My Little Pony gets 3D printed

3D printing is a bit of a buzzword at the moment and its not the first time that this blogger has written about protection of IP rights in the 3D printer world. Rightsholders need to be thinking about how best to exploit 3D printing rather than how to avoid it, and one company that has done just that is Hasbro. 

Rather than targeting creators of fan art to stop them customising the popular My Little Pony range (because, really trying to stop your fans from enjoying your product is not a great business proposition), Hasbro is going to partner with 3D printing company Shapeways to sell fan art.

Five artists will design My Little Pony figurines which can be printed to order. John Frascott, chief marketing officer at Hasbro, describes the process as "mass customisation" - the figurines don't make sense for mass manufacture but enough people will buy them that Hasbro can justify allowing the artists to create and sell them.

It's not clear whether the artists will be employed by Hasbro or whether they are merely granted permission to create fan art (likely the former, for Hasbro to retain control of any copyright created) but it is clear that this is a clear demonstration that we will see more and more customised goods in future, meaning more and more 3D printing.

What has this got to do with copyright?

Well ignoring any trade mark rights which Hasbro may have in My Little Pony, it is likely that the main IP rights subsisting in the figurines are copyright and/or design rights. This raises a few important questions, namely:

1. Are figurines artistic works for copyright purposes (the Storm Trooper helmets were not)?

2. If not, could they be works containing the author's own intellectual creation and so subject to copyright protection in the rest of Europe? (Or in the UK if the concept of a work is found to be harmonised…)

3. If copyright does subsist, will the proposed private copying exception allow people who have access to the design files to make copies for private use at home?

4. Will the files appear on P2P file-sharing sites, and if so how long before we see an application for a blocking injunction against counterfeit My Little Pony files?

Answers on the back of a postcard please!

Research says that French “three strikes” law has no deterrent effect

The effectiveness of graduated-response anti-piracy systems that have now been implemented in France, New Zealand, Taiwan, South Korea and the USA has always been debated, and new research from American and French researchers, based on a survey of 2,000 internet users in France, has found that the so called 2009 ‘three strikes’ system in France (the 'Hadopi' law) has not deterred individuals from engaging in digital piracy and the system does not reduce the intensity of illegal activity of those who did engage in piracy. The researchers from the University of Delaware Alfred Lerner College of Business and Economics and the Université de Rennes I - Center for Research in Economics and Management also noted that for those internet users with closer links to the piracy community - a classification based on the piracy chat in said users' social networks - the introduction of three-strikes in France, which targeted exclusively P2P file-sharing, pushed file-sharers down other routes to accessing unlicensed content.  More than a third sampled —37.6 percent—admitted to illegal downloading, with 22 percent using P2P networks and 30 percent using "alternative channels." About 16.4 percent of those who had engaged in the downloads received a warning from Hadopi, the government agency with the same name as the law it enforces.

The Researchers say: “Consistent with theoretical predictions, our econometric results indicate that the Hadopi law has not deterred individuals from engaging in digital piracy and that it did not reduce the intensity of illegal activity of those who did engage in piracy” adding “While several factors affect the perceived probability of detection under the law, our results show that the propensity to engage in illegal file-sharing is independent of these beliefs.” 

The results suggest that those who have more 'pirates' in their social networks switch to alternatives, such as direct download sites and newsgroups with the researchers saying “There is evidence that the law encourages Internet users who better understand the law and alternative piracy channels (those with many digital pirates in their social network) to substitute away from the monitored P2P channel and to obtain content through unmonitored illegal channels,”  which conversely means that the three-strikes system is more likely to catch less prolific file-sharers.

That said, the authors cite another 2014 study which found that iTunes has seen a 20-25 percent increase in sales of French music just prior to implementation of the law. However, the authors attribute the increased sales to "public educational efforts," not to the deterrent effect of the law.

More on http://torrentfreak.com/three-strikes-law-does-nothing-to-curb-piracy-research-finds-140122/ and you can download the paper here

BitTorrent file-sharing website isoHunt "induces" copyright infringement

The US Court of Appeal for the 9th Circuit (California) unanimously ruled yesterday that Gary Fung, the Canadian owner of BitTorrent website isoHunt, had "induced" users to download and distribute films and TV programmes, and that he could not rely on the DMCA safe harbor provisions for protection.

