THE COPYKAT

In a curious turn of events, police in Thailand have now said that they will seek a warrant to arrest copyright agents who allegedly attempted to extort 50,000 baht from a 15 year old for copyright infringement. About 50 vendors in Korat are also said to be preparing to file criminal complaints against the same copyright agents. They had ordered krathongs decorated with cartoon characters from the teenage girl and had been threatened with 'fines' or they would face criminal charges. Korat provincial police chief Maj. Gen. Sujin Nitpanit said the investigation was almost complete and court warrants would be issued for copyright agents, whose names have been withheld by police: Police said they were in contact with the actual owners of the copyrights in the cartoon characters who were not involved in the attempts to.extort money from the teenage girl. Press reports say that Korat City police chief Col. Kachen Setaputta had been moved from his post after allegations that police officers under his command were colluding with the so called copyright agents. 

Hypebot reports that despite an acknowledgement that the the 1923 song “Yes! We Have No Bananas” by composers Irving Cohn and Frank Silver had slipped into the public domain, Universal Music stepped up to claim ownership. Glenn Fleishman had posted a video of the song to YouTube in celebration of it entering the public domain earlier this year. He even titled it “Yes! We Have No Bananas, now in the public domain.” The video is of him and his friends and family singing it at a New Year’s Eve Party: However, Hypebot says that video has now been “claimed” by Universal Music with a claim to “monetize” the video on YouTube  - despite them "literally having no rights to speak of". Hypebot say "What’s possibly troubling is that YouTube doesn’t even seem to offer up an option for you to point out that the work is in the public domain, and even if these entities might have once had a claim on the song". 

In a related update, reclaimthenet.org says that another YouTuber is struggling with the platform's harmful and often confusing copyright protection system. This time it's the turn of Kerbal Space Program game aficionado Matt Lowne, who has come under fire from copyright holders for using what he was sure was a royalty-free track in his videos. The creator, with a quarter-million subscribers and more than 55 million views, tried to navigate the system by carefully choosing a legal and copyright-unencumbered audio track – only to fail all the same with YouTube  informing him that the music featured in these videos – namely, “Dreams” – “may” be licensed or owned by music industry heavyweights like SonyATV, PeerMusic, Warner Chappell, Audiam and LatinAutor. 

The US The Supreme Court has agreed to hear the appeal by Google in the case where Oracle accused the tech giant of violating copyright laws when developing its Android mobile platform. The court's decision to hear the case comes more than a year and a half after the U.S. Court of Appeals for the Federal Circuit ruled against Google, saying the company's unauthorized use of 11,500 lines of code in Oracle's open-source Java application programming interface was not fair use, and will provide the final say in the 2013 claim accused Google of infringing the copyright on its Java APIs in the development of Google’s Android OS. Google denied any wrongdoing and has argued, in part, that software APIs cannot be protected under U.S. copyright law. 

Nirvana‘s 2018 lawsuit against Marc Jacobs will proceed. According to The Hollywood Reporter, a Californian judge has denied the motion to dismiss the band’s copyright complaint over the designer’s smiley face T-shirt which seems to bear an uncanny resemblance to Nirvana's own artwork.  he copyright infringement concerns Jacobs’ “Redux Grunge” collection, which Nirvana's representatives claim used the band’s smiley face logo created by Kurt Cobain in 1991. The Jacob's T-shirt features a similar coloration and font to Nirvana's original T-shirt, replacing the word Nirvana with “Heaven” and the smiley face’s X eyes with “M” and “J.”  iN MaRCH 2019 Marc Jacobs filed a motion to dismiss the complaint, arguing, among other things, that the band doesn't explain how or when Cobain transferred the rights in his design and that the two designs aren't sufficiently similar. U.S. District Judge John A. Kronstadt has denied the motion, finding the complaint sufficiently alleges Nirvana owns the copyright registration and that the only "discernible difference" in the faces is the use of "M" and "J" as eyes instead of two X's. Kronstadt found that the asymmetrical circle of the face, the relatively wide placement of the eyes, the distinctive squiggle of the mouth and the stuck-out tongue are enough to distinguish the happy face from a generic smiley saying "It is also noteworthy that the Accused Products have combined this protectable artwork with other distinctive elements of the Nirvana T-shirt, including through the use of yellow lines on black background and a similar type and placement for the text above the image on the clothing". The case is Nirvana LLC v Marc Jacobs International LLC et al. LA CV-18-10743 JAK. 

AsianAge reports that Hyderabad-based short-filmmaker Nandi Chinni Kumar has sent legal notices to the makers of forthcoming Hindi film "Jhund" and megastar Amitabh Bachchan, the lead actor of the movie, over alleged copyright infringement. At the heart of this seems to be a dispute over who owns the rights to the story of the life of Akhilesh Paul, a slum soccer player who was the Indian captain at the Homeless World Cup. 

THE COPYKAT

1)    YouTube in the NEWS

In the last fortnight, there have been a couple of extremely interesting developments in the copyright regime operated by the online video platform YouTube.

Firstly, YouTube has taken a step to forbid manual claims by copyright holders and specifically record companies, which is done to claim revenue upon videos including extremely short music clips or “unintentional music.” Inculcating the importance of quantitative content in a video, YouTube in a blog post has revealed this change. The reason provided for the same move reads: “These claims can feel particularly unfair, as they transfer all revenue from the creator to the claimant, regardless of the amount of music claimed.” However, although manual claiming of money has been restricted, the ability to block or disable putting ads on videos using the manual claims tool will still exist. YouTube has gone on to acknowledge that in the short run, this might result in a lot more videos being blocked, however it is pragmatically focussing on the long term impacts. Even “Timestamps” to recognise exactly which part of the video is infringing have been brought in place for all manual claims, for invoking copyright claims in a balanced and fair manner. As reported by Variety, if YouTube creators feel that their use of unlicensed content falls within the fair use bracket, they can always dispute the same in the service’s appeals process.

