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

Star Trek franchise owners Paramount Pictures and CBS have revealed they're planning to drop their controversial copyright lawsuit against the makers of the ambitious fan film, Star Trek: Axanar. The news was announced by the producer of the new Star Trek Beyond JJ Abrams at a Trekkies fan event. Paramount/CBS lawyers told Buzzfeed's Adam Vary that they are in 'settlement' discussions and that they will draw up guidelines for fan film projects in the future, so that this sort of thing doesn't happen in the future.  But hang on - now we wont hear arguments about whether the Klingon language can be protected by copyright. This is a BIG SPOILER! You can see all 21 minutes of Prelude to Axanar here. 

A jury has ruled in favour of Google in the long-running legal dispute with Oracle over software used in many of the world’s smartphones. Oracle contended that Google used its Java copyrighted programming code in 11,000 of its 13 million lines of software code in Android, its mobile-phone operating system, and asked for $9 billion from Google. Google said it made fair use of the code. The victory for Google will cheer many other software developers,who use so-called open-source software. The decision was delivered in U.S. District Court in San Francisco. More here.

The Turtles may have done well in battering Sirius XM's attempts to avoid paying royalties for the use of pre-1972 copyrights, but now CBS has advanced an interesting new argument on the same topic - and a California judge has handed down a big ruling that could help "immunize" terrestrial radio operators and others from lawsuits and upend many preconceived notions about copyright. The decision from U.S. District Court Judge Percy Anderson comes in a dispute between ABS Entertainment, owner of recordings by Al Green and others, and CBS Radio, and was based on the concept that pre-1972 songs are protected under state law and can't be broadcast without permission. In reaction to the ABS lawsuit, CBS tried out a new argument - it was not performing the original analogue recordings, but rather NEW digitally remastered versions that came out after 1972. Under this argument, the specifically performed works aren't protected by state law, and CBS doesn't have to pay. And the court agreed. The labels are going to have a battle fighting this one, as they already file new copyrights for re-masters - which might extend the life of copyright for those gleaming new digital re-masters - but this plays into terrestrial broadcaster's hands. More on re-mixing and re-mastering here and here.

And over on the IPKat, two important recent decisions are reported. First off, Does an internet service provider (ISP) lose its safe harbour protection because, upon obtaining actual knowledge or awareness of third-party illegal content, it has not acted expeditiously to remove or disable access to such content? The Tribunale di Roma (Rome Court of First Instance) had such a case where an ISP had acted months after the request of the concerned rightholder.  The Tribunale issued an interesting decision on the liability of ISPs for third-party infringing acts, here in the context of proceedings brought by RTI - Reti Televisive Italiane (owned by broadcasting company Mediaset). This time the defendant was French video platform provider website Kit Digital France (now bankrupt, formerly Kewego). The court referred to a number of decisions of the Court of Justice of the European Union (CJEU). More specifically it recalled: L’Oréal and Google France in relation to what an ‘active role’ (such as to prevent safe harbour protection) of an ISP entails; Scarlet and Netlog in relation to the prohibition to impose on ISPs general filtering obligations;  Netlog and Telekabel to note that copyright protection (the protection of IP is mandated within the right to property in Article 17(2) of the Charter of Fundamental Rights of the European Union) must be balanced with other fundamental rights and freedoms, including ISPs’ freedom to conduct a business (Article 16 of the Charter) and users’ freedom of expression/information (Article 11 of the Charter). On the facts, the court concluded that Kewego should be liable for the damages caused to the claimant by such delay, but left their actual determination to a later stage.

And finally - back to that thorny issue of 'making available' and that 'new public'. The Court of Justice of the European Union (CJEU) had been asked to say whether the making available of TV broadcasts in rehabilitation centres should be regarded as an act of communication to the public in Reha Training, C-117/15 (a reference for a preliminary ruling from the Landgericht Köln (Regional Court, Cologne)) asking essentially whether the making available of TV broadcasts by means of TV sets on the premises of a rehabilitation centre falls within the scope of Article 3(1) of the InfoSoc Directive and Article 8(2) of the Rental and Lending Rights Directive; and the concept of ‘communication to the public’ for the purposes of those two provisions must be given a uniform interpretation. The Grand Chamber has now delivered a 67 paragraph judgment substantially confirming the Opinion of Advocate General Bot, although not relying on the four elements indicated therein. The Court highlighted that there are some differences between relevant provisions in the InfoSoc and Rental and Lending Rights directives. However, it concluded that there is no evidence that EU legislature intended the concepts of 'communication to the public' differently in these two pieces of legislation. Here the court found on the facts that: The operator of a rehabilitation centre deliberately transmits protected works to patients by means of TV sets installed in several places on his premises. As such, he is committing an 'act of communication' and; The patients of a rehabilitation centre constitute a 'public' that can enjoy the works broadcast by means of TV sets thanks to the indispensable intervention of the centre operator; This public is also 'new' in that it was not taken into account by the relevant. Eleonora's excellent analysis is here - but this blogger cant help but think that the court is getting itself into ever more difficult waters - and what the law is (or rather how it will be applied) is anyone's guess now. How would say the  use of a publicly available radio broadcast in  a staff canteen differ from say a dentist's surgey or waiting room, a spa, a hotel room (Rafael Hoteles), a tyre fitter's waiting area ? Apart from 'the can of worms opened by Svensson' - this writer is left with a nagging feeling that is reflected in the comments from one garage owner who said back in 2009 “The radio stations are paying to play the music and we have to pay to listen to it – they [the PRS] are taking with both hands". 

