EFF calls for reforms - to the reforms !

As the CopyKat reported earlier this week, the technology sectors are continuing their assault on planned reforms to EU Copyright law, and now the Electronic Frontiers Foundation has joined the likes of Google, YouTube and Facebook in criticising the planned copyright law reforms. In a letter the EFF say has been sent to everyone involved in the upcoming "Trilogues", the meetings held between representatives from European national governments, the European Commission, and the European Parliament, Cory Doctorow argues that the reforms contained in Articles 11 and 13 of the Copyright Directive are "ill considered and have no place in the Directive", concluding that instead of effecting some "piecemeal fixes to the most glaring problems", the Trilogue takes a simpler approach, and removes them from the Directive altogether. 

Having previously opined that the vote in the European Parliament that passed the draft Directive "brought the EU much closer to a system of universal mass censorship and surveillance, in the name of defending copyright" and that Articles 13 and 11 would create "upload filters" and the “link tax”, the EFF's views are perhaps unsurprising - you can make of the points raised as you will, as the letter is set out in full is below:

The Electronic Frontier Foundation is the leading nonprofit organization defending civil liberties in the digital world. Founded in 1990, EFF champions user privacy, free expression, and innovation through impact litigation, policy analysis, grassroots activism, and technology development. We work to ensure that rights and freedoms are enhanced and protected as our use of technology grows. We are supported by over 37,000 donating members around the world, including around three thousand within the European Union.

We believe that Articles 11 and 13 are ill-considered and should not be EU law, but even stipulating that systems like the ones contemplated by Articles 11 and 13 are desirable, the proposed text of the articles in both the Parliament and Council texts contain significant deficiencies that will subvert their stated purpose while endangering the fundamental human rights of Europeans to free expression, due process, and privacy.

It is our hope that the detailed enumeration of these flaws, below, will cause you to reconsider Articles 11 and 13's inclusion in the Directive altogether, but even in the unfortunate event that Articles 11 and 13 appear in the final language that is presented to the Plenary, we hope that you will take steps to mitigate these risks, which will substantially affect the transposition of the Directive in member states, and its resilience to challenges in the European courts .

Article 13: False copyright claims proliferate in the absence of clear evidentiary standards or consequences for inaccurate claims.

Based on EFF’s decades-long experience with notice-and-takedown regimes in the United States, and private copyright filters such as YouTube's ContentID, we know that the low evidentiary standards required for copyright complaints, coupled with the lack of consequences for false copyright claims, are a form of moral hazard that results in illegitimate acts of censorship from both knowing and inadvertent false copyright claims.

For example, rightsholders with access to YouTube's ContentID system systematically overclaim copyrights that they do not own. For instance, the workflow of news broadcasters will often include the automatic upload of each night's newscast to copyright filters without any human oversight, despite the fact that newscasts often include audiovisual materials whose copyrights do not belong to the broadcaster – public domain footage, material used under a limitation or exception to copyright, or material that is licensed from third parties. This carelessness has predictable consequences: others — including bona fide rightsholders — who are entitled to upload the materials claimed by the newscasters are blocked by YouTube and have a copyright strike recorded against them by the system, and can face removal of all of their materials. To pick one example, NASA's own Mars lander footage was broadcast by newscasters who carelessly claimed copyright on the video by dint of having included NASA's livestream in their newscasts which were then added to the ContentID database of copyrighted works. When NASA itself subsequently tried to upload its footage, YouTube blocked the upload and recorded a strike against NASA.

In other instances, rightsholders neglect the limitations and exceptions to copyright when seeking to remove content. For example, Universal Music Group insisted on removing a video uploaded by one of our clients, Stephanie Lenz, which featured incidental audio of a Prince song in the background. Even during the YouTube appeals process, UMG refused to acknowledge that Ms. Lenz’s incidental inclusion of the music was fair use – though this analysis was eventually confirmed by a US federal judge. Lenz's case took more than ten years to adjudicate, largely due to Universal's intransigence, and elements of the case still linger in the courts.

Finally, the low evidentiary standards for takedown and the lack of penalties for abuse have given rise to utterly predictable abuses. False copyright claims have been used to suppress whistleblower memos detailing flaws in election security, evidence of police brutality, and disputes over scientific publication.

Article 13 contemplates that platforms will create systems to allow for thousands of copyright claims at once, by all comers, without penalty for errors or false claims. This is a recipe for mischief and must be addressed.

Article 13 Recommendations

To limit abuse, Article 13 must, at a minimum, require strong proof of identity from those who seek to add works to an online service provider's database of claimed copyrighted works and make ongoing access to Article 13's liability regime contingent on maintaining a clean record regarding false copyright claims.

Rightsholders who wish to make copyright claims to online service providers should have to meet a high identification bar that establishes who they are and where they or their agent for service can be reached. This information should be available to people whose works are removed so that they can seek legal redress if they believe they have been wronged.