Now, Secondly, YouTube has resorted to the DMCA to take action and file a suit against a major alleged copyright troll whi they have identified as one Chris Brady, and who YoTube says has been making extraneous and illegitimate copyright claims. The basis of the complaint is that Brady has taken aim at the Minecraft gaming community, alleging several infringing claims against two users - not only to extort money - but to allegedly slander as well as part of the 'trolling'. It has apparently been also reported that these copyright takedown notices were allegedly abusive and involved an element of blackmail wherein the message read that the YouTuber ought to pay Brady 150 $ via PayPal, or another copyright strike would take place. This information was conveyed to YouTube after multiple efforts, finally through another video, upon which YouTube has restored the videos and filed a suit against Bardy. A false accusation suit has been filed. Upon being enquired, as reported by The Verge, YouTube has released a statement that: “We regularly terminate accounts of those that misuse our copyright system. In this case of particularly egregious abuse, where the copyright removal process was used for extortion, we felt compelled to pursue further legal action and make it clear that we do not tolerate abuse of our platform or its users.” An issue highlighted in this system of YouTube is the focus of scrutiny on the accused rather than the accuser. The assumption is an extremely good faith oriented one that focusses on every takedown request being legitimate. It is imperatively needed that a balanced approach is followed for proper implementation of the Copyright system on such vulnerable intermediary platforms.

2)    Meanwhile, Spotify catches the attention of the Copyright world, yet again

There have been two recent occasions when Spotify has hit the (legal) news - and the music streaming platform been on both sides of a lawsuit concerning copyright.

Firstly, on the plaintiff side Spotify filed their appeal, joining Amazon, Google and Pandora, on the Copyright Board’s decision regarding the rates to be paid to sing writers and music publishers under the mechanical rights regime, by digital platforms. The challenge is at its core upon the decision which increases the per song royalty rate from 10.5% to 15.1%. This increase has been brought in the first place to harmonize, to some extent, the American policy, to the prevailing international normative practice followed by various copyright societies. This move has been subject to fair amount of criticism due to the songwriters claiming inadequate payments for exploitation of their creative endeavor. In an attempt to negate the criticism, Spotify and other digital streaming companies have resorted to being okay with the rate change, however, have claimed procedural misconduct on the part of CRB. The core of the claim is on the ground of lack of stakeholder consultation and cross-evidence provision, and not the rate in principle. Further, the publishers have argued that merely offering family plan discounts or student ones do not support the proposition of low willingness to pay for streaming music. It will be interesting to see how the appeal court approaches this. Read more here.

Now, Secondly, and on the receiving end of a law suit, Spotify, as reported by Variety, has been sued by Eight Mile Style, the publishing company that hollds the rights to Eminem’s earlier works, for copyright infringement. The major claim revolves around the unlicensed exploitation and streaming of 250 of Eminem’s songs. It has alleged Spotify to have paid a mere fraction of the payments properly  due and have remitted such without any license in place. Further Spotify has also been alleged to have mischievously concealed the accreditation of certain well-known songs like “Lose Yourself” claiming inability to trace Copyright holder. Further, an obligation to live up to the responsibilities provided under the Music Modernization Act was emphasized upon, which was not fulfilled by Spotify in the present case. To claim a liability limitation under the Music Modernization act, it is imperative for Spotify to have not known the copyright owner of the composition or the work was unmatched with previous sound recordings, after proper due diligence. This also has been alleged to not have been complied with, in the suit.

3)    US Dept. of Justice release Amicus Brief in favor of Led Zeppelin in infamous Copyright Suit

Analyzing the 'thin' copyright provision in the US, the US Deptartment of Justice, giving reasons akin to that of the trial judge, sided with Led Zeppelin in the Stairway to Heaven case. previously covered here and here against Randy California, the now deceased songwriter with the band Spirit. Under old US law (the 1909 Copyright Act), sound recordings weren't conferred protection. Songs were, and pre-1978 unpublished works would be as represented by sheet music.  The song at the centre of the copy claim, Taurus, was written by California in 1968. And so surely all that could be used at the trial to determine infringement (or not) was the sheet music? The trial judge concurred.  On appeal, the 9th Circuit then decided that the sound recording should have been played plus held that the jury was improperly advised about unprotectable music elements and standards of originality. But the new opinion relies on the fact that prior to 1972, it was only sheet music that was covered under copyright and audio recording need not be heard by the jury to find out whether there was an infringement or not. The “thin” copyright protection has been emphasized upon. The DoJ's  amicus brief goes on to claim that the Ninth Circuit was wrong to overturn the finding of the lower court which stated the compared compositions to not be sufficiently similar for copyright infringement. The U.S. government explains that "even if deposit copies do not capture all details of a composition, they generally include the elements of a song, such as the melody and lyrics, that are of most importance to the copyright owner. Failure to incorporate elements such as these in the deposit copy would reflect a failing on the part of the copyright owner or its agent, not an insurmountable obstacle imposed by the statutory scheme." The Amicus Brief argues that the only similarity between the allegedly infringing work and the original is the selection and arrangement of two basic musical elements: an A minor chord and a descending chromatic scale. These have argued to not substantially be the base of the challenge as a small standard selection and arrangement gets a fairly thin copyright protection due to the “creative” standard of Originality being prevalent in the United States. Virtual Identicality needs to be proved, which has not been done in the present case according to the brief. This interpretation as a friend of the court has consciously been taken up the DoJ in order to foster intentional and sound interpretation of copyright laws. It will be interesting to see the force of this brief when ultimately deciding the case, for the second time. The amicus brief can be found here.

