Is Antigua the puurrrrrrfect home for the CopyKat?

Maria Pallante, the US Registrar of Copyrights

In the US, the 7th Circuit Court of Appeals has reversed a District Court’s decision invalidating a copyright registration, in spite of its agreement with the lower court’s factual finding that a copyright registrant had lied about the authorship of the work in question, a business logo, and had lied about the supposed transfer of that work to him. The 7th Circuit held that the District Court had committed legal error in invalidating the registration without first consulting the Register of Copyrights. DeliverMed Holdings v Schaltenbrand, Case No. 12-3773 (7th Cir. Oct. 7, 2013).

And another update naming the Registrar of Copyrights comes from David A. Kluft, writing on the Mondaq.com law blog: Noting that in 2011 Congress ordered the US Copyright Office to study what could be done to ensure that individual authors, photographers and other copyright owners have a realistic ability to enforce their rights even when they have comparatively small claims, Mr Kluft reports that the Copyright Office has now finally issued it's 161-page report, complete with a draft statute, saying "The report considered and rejected allowing state small claims courts to hear copyright cases (too logistically nightmarish), and tinkering with the Federal District Courts (too many tricky constitutional issues). Instead, the Report recommended the creation of the "Copyright Claims Board," a voluntary system of adjudication to be administered directly by the Copyright Office with reviews of decisions limited to motions for reconsideration followed by appeal to the Register of Copyrights". Very limited rights to appeal to a District Court (eg for fraud) will be provided for. It can all be found here.

YouTube-mp3, a site dedicated to converting YouTube videos to downloadable MP3s, has lost a German court battle with three music companies acting under the umbrella of industry group BVMI. The site rips music from YouTube and archives the MP3s for future download and said it has a right to provide ripping services but then agreed to a cease and desist order from the claimants. Whilst YouTube-mp3 had argued (a) that it was (some of) it's users who would be infringing copyright and (b) that the service itself was free of liability as it had legitimate uses (as well as infringing uses), the labels discovered that behind the scenes YouTube-mp3 was keeping back-ups of audio-files ripped from YouTube, so that if multiple people wanted to rip the audio from the same video, the ripping service only had to actually access the YouTube platform once. Subsequent rippers would get a copy of their desired audio file directly off the YouTube-mp3 server. The Court ordered the ripping company to pay legal costs.

No pirate bay here!

A long long time ago (well, in 2003) Antigua started proceedings with the World Trade Organization (‘WTO’) challenging the United States’ total prohibition on cross-border online gambling services - and they won, way back in 2004 The US appealed and the judgement was upheld in 2007. The US was given one year to correct its laws but failed to so do - leading to concessions being granted to the small island nation. In January this year the WTO authorised Antigua to suspend US copyrights - and recoup their losses - which have been set at $21 million each year. Antigua and Barbuda have now issued a press release explaining that their “WTO Remedies Implementation Committee” - a panel of IP experts - "continues its work with the convening of a meeting geared towards harvesting benefits from Antigua & Barbuda’s WTO Gaming case" and the Committee is said to be "recommending the establishment by the Government of Antigua & Barbuda of a statutory body to own, manage and operate the ultimate platform to be created for the monetisation or other exploitation of the suspension of American intellectual property rights authorised earlier this year by the WTO.  It is understood that the necessary domestic legislation to implement the remedies is in the final stages of preparation for submission to Parliament.  Additionally, an announcement regarding the opening of tenders for private sector participation in the operating of the platform should be announced shortly". 

Grounded?

If true - the question surely is - how did they get away with it so long (despite that odd quirk of US copyright law in relation to the public performance of sound recordings)? Anyway, reports have come in that Sony is suing United Airlines, claiming the airline has been playing music and videos on its aircraft without permission. Sony Music Entertainment filed the lawsuit in New York’s Southern District Court against Chicago-based United, Inflight Productions, and rights management agency Rightscom - who had prompted the claim by contacting the claimants. The tip-off appears to have triggered a deeper investigation into in-flight music and now a lawsuit. Sony claims United has violated its copyrights by transmitting sound recordings and videos of artists including Britney Spears, Justin Timberlake and Michael Jackson through its on-demand and other in-flight services without a license.

The 'Happy Birthday' lawsuit that is winding its way through federal courts - seeking clarity on whether the music publisher Warner Chappell has a valid copyright in “Happy Birthday to You” has moved on a step. U.S. District Judge George H. King (Central District of California) has ordered that certain tangential claims be stayed until further notice, while the case will move forward on the central claim alone . Judge King’s order confirms the parties’ agreement at an October 7th hearing to bifurcate (separate) the central claim from the remaining claims (seeking an injunction against Warner, and a variety of related claims such as unfair competition, false advertising, and breach of contract) at least through the summary judgment phase of the central claim. Judge King also declined to apply a four-year statute of limitations to the central claim because of the declaratory nature of the order sought in the central claim.