In the event that rightsholders repeatedly make false copyright claims, online service providers should be permitted to strike them off of their list of trusted claimants, such that these rightsholders must fall back to seeking court orders – with their higher evidentiary standard – to effect removal of materials.

This would require that online service providers be immunised from Article 13's liability regime for claims from struck off claimants. A rightsholder who abuses the system should not expect to be able to invoke it later to have their rights policed. This striking-off should pierce the veil of third parties deputised to effect takedowns on behalf of rightsholders ("rights enforcement companies"), with both the third party and the rightsholder on whose behalf they act being excluded from Article 13's privileges in the event that they are found to repeatedly abuse the system. Otherwise, bad actors ("copyright trolls") could hop from one rights enforcement company to another, using them as shields for repeated acts of bad-faith censorship.

Online service providers should be able to pre-emptively strike off a rightsholder who has been found to be abusive of Article 13 by another provider.

Statistics about Article 13 takedowns should be a matter of public record: who claimed which copyrights, who was found to have falsely claimed copyright, and how many times each copyright claim was used to remove a work.


Article 11: Links are not defined with sufficient granularity, and should contain harmonised limitations and exceptions.

The existing Article 11 language does not define when quotation amounts to a use that must be licensed, though proponents have argued that quoting more than a single word requires a license.

The final text must resolve that ambiguity by carving out a clear safe-harbor for users, and ensure that there’s a consistent set of Europe-wide exceptions and limitations to news media’s new pseudo-copyright that ensure they don’t overreach with their power.

Additionally, the text should safeguard against dominant players (Google, Facebook, the news giants) creating licensing agreements that exclude everyone else.

News sites should be permitted to opt out of requiring a license for inbound links (so that other services could confidently link to them without fear of being sued), but these opt-outs must be all-or-nothing, applying to all services, so that the law doesn’t add to Google or Facebook's market power by allowing them to negotiate an exclusive exemption from the link tax, while smaller competitors are saddled with license fees.

As part of the current negotiations, the text must be clarified to establish a clear definition of "noncommercial, personal linking," clarifying whether making links in a personal capacity from a for-profit blogging or social media platform requires a license, and establishing that (for example) a personal blog with ads or affiliate links to recoup hosting costs is "noncommercial."

In closing, we would like to reiterate that the flaws enumerated above are merely those elements of Articles 11 and 13 that are incoherent or not fit for purpose. At root, however, Articles 11 and 13 are bad ideas that have no place in the Directive. Instead of effecting some piecemeal fixes to the most glaring problems in these Articles, the Trilogue take a simpler approach, and cut them from the Directive altogether.

Thank you,

Cory Doctorow
Special Consultant to the Electronic Frontier Foundation

https://www.eff.org/deeplinks/2018/10/whats-next-europes-internet-censorship-plan-0

Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market  COM(2016)593

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52016PC0593

http://the1709blog.blogspot.com/2018/06/whats-all-fuss-about-eu-copyright.html

THE CHRISTMAS COPYKAT

In Canada, the House of Commons has triggered a parliamentary review of Canada's Copyright Act, first passed in 1921, which will be conducted by the Standing Committee on Industry, Science and Technology. TorrentFreak comments that the music industry was quick to weigh in, congratulating government ministers and making it known that the so-called 'Value Gap'  - how the tech giants seem to be good at everything except removing infringing material, and why likes of Google don't seem keen to pay for what drives the likes of YouTube - be high on the agenda. The 2012 Act tackled a number of important issues, such as allowing time and format shifting, plus backup copies, fair dealing and caps on statutory damages for non-commercial scale infringement - and a review of copyright law every five years, a period that expired at the end of June 2017.

And talking of the Value Gap, YouTube has now just signed a second global, multi-year agreement with the Universal Music Group, amid mooted plans to expand its subscription businesses. Universal said the deal would provide its artists more flexibility and pay, and strengthen YouTube's commitment to managing music rights. YouTube reached a deal with the second of the three majors. Warner Music Group, in May. Bloomberg reports that the negotiations come in advance of YouTube's launch of a new paid music service that is expected to go live in March 2018. And not to be left behind, Facebook and Universal Music Group have signed an 'unprecedented global, multi-year agreement' under which UMG licenses both its recorded music and publishing catalogs for video and other social experiences across Facebook, Instagram and VR platform Oculus.

In good news for the recorded music sector, the US Copyright Royalty Board has determined that SiriusXM must pay 15.5 percent of it's revenue for the next five years (beginning in 2018 through to 2022, although the full determination has yet to be posted on the CRB's website while the participants scrutinize the document to make sure proprietary data is not publicly revealed. The rate represents a near 41 percent jump from the 11 percent the service is currently paying, although it's short of the 23 percent that SoundExchange was advocating for. But the Hollywood Reporter it's better than the static rate that SiriusXM was hoping for from the Court. However in a less palatable move, the Board has ruled that pre-existing subscription services (Music Choice and Muzak) will enjoy a reduced rate of 7.5 percent of revenue for the next five years. That is down from 8.5 percent of revenue in the current year that the two services are paying to the industry.

