts.  In the first case, New Jersey Judge Kevin McNulty disagreed with Malibu Media's request for default judgment, pointing out that the limited info it was working with could not rule out a successful defense being raised by the accused infringer. In the second case brought against defendant Thomas Gonzales, Oregon Magistrate Judge Stacie Beckerman said The only facts Plaintiff pleads in support of its allegation that Gonzales is the infringer  is that he is the subscriber of the IP address used to download or distribute the movie, and that he was sent notices of infringing activity to which he did not respond. That is not enough. Plaintiff has not alleged any specific facts tying Gonzales to the infringing conduct. While it is possible that the subscriber is also the person who downloaded the movie, it is also possible that a family member, a resident of the household, or an unknown person engaged in the infringing conduct."

And finally, the Walt Disney Company is taken legal action against three Chinese companies over the animated film “The Autobots” which Disney claims infringes the Disney copyright in the hit animated movie “Cars”. According to Reuters, the three defendants are the production firm Blue MTV, media firm Beijing G-Point and online content platform PPLive Inc. A notice on the Shanghai Pudong New Area People’s Court website states that Disney are suing for copyright infringement and unfair competition.

The CopyKat - global copytreats - with a distinct lack of divine inspiration

A German court has ruled that an American psychologist — and not Jesus Christ — is the author of a book that she said Christ dictated to her in a "waking dream." Well, at least for the purposes of authorship in copyright law. The late Helen Schucman said she was a vessel for the words of Christ in her book A Course in Miracles, and a German Christian group called the New Christian Endeavour Academy argued that they were therefore free to put text from the book up on their website without permission or payment, saying "For many there is no doubt that Jesus of Nazareth is the author of the course and that copyright law therefore doesn't apply to his work." The Higher Regional Court in Frankfurt  disagreed and ruled that the rights go to the actual writer of the book regardless of "divine inspiration".

Its evolution Charles,
but not as we know it

This from the Guardian: "There were some funkybeats at Imperial College London at its annual science festival. As well as opportunities to create bogeys, see robots dance and try to get physics PhD students to explain their wacky world, this fascinating event included the chance to participate in a public game-like experiment called DarwinTunes. Participants select tunes and "mate" them with other tunes to create musical offspring: if the offspring are in turn selected by other players, they "survive" and get the chance to reproduce their musical DNA". The experiment is online: http://darwintunes.org/  - and should it be repeated with music that is in copyright would raise all sorts of interesting challenges for copyright lawyers as the music 'evolves'. 

In New Zealand a summary of the FBI's case against Kim Dotcom has been made public. It alleges the German millionaire knowingly infringed copyright, monetarily rewarded other people for doing so and made more than $175 million in the process. Judge Nevin Dawson in the District Court lifted the prohibition order on publicising the FBI's case against Dotcom, which the Megaupload founder "had hoped to keep secret. Stuff explains that Dotcom's has issues with a document called the "Record of Case", a summary document from more than 22 million emails obtained by the FBI. The summary of the FBI's case was released by a United States district judge to potential victims at the end of last year. The summary is now no longer subject to prohibition orders in New Zealand.

The Bookseller reports that the International Publishers’ Association (IPA) and the Federation of European Publishers (FEP) have warned that Europe's creative industries risk being "severely" prejudiced by measures taken by the World Intellectual Property Organisation's (WIPO) committee on copyright: How so? Well WIPO's Standing Committee on Copyright and Related Rights (SCCR) is currently looking at limitations and exceptions to copyright internationally, with a particular focus on educational activities, libraries and archives, and on people with disabilities, particularly those with visually impairments - and the trade groups 
have joined others including the International Association of Scientific, Technical and Medical Publishers and the European Grouping of Societies of Authors and Composers, in calling for the European Union to clarify the mandate of the SCCR before it commits to further work on copyright limitations and exceptions. An open letter signed by the organisations stated that a "broad range of divergent views" exists among WIPO member states. The “future direction of the SCCR may have far-reaching implications for the international copyright framework”, especially in relation to topics including the limitations and exceptions for libraries and archives, it said.

The U.S. Supreme Court has given the daughter of deceased screenwriter Frank Petrella a second chance to fight movie studio Metro-Goldwyn-Mayer Inc over her claim it infringed the copyright of an early screenplay for what became the iconic boxing movie "Raging Bull." MGM had invoked "laches", the doctrine that an unreasonable delay in pursuing a claim is a defence against that claim. MGM moved for summary judgment, asserting the equitable defence of laches based upon the long and unreasonable delay in bringing suit. The District Court agreed, then the Ninth Circuit Court of Appeals affirmed. Justice Ruth Bader Ginsburg wrote on behalf of the majority (6-3) of the Supreme Court that the Copyright Act bar on lawsuits more than three years after a claim arises did not bar the lawsuit because Petrella has argued that  there was an ongoing infringement and Petrella was only claiming damages for the three years preceding the filing of her lawsuit saying " Laches, we hold, cannot be invoked to preclude adjudication of a claim for damages brought within the three-year window. As to equitable relief, in extraordinary circumstances, laches may bar at the very threshold the particular relief requested by the plaintiff. And a plaintiff’s delay can always be brought to bear at the remedial stage." The court was clear that equitable estoppel may also apply, but that generally requires some affirmative act by the rights-holder. More on Laches and as Jeremy explains on the IPKat - laches cannot bar legal claims for actual damages or profits arising out of copyright infringement