Various film studios alleged that isohunt.com and related websites, all run by Fung, induced third parties to download infringing copies of the studios' works. The websites were all BitTorrent sites which enabled file sharing and IsoHunt, Fung's "flagship" site, went a step further by modifying torrent files to make them more reliable than when they were uploaded to the site. IsoHunt also hosted a forum where users could post comments; Fung would post comments and also moderated the forum.

The Court of Appeal affirmed the District Court's decision on liability, confirming that Fung had induced users to illegally download and distribute content and that the safe harbor provisions set out in the DCMA offered no protection.

Two types of supporting evidence corroborated the conclusion that Fung "acted with a purpose to cause copyright violations": first, Fung took no steps "to develop filtering tools or other mechanisms to diminish the infringing activity" by those using his services. Second, Fung generated revenue almost exclusively by selling advertising space on his websites.

As regards whether Fung could make use of the safe harbor provisions, the Ninth Circuit was clear that it would be difficult for any defendant who induces copyright infringement to rely on safe harbor. It went on to say that Fung was ineligible because:

1. He had "red flag knowledge" of the infringement. Red flag knowledge turns on whether a website provider is subjectively aware of facts that would have made the infringement "objectively" obvious to a reasonable person  The court found that films and TV shows were "sufficiently current and well-known that it would have been objectively obvious to a reasonable person that the material solicited and assisted was both copyrighted and not licensed to random members of the public, and that the induced use was therefore infringing."

2. Fung profited from the infringement through advertising while having the "right and ability to control" infringing activity occurring through the various websites.

The case will now go back to the District Court for a decision on damages and to finalise the injunction.

The decision is not surprising. Henry Hoberman, Senior Executive Vice President and Global General Counsel for the Motion Picture Association of America (MPAA) has said:
"This ruling affirms a core principle of copyright law: those who build businesses around encouraging, enabling, and helping others to commit copyright infringement are themselves infringers, and will be held accountable for their illegal actions. It also strikes an important blow in the fight to preserve the jobs of millions of workers in the creative industries, whose hard work and investments are exploited by rogue websites for their own profit."

However, according to Advanced Television, despite the injunction, isoHunt.com will continue to operate through private servers in Canada and it is the fourth most popular BitTorrent site on the Internet.

The decision is available here.

More on file sharing - German ISPs must disclose file sharer details

Germany's Federal Court of Justice, the Bundesgerichtshof, has recently held that internet service providers (ISPs) must disclose the name and address of illegal file sharers when requested by copyright owners.

Tonpool, a German independent music distributor sued in respect of a song entitled "Bitte hör nicht auf zu träumen" by Xavier Naidoo, which was downloaded from a file sharing site in 2011. The copyright owner asked ISP Deutsche Telekom for the name and address of the file sharer however Deutsche Telecom failed to provide the information, causing Tonpool to take the issue to court.

 

Until now ISPs in Germany had only been required to share contact details of users who share files commercially or for profit, however now ISPs can be required to disclose details of ordinary users who distribute copyright protected content.

 

Further to my post earlier this week reporting Donald P Harris' pod cast on file sharing, here are some statistics on the German music industry (according to Billboard) which show that, as many of the comments on my last blog post said, people are still willing to pay for music.

The German Music Industry Association (BVMI) has reported a 0.2% increase in overall revenue for the half of 2012. The strongest growth was in album downloads, which jumped nearly 35 % year-on-year so that online music sales now account for just under 20 % of total revenue in the German market, up from 14.4 % over the same period last year.

The BVMI figures do not include revenue from online streaming services - apparently streaming revenue accounted for about 2% of the German music market last year. Unsurprisingly, physical CD sales continue to fall (by 5.4 % in the first half of 2012), however CDs still account for 72 % of overall revenue.

 

To this blogger the small revenue attributed to downloads compared to CDs is indicative of illegal file sharing, but perhaps the Germans are just a CD loving nation?

Copyright law and alcohol prohibition

Today this blogger's attention was caught by a Surprisingly Free podcast in which Donald P. Harris, associate professor of law at Temple University, discussed the regulation of file sharing and compared it with the Alcohol Prohibition era of the 1920s and 30s in the US. It is a fascinating and very thorough discussion of file sharing and the issues faced in enforcing copyright law on the Internet. Harris' arguments are summarised below, however if you have time do listen to the podcast.  