But the battle between the tech behemoths, and giants of the content industries, is in full spate.  Now the likes Google and Facebook are facing off against Hollywood studios and record labels over how to update the North American Free Trade Agreement to protect copyright in the digital age. Silicon Valley is pushing for exceptions to copyright rules for online platforms and Internet service providers it says are needed to keep content flowing on the web. Meanwhile, the U.S. government seems to be taking positions more favoured by companies such as Walt Disney Co. and Time Warner Inc., which are lobbying for stronger protections for copyright owners. The new (US led) proposals for NAFTA would limit allowances for online use of copyrighted material, a position seemingly less supportive of online platforms than existing U.S. law, in particular a watering down of fair-use exceptions and a re-evaluation of 'safe harbor'.  More on Bloomberg here

T Bone

Back to music: A group of 41 recording artists is urging the US Congress to sort out the somewhat odd (and now much litigated) position of pre-1972 sound recording copyrights in US federal law with the new "Compensating Legacy Artists for their Songs, Service & Important Contributions to Society Act"  - or (wait for it, and a a drum roll please)  the CLASSICS Act. The CLASSICS Act would rectify the obvious problems with relying on state level copyright law to establish a performing right for sound recordings,  and create the basis for a royalty to be levied from broadcasters to pay labels (and hopefully recording artistes) for pre-1972 works.  The 41 signatories including T Bone Burnett, Rosanne Cash, Kris Kristofferson, Bette Midler, Bonnie Raitt and Henry Rollins said  “Digital radio makes billions of dollars a year from airplay of music made before 1972. Yet, because of an ambiguity in state and federal copyright laws, artists and copyright owners who created that music receive nothing for the use of their work. The ‘CLASSICS Act’ would correct this inequity and finally ensure that musicians and vocalists who made those timeless songs finally get their due. We urge Congress to pass the CLASSICS Act and other pro-artist reforms quickly”.

The major national sports Leagues in Europe, including the English Premier League and Germany’s Bundesliga  have won a reprieve from the EU who have agreed to exclude them from the scope of a copyright reform that would help make content more easily available online. The entertainment and sports industries have been fiercely lobbying against the European Commission’s proposed reform of EU copyright law to make films and TV programmes more available across borders, arguing it would undermine the financing model of the whole sector. The Commission has said it is not seeking to force anyone to make content more available online, but merely to make it easier for broadcasters to obtain the necessary rights. EuroNews reports that EU member states have now to exclude all sports events, TV programmes co-produced by broadcasters and other third parties, as well as content licensed to a broadcaster by a third party.

The Electronic Frontier Foundation (EFF) has asked the Librarian of Congress to limit the legal barriers people face when they want to repair and modify software-enabled products, so that they, and not manufacturers, control the appliances, computers, toys, vehicles, and other products they own. In comments filed in Washington D.C. today, EFF continued its years-long fight to enable owners and creators to repair, modify, and enhance products, or use snippets of films or songs, free of onerous threats that doing so somehow infringes companies' copyrights. Software-enabled devices and Internet-connected products and appliances are ubiquitous in modern life, and people aren't infringing anyone's copyright when, for example, they choose to permanently disable the embedded, on-all-the-time camera or microphone in their kids' toys, or send their car to their favorite mechanic, rather than high-priced dealerships, to be repaired. “It’s absurd that a law intended to protect copyrighted works is misused instead to prevent people from taking apart or modifying the things they own, inhibit scientists and researches from investigating safety features or security enhancements, and block artists and educators from using snippets of film in noncommercial ways," said EFF Legal Director Corynne McSherry. "The exemption process is one highly flawed way of alleviating that burden."

Facebook has announced that it removed nearly 3 million posts, including videos, ads and other forms of content, from its services during the first half of 2017 following complaints of counterfeiting and copyright and trademark infringement. Aggregate data shows Facebook received about 377,400 complaints from January through June, with many referencing multiple posts. About 60 percent of the reports related to suspected copyright violations on Facebook.

The National Copyright Administration of China (NCAC) has announced that during the 2017 Sword Campaign 1,655 infringing websites were shut down, 274,800 infringing links were deleted and 314 enforcement cases were dealt with (of which 37 transferred for criminal investigation). The Sword Campaign is a flagship initiative led by NCAC in partnership with other Chinese government departments and enforcement agencies. Meanwhile, NCAC released a list of the top 16 copyright enforcement cases for 2017. The leading case on the list was enforcement against the piracy service Youyueyingchuang Technology Ltd. by Beijing Municipal Cultural Enforcement Division (CED). The resulting enforcement action removed the service and imposed a fine of RMB400,000 (approx. £45,000). More here and here (in Chinese).