Vimeo CEO Kerry Trainor has told Billboard that the video streaming service is launching a "Content ID" system which will allow the company to be "a little more controlled" in terms of making sure that copyrighted material is not infringed. Simply referred to as Copyright Match, Vimeo’s system subjects uploaded content to a scanning algorithm that attempts to pick up on any conflicts of interest, like clips of movies or songs not intended for free use. Vimeo said “Over the last nine years, Vimeo has grown into one of the most visited video destinations in the world. We now have more than 26 million registered members, with over 170 million people swinging by monthly to watch awesome videos. At our size, we need a semi-automated system to help us enforce those beloved guidelines.”

The South China Morning Post says that one of China's most popular online platforms, Qvod, will be fined 260 million yuan (or a rather large £24.7 million or US $41.6 million
as I make it) by the Shenzhen Market Supervision and Administration Bureau for linking to pornographic material and copyright infringement. Qvod, founded in 2007, has been accused of allowing users to watch pirated material and pornographic content on the company's peer-to-peer video-player technology. Early last month, Qvod was compelled to shut down its servers after the National Copyright Administration said it continued to violate copyrights. On April 22nd Shenzhen police raided Qvod's headquarters and seized computers and equipment.

Rightscorp Inc  the "provider of monetisation services for artists and holders of copyrighted Intellectual Property" has announced  the addition of 500,000 new copyrights to it's representation catalogue, bringing its total ownership portfolio to over 1.5 million copyrights. According to Rightscorp, it has been actively increasing the number of copyrights that it can protect and monetise by constantly adding new copyrights into its system.

In France it seems that the French record industry is following its UK counterpart in seeking a web-block injunction against The Pirate Bay, which would force internet service providers in the country to stop their customers from accessing the controversial file-sharing site via its principle (albeit ever changing) domains. According to NextINpact, a lawsuit filed by the French Civil Society Of Phonographic Producers back in February is now being shared with France's net sector at large and the suit names over a hundred Pirate Bay proxies which would otherwise be used to avoid primary blocks.

And finally, Music Week reports that new copyright amendments are being prepared by the Ministry of Communications in Russia that could lead to entire websites being blocked by court order - even if they comply with takedown requests. With many feeling that some sites pay lip service to take down requests and indeed are turning a blind eye to a mass of infringing content elsewhere on their domains, Ministry of Communications deputy Alexei Volin said: “Unscrupulous illegal sites should be blocked entirely.”

Record labels take on Vimeo post Viacom v YouTube

Led by EMI, The US recorded music  industry has filed court papers asking for a summary judgement in their favour regarding a long-running copyright dispute with video website Vimeo. The action, which dates back to 2009, what put on hold pending the outcome of Viacom’s lawsuit against YouTube, which tested the ‘safe harbour’ defence available to websites under the US's Digital Millennium Copyright Act.  

Websites like Vimeo and YouTube, which allow users to directly upload content, argue that as they operate takedown systems and remove unlicensed content if made aware of infringement by copyright owners, they have the protection of the 'safe harbour' defence against infringement actions.  As ever, it’s a balancing act, and many content owners argue that safe harbour favours website operators and services such as YouTube, and that many websites don’t do enough – and could do a lot more – to remove infringing material from their sites – or even block it ever being loaded up in the first place – and that a system based on “ takedowns” is not enough in the developing digital age.

At first instance US District Judge Louis L Stanton granted summary judgement to YouTube and held that YouTube would only be obliged to take down clearly defined individual infringing items, rather than undertake any consistent action to remove "clones" of the deleted material as they re-appear.

The Second Circuit Court of Appeals vacated the order granting summary judgement because they held that, a  reasonable jury could find that YouTube did have actual knowledge or awareness of specific infringing activity on its website.  In support of this ruling, the Appeals Court cited various evidence from Viacom that arguably showed that YouTube had reason to know that a fair percentage of the content uploaded on the site contained unauthorized copyright material.  The Court further remanded back to the District Court the task of determining whether any of this evidence may show that YouTube had knowledge of or awareness of infringements which corresponded with the YouTube clips subject to the present action - all of which could be quite the evidential task.  The Court also remanded the question of wilful blindness back to the District Court and indirectly demanded an explicit fact-finding exercise to be undertaken.

Unlike YouTube, Vimeo is primarily a site designed for film makers so they can upload and publicly exhibit their films and has no licensing deals with the major music companies. More recently Vimeo has pointed aspiring film makers towards low cost music licensing operations to source music for their productions, to avoid takedown notices from record labels and music publishers - but this is clearly not sufficient for the record labels. Let battle commence!