4)    Victory for Universal Studios in “Nightcrawler” Copyright Case

As reported by the Hollywood Reporter, a Utah Federal judge delivered a summary opinion in the 4 yearlong copyright case  dealing with the film Nightcrawler, wherein the accused Oscar winning writer director Dan Gilroy, was alleged to have plagiarised a work by Richard Dutcher called Falling. The judge devised an important precedent recognising certain scenes a faire elements in films and eradicating the same from the scope of the analysis of any copyright infringement. In the opinion, the District Judge held that to establish a copyright claim there are two separate enquiries to be undergoneL The first is whether the defendant factually copied portions of plaintiff’s work, and second being those expressions that have been copied are protectable expressions and important to the copied work, citing Gates Rubber Co. v. Bando Chem. Indus Ltd. It is imperative for protected elements to be copied. The abstraction test requires separation of non-protectable ideas and then warrants a mere comparison of the protectable elements.  Here the court looked at what elements were “standard, stock, or common” to the stringer (newsman) profession and material that necessarily followed from that theme and setting (citing Autoskill 994 F.2d 1494). The court held that Falling is not the first film to portray stringers in action and on a review of previous stringer films, it was found that there were no independent claims in Falling that did not exist state of the art. The court held the similarities between Falling and Nightcrawler were (primarily) due to both focussing on the role of the Stringer. Apart from these generic similarities, the court held the plots to be quite different. The court also held the cliché journalistic phrases found in Falling as non-protectable and were scenes a faire expressions. After deducing these elements, the court used the ordinary observer test to eradicate infringement claims, holding the aesthetic appeal to be different.

This CopyKat from Akshat Agrawal

The CopyKat

The animal right organisation People for the Ethical Treatment of Animals (PETA) has filed an appeal against a lower court's decision in January this year that declined to give the macaque monkey Naruto the right to his famous selfie taken in Indonesia in 2011. The appeal brief was filed at the Northern District of California.

Malibu Media — the online erotic film producer and alleged copyright troll — has been told that when filing against anonymous “John Doe” defendants whose identities are just an IP addresses for their Internet service, they cannot use geolocation tools to more precisely identify these alleged infringers. Malibu had argued that it had used “proven IP address geolocation technology which has consistently worked in similar cases to ensure that the Defendant’s acts of copyright infringement occurred using an [IP address] traced to a physical address located within this District.” The District Court was having none of that writing that “The allegation that the IP address at issue likely resolves to a physical address in this District is not supported in any of the declarations filed in connection with the instant motion.” and a second District Court said “Plaintiff fails to offer any evidence to support its allegation that the infringing IP address was actually traced to a location within this judicial district" and “Nothing in the declarations Plaintiff submitted with its Ex Parte Motion explains what steps Plaintiff took to trace the IP address to a physical point of origin within this Court’s jurisdiction.”

Can the unauthorised reproduction and making available of clips of cricket matches lasting up to 8 seconds amount to an infringement of copyright in works lasting several days hours minutes about this exciting and fast-paced sport? As Elonora tell us over on the IPKat, the answer is unsurprisingly yes -  and the use is not protected by the doctrine of fair use nor by 'safe harbour' - confirmed by Arnold J in his 174-paragraph judgment in England And Wales Cricket Board Ltd & Another v Tixdaq Ltd & Another [2016] EWHC 575 (Ch).

The German head of digital-economy policy at the European Commission, Günther Oettinger, is considering rolling out  German and Spanish “Google tax” on the wider EU stage. Oettinger’s department published a consultation on Wednesday that covers this “neighboring rights” issue (more commonly referred to as “ancillary copyright”). The consultation will run until June 15. This, and a review of the "freedom of panorama" too! Eleonora explains all on the IPkat, and of course John tells us more on the 1709 Blog here and more on the World IP Review here

UK record label association the BPI has said that its members have now issued more than 200m takedown requests to Google for removal of copyright-infringing links. The trade association, which represents the three major recorded music labels, Universal, Sony and Warner as well as many independent labels, sent its first takedown request to Google in July 2011. In 2015 the BPI sent 65m takedown requests and they are now, perhaps understandably, calling for a more permanent solution – so when an offending link has been removed following a takedown request, it stays down, permanently. For a leading technology company, Google seem rather less than innovative in finding a way of achieving this.  In a press release, the BPI say: ‘This high-volume take-down helps to limit the amount of illegal content being promoted, giving legal music services such as Amazon, Apple, Spotify and Deezer a better chance of appearing at the top of search results when fans are looking for music online" but add “While this approach has contributed to some improved visibility of legal services, illegal results that are taken down by Google are frequently replaced by other illegal links, which means that legal services continue to be overshadowed by infringing sites in the very top search results" and “This damaging situation can only be remedied by Google themselves changing strategy and pro-actively pursuing a “notice and stay down” approach, so that once a piece of content has been notified for removal by the BPI, it isn’t indexed again for the same site and stays removed.” The BPI are also asking Google to hep promote websites with legal content, and ensure court decisions to block sites are respected. CEO Geoff Taylor said "“We are calling on Google and Bing to show their undiluted commitment to artists and the creative process by implementing a more pro-active solution to illegal sites appearing in search results. This will avoid the cost for both of us in dealing with hundreds of repeated notices for the same content on the same illegal sites”.

