The CopyKat - your weekend copyright catchup

Renowned photographer Estevan Oriol has filed a lawsuit against Swedish fashion brand H&M and fashion house Brandy Melville for the use of his copyrighted image "L.A. Fingers." The 1995 photo depicts a female model's long, ring-clad fingers forming the letters "L.A." - for Los Angeles. The image has since become iconic and has been legally published worldwide in various magazines and Oriol's own branded clothing. His lawsuit alleges that both H&M and Brandy Melville "grossly infringed" on his protected works, using his photograph on a series of t-shirts that have been sold and continue to sell at their respective retail stores worldwide. "If you put my photograph side-by-side with their re-creation of my image, anyone would tell you they are one in the same... they clearly copied my image" Oriol said, with his lawyers adding “On behalf of artists and creators everywhere, we will vigorously seek out and aggressively pursue legal action against anyone who improperly uses an image at the expense of an artist".  You can compare the images here.

SoundExchange, the US non-profit that collects royalties for musicians from satellite radio firms, Internet radio services and cable music channels, said it has filed a suit against SiriusXM seeking to recover what it calls "massive underpayment" of digital royalties over a six-year period. The organisation said the satellite radio firm underpaid by "$50 to $100 million or more" by taking a number of impermissible deductions and exemptions in calculating its royalty payments from 2007-2012.

The Consumer Council of Fiji's CEO Premila Kumar has said that copyright is an important consumer issue and that unbalanced copyright laws and practices hurt consumers — not pirates. Speaking at the 2013 Copyright workshop organised by the Fiji Performing Rights Association last Friday, Kumar said there was always conflict between “protection” and “access” that had made copyright a much more visible and important issue for consumers especially in the digital age adding “It is now a question of striking a fair balance between creators, copyright owners and consumers”. Kumar says that piracy and the selling of counterfeit goods are two major issues the public is facing in Fiji. The Fiji Police Force is also calling for the amendment of the copyright law in Fiji. Legal director Superintendent Sakeo Raikaci said Fiji was using the Copyright Act 1999 and there was a need for clear and distinct laws and more powers to deal with piracy and that Fiji police are investigating ways to improve copyright laws to make it easier to prosecute offenders.

Filmmaker Tyler Perry and distribution partner Lionsgate have been successful in having a copyright lawsuit against their film Good Deeds dismissed. Author Terri Vanessa Donald (aka Tlo Red'ness) filed the suit last November, claiming the film infringed on her 2007 book Bad Apples Can Be Good Fruit. She claimed to have sent a copy of her book to Perry's company years before Good Deeds went into production. A judge ruled that the similarities Donald pointed out between her book and the film, a romance between a wealthy man and a woman who has experienced hardship, was not sufficient to sustain a copyright infringement claim.


PRS for Music reminds all of its authors and composers, and the 1709 Blog,  that from the1st  November 2013 a legislative change will alter the way the term of UK copyright protection for a co-written work is calculated. From this date the term of protection for the music and words within the co-written work will now expire 70 years after the death of the last surviving author of that work (composer or lyricist) rather than the current provisions where music and words within a co-written work are treated as separate copyright works with their own individual term of protection. The new law applies to co-written works made:

• on or after 1 November 2013;
• before 1 November 2013, where the musical work and/or words are still in copyright in UK on 31 October 2013;
• before 1 November 2013, where music or the words are protected in at least one member state of the European Economic Area on 1 November 2013.

Victoria Espinel, the USA's "copyright czar" until two weeks ago, has been named president of 

The Software Alliance, which goes by the acronym BSA, the anti-piracy trade group that lobbies governments on behalf of the software industry - 