The CopyKat

It been eight years since the publisher John Wiley & Sons sued Supap Kirtsaeng for re-selling Asian market textbooks in the USA - and now despite his ultimate win in the Supreme Court under the 'first sale' doctrine, his textbook business is shuttered and he has moved into academia - BUT in his first print interview he makes clear his conviction that he wasn’t doing anything wrong by reselling those textbooks, and that the lawyers who helped him prove it are entitled to be paid for their work because he found counsel willing to represent a student and small business owner against a global company with billions of dollars in annual revenue. So he now wants almost $2 million from John Wiley - but so far he has been knocked back by the trial court and the 2nd U.S. Circuit Court of Appeals. Now the Supreme Court will hear Kirtsaeng’s second petition for certiorari, this time to resolve uncertainty among the federal appellate courts on the appropriate standard for fee-shifting in Copyright Act litigation. 

The song that inspired one of America’s greatest freedom fights is now the subject of a battle over its own. A California non for profit organisation has filed a class-action lawsuit against Richmond Organization and Ludlow Music over the copyright to “We Shall Overcome,” a song the Library of Congress calls “the most powerful song of the 20th century.” “It’s an important part of our political and social history and we certainly see the irony in the fact that this song, which has represented the civil rights movement, needs to be emancipated itself,” says Mark Rifkin, an attorney and partner with Wolf Haldenstein Adler Freeman & Herz, who is representing the We Shall Overcome Foundation in the suit who will argue that “The basic story is the song was written well before anybody copyrighted anything” - that " the song belongs in the public domain", and seeks a return of "unlawful licensing fees" from the publishers. Could be fun!

Justin Bieber’s 2010 hit song ‘Somebody To Love’ faced a claim back in 2013 when he and his producer Usher, were accused of copyright infringement.  The lawsuit was brought forward by singer De Rico and songwriter Mareio Overton.  De Rico and Overton’s track was also titled ‘Somebody To Love,’ from their similarly-titled album, My Story II. In 2014 the court dismissed the case finding significant differences in the songs. However, in June of 2015, the US Court of Appeals in Virginia re-opened the lawsuit and since then, the case has been ongoing. But Bieber keeps failing to show up to depositions and having cancelled twice said he was ‘unable to sit for deposition’. As a result, the singer has now been ordered to pay over a whopping $10 million and the court has scheduled discovery to be completed by April 18th. Errrrrr, that's TODAY JUSTIN!

With a retrial scheduled for May, Oracle and Google have failed to settle the copyright lawsuit over Android operating system. Reports said that the CEO of global software major Oracle, Safra Catz and Google Chief Executive Sundar Pichai met for six hours on April 15 in a court-ordered settlement conference before a U.S. magistrate in San Jose, California, in an attempt to stave off retrial in May. U.S. Magistrate Judge Paul Grewal, who mediated the talks issued a statement saying the talks were unsuccessful.

And finally: Universal Music Australia, Warner Music Australia, Sony Music Entertainment Australia and Albert Music have combined in an effort to combat offshore site Kickass Torrents, filing an application in the Federal Court of Australia to have Kickass blocked from local access. The action is under Section 115A of the Australian Copyright Act 1968 and the companies are seeking to have Kickass Torrents and its affiliated proxy sites blocked by Australian ISPs in an effort to tackle local and global music piracy.