The beginning-of-winter Copykat!

The Electronic Frontier Foundation is not really happy at this moment

The Electronic Frontier Foundation published recently an article about the problem of the CASE Act of 2017. We will summarize it, but you can find the entire article here !

The CASE Act of 2017 has been criticised for many reasons, but the EFF here is quite clear: they don’t want it. For them, the CASE Act will have several unwanted consequences, and the first of them is the fact that the Copyright Office will become a Copyright Court. This is the worst that could happen for them, because “the Copyright Office it not known for its neutrality on copyright issues”. According to the EFF, this will magnify the problem of copyright’s unpredictable civil penalties.

Indeed, the CASE Act of 2017 would set up a “Copyright Claims Board” within the Copyright Office, staffed by three judges empowered to hear copyright complaints from all over the country. The proceedings will be voluntary, but if a respondent fails to opt-out, the proceedings become binding and the outcome can be enforced in federal court. According to the CASE Act, the board car issue damages award up to $15 000 per work infringed, or €30 000 per proceeding. And of course, if the parties consent, it can issue “agreements to cease infringing activities” … that become binding injunctions.

For the EFF, the opt-in method “would have greater incentive to design proceedings that safeguard the respondent’s interests, and clear standards that everyone can understand. Equally importantly, an opt-in approach would help ensure that both participants affirmatively choose to litigate their dispute in this new court, and help prevent copyright holders from abusing the system to obtain inexpensive default judgments that will be hard to appeal”.

And you, what do you think?

EU Parliament voted for a copyright reform aimed at making more TV shows and films available online across borders

Commercial TV broadcasters, football leagues and film producers scored a win on Tuesday when European Union lawmakers watered down a copyright reform aimed at making more TV shows and films available online across borders.

The EU Parliament

EU Parliament voted to restrict the scope of the copyright proposal to news and current affairs, excluding TV shows and films. It means that broadcasters will be able to show their news content online across the EU, but only after clearing the rights in their home country!

The original proposal was contested by the media industry. According to them, voting this kind of proposal would have lead to “pan-European licensing, diluting the value of exclusive rights and squeezing out smaller broadcasters that would be unable to afford pan-EU rights”. Indeed, films and TV shows are often broadcast when selling exclusive distribution rights on a country-by-country basis.

However, the vote is not final and dissenters still have hope as the EU Parliament will have to find compromise with member states in the coming months. 

Call collect?

A couple of snippets of news from the world of collection societies: First off, The US Copyright Royalty Board is to raises some of the music streaming royalty rates instigating a change based on a cost of living adjustment for the rates paid to copyright holders by online webcasters. The rates increased to $0.0018 for commercial ad-supported non-interactive music streaming services, and $0.0023 per performance for paid services. That's up slightly from $0.0017 and $0.0022, respectively. Additional rate announcements from the CRB are expected in the coming days.  And the collecting societies representing song rights saw the monies they collect worldwide rise by 6.8% to €8 billion last year – a jump in part fuelled by a 52% increase in digital income – according to new figures published by CISAC. Across all its member societies, digital income was up 51.4% at just under €1 billion. CISAC notes that the boost mainly came from premium streaming services. 

Except this? Except that?

The World Intellectual Property Organisation is going to take a long hard look at the issue of limitations and exceptions to copyright, and provide a draft action plans, one each for libraries, archives, museums, educational research institutions, and persons with other disabilities than sight impairment. The plans, being discussed in this week’s committee meeting, include brainstorming sessions, studies, and regional seminars, and conferences to advance understanding and issues related to copyright for those particular actors. The WIPO secretariat has circulated a document [pdf] providing draft action plans for different strands of the discussions for the 2018-2019 biennium.  

Web-blocking in Switzerland and South-Africa?

You may no know what web-blocking is… This is the anti-piracy tactic where rights owners can get injunctions forcing internet service providers to block their customers from accessing piracy websites. For right owners, this is the perfect anti-piracy tool, and they surely hope that this tool would soon be available in more and more countries.

A new Cybercrimes and Cybersecurity Bill is currently on trail in South Africa, and the local entertainment industry asked for web-blocking. The local entertainment industry took the example of some European countries, in which there is already this web-blocking tool, and asked the ISPs to consider adopting this method. Just like in some European countries, such as France with its “Hadopi”, they also asked for the ISPs to send warning letters to suspected online infringers, and maybe even monitor infringement on their networks.

Unfortunately, none of that is going to be included in the Cybercrimes and Cybersecurity Bill. Ministers opposed them that their proposals were not within the remit of the Bill. However, another Bill is coming, based on seeking to amend the country’s copyright law, and these proposals would be better put forward for that legislation.