Donald Trump’s presidential campaign is being sued by award-winning wildlife photographers who say Trump is using their copyright-protected image of an American bald eagle without permission. Attorneys for Wendy Shattil and Robert Rozinski filed the civil complaint in federal court this week after watching a Trump presidential rally on television and noticing that an attendee was holding a campaign sign that incorporated one of their photographs of the national bird.

And finally, the software behind the epic Princess Mononoke,  Spirited Away and Howl's Moving Castle anime films, created by Studio Ghibli founder Hayao Miyazaki and called Toonz, is about to be made available as an open-sourced edition which will be available for download starting March 26th. Those aiming to up its power can opt for a paid, premium version - helping Toonz cement a place as the world standard in animation. More on the Creators Project here.

The CopyKat - has a treaty lined up for almost everyone

A judge in New York has placed dozens of Malibu Media subpoenas on hold after serious questions were raised about the nature of the copyright infringement cases after a motion to quash filed by a defendant who argued that so called 'copyright troll' employed methods  to identify infringers that were suspect and that Malibu Media is engaged in abusive and extortion-like practices. Adult video outfit Malibu Media (X-Art) is the most litigious copyright claimant in the US,  filing over 4,500 cases in less than 4 years, Citing a University of Washington study which famously that a printer had received a DMCA notice for copyright infringement, the motion concludes that the techniques employed by Malibu for tracking down infringers are simply not up to the job. Citing the earlier words of Judge Harold Baer, the motion notes that “troll” cases not only risk the public embarrassment of a misidentified defendant, but also create the likelihood that he or she will be “coerced into an unjust settlement with the plaintiff to prevent the dissemination of publicity surrounding unfounded allegations.”  Judge Steven Locke held "Because the arguments advanced in the Doe Defendant’s Motion to Quash raise serious questions as to whether good cause exists in these actions to permit the expedited pre-answer discovery provided for in the Court’s September 4, 2015 Order, the relief and directives provided for in that Order are stayed pending resolution of the Doe Defendant’s Motion to Quash,” A total of 88 subpoenas in the Eastern District are now placed on hold.

Yoga was back in the CopyKats paws after numerous reports that Indian-American yoga guru Bikram Choudhury had lost a case asking for copyright protection for yoga poses and breathing exercises he developed. The Court of Appeals for the Ninth Circuit ruled in favour of city-based Evolation Yoga, against whom Choudhury had filed a lawsuit in 2011, saying that copyright was not appropriate for Choudhury's Bikram Yoga sequences because "it was an idea, process, or system designed to improve health, rather than an expression of an idea" adding it was also ineligible for copyright protection as a compilation or choreographic work. More on the Tribune here.

The City of Inglewood, California whose mayor James Butts who took action after online critic, Joseph Teixeira,  made some mocking videos using clips from city council meetings, has ended up with more egg on his face. Mayor Butts had already earmarked $50,000 of taxpayer money to fund the ill judged copyright lawsuit against Teixeira - which failed - the City could not assert copyright protection over City Council videos - and even is they were prptecetd, fair use would clearly apply. The court has now allowed Teixeira to claim legal fees totally $117,741 noting that the entire lawsuit was "objectively unreasonable." 


A leaked 'IP' chapter of the final Trans-Pacific Partnership (TPP) Agreement has atttracted much comment online - with most comments noting that signatories not already in line with the USA will have to adopt a number of 'Americanised' changes to alter the copyright laws of participating countries. The intellectual property chapter covers a broad range of issues including extended copyright terms, ISP liability and the criminalisation of non-commercial piracy.Provided the agreement is ratified, the copyright term will be set to the life of the author plus 70 years. This is already the case in the United States, but Canada for example will have to extend it's current term by 20 years.

The New Zealand government noted that its copyright term would likewise be extended,  saying the change "could benefit New Zealand artists in some cases, but the benefits are likely to be modest. Extending the copyright period also means New Zealand consumers and businesses will forego savings they otherwise would have made from books, music and films coming off copyright earlier". The Chapter also outlines how Internet services should deal with copyright infringement, with a section that 'mimics' the DMCA, although this leaves room for the Canadian notice-and-notice scheme to stay intact. Finally If TPP is ratified, the circumvention of DRM will be banned as well. In addition, manufacturers will not be allowed to sell circumvention tools such as DVD or Blu-Ray rippers. As this blogger had noted before, the US seem less keen to allow other signatories to develop their own 'fair use' doctrines - something of course enshrined in UK law. Other big winners with the new Pacific Rim treaty, which removes some 18.000 tariffs and trade restrictions, are poultry, beef and dairy farmers - but big pharma is seen as a loser - with no extension to protections against generic rivals, and the tobacco industry is seen as a loser too. And the Treaty isn't even guaranteed a home run in the USA - presidential hopeful Hilary Clinton, previously thought to be a strong supporter, has now publicly spoken against the TPP. And just to add to the confusion, here in Europe we have the Transatlantic Trade and Investment Partnership - another trade agreement, and here one that seeks to remove tariffs and regulatory barriers between the US and the EU. The TTIP is already under fire in the UK from the Shadow Chancellor John McDonnell and organisations such as Global Justice, who say the Treaty passes real power from democratically elected governments onto multinational corporations.  Around 250,000 people protested against the TTIP in Berlin last weekend. More on TorrentFreak here and the EFF here and Artstechnica here. The TPP participating nations are the US, Japan, Australia, Peru, Malaysia, Vietnam, New Zealand, Chile, Singapore, Canada, Mexico, and Brunei. Together they represent about 40 percent of the global economy. There is an interesting analysis by Nicola over on the IPKat here.