The CopyKat dips a paw into the fast flowing stream

In China. the the National Copyright Administration has updated its policies on music streaming, updating saying online streaming services must stop providing unlicensed music to users. Service providers were required to remove unlicensed music by the end of July . The NCA said in a stament that the move was in line with China's copyright law and regulations. Those who do not follow the order will be 'seriously punished'. Duan Yuping, an official from the NCA, said the violation of copyright is common in China. “(Music streaming providers) infringed the rights of royalty holders, disturbed the order of the online music market, and also impacted the development of our music industry” - the latter being a common thread amongst comments with artistes, record labels and music industry executives supporting the fight against piracy. 

And Jack Ma’s e-commerce giant Alibaba is launching a music division to join its existing film and video units in China. Ali Music Group will be run by singer-songwriter and TV host Gao Xiaosong, who serves as chairman, and Song Ke, a former Warner Music executive, as CEO. Alibaba already has a number of licensing deals in place with the likes of BMG, Rock Records and HIM Records for their content to play on its platforms. 

In the UK, The Intellectual Property Office (IPO) has released data that shows that the number of UK consumers accessing digital content through legal download or streaming platforms has risen 10% since 2013 - but one in five consumers continues to access music, movie, TV or gaming goodies from unlicensed sources online. The IPO survey says that 15.6 million UK internet users now access music online, with twelve million streaming and 10.5 million downloading - confirming the rise of the streams in recent years whic has been a common thread amionst recent figures from the recorded music sector showing streaming income rising at a very fast rate. whilst Spotify and Amazon are amongst the most use streaming music platforms in the UK, 54% of online music was consumed via YouTube - which whilst a licensed service certainly for songs via its licence with PRS for Music - its not seen as a primary revenue source by record labels and music publishers.  10 million UK internet users have accessed films online. Netflix, Amazon and YouTube were the top platforms for film downloads and streaming with Netflix responsible for 44 per cent of all activity. With TV, 15 million UK internet users have accessed a TV programme online. BBC iPlayer, You Tube and ITV Player were the top platforms for accessing TV programmes online with BBC iPlayer responsible for 62 per cent of activity. 21 per cent of users accessed some content illegally. The IPO survey highlighted 62% of internet users in the UK have downloaded or streamed music, TV shows, films, computer software, videogames or e-books. This is up from 56% in 2013. The survey showed that there was a 10% increase in UK consumers accessing content through legal services. One in five consumers still access some content illegally. The survey was published in parallel with research in Australia and shows that while British and Australian users consumed online media at similar rates, illegal downloading for UK consumers was half the rate of their Australian counterparts. 

Last week representatives from the UK’s creative industries, supported by the UK government confirmed the agencies that will help to deliver a major multi-media education campaign aimed at encouraging consumers to do the right thing and access content from a wide range of legal services as part of the Creative Content UK initiative.  The education programme will target 16-24 year-olds, their parents, those responsible for household internet connections, as well as others who influence young people’s attitudes to accessing content. A second part of the initiative will be a subscriber alerts programme that will be co-managed and co-funded by ISPs and content creators and due to begin at a later date.  Participating ISPs will alert and advise subscribers when their accounts are believed to have been used to infringe copyright. The four largest ISPs in the UK- BT, Sky Broadband, TalkTalk and Virgin Media are partnering with Creative Content UK: other partners include the BBC, the Independent Film & Television Alliance (IFTA), the Musicians’ Union and UK Music. 

And YouTube's dominance has prompted the major labels (Universal, Sony and Warner) to start to explore ways to loosen YouTube’s grip on free ad-supported music videos - not least by supporting rival sites like Vessel and Snapchat. The New York Post says that separately, the labels are weighing going nuclear — "potentially yanking rights to the Web’s most valuable and highly trafficked content" with one industry source telling the Post "They are not serious about monetizing music on behalf of creators and, as a result, music companies are realizing they have to reset the current relationship,” The labels are far keener on subscription streaming services such as Spotify's top tier. Industry body RIAA says ad-supported streaming services (both visual and audio) contributed just $295 million in 2014 to the US record industry — with YouTube’s contribution estimated to be about half of that sum. Google has said that YouTube has paid out billions of dollars to the music industry over the last few years and that partner revenue has increased 50 percent year on year the last three years in a row. More on Music Busines Worldwide here.