In Switzerland, we’re focusing on a copyright review. A lot of critics have been going on for some time on the fact that the copyright regime is ill-equipped to deal with infringement. Indeed, in Switzerland, casual downloading and streaming of unlicensed content is covered by the pesky private exception.

Various new anti-piracy measures have been proposed during the current copyright review and an update on which proposals will go forward was published last week. A possible takedown-and-stay-down requirement has been proposed… Is something great coming?

According to Torrentfreak, Swiss lawmakers have already knocked back proposals that web-blocking be introduced there. However, as people will still be able to “pirate” copyrighted material (as long as that content is consumed privately), it does not include videogames and software. And here is something new: any supposed losses will be compensated via a compulsory tax of 13 Swiss francs, levied on media playback devices including phones and tablets.

You may also note that uploading is explicitly ruled out. Rights-holders will be able to capture IP addresses of suspected infringers in order to file a criminal complaint with authorities! That being said, there will be no system of warning notices.

As you see, the news is coming, and it sounds better than before!

This Copykat from Lolita S.

The Copykat: what Tibbie has to tell us this Monday

This blog post is the first written by our new intern, Tibbie McIntyre.

“And if you hurt me – Well, that’s okay baby, only words bleed”

Ed Sheeran won’t be quoting his international hit ‘Photograph’ anytime soon in relation to his current lawsuit in front of a California federal court.

Ed Sheeran et al are currently attempting to have the ‘Photograph’ case - worth $20m - dismissed on administrative grounds. Sheeren’s hit, ‘Photograph’ is alleged to infringe ‘Amazing’, recorded and released by Matt Cardle, winner of the 2010 season of The X Factor.

As a lawyer, solving your client’s issues quickly and cost-effectively is the best way to keep them happy. That’s why the initial litigation strategy employed by most defending lawyers is to attack the basis of the complainant’s claims. Where a defendant is said to be infringing a patent, her lawyers will probably try to argue that there was never any patent in the first place. In copyright cases – the same holds true – with one side probably arguing that copyright never subsisted in the work in question.

In this particular case, Sheeran’s lawyers have plead to have the case dismissed, asserting – as filed on 7 October – that the lawsuit consists of “vague, disorganized, redundant, argumentative and scandalous allegations”, which “defy the most fundamental pleading requirement of providing short, concise and plain statements”. The second prong of attack taken by Sheeran’s lawyers is to take issue with “unduly vague allegations that “certain Defendants” performed certain unspecific acts without any effort to distinguish between the eleven different Defendants”.

With the ‘Blurred Lines’ decision having been roundly criticized since its release because no melody or harmony features were similar in either of the two songs, attempting to have the case dismissed at this early stage is a prudent move from Sheeran’s lawyers. The original complaint in Sheeran’s case states that the alleged copying was “on a breathtaking scale” and was in fact “in many instances, verbatim, note-for-note copying.” We will watch this case with interest.

The doctrine of exhaustion of distribution rights in computer software does not apply to back-up copies (copies held on a non-original medium).

The Court of Justice of the European Union (CJEU) ruled on October 12 that the doctrine of exhaustion of distribution rights in computer software does not apply to back-up copies.

Ranks et Vasiļevičs is a case concerning two Latvian nationals who are alleged to have sold copyright-protected Microsoft software on an online marketplace between 29 December 2001 and 22 December 2004 (see also here).

The questions put before the court were “whether Article 4(a) and (c), and Article 5(1) and (2), of Directive 91/250 must be interpreted as meaning that the acquirer of a used copy of a computer program, stored on a non-original material medium, may, under the rule of exhaustion of the rightholder’s distribution right, resell that copy where (i) the original material medium of that program, acquired by the initial acquirer, has been damaged and (ii) that initial acquirer has erased his copy or ceased to use it.”

Essentially, the court’s ruling states that:

• An initial acquirer of software under an unlimited user licence is entitled to resell the software to a new acquirer under the doctrine of exhaustion of distribution right. Importantly, however, the software being resold must be stored on the original material medium.
• In contrast, copies of software stored on a non-original material medium (i.e. backup DVDs/CDs/floppy disks) cannot be resold without the authorisation of the rightholder, even where the original material medium has damaged/destroyed/lost.

The CJEU emphasizes that the rightholder has an exclusive reproduction right under Art 4(1) of Directive 91/250. Exceptions to this right are found in Art 5 of the Directive, therefore the initial acquirer of software under an unlimited user licence – in certain circumstances – is entitled reproduce the software. The crux of this case is that the CJEU states that exceptions to exclusive rights must be interpreted strictly, according to settled case law of the Court (Painer, C‑145/10, paragraph 109).

Electronic Frontier Foundation calls on internet users to petition to reform the Digital Millennium Copyright Act’s pro-DRM provisions

The Electronic Frontier Foundation (EFF) is preparing comments in response to the U.S. Copyright Office’s request for additional comments in connection with its ongoing study on the “anti-circumvention” provisions of the Digital Millennium Copyright Act (DMCA).