The RIAA - on behalf of UMG, Sony Music Entertainment, Warner Bros. Records, Atlantic and Capitol Records - has filed a lawsuit against Aurous and its founder Andrew Sampson for what it calls "wilful and egregious copyright infringement". It appears the recorded music sector's trade body will look to shut down the site using injunctive relief, and seek actual or statutory damages. we first noted Aurous on the 1709 blog back in September. The trade group said in a statement: "This service is a flagrant example of a business model powered by copyright theft on a massive scale. Like Grokster, Limewire or Grooveshark, it is neither licensed nor legal. We will not allow such a service to wilfully trample the rights of music creators" - more here.

And finally, Rapper Busta Rhymes has reached an undisclosed settlement in his Copyright infringement battle with hip-hop pioneers The Sugarhill Gang. Rhymes was sued by the group in 2012 for allegedly sampling their 1980s song 8th Wonder for his track Woo Hah! Got You All in Check. In the lawsuit, the band claimed 20 per cent of Rhymes' lyrics, including the phrase "Woo-Hah", came from their song. Rhymes had argued that the phrase was not protected by copyright and the action should be barred by the statute of limitations as out of time. More on Contact Music here.

And one last thing - my email account was hacked yesterday so if I 'emailed' you telling you I was in the Ukraine, I had been mugged and needed funds - errrm, the truth is that I am in the UK, I have not been mugged and I don't need your Money! The lesson from this is that, yes, train wi-fi is indeed 'open' so I won't be doing my emails on a Pendalino again! And Windows 10 deinstalled my anti virus software but I am struggling to deinstall said Widows 10 and get rid of it - a hideous system from the geeks at Microsoft. Grrrr and double grrrrr.

The CopyKat - taking stock of a 'brief week'

A Sky News live feed of the debate between the US Republican presidential candidates, including Donald Trump, Jeb Bush, and Rand Paul on its YouTube channel focussed on the U.K. was shut down part way through, possibly after the intervention of U.S. sister channel Fox Networks. Both broadcasters are owned by News Corp. The YouTube feed was replaced by an error message: "This video is no longer available due to a copyright claim by Fox News Networks, LLC." although some commentators point to the fact that YouTube's own automatic copyright infringement identifying software might have instigated the take down. Sky's old YouTube channel remains blocked - Sky News has since switched over to a new YouTube URL. In the U.S.,  the Republican debate, which was hosted by Fox News in partnership with Facebook, was meant to only be available to those with a cable TV subscription.

Google, Facebook, Twitter, Tumblr and Yahoo! are amongst the signatories to a new amicus brief submitted to the New York court that is considering legal action filed by the Motion Picture Association Of America seeking an injunction forcing third parties to block, remove links and stop providing any services to the copyright infringing MovieTube website(s).  They say that the injunction the MPAA requests is too wide-ranging, hinders the sometimes controversial safe harbours provided to tech companies in the Digital Millennium Copyright Act, and is basically "SOPA by the back door" (SOPa was the much maligned Stop Online Piracy Act, ultimately put on the back burner by the legislature. The brief says: "Plaintiffs now appear to be repackaging the excesses of SOPA into the All Writs Act. Indeed, the injunction proposed here would require the same online intermediaries targeted by SOPA to engage in the same kind of content and domain blocking that would have been required under SOPA had it been enacted".

Police in the UK have hailed an operation to halt advertising on piracy sites as a “major success”. The Police Intellectual Property Crime Unit (PIPCU) claims that since it launched Operation Creative and the Infringing Website List (IWL) in summer 2013, there has been a 73% decrease in advertising from the UK’s ‘top ad spending companies’ on copyright infringing websites, with PIPCU heralding the success of its 'follow the money' approach. More on MBW here.

Back to SiriusXM and those pre-1972 sound recordings in the USA: As readers may remember, Sirius appealed both the decisions it has so far lost (New York and California) which held that state law DID protect pre-1972 sound recordings and Sirius couldn't therefor use them royalty free , and a similar case against Pandora is also on appeal in California. Last week, EFF, who argue that this effectively creating new public performance rights that might apply to all pre-1972 recordings and all types of broadcasters, filed a brief with the Second Circuit  Court of Appeals in New York, urging that court to reverse the decision. The National Association of Broadcasters, the New York Broadcasters Association, Public Knowledge, Pandora, and a group of law professors also filed briefs (it seems to be 'brief week') opposing the new right, with the EFF explaining to the court some of the many problems this ruling could cause if it’s not reversed. EFF argued that the courts should leave decisions about expanding copyright law to Congress and also saying that whilst public performance rights in sound recordings are common outside the US, and they exist for digital radio services in the U.S. - they come with important safeguards: explicit limitations like fair use, and statutory licenses that avoid the massive transaction costs that would come with having to negotiate with each rights holder individually. 

A report crunching more than six years of copyright lawsuits filed in the U.S. has revealed that Malibu Media is the country's most litigious plaintiff. The company, which TorrentFreak says demands thousands of dollars from individual file-sharers, has filed 4,332 lawsuits since January 2009, fifteen times more than its nearest rival. Overall, it's estimated that 90% of file-sharing cases are settled out of court. However 66 cases reached court with total resulting damages estimated at $3.05 million. The company set up to pursue illegal downloaders of the movie Dallas Buyers Club sits in second place, with a relatively measly 274 cases, fifteen times fewer in volume than Malibu.