The Hollywood Reporter tells us that cyberlocker service HotFile - which has been described as "more egregious" than Napster, Grokster and Limewire and "indistinguishable" from Megaupload - has been found liable for copyright infringement in an action brought by the the Motion Picture Association of America on behalf of five member studios. The copyright infringement suit, filed  in 2011, alleged that the company paid incentives to those who uploaded popular files to the system, that were widely shared. Its affiliate program still offers payment "calculated based on a percentage of the total value of premium accounts purchased by users who download the affiliate's uploaded files."
The summary judgment, which also found Hotfile boss Anton Titov personally liable for infringement, gave U.S. District Judge Kathleen Williams the chabce to look at the 'safe harbor' provisions of the DCMA and an opportunity to address the kinds of questions that have come up in the Supreme Court's Grokster decision, as well as Viacom's dispute with YouTube and Universal Music's dispute with Veoh;  Namely, what kind of knowledge and control is necessary before an Internet Service Provider has a legal duty to clean up copyright infringements on a network with the judge noting that "Hotfile was successful in large part because it did not control infringement activity on its system." The judgment is not available as yet but watch this space - as soon as it is (in 14 days time) we will get our claws into it - the MPAA said "This case marked the first time that a US court has ruled on whether so-called cyberlockers like Hotfile can be held liable for their infringing business practices".  Techdirt have a different opinion saying the Florida court made "a horrifically dangerous ruling" and "the risk of massive harm to innovation and the safe harbor protections under the DMCA is very, very real".

And finally, on the anniversary of the Dr Martin Luther King's "I Have a Dream" speech, which was delivered 50 years ago in August 28th 1963, before a crowd of several hundred thousand in Washington - one of the most important speeches of the 20th century - opinions are flying around the internet suggesting that "not one word can be uttered in public without stirring at least the slight possibility of a lawsuit, unless authorization to say it is obtained first" and "even reciting the speech in public, let alone posting a video of the speech, may raise the question of copyright infringement". Dr King's Estate own the copyright and by some accounts, has been aggressive about protecting the copyright: King's heirs sued CBS in 1996 after the television network began selling a videotape that included excerpts of the speech The case was settled out of court and The New York Times reported CBS agreed to make a tax-deductible payment to the Martin Luther King Jr. Center for Nonviolent Social Change in Atlanta. The decision, made on appeal, reversed a lower court decision that the video of the speech was in the public domain as a “general publication” but the Estate is now facing growing criticism from those who feel the iconic video, considered one of the most important cultural and historical moments of the 20th Century, should be easily found - and that copyright law should not make it difficult to see the entire 17-minute speech online.

Do you dare to play this game – can you hack it?

You are ‘C’, a.k.a. head of MI6. You are playing a game of evasion, a game where you have no equals. That is, not until now. It’s time, time for you to come face to face with your nemesis . . . ‘Z’.

Go deep into the Copyright, Designs and Patents Act 1988 and there you will find ‘Z’ – a.k.a. ‘the Z sections’.

Yesterday Mr Justice Floyd considered section 296ZD in the summary judgment of Nintendo v Playables. It’s a case that examines the UK’s law regarding circumvention of copyright protection – and whether there’s a difference in the law when it is computer programs that are being copied, or other copyright works.

It all began with a customs seizure of 165,000 devices – devices that are used by those who enjoy playing a game of cat and mouse with Nintendo. Here’s how to play:

1. Illegally download games from the internet (instead of paying £20–£30 per game).
2. Copy games on to illegal device.
3. Slot device into Nintendo DS.
4. DS checks games are genuine – device gives DS the all clear.
5. Play!

Once the judge had resolved concerns about the fact that this uncontested summary judgment application came before him after the parties had partially settled, he easily granted summary judgment finding infringement under ss. 296 and 296ZD.

Sections 296 and 296ZD

These sections outlaw making or selling means for circumventing technological measures that protect copyright. Section 296 applies where the copyright being infringed is in computer programs. Section 296ZD applies where other types of copyright are being targeted.

Floyd J held that s. 296ZD was applicable in this case (as well as s. 296) because ‘although that which is stored on the card is a computer program, the game includes graphic and other works the copying and use of which is controlled by the ETM.’ (Don’t most computer programs involve some copyright material apart from code?)

On the face of it s. 296 requires that the defendant knows the circumventing technology will, at some point, be used to infringe copyright. However, this reading should be questioned as the section implements the Computer Programs Directive, which does not require the defendant to have this knowledge. Under s. 296ZD, by contrast, it’s clearly immaterial whether the defendant (‘C’) knew the device would be used for infringing copyright.