As reported here by Ben, under Section 1201 of the DMCA, people attempting to fix a broken object subject to some sort of protection measure can be sued for violating copyright law. The consequence being that manufacturers can hold consumers to ransom – dictating who can fix consumer products and how much consumers need to cough up for the privilege.   

Corynne McSherry, EFF’s legal director, writes:

"In practice, the DMCA anti-circumvention provisions haven’t had much impact on unauthorized sharing of copyrighted content. Instead, they’ve hampered lawful creativity, innovation, competition, security, and privacy. … People are realizing how important it is to be able to break those locks, for all kinds of legitimate reasons. If you can’t tinker with it, repair it, or peek under the hood, then you don’t really own it—someone else does, and their interests will take precedence over yours.”

EFF is drafting comments that it hopes will result in a strong and practical set of recommendations. You may read more the issue or sign the petition here, and read more on how to contribute your own thoughts/ideas to the Copyright Office here.

The Copykat

Nearly twenty record label menbers of the Recording Industry Association of America and the British Recorded Music Industry have sued one of the world's leading websites - Youtube-mp3.org - which they say facilitates copyright infringement by enabling so-called stream-ripping for the public. Why? Well Cary Sherman, chairman and CEO of the RIAA, said the following: [Youtube-mp3.org] is raking in millions on the backs of artists, songwriters, and labels. We are doing our part, but everyone in the music ecosystem who says they believe that artists should be compensated for their work has a role to play. It should not be so easy to engage in this activity in the first place, and no stream-ripping site should appear at the top of any search result or app chart." The claimants said in the Los Angeles federal court lawsuit that "Copyright infringement through stream-ripping has become a major problem for Plaintiffs and for the recorded music industry as a whole. From 2013 to 2015 alone, there has been a 50% increase in unauthorized stream-ripping in the United States." EFF Opinion here. 

And Alan Toner, writing on the EFF website, makes some challenging comments on the Court of Justice of the Euroean Union's recent decision in Sony v McFadden which Toner says has important consequences for open wireless in the European Union. The court held that providers of open wifi are not liable for copyright violations committed by others, but can be ordered to prevent further infringements by restricting access to registered users with passwords. EFF reported on the legal aspects of the case last year and collaborated on an open letter to the CJEU on the costs to economic growth, safety and innovation of a password lockdown - although seemingly not on the cost to the copyright industry if piracy remains unchecked wth Toner saying "Universal access to the net will ultimately require curbing the power of a copyright industry which sees free networks as a threat to their property, something to be controlled and monitored rather than opened up and shared." It's worth a read.

A federal court in California has denied Oracle another trial in its long-standing copyright infringement dispute with Google over the use of Java code in the Android operating system. A jury had cleared Google of copyright infringement in May this year, upholding the company’s stand that its use of 37 Java APIs (application programming interfaces) in its Android mobile operating system was fair use, thus denying Oracle up to US$9 billion in damages that it was seeking.

The CopyKat

A US charity called the Association for Childhood Education International has filed a motion to intervene in the 'Happy Birthday' case as music publisher Warner/Chappell ponder their next move(s) after federal judge George H King ruled that Warner/Chappell’s copyright claim was invalid as they seemingly did not control the rights to the lyrics to the song. ACEI’s lawyers claim that the organisation had been receiving one-third of all revenues generated from Happy Birthday for over 20 years – and is largely reliant on this money to continue operating. ACEI argue that the song’s original author, Patty Hill, and her sister, Jessica Hill, had directly assigned rights to Summy Co – which would make Warner/Chappell the song’s rightful controller. Patty Hill, says the motion, was both a founding member and ‘active participant’ in ACEI “As the beneficiaries of Jessica Hill’s estate [which benefited from Patti's estate] both ACEI and the Hill Foundation have a very real and present interest in this litigation" - because if Warner/Chappell don't hold the rights to the lyrics - they do as heirs! More on MBW here and on TechDirt here.

That leaked document that revealed the EU Commission's plans for copyright in 2016 has sparked a lot of comment in cyber space - most name checking the IPKat!  In addition to tackling the issue of content portability in the spring, the draft suggests the Commission will explore a "follow-the-money" approach to enforcement, clarify rules for identifying infringers, and examine the crosss-border application of injunctions. The EU Commission is currently working on proposals for the modernization of copyright with the aim of providing a framework more suited to the digital age. The EU’s plan was set to go public exactly a month from today but last week the purrrrrfectly wonderful  IPKat said it had obtained a leaked copy of the draft communication from a ‘Brussels insider’. The main worry seems to be about linking - and the SEM Post opines that the plan "shows a very scary route the EU wants to take with links on the web, one that would hold a site owner liable if they link to any content that infringes on someone’s copyright.  Yes, a site owner could be liable if someone else they happen to link to has stolen content on that page, even if they had no idea if was stolen.This means that publishers – or anyone who publishes anything online, whether it be for business or a personal blog – could also need to consult a lawyer for every link they make, to know it is “safe” to link to". Julia Reda, the Pirate Party member of the European Parliament representing Germany, wrote on her site about the leaked draft on copyright reform and it could have a profound affect on the entire internet.