© Kirti Poddar

Copyright owners rightfully object to file sharing, says Harris, because they receive no remuneration from it, however the flip side of the coin is that consumers simply want to share works and take full benefit of the Internet. We have seen numerous efforts by recording industry in particular to prevent file sharing, to no avail. People are file sharing at unprecedented levels. Therefore, Harris suggests that we need to take a lesson from history and in particular the prohibition era when social norms and the law were out of sync.The podcast host suggests that file sharing is comparable to stealing, and asks why we should consider helping file sharers to take from copyright owners.

Harris makes the obvious distinction between tangible and intangible property, being that if you take someone's book you deprive them of that book, but that if you share the book online no-one loses out. He says that society benefits from sharing, so the theft analogy doesn't hold.

Harris goes on to discuss the constitutional cause that provided for copyright law in the US: copyright was designed to benefit society. It was not designed to reward artists. Although there are arguments on both sides, Harris says that going back to the purpose of copyright law in the US helps us understand that file sharing might not be stealing.

Of course the next question is what about the artists? If we allow file sharing we remove the incentive for creation. We need incentives for artists to trade, otherwise not as many works will be made for society to enjoy.

Harris suggests that perhaps although artists need incentives, expanding the term of copyright protection from 14 years to 70 years plus life was excessive. Restricting the term might be one way to retain copyright whilst allowing some forms of file sharing.Harris goes on to consider enforcement. Law suits have been filed, successfully, against both software developers and consumers, but file sharing has not slowed. This he compares to prohibition, when sale and distribution of alcohol was prohibited yet people continued to drink.

There were several different forces behind prohibition, but Harris notes that prohibition is not something that the people ever wanted. The issue was never put to the public vote, and consequently the constitutional amendment was a miserable failure. People continued to drink. The Government imposed stricter penalties but they didn't work.Ironically prohibition soon began to worsen the social problems that it had been intended to cure: disrespect for the law, underage drinking, corruption and gang violence.

So after about 10 years the legislation was reversed and alcohol consumption became legal again. Why? Because the Government had miscalculated level of non-compliance that prohibition would generate.Harris says that although we don't need 100% compliance for the law to work, we need most people to comply with most laws. And by and large people will comply with laws if they think that they are just; if they fit with the public's sense of right and wrong.

Harris argues that it doesn't matter how severe the penalty is: people will not be deterred if they don't feel morally obligated to comply.  This, he says, is the problem with file sharing. Young people in particular do not think that they are doing anything wrong; the law is out of pace with social norms.File sharing raises two important questions:

1. What should we do when we have new technology? Should the law change?

2. If we have laws that do not align with social norms, should we change them?

In response to question 1, Harris says that the Internet has dramatically changed the landscape of copyright and that therefore, intuitively we should change the law so that it works with the Internet. He compares the Internet with photography (who will pay for portraits?), radio (who will pay for music?) and VCRs (who will pay for films?) to make the point that new technology does not mean that artists will no longer make money from their work.

As to the second point, Harris goes back to alcohol prohibition, saying that prohibition teaches us that it might be worth changing laws to make them consistent with social norms. Young people feel no moral guilt for file sharing, he says, and it is going to be difficult to enforce the law or to change social attitudes to file sharing.

So how do we make sure that authors can charge so that they have an incentive to create? Harris has two suggestions. First he suggest imposing copyright levies on copying equipment and blank devices. This is a method already used in many European countries which would enable people to file share having already paid a tax on the types of equipment that are used to file share.

Harris' second suggestion is that a licence fee should be included in ISP fees, so that when you pay for access to the Internet you also pay to use and share content.Having said this, Harris wonders whether providing these legal avenues would make any difference if people believe that they shouldn't pay to share files. He suggests that file sharing should be made legal  for non-commercial use (a term that would need to be defined). He argues that this would simply be similar to allowing copying of CDs at home or taping from the radio. Artists would still have an incentive to create because they make so little from CD sales; artists make most money from live performances and sales of performances.

Harris argues that file sharing is seen by artists as free promotion of their music.So who would lose out? The record industry would. Harris says that if we think of copyright laws as a way first of benefiting society and second of protecting artists we should not be unsympathetic to record industries losing out.Harris closes by saying that it is difficult to strike a balance, and of course we have no way of knowing what the right system is. However he is of the view that, on balance, whilst it would be controversial to legalise file sharing the benefits would outweigh the disadvantages.

What do you think?