In India, script writer Uday Singh Rajput has brought an action in the Bombay High Court alleging copyright violation of the script of Hrithik Roshan-starred Krrish-3 and seeking a stay on the all India release of the film unless he was awarded compensation of Rs two crore. The writer said that he had written the script titled 'Krrish-2' (the sequel to Krrish part 1) but was being denied the credit for writing the story. Rakesh Roshan, producer of Krrish-3, has also filed a caveat in the High Court urging that no relief should be granted to Uday Singh Rajput unless he (Roshan) is heard in the matter. Rajput said he gave his '2' script (which he registered with The Film Writers Association on July 23,  2008, to Roshan, who then used the same script to make a sequel to Krrish and gave the title as Krrish-3 instead of Krrish-2 - and took the credit as writer. More on the Krrish series here. The film is expected to open this Friday (1st November). The hearing before Justice S J Kathawala is today. 

With 60% of the UK's game developers saying that piracy is a problem in their business, you might have thought that they would, like the music and film industries, be up in arms about the perceived lack of government legislative intervention. But according to a report in the Guardian, only 10% think that stricter enforcement of intellectual property rights is an effective way to deal with the challenge. According to The Guardian, 87% of British gaming companies surveyed by their trade body TIGA said that new business models were the best approach to combat piracy, while 40% agreed that more educational initiatives explaining why copyright is good and piracy bad were also desirable. Nearly three quarters of those who responded were against any sort of 'three strikes' regime where persistent infringers have their net connections slowed down or even suspended. "Tiga’s survey shows that many games businesses continue to find the most effective response to the problem of piracy is to adopt new business models, such as subscription based services and free to play games" said chief executive Dr Richard Wilson.

Finally, remember back in May 2012 the IFPI and the global recording industry welcomed the verdict of the Russian appeal court that confirmed social networking and downloading site vKontakte was liable for the copyright infringement of its users? After the case, brought by SBA Music and Gala Records, the record labels urged vKontakte "to take immediate steps to stop its service being used to infringe copyright on a massive scale". Well the Russian courts have seen some progress - although many commentators are saying that content owners have suffered what might be thought of as a "set back" in a new decision some 18 months later. With new take down procedures in place on Russia's biggest social network, a St Petersburg court has ruled that the social networking set-up was not liable for its users uploading recordings owned by music company claimant Soyuz without permission, noting that no vKontakte employees were involved in the infringement and the firm couldn't be expected to monitor everything uploaded to its servers.  vKontakte is reportedly in talks with the major labels and other music firms about launching a licensed music streaming service.

For legal free downloads head to Antigua & Barbuda

According to Reuters, Antigua & Barbuda will tell the World Trade Organization on Monday that it intends to use trade sanctions against the US, which it wants to enforce by enabling downloads of US content without enforcing copyright.

Antigua: free downloads and beautiful beaches

This all stems from a dispute that Antigua filed with the WTO back in 2003. Antigua had a thriving gambling industry which used to employ nearly 5% of all Antiguans, however the industry all but collapsed when the US prevented Antigua from accessing its market. On 21 March 2003, Antigua requested consultations with the US regarding the measures it has applied affecting the cross-border supply of gambling and betting services. Antigua said that the cumulative impact of these measures was to prevent the supply of gambling and betting services from another WTO Member to the US on a cross-border basis.

After a lot of to-ing and fro-ing, the matter was referred to arbitration. The arbitrator found that Antigua was entitled to US$21 million annually. Antigua was permitted to request authorisation from the WTO dispute settlement body to suspend obligations under the TRIPS Agreement, i.e. to impose trade sanctions on the US, at a level not exceeding US$21 million annually.

Antigua was well aware that threatening to block US imports to a country of 70,000 people would have little impact, so WTO granted it the right to sell US content free from copyright instead. According to TorrentFreak, Antigua put the topic on the WTO meeting last month, but the US blocked it from being discussed by arguing that the request was "untimely", however Antigua is expected to try again on 28 January.

This blogger sees this as evidence of what we all already know: that trade of online content and information is fast become as valuable as trade of physical goods.

For full details of the various stages of the dispute, see here.

ZookZ claim WTO permission to download without permission

ZookZ is a new site offering unlimited music or film downloads for under $10 a month, or both for $18. Its trick for keeping prices down is not to pay copyright holders. ZookZ says it doesn’t need to. Why? It’s based in Antigua. The LA Times explains:

‘The governments of Antigua and the United States battled for several years before the WTO over whether US restrictions on online gambling discriminated against foreign firms. The WTO sided with Antigua in several preliminary stages, but the US kept contesting the body's findings. So to increase the pressure, Antigua asked WTO arbitrators to give it permission to suspend its obligations under sections of the TRIPS (Trade-Related Aspects of Intellectual Property Rights) agreement related to copyrights, trademarks, patents, industrial designs and trade secrets. The arbitrators agreed in December 2007, finding that Antigua could request the WTO's permission to suspend its obligations up to a value of $21 million annually.’