And Recent statistics explain why the record labels are so focussed: The income of Germany's recorded music market grew 4.4% year-on-year in the first half of 2015. That was mainly driven by a whopping 87% rise in streaming subscription revenues, which easily offset a decline in CD album sales. Download sales also increased. Germany’s record industry, the world’s third-biggest music territory behind the US and Japan, accrued €686m in the first half of 2015. The income of Sweden's recorded music market rose 4.2% in the first six months of 2015 - with streaming growing once again to claim 83.9% of revenues. According to new data from IFPI Sweden analysed by MBW, the market's recorded music turnover in Jan-June this year stood at 507.5m SEK (€54.6m), up from 486.9m SEK in H1 2014 (€52.4m).
And the income of the Italian recorded music market jumped up 22% in the first half of 2015, according to new figures published by Deloitte. The total revenues of the region stood at €65.55m, compared to €53.61m in H1 2014. A strong release schedule by local pop artists helped lift the total physical market by 22% to €37.3 million. Digital revenues increased 37% to €21.18m, with download sales up by 6% to €10.82m. Streaming, increased its year-on-year H1 income by 37%, up to €17.36m.

The Russian government's top Internet regulator has officially warned YouTube that it could be added to the Kremlin's Internet blacklist unless it removes unauthorised copies of Russian TV shows. It's the second time the agency has warned YouTube about the shows in question, and now the video streaming site must comply in a matter of days. A Moscow city court ruled on April 7th that YouTube was violating Russian copyright law by hosting copies of “Chernobyl” and “Fizruk.” YouTube removed the offending cntent but the shows have been uploaded again since, along with another 137 illegal videos. YouTube has until July 27 to remove the URLs in question or be included on the Russian RuNet blacklist, according to Global Voices Online, which tracks Russian media freedom.

The pit at Glastonbury (Denis O'Regan)

ImageRights International has announced the first "fully automated copyright registration service" designed specifically for the needs of professional photographers, "revolutionizing the process for registering photographs with the United States Copyright Office (USCO)". To be clear - ImageRights is a business - not a government or a free service - but makes the point that they have statistics that show that the time, cost, and complexity of registration has deterred 97% of US professional photographers from registering their work with the USCO, potentially losing out on "hundreds of thousands of dollars" in licence fees and indeed statutory damages from copyright infringement claims. There is a cost of course, but any interested (and unregistered) photographers can find out more here.

Oracle has asked a U.S. judge for permission to update its copyright lawsuit against Google Inc to include the Android operating system's current market dominance - Google's Android operating system is now the world's best-selling smartphone platform.  Oracle said it wants to update the copyright lawsuit, filed in October 2010, to add that Google continues its copyright infringement through updated versions of Android in both existing and new markets and this is resulting in harm to Oracle and (of course!)  benefit to Google. More here.  In June the US Supreme Court denied Google's writ of certiorari to re-examine the 2014 decision of the Court of Appeals for the Federal Circuit in favor of Oracle which held that application programming interfaces (APIs) in Java were subject to copyright protection. The next stop for these two companies is back to the trial court to determine whether Google has a defense to copyright infringement under the doctrine of  “fair use.” 

And finally a couple of technology updates - and sorry I have drifted into patents - not the CopyKat's field at all - but fascinating for all lovers of copyright too:

First up, Techcrunch tells us that "Researchers at the University of Cambridge have linked musical taste to thinking style, with possible implications for how future algorithms might better tailor music recommendations. Not to mention the flip side: how music streaming services could psychologically classify their users based on what they like to listen to".

And Mashable says that Apple has filed a fingerprnt sensitive patent application posted to the U.S. Patent and Trademark Office's website on Thursday -  "Apple detailed technology for a specialized TV remote control which could be used to access a person's TV preferences, bypass passcodes for services such as Netflix, enable child proofing and even control smart products in the home, such as garage doors and thermostats." 

Obama administration favour Oracle's copyright position in API battle

In the US, the Obama administration has sided against Google and said the U.S. Supreme Court should not hear the company's appeal in a case against Oracle with wide implications for the technology industry, according to a court filing. The case involves how much copyright protection should extend to the Java programming language. 

At issue in Oracle v. Google is whether Oracle can claim a copyright on Java APIs and, if so, whether Google has infringed these copyrights.  APIs (Application Programming Interfaces) are, generally speaking, specifications that allow programs to communicate with each other.

Overturing Judge William Alsup  the Northern District of California who ruled that APIs are not subject to copyright, the  U.S. Court of Appeals ruled that the Java APIs are copyrightable, with the appellate court saying "We conclude that a set of commands to instruct a computer to carry out desired operations may contain expression that is eligible for copyright protection" but leaving open the possibility that Google might have a fair use defense. Its important - Google used Java to design its Android smartphone operating system, and unsurprisingly Googe then appealed to the U.S. Supreme Court. Google maintained that the code at issue is not entitled to copyright protection because it constitutes a "method of operation" or "system" that allows programs to communicate with one another.

In January SCOTUS asked the Obama administration for its opinion on whether it should take the case because the federal government has a strong interest.