U.S. House Judiciary Committee chairman Bob Goodlatte (R-Va.) is right in the middle “listening tour” as part of an ongoing review of U.S. copyright law, and now he’s holding a hearing at UCLA that is aimed in part at Hollywood. Goodlatte has held 20 hearings on copyright law since announcing his review in 2013, with the focus on “determining whether our copyright laws are still working in the digital age.” More recently, he’s been travelling on a “listening tour” that takes him closer to key industries. Having started in Nashville,  Variety says he was recently at Santa Clara University in Northern California  to get a Silicon Valley perspective. The EFF says the main points raised by the technology companies were: (1) Statutory damages are far too high, and bringing them into rational territory could help solve other problems. (2)The Digital Millennium Copyright Act's DRM provisions urgently need reform. (3) Fair use has to do a lot of work, so it's a good thing judges have enabled it to do so and (4)  It's not just copyright—End User License Agreements have diminished our ownership rights. The line-up of experts and panellists in Santa Clara was diverse and impressive, and included people like Internet Archive founder Brewster Kahle, Ted Ullyot, who works for the technology investment firm of Andreessen Horowitz, musician Zoe Keating, iFixit CEO and DMCA activist Kyle Wiens, and of course EFF's own staff attorney Kit Walsh.

U.S. District Court Judge Gail Standish has dismissed a copyright lawsuit against Taylor Swift by using some lyrical terminology. Musician and songwriter Jessie Braham has accused Swift of stealing “Shake It Off” lyrics from his song “Haters Gonna Hate,” and attested that he had the song copyrighted back in February. Braham was suing Swift for $42 million in damages and a writing credit on her hit song. Standish wrote, “At present, the Court is not saying that Braham can never, ever, ever get his case back in court. But, for now, we have got problems, and the Court is not sure Braham can solve them.”

City Of London Police's IP Crime Unit (PIPCU) has arrested two people in Manchester on suspicion of being involved in the unlicensed distribution of music software online. PIPCU began investigating the arrested couple after being made aware of their online operation by record industry trade group the British Phonographic Industry (BPI). The accused allegedly ran a piracy operation that sold musical software - including digital products like backing tracks and pre-recorded instrumentals - at substantially reduced prices, without the permission of the owners of the works they are distributing.

And finally: readers are no doubt aware that on January 1st 2016, Adolf Hitler’s Mein Kampf, will enter the public domain in Europe, where the term of protection ends 70 years after the death of a work’s author, despite concerns.  Nazi propaganda minister Joseph Goebbels' diaries will similarly enter the public domain. But what about the writings of one of the Nazis’ most famous victims, Anne Frank, who died the same year as Hitler – 1945? It may surprise readers that the Swiss-based foundation that is the heir to the Frank family says the copyrights for the various versions of her work won’t expire for decades. The Anne Frank Fonds, a non-profit organization located in the Swiss city of Basel, was set up in 1963 by Anne’s father, Otto. The Fonds administers the rights to all writings by Anne Frank and says that copyright is crucial to protect her work from unchecked commercial exploitation. It seems that the 'Diary' we all know  (see illustration) was an edited compilation of two earlier works by Anne Frank, and that edited version was put together by her father, Otto, and first published in 1947. And the Foundation say Otto is a 'co-author' because of his role of editing, merging and trimming entries from her diary and notebooks and reshaping them into “kind of a collage” meriting its own copyright. As Otto didn't die until 1980, the Foundation say this work is still protected by copyright and will be until 2050. The two original versions by Frank, and various later translations,  were not published until 1986, so again the Trust says these remain in copyright, as do the versions edited by the German writer Mirjam Pressler, who is still alive (and is credited as a co-author with Otto of the 'definitive edition'). The diary was first translated in English in 1952 by Barbara Mooyaart, who is now 96. In the United States, the diary’s copyright will still end in 2047, 95 years after the first publication of the book in 1952. More here and here.

EFF says ..... Victory! From Jailbreaking Phones to Fixing Your Car, Users' Rights to Tinker Reaffirmed

This from the EFF, updating the earlier and somewhat brief report by the CopyKat. 

"In a major victory for digital rights, the Librarian of Congress granted all of the DMCA exemptions that EFF and our supporters requested. Quick refresher: the DMCA as written creates legal uncertainty around circumventing technical restrictions on copyrighted works, and directs the Librarian of Congress to grant special, temporary exemptions every three years.