ZDNet reports that the Australian Attorney-General has commissioned a cost-benefit analysis of proposed digital copyright reform, which will encompass an economic analysis into the Australian Law Reform Commissions's (ALRC) recommendation to adopt a flexible fair use provision in regards to digital copyright in Australian law, seemingly as the the AG is concerned about the costs to both rights holders and rights users. A new Australian fair use provision would mean the fair use of a copyright material would not constitute infringement, based on a series of as yet incomplete fairness factors -- including the purpose of the use, nature of the material, amount of the material used, and the use's effect on the material's value: in addition research for the purposes of study and education as well as news reporting, review, criticism, satire, parody, quotation, non-commercial private use, professional advice, incidental or technical use, library or archive, and access for people with a disability would be exempted from copyright infringement provisions. The ALRC have said that the reforms are needed to promote the digital economy in Australia, although AG Brandis is seen as a friend to the content industries and unconvinced that despite changing technology, major law reforms are necessary, saying in late 2013 "I want to reaffirm the government's commitment to the content industries. It is the government's strong view that the fundamental principles of intellectual property law, which protect the rights of content creators, have not changed merely because of the emergence of new media and new platforms."

The CopyKat - Friday's furballs of fun

The Australian internet service provider  iiNET, which has long resisted federal efforts to mandate copyright protection schemes, and which won an important High Court decision in April 2012 that confirmed that internet service providers are not liable for authorising copyright infringement by making their services available to people who do infringe copyright, has called on its customers to make their voices known by writing to politicians at the heart of moves to introduce legislation which the ISP says would require ISPs such as iiNet to send infringement notices to its customers while, at the same time, blocking certain websites which provide access for customers to download and share unauthorised content. Writing in the iiNET blog, Steve Dalby, Chief Regulatory Officer, notes what he describes as “recycled” claims suggesting Australia is the worst nation in the world for Internet piracy. “This may not actually be the case, but there can be no debate that work still remains to be done to effectively combat piracy,” he says. More on Advanced Television here.

With both the RESPECT Act (which would close the loophole that allows digital music services, like SiriusXM, to stream music recorded before 1972 without paying for the use of the sound recordings, and the Songwriter Equity Act, which if passed would give songwriters more leeway to argue for higher royalties when their songs are played by digital streaming services - facing scrutiny in the U.S. House of Representatives, alongside a new  push was for a comprehensive registry of music, with songs given unique identifiers, so that YouTube, Spotify, Pandora and others could easily determine who owns the various rights to any song in order to assure payment, arguments are mounting for one, combined bill to address music licensing reform. “Consumers don’t know the button they push on their car dashboard or smartphone dictates whether artists are paid,” for that song, said New York Democrat Rep. Jerrold Nadler during a hearing on copyright reform - with Nadler is referring to the patchwork of laws governing compensating music artists whether the song they produced is aired on satellite radio, terrestrial radio or Internet radio. Nadler confirmed he’s working on one "omnibus bill", to bring “fairness and efficiency to our music licensing system, and ensure that no particular business enjoys a special advantage against new and innovative technologies”  in an update to the  subcommittee of the House Judiciary Committee.

A gushing press release from the record label's trade body IFPI tells us that Plácido Domingo, the world renowned artist and chairman of IFPI, has addressed the International IP Enforcement Summit being held in London where he urged governments not to allow copyright to be eroded in the digital age and highlighted the importance of intellectual property enforcement for protection of creators and culture. He told the meeting that protecting and enforcing intellectual property rights “is one of the most important missions in our society and for our culture today.” Domingo added: “There is a view – mistaken in my opinion - that in the digital world copyright matters less than in the physical world.  It is emphatically not so.  In fact, copyright needs protecting as vigorously – if not more vigorously – on the internet.” He addressed the debate around copyright reform in the EU.  “Europe will this year have new Commissioners and a new Parliament.  I urge them, in their review of copyright, to promote and protect copyright, not to weaken it.  Please, do not allow artist and producers’ rights to be eroded.  Rather, look at how they can be better enforced.” Domingo stressed the need for collaboration to protect intellectual property rights in the online world.  “We, in the creative world, cannot protect our rights alone.  We need help from the bigger actors.  The search engines, for example. When someone uses a search engine to find music, they should not be directed to illegal sources of music. This directly hurts artists and other creators.” He also called for help from governments.  “Enlightened governments will understand that strong, properly-enforced intellectual property rights lead to a rich culture and economic prosperity.”

And America's National Music Publishers' Association has estimated that the country's music publishers generate about $2.2 billion in revenue each year, but this is only about half what they should be making because of "outdated copyright law and government regulations". The gripe is really with about the role of the two main collection societies in the USA, ASCAP and BMI, and the major music publishers now want to start negotiating the 'public performance' right with the main streaming services directly rather than through the collective licensing system. NMPA chief David Israelite told reporters: "We are finally able to capture what the industry is worth and, more importantly, what our industry is losing. The new digital marketplace is changing how songwriters and their music publishing partners can thrive. As the marketplace evolves, it is essential our industry no longer be hamstrung by outdated laws and government regulation".

Techdirt tells us about a fascinating court filing made by lawyers acting for Malibu Media who, depending on whose camp you in, are either quite rightly defending the copyrights it owns and represents - or copyright trolls out to extract unneeded dollars from unsullied individuals having filed thirteen hundred lawsuits in the US in the last year. To be fair one US federal judge did support the erotic film company saying “Malibu [Media] is not what has been referred to … as a ‘copyright troll’ ”. Judge Michael Baylson added, “rather, Malibu is an actual producer of adult films and owns valid copyrights.” But now Malibu attorney Mary K Schultz has filed papers that seems to suggest a massive conspiracy against the fikm company - and that conspiracy includes opposing counsel saying:  "Plaintiff is the target of a fanatical Internet hate group. The hate group is comprised of BitTorrent users, anti-copyright extremists, former BitTorrent copyright defendants and a few attorneys. Opposing counsel is one of its few members. Indeed, as shown below, opposing counsel communicates regularly with the hate group’s leader. Members of the hate group physically threaten, defame and cyber-stalk Plaintiff as well everyone associated with Plaintiff. Their psychopathy is criminal and scary"

and  "By administering and using the defamatory blog www.fightcopyrighttrolls.com, “Sophisticated Jane Doe” (“SJD”) leads the hate group. SJD is a former defendant is a suit brought by another copyright owner... She is a self-admitted BitTorrent copyright infringer. SJD’s dedicates her life to stopping peer-to-peer infringement suits" and "Opposing counsel regularly Tweets with the other members of the hate group. Further, his Tweets are often part of a series of Tweets intended to harass Plaintiff and its counsel. Opposing counsel also Tweets about on-going litigation including this case and disparages Plaintiff... He even called Plaintiff a liar."  and "Opposing counsel is SJD’s and the other hate group members’ darling. They give him Kudos as he works toward trying to criminalize peer-to-peer copyright infringement suits."

Never publicity shy, Rightscorp Inc., the digital copyright protection service and of course the provider of copyright monetization for record labels and film companies across the globe, has unveiled brand new technology that could flood the Internet with millions of notices to alleged copyright infringers, according to Arts Technica. The strategy is based on telling the ISPs that they will face a high-stakes copyright lawsuit if they don't forward the notices that Rightscorp creates to their customers. If the ISP agrees, then they will have to forward Rightscorp's notices -  telling end users who have allegedly infringed the rights Rightscorp controls, that they could "be liable for $150,000 in damages unless they click on a provided link and agree to settle their case at a very low price." According to Rightscorp COO Robert Steele, asking for $20 per infringement is a fair way to create a deterrent. The company hopes to make the cost of infringement equal to a standard traffic ticket, while still keeping the threat of statutory damages. "Entertainers don't want to do that very often," said Steele. "They want to make people happy. For most people, a $10,000 judgment is a really tough thing. We're giving an opportunity for people to resolve the matter and recoup some loss to the creative, for a relatively small amount of money."

And finally, a US court has granted a request from MegaUpload founder Kim Dotcom to put two lawsuits being pursued against him from the film and recorded music sectors on hold pending the ongoing criminal investigation into his former business. The stay will be reconsidered in August. Under the motion, the MPAA and RIAA are still free to add extra defendants and otherwise modify their lawsuits while the matter is on hold. Judge Liam O'Grady also agreed that the RIAA and MPAA  were free to take action to stop moves in New Zealand and Hong Kong to return previously frozen MegaUpload assets to Dotcom and his colleagues saying "[T]he court finds that each of the plaintiffs' proposed conditions are reasonable under the circumstances of this case because of the possibility that defendants' assets abroad may become unfrozen. Plaintiffs may institute and pursue any action in the United States or a foreign jurisdiction to preserve defendants' assets in the event that such action becomes necessary".

No go for John Doe show

Dominic Purcell as John Doe in the
eponymous 2002-2003 TV series

AF Holdings LLC, which claims to own numerous copyrights to pornographic films, and has been described as an 'arm' of the rather controversial copyright trolling law firm Prenda Law, has been rebuffed in it's bid to obtain subpoenas identifying information on 1,085 allegedly illegal downloaders. The District Court had ruled that AF could subpoena Internet service providers including Verizon Communications Inc. and Comcast Corp for identify information on subscribers whose computers were linked to downloads of the movie via the BitTorrent file-sharing protocol.  

The United States Court of Appeals for the District of Columbia Circuit said that AF was not entitled to contact information for people whose Internet addresses were linked to downloads of the film “Popular Demand” because few of them live in the District of Columbia, where the case was filed, and it’s unlikely any connection exists among all of the Internet addresses subject to the subpoena: “It is quite obvious that AF Holdings could not possibly have had a good faith belief that it could successfully sue the overwhelming majority of the 1,058 John Doe defendants in this district” U.S. Circuit Judge David Tatel wrote, adding that “AF Holdings clearly abused the discovery process” and that the action was "a quintessential example of Prenda Law's modus operandi". The judgment is well worth a read and ends with

"Accordingly, we vacate the district court’s order and remand for further proceedings consistent with this opinion.  We leave it to the district court to determine what sanctions, if  any, are warranted for AF Holdings’s use of a possible  forgery in support of its claim. "

With a headline of "Crushing Blow for Copyright Trolls: Appeals Court Halts AF Holdings' Extortion Scheme" The EFF had this to say: "The case is one of hundreds around the country that follow the same pattern. A copyright troll looks for IP addresses that may have been used to download films (often adult films) via BitTorrent, files a single lawsuit against thousands of "John Doe" defendants based on those IP addresses, then seeks to subpoena the ISPs for the contact information of the account holders associated with those IP addresses. The troll then uses that information to contact the account holders and threatens expensive litigation if they do not settle promptly. Faced with the prospect of hiring an attorney and litigating the issue, often in a distant court, most subscribers-including those who may have done nothing wrong-will choose to settle rather than fight."

And over on the Register under the headline "Smut-spreading copyright trolls lose John Doe case" it's explained that 

"AF Holdings' last smackdown was in November 2013, when the US District Court of Minnesota found that it hadn't demonstrated ownership of the content claimed in a previous shakedown. That court ordered that the company return the money it had obtained from punters, as well as paying their legal costs. That ruling, however, didn't stop one of the two movies, Popular Demand, being the subject of the Columbia and then US Court of Appeals case.


AF Holdings was represented by Paul Duffy, who at the previous lower court hearings as associated with Prenda Law." 

More on the Washington Post here http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/05/27/prenda-law-was-a-porno-trolling-collective/

The CopyKat - troll sagas make the news

Sky have secured another victory in the Scottish courts against pubs and bars that show their exclusive live football broadcasts, in a copyright claim against Sarah McIntosh who ran the Avalon Bar, and Avalan Bars Ltd. Edinburgh's Court of Session found that the screening of a match between Celtic and Ross County was infringing and the Bar owners were also in contempt of court after breaching an interim interdict order against screening Sky's programmes (here a Scotland v Belgium international football match just hours after after the order was made) without a commercial agreement in place. Damages and costs of £7,000 were awarded. Last October the Old College Bar is Glasgow was ordered to pay £10,000 and legal costs again for showing matches without a commercial agreement. They Morning Advertiser reported that the bar also had to take out advertisements announcing the ruling. Sky's lawyers (Burness Paul) have said that they will continue to take action and that pubs that show their material without a commercial agreement in place are "committing 'copyright infringement" and "must face the legal consequences of that". 

The Matrix directors Lana and Andy Wachowski have triumphed in a copyright lawsuit over the hit movie trilogy. Writer Thomas Althouse launched legal action against the brothers,studio Warner Bros. Entertainment, and producer Joel Silver in 2013 claiming the franchise copied aspects of his own screenplay The Immortals, which he said he submitted to Warner Bros. in 1993. Althouse cited an alleged 118 similarities between the storylines, but claimed to have been unaware of the likeness until he saw the Keanu Reeves films in 2010, 11 years after the first instalment of the franchise hit cinemas. He demanded compensation regarding two sequels in the franchise, The Matrix Reloaded and The Matrix Revolutions, as well as a portion of the $1.63 billion the films grossed worldwide. In granting a summary judgement, U.S. District Court Judge R. Gary Klausner ruled, "All of Plaintiff's examples are either too general for copyright protection, are scenes a faire (scenes typical of a genre), or are commonly used, unoriginal ideas." Judge Klausner added that any claim that the film concepts shared similarities in plot was unfounded as "the basic premises of the Matrix Trilogy and The Immortals are so different that it would be unreasonable to find their plots substantially similar".

Lennar Homes of Texas Sales and Marketing Ltd has filed a lawsuit in the Houston Division of the Southern District of Texas against Perry Homes LLC, citing copyright infringement by building, marketing and selling town-home floor plans that infringe upon Lennar’s copyrighted Burgundy Home Design. Lennar says it successfully bid on lots in the Phase I area of Creekside Park in The Woodlands and began building, but Perry Homes outbid them for certain Phase II lots. According to the lawsuit, Perry Homes employees  viewed Lennar’s Burgundy Home Design on multiple occasions. Lennar Homes is seeking judgment that Perry Homes recall infringing plans and designs as well as damages, lost profits or the defendant’s profits and attorneys’ fees. (Southern District Court of Texas Case No. 4:14-cv-01094).

US Law firm Dunlap, Grubb and Weaver, apparently pioneers of BitTorrent "copyright troll" cases, have thrown in the towel against a counterclaim brought against them by an alleged pirate, and have been ordered by Judge George O’Toole  to pay nearly 
$40,000 in damages and costs. Dmitriy Shirokov brought what was initially a class-action lawsuit against the firm and sought "relief based on 25 counts including extortion, fraudulent omissions, mail fraud, wire fraud, computer fraud and abuse, racketeering, fraud upon the court, fraud on the Copyright Office, copyright misuse and unjust enrichment," says TorentFreak. The case was denied a class-action and Shirokov took three years to win his case against the law firm, film studio Achte/Neunte and the German tracking company GuardaLey. He was one of thousands who were alleged to have illegally downloaded the movie 'Far Cry' movie and said the allegations were based on poor evidence and a "false copyright registration".  More on Techdirt here.  

And finally is this another troll saga? Malibu Media, a California pornography company, is suing thousands of people for  violating copyrights to its adult films. NBC Miami said that one Maryland man, who did not want to reveal his identity, got the bad news by mail. The company has said it would name him in a lawsuit demanding $2 million for listing the names of movies the unknown defendant s including "Morning Desires," "Hot Chocolate" and "Mad Passion". Is this another troll? Well,  the firm say that they have clear proof that their copyrights are being infringed and that they are losing millions of dollars saying “Each month, approximately 80,000 U.S. residents use BitTorrent to steal our movies.”  NBC reports that Federal court records show Malibu Media has filed more than 2,000 copyright infringement lawsuits across the nation, including more than 200 in Florida, in the last three years. The unknown defendant has hired a lawyer who has moved to quash the subpoena that would name her current client from an ISP address and is waiting on a ruling from the court.