Previously the Electronic Frontiers Fooundation (RFF) had filed an amicus brief on behalf of a group of 32 prominent computer scientists which urged the Supreme Court to reverse the appeals court decision saying "The Federal Circuit’s decision poses a significant threat to the technology sector and to the public" and "If it is allowed to stand, Oracle and others will have an unprecedented and dangerous power over the future of innovation. API creators would have veto rights over any developer who wants to create a compatible program—regardless of whether she copies any literal code from the original API implementation. That, in turn, would upset the settled business practices that have enabled the American computer industry to flourish, and choke off many of the system’s benefits to consumers."

Now in the latest court filing, U.S. Solicitor General Donald Verrilli said Google's argument that the code is not entitled to copyright protection lacks merit and did not need to be reviewed by the Supreme Court. Verrilli added that Google had raised important concerns about the effect that enforcement of Oracle's copyright could have on software development, but said those issues could be addressed via further proceedings on Google's separate "fair use" defence in San Francisco federal court.

http://gadgets.ndtv.com/mobiles/news/obama-administration-asks-us-top-court-to-decline-google-copyright-appeal-vs-oracle-696634

https://www.eff.org/cases/oracle-v-google

http://arstechnica.com/tech-policy/2015/05/white-house-sides-with-oracle-tells-supreme-court-apis-are-copyrightable/

The CopyKat - snippets of copy writes from around the globe

Russia’s State Duma, the parliament’s lower house, has approved a package of amendments to the anti-piracy law, which will cover video, books, music and software, but not photos.  Tass reports that rights’ owners can now demand suspension of Internet sources, which violate authors’ rights, for a period of court proceedings. Two couyrt defeats will lead to an closure of the offending website and the court will decide on a permanent blocking of a Web site. Among the amendments there is an initiative under which a Web site owner must delete during 24 hours any content, rather than limit access to it, upon an electronic request from a rights’ owner. “Our fundamental aim was to protect rights’ owners from professional pirates without creating serious problems for Web’s users, who may not be familiar with details of the law on authors’ rights and are authorized to use the whole content that is available,” Duma deputy speaker Sergey Zheleznyak said in his Facebook account.

The Turtles - happy again?

The Turtles, the 1960s pop band,  have  won a second victory against SiriusXM Holdings Inc. U.S. District Judge Colleen McMahon in Manhattan rejected Sirius' request to dismiss the lawsuit accusing the satellite radio company of playing pre-1972 songs from the band, best known for the hit "Happy Together" without permission or paying royalties. She said that unless Sirius raises any factual issues requiring a trial by December 5th, she will rule outright for the plaintiff, Flo & Eddie Inc, a company controlled by founding Turtles members Howard Kaylan and Mark Volman, and begin to assess damages. The Judge said "Of course, the conspicuous lack of any jurisprudential history confirms that not paying royalties for public performances of sound recordings was an accepted fact of life in the broadcasting industry for the last century. So does certain testimony cited by Sirius from record industry executives, artists and others, who argued vociferously before Congress that it was unfair for them to operate in an environment in which they were paid nothing when their sound recordings were publicly performed.... That they were paid no royalties was a matter of statutory exemption under federal law; that they demanded no royalties under the common law when their product as ineligible for federal copyright protection is, in many ways, inexplicable.  But acquiescence by participants in the recording industry in a status quo where recording artists and producers were not paid royalties while songwriters were does not show that they lacked an enforceable right under the common law - only that they failed to act on it  and Modern federal law supports the notion that an express carve-out is required in order to circumscribe the bundle of rights appurtenant to copyright.  More here and here. Digital Music News opines that based on Judge McMahon's comments  " Although the defendant in the case is a digital service, the ruling would appear to apply to any radio station, nightclub, or any other venue that plays recorded music in New York". So, traditionally free from paying royaties for recorded music in the USA  - is broadcast radio next???

Oracle's 2007 case against SAP, alleging that the latter’s Texas-based subsidiary TomorrowNow had illegally downloaded millions of copyrighted documents and programs from its customer connection website has finally bee settled. In 2010, a jury awarded Oracle $1.3 billion in damages based on the value of a hypothetical license that SAP should have negotiated for using Oracle’s copyrighted software. In response SAP filed a suit claiming that the amount should not be based on hypothetical licenses but on facts. In 2011, U.S. District Judge Phyllis Hamilton rejected the previous claim and settled the amount at $272 million.
Oracle then appealed to the 9th Circuit Court of Appeals to revert the amount to the original $1.3 billion. The court considered Oracle’s appeal and agreed that the second amount was too low. However, earlier this year, Oracle was ordered to either accept $356.7 million or file for another claim and Oracle has now settled the case for $359 million ($356.7 million plus $2.5 million in interest). 


The Federal High Court in Lagos has thrown out a case brought before it by the Musical Copyright Society of Nigeria (MCSN) seeking to restrain the Copyright Society of Nigeria, Coson, from declaring that it is Nigeria’s sole collective management organization for musical works and sound recordings. Justice O.E. Abang ruled against the MCSN In its battle for legitimacy against Coson and the Nigerian Copyright Commission (NCC). In the suit, MCSN had asked the court to declare that Coson fraudulently misrepresented particulars of its membership to the NCC, which particulars the NCC relied upon to grant approval to Coson. MCSN asked the court to revoke the approval and to declare that the approval of Coson as a sole collective management organization deprived MCSN, its members, assignors and affiliates of their fundamental and constitutional rights to freedom of association, freedom to own and enjoy property in copyright and access to justice and as such is unconstitutional, null and void.   Suit No. FHC/L/CS/377/2013. More on the Premium Times here.

The Brisbane Times reports that websites that host or link to copyright infringing movies and TV shows could soon be blocked if the Australian cabinet approves a government submission to tackle online copyright infringement. It seems Attorney-General George Brandis and Communications Minister Malcolm Turnbull are canvassing a range of options put forward in response to their online copyright infringement discussion paper released in late July and intend to present cabinet with their own submission before Christmas. The ministers will likely recommend government put a requirement on internet service providers to forward letters about alleged copyright infringement from movie and TV studios to their customers. It's also likely they will recommend making it possible for rights holders to seek an injunction in court to require multiple internet providers block websites hosting infringing content.

In New Zealand MegaUpload founder Kim Dotcom is facing a number of new temporary conditions to his bail over allegatiuons of multile breaches of previous conditions an an assessment that he may be a 'flight risk' Dotcom's full extradition hearing to the US on criminal copyright charges has been long long delayed - it's nearly three years since his controversial file-transfer business was shut down by the US authorities - and this will be subject to further delays after Dotcom's US lawyer confirmed that he and co-defendat Finn Batato had lost their legal team with New Zealand law firm Simpson Grierson and barrister Paul Davison QC withdrawing from the case. The new restrictions on Dotcom imposed by Judge Nevin Dawson in the Auckland District Court bans Dotcom from travelling more than 80km from his home, and from using helicopters or boats and he must hreport to police on a daily basis. Reports say that prosecutors have  called for Dotcom to be jailed again pending extradition, a proposal that will be considered by a judge next week.

And finally from China comes news that the Government is planning to create 3 Special IP Courts in Guangzhou, Beijing and Shanghai, where, according to a new update on the IPKat, the majority of Chinese IP cases are filed.  This is ostensibly to handle the growing backlog of cases in these jurisdictions and to address the special technical requirements and intricacies of IP cases. The new IP courts would be trial as well as appeal courts and it seems the Beijing IP court may focus more on administrative cases, while the other twocourts would  focus predominantly on civil infringement cases

The CopyKat - breaking news on Oracle's victory over Google in the API spat

Oracle Corp has won an important victory against Google Inc when the U.S. appeals court decided Oracle could copyright parts of the Java programming language, which Google used to design its Android smartphone operating system. In June 2012 U.S. District Judge William Alsup ruled that the Java APIs replicated by Google were not subject to copyright protection and were free for Google to use although the Judge said "This order does not hold that Java API packages are free for all to use without license" adding "It does not hold that the structure, sequence, and organization of all computer programs may be stolen. Rather, it holds on the specific facts of this case, the particular elements replicated by Google were free for all to use under the Copyright Act." 

The three-judge U.S. Court of Appeals for the Federal Circuit in Washington has reversed this decision with the court saying "We conclude that a set of commands to instruct a computer to carry out desired operations may contain expression that is eligible for copyright protection". 

The Court of Appeals recalled what Circuit Judge Boudin said in the 1995 Lotus decision: “Applying copyright law to computer programs is like assembling a jigsaw puzzle whose pieces do not quite fit.”


The Court said that the district court had failed to distinguish between the threshold question of what is copyrightable -  which presents a low bar - and the scope of conduct that constitutes infringing activity. The court had also erred by importing fair use principles, including interoperability concerns, into its copyrightability analysis.

The appellate court ordered further proceedings before Alsup to decide whether Google's actions were protected under fair use saying "Because we conclude that the declaring code and the structure, sequence, and organization of the API packages are entitled to copyright protection, we reverse the district court’s copyrightability determination with instructions to reinstate the jury’s infringement finding as to the 37 Java packages. Because the jury deadlocked on fair use, we remand for further consideration of Google’s fair use defense in light of this decision. With respect to Google’s cross-appeal, we affirm the district court’s decisions: 1) granting Oracle’s motion for JMOL (judgment as a matter of law)  as to the eight decompiled Java files that Google copied into Android; and (2) denying Google’s motion for JMOL with respect to the rangeCheck function. Accordingly, we affirm-in-part, reverse-in-part, and remand for further proceedings. ChillingEffects commented that the case "may have significant consequences for cloud computing, software interoperability and innovation in general"  and Google commented “We’re disappointed by this ruling, which sets a damaging precedent for computer science and software development, and are considering our options.”  The case in the U.S. Court of Appeals for the Federal Circuit is Oracle America Inc vs. Google Inc, 2013-1021, decided 9th May 2014 - a link to download the judgment can be found here http://recode.net/2014/05/09/oracle-wins-appeal-in-java-copyright-fight-with-google/. 

Eleonora has also blogged about this case over on the IPKat and it's well worth a read .

And U.S. District Judge Katherine Forrest in Manhattan has ordered a division of Royal Bank of Scotland Group Plc to stop using a key piece of software used for it's trade finance business after finding the bank liable for copyright infringement. The judge entered a permanent injunction requiring RBS's ABN Amro unit to stop using the BankTrade software within a year, and not to use it to process new trade finance transactions received 60 days from now saying ""ABN may not continue benefiting from its blatant and ongoing infringement simply because stopping that infringement will be disruptive to its business" in a case brought by which produces the software and had sought the injunction

In Vietnam, Tri Viet (First News) Publishing House has failed in a copyright infringement case against private printing centre, Huy Thi,  and faces a VND26-million (US$1,200) legal bill. The court in Thanh Tri District stated that Tri Viet has not suffered any losses from the copyright violation: Whilst three years ago the Huy Thi printing centre was found to have illegally printed nearly 10,000 copies of the books, Quang Ganh Lo Di Ma Vui Song (How to Stop Worrying and Start Living) and 7 Thoi Quen Cua Ban Tre Thanh Dat (The 7 Habits of Highly Effective Teens), both of which were published by Tri Viet and indeed Huy Thi were fined VND12 million (US$600) for that -  the illegally printed books were seized and destroyed in 2011 before they could be released in the market so the court found that there was no merit in Tri Viet's claim for VND500 million (US$24,000) for violation of copyrights, plus VND50 million (US$2,400) for expenditure incurred on recalling the "fake" books - and nor had the Tri Viet publishing house provided any documents to the court proving  economic losses incurred due to copyright infringement by Huy Thi. An appeal is planned with a representative of Tri Viet saying "We need to do that for the honour and justice of writers and publishers". 


As the average person has illegally downloaded approximately 2,900 music files and 90 movies ... and the Huffington Post has rather amusingly estimated that every single man, woman and child on earth now owes the combined music and movie industries in the order of $67 million. Each. This is based on 'average' jury awards of $22,500 per song for copyright violations in the US: That is each person. Not cumulatively. Cumulatively, it would be $470,925,000,000,000,000,000 -- which is also 6.63 times the GDP of the entire planet. 

In Sweden a new study on the effects of the country's anti-piracy law shows that the legislation initially pushed up music sales by 36 percent - and that internet traffic in the country dropped significantly. However, whilst the results suggest that the law initially had the desired effect (well, desired by the content industries),  the researchers also note this didn't last long. Economists at Uppsala University in Sweden say "We find that the reform decreased Internet traffic by 16% and increased music sales by 36% during the first six months. Pirated music therefore seems to be a strong substitute to legal music" but added that the controversial law only had limited results saying “The deterrent effect decreased quickly, possibly because of the few and slow legal processes. Law enforcement through convictions therefore seems to be a necessary ingredient for the long-run success of a copyright protection law”. 

Oracle v Google: EFF warn of threats to innovation

The Electronic Frontier Foundation has joined the ongoing legal battle between Oracle and Google over whether APIs (Application Programming Interface) should or shouldn't be copyrightable. Oracle had accused Google of infringing the copyright on its Java APIs in the development of Google’s Android OS. Google denies any wrongdoing and has argued, in part, that software APIs cannot be protected under U.S. copyright law.

The campaign group has now gathered together 32 computer scientists and tech industry leaders in an amicus brief to the U.S. Court of Appeals for the Federal Circuit. The brief is signed by tech leaders including MS-DOS author Tim Paterson and ARPANET developer Larry Roberts, who support the position that APIs should not be copyrightable because they are critical to spurring innovation and inter-operability in the tech world. Other signatories include Brendan Eich, inventor of JavaScript and the CTO of Mozilla; Michael Tiemann, author of the GNU C++ compiler and an executive at Red Hat; and Samba developer Andrew Tridgell

"The law is already clear that computer languages are mediums of communication and aren't copyrightable. Even though copyright might cover what was creatively written in the language, it doesn't cover functions that must all be written in the same way," EFF staff attorney Julie Samuels said in a statement. "APIs are similarly functional -- they are specifications allowing programs to communicate with each other." In our May 2012 Blog we noted that  EFF was concerned about any precedent that could be set by copyrighting any type of API when the EFF said "Treating APIs as copyrightable would have a profound negative impact on interoperability, and, therefore, innovation". 

Oracle originally sued Google for copyright infringement related to Google's use of 37 Java APIs used on its Android mobile operating system. The case went to trial last May. During the trial, Google argued it used the Java APIs because the Java programming language is free to use, and the APIs are required to use the language. Oracle argued that Google knowingly used the APIs without a license from Sun Microsystems, which was bought by Oracle in 2010.

The jury handed down a verdict that partially helped Oracle when they found that Google had infringed the structure, sequence, and organization of Java's language, but offered no opinion on the matter of fair use. Judge William Alsup then ruled that the APIs were non-copyrightable, which led to the dismissal of Oracle's copyright infringement claim. Judge Alsup said "So long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in the Java API. It does not matter that the declaration or method header lines are identical." The ruling found that the structure Oracle was claiming was not copyrightable under section 102(b) of the Copyright Act because it was a "system or method of operation."

Oracle filed an appeal to the judge's ruling in October 2012. In its appeals brief, the company said Google's use of Java in Android was "decidedly unfair" and that copyright is designed to protect all kinds of works, including "a short poem or even a Chinese menu," but what it created in Java was "vastly more original, creative, and labor-intensive." 

But the EFF is adamant that copyright protection should not be extended: "Without the compatibility enabled by APIs that are open, we would not have the vibrant computer and Internet environment we experience today, with new products and services routinely changing the way we see and interact with the world," EFF Fellow Michael Barclay said in a statement adding "APIs that are open spur the development of software, creating programs that the interface's original creator might never have envisioned" and the brief argues that the spread of affordable PCs was made possible because IBM held no copyright on its BIOS system, allowing competitors such as Compaq and Phoenix to create their own BIOS implementations and build PC clones. The open nature of APIs was also essential to the development of the Unix OS, the C programming language and the open protocols on the Internet, the brief says.  ”Should the court reverse Judge Alsup’s well-reasoned opinion, it will hand Oracle and others the ability to monopolize any and all uses of systems that share their APIs. API creators would have veto power over any developer who wants to create a compatible program,” the brief states.

You can read the complete 36-page testimony by clicking on https://www.eff.org/document/amicus-brief-computer-scientists

More comment at  http://www.pcworld.com/article/2040360/computer-scientists-oppose-oracles-bid-to-copyright-java-apis.html

Oracle not happy with API decision

Following on from our earlier blog on the Google v Oracle battle over whether or not APIs could be copyrighted, Judge William Alsup of the U.S District Court has now held that the 37 APIs in question in the case are NOT protected by copyright. 


 An API can be defined as  "An application programming interface is a specification intended to be used as an interface by software components to communicate with each other. An API may include specifications for routines, data, structures, object classes". In 2010, Oracle bought Sun Microsystems, which had developed Java. When it implemented the Android OS, Google wrote its own version of Java - but in order to allow developers to write their own programs for Android, Google relied on Java’s APIs." Oracle asserted a copyright in their APIs much to the consternation of  web lobby groups such as the EFF who  said that "Treating APIs as copyrightable would have a profound negative impact on interoperability, and, therefore, innovation".

Judge Alsup said "So long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in the Java API. It does not matter that the declaration or method header lines are identical. Under the rules of Java, they must be identical to declare a method specifying the same functionality - even when the implementation is different. When there is only one way to express an idea or function, then everyone is free to do so and no one can monopolize that expression. And, while the Android method and class names could have been different from the names of their counterparts in Java and still have worked, copyright protection never extends to names or short phrases as a matter of law." 


However CNET add that the case seems limited in its scope and the court seemed very keen not to set a broad precedent, with Judge Alsup