Playables’ export sales

In Sony v Ball, Laddie J held that ss. 296 and 296ZD would not apply where the devices were used abroad. Floyd J went along with this for s. 296 as it applies where the defendant knows devices would be used to make ‘infringing copies’ (i.e. copies that infringe UK copyright). However, the ‘infringing’ language is missing from s. 296ZD, so Floyd J, reluctantly departing from Laddie, held that s. 296ZD would apply to exported devices.

Under this line of reasoning, it would seem that had Parliament correctly implemented EU law, s. 296 might also apply to exported devices….

The judge’s view gives UK law in relation to copyright-protection devices a kind of extra-territorial effect that is not present in normal authorization of copyright infringement (where the copyright infringement that has been authorized must take place in the UK).

Now for a game of s. 16…

Presumably because these devices can be used for playing home-made games, the judgment makes no mention of Playables authorizing copying of Nintendo’s games but there was still some scope for an old-fashioned game of s. 16 copyright.

Playables, it was held, was authorizing the copying of the ‘NLDF’ security code from the device to the DS’s RAM. It isn’t mentioned, but aren’t the devices also sold holding an illicit copy of the NLDF?

When a user puts the device into the console, the DS’s boot-up software is copied into the DS’s RAM. Floyd J was not quite ready to grant summary judgment – it seems because legal Nintendo cards would have the same effect. Surely, however, even though the two copies are identical, one is authorized and the other isn’t?

As for the Nintendo Racetrack Logo, the judge said it was ‘so rudimentary that I consider that it is arguable that copyright does not subsist, particularly as what it is relied on is a modification of a pre-existing work’. Once you’ve experienced the state-of-the-art game of ‘Z’, a game of s. 16 can start to seem a bit basic and old-hat.

Lib Dems scupper Clause 17 of the Digital Economy Bill

Controversial Clause 17 of the Digital Economy Bill which was designed to allow ministers, rather than parliament, the right to introduce new copyright rules has been dropped following a last minute move by the Liberal Democrats to amend the proposed legislation in the House Of Lords. Liberal Democrat Lords Razzall and Clement-Jones proposed an amendment which could see UK Internet Service Providers forced to block web sites with a high proportion of copyright-infringing content with the key passage in the amendment saying:

"The High Court shall have power to grant an injunction against an [internet] service provider, requiring it to prevent access to online locations specified in the order of the Court."

A further statement in the amendment says that this would apply when a substantial proportion of the content accessible at or via each specified online location infringes copyright.

The amendment, if successful, is a double whammy for ISPs as the High Court’s new powers would be available to the content industries alongside the proposed new ‘Three Strikes’ provisions. It remains unclear whether the new powers could be used against sites (rather than ISPs) such as Oink! or The Pirate Bay which do not host any infringing content themselves but provide links to infringing content - although if widely drafted the amendment would potentially bring in a the concept of ‘authorising infringement’ into UK law. Tim Clement-Jones (pictured) explained the motive behind the amendment thus

“I believe this is going to send a powerful message to our creative industries that we value what they do, that we want to protect what they do, that we do not believe in censoring the internet but we are responding to genuine concerns".

The blog world was up in arms with widespread rumours that, if the Bill passed, content owners could easily misuse the new powers especially against video-sharing sites like YouTube, which do host infringing content uploaded by users - until they are made aware of its presence on their platform and take it down.

Open Rights Group director Jim Killock told reporters:

"This would open the door to a massive imbalance of power in favour of large copyright holding companies. Individuals and small businesses would be open to massive 'copyright attacks' that could shut them down, just by the threat of action. This is exactly how libel law works today: suppressing free speech by the unwarranted threat of legal action. The expense and the threat are enough to create a 'chilling effect'".

At the beginning of the week Lord Puttnam said that the Bill was being rushed through parliament without sufficient scrutiny, and that legislators were subject to an "extraordinary degree of lobbying" from copyright holders.

The Digital Economy bill is currently in the report stage at the House of Lords before its third reading in the Commons. Whether it will receive assent before the upcoming general election remains to be seen. Lord Puttnam said of the current Bill

"What will end up leaving this chamber... and going to the Commons is a bill that none of us is particularly proud of. It will be a spatchcock that does part of the work it was intended to do but not all of it."