The new exemptions mean that the following types of technological tinkering are explicitly lawful, at least for the next three years:

- Jailbreaking cell phones, tablets, and other portable computing devices to run third party software;

- Ripping DVDs and Blu-ray video that you own in order to create fair use remixes and analysis;

- Preserving video games and running multiplayer servers after publishers have abandoned them;

- Security research and modification and repairs on cars (and tractors!).

We're thrilled with this outcome. At the same time, a critical long-term solution is to eliminate the need for this onerous rulemaking process by reforming the broken law that threatens these activities in the first place."

And even more here! https://www.eff.org/deeplinks/2015/10/victory-users-librarian-congress-renews-and-expands-protections-fair-uses

The CopyKat

Kim Davis, the county clerk in Kentucky who was jailed for five days for refusing to give marriage licenses to same-sex couples may now face a copyright lawsuit. At a post-release rally with Republican presidential candidate Mike Huckabee, the Survivor recording of "Eye of the Tiger" was played to 3,000 people —and this immediately produced a furious reaction from a band member. "NO! We did not grant Kim Davis any rights to use 'My Tune -The Eye Of The Tiger" wrote Survivor frontman Frankie Sullivan on the band's Facebook page. Sullivan had previously sued Newt Gingrich (the Republican politician and Speaker of the House of Representatives who was a Republican presidential hopeful) in 2012 for using "Eye of the Tiger" at one of his political events - the case was later settled.

The EFF have filed a friend-of-the-court brief in the Court of Appeals for the Ninth Circuit, arguing against a district court decision that upheld state law copyrights in pre-1972 sound recordings. The EFF recently filed a similar brief in the Second Circuit - both cases were victories for  Flo & Eddie, aka The Turtles (pictured right) who successfully persuaded district courts that state copyright law restricts public performances of pre-1972 sound recordings in their battle against SirusXM. A similar action in Florda failed - here the court found there was no state law to protect pre-1972 sound recordings. 

Now here's a thing - hackers targeting pirates: TorrentFreak reports that several prolific torrent uploaders have received an alarming message claiming to be from the legal department at major label Warner Music UK. The email accuses the user of copyright infringement and urges uploaders to delete their torrents and accounts, which some have done in response. However .... on closer inspection the threatening email appears to be fake say TorrentFreak, who received a full copy of the grammatically inept message which was sent to email addresses associated with the uploaders’ torrent site accounts - although how the sender accessed those addresses is unknown. A few weeks ago KickassTorrents warned its users against phishing attempts, in which malicious parties attempt to obtain the personal details of users.

On June 11, 2015, the Advocate-General Pedro Cruz Villalón delivered his Opinion in HP Belgium v. Reprobel now pending before the Court of Justice of the EU (CJEU, case C-572/13). This Opinion and the underlying case raise one important issue: Is it permissible for a national copyright law to allocate a portion of the fair compensation for reproductions exempted under Article 5(2)(a) and (b) of the 2001/29 Infosoc Directive directly to publishers, although they are not listed among the initial holders of the reproduction right under Article 2 of the Infosoc Directive? Now the European Copyright Society, as a group of academics concerned about the copyright reforms envisaged in the European Union as well as by the interpretation and development of the law by the CJEU, has shared its view on this matter of principle: And its ALL HERE!

Piracy is still a big issue in New Zealand, but the recorded music, film and TV industries say the process to hold infringers accountable is too lengthy and too costly. Just one complaint has been laid, and upheld with the Copyright Tribunal so far this year, compared with 4 last year and 18 in 2013. To successfully complete a complaint against someone allegedly illegally downloading, rights holders have to identify the illegal downloader and file a notice with their Internet Service Provider (ISP). The ISP then passes the notice to the account holder with each notice costing $25. Three notices are required within a 12-months before a complaint can be laid with the tribunal and pay a $200 fee. It's all too complex and too expensive say content owners.

WORDS - they are important - we all know that: Now TorrentFreak has published an interesting opinion piece from Rick Falkvinge (a founder of Sweden's Pirate Party) on how words are used in the debate about the remit and reach of copyright: One mistake that geeks and techies often make, but PR professionals and lobbyists never make, is the observation that words don’t just have a precise meaning – they also have a positive or negative chime to them. Therefore, lobbyists try very hard to establish a language where everything they want is described in words with a positive chime." and Rick makes the point "This is why I insist on calling governmentally-granted private monopolies that interfere with property rights “industrial protectionism” - this and and much more here.

And finally, what is said to be the USA's largest illegal music file-sharing site, Sharebeast.com, has been seized and shut down by the Federal Bureau of Investigation (FBI). A US Department of Justice (DOJ) domain seizure notice first appeared on Sharebeast.com on Friday September 11th. Visitors to the domain arwew now confronted by a notice which states that the FBI has taken control of the site 'pursuant to a seizure warrant issued by a United States District Court'. Sharebeast's related sites such as mp3pet.com and albumjams.com also display the notice. More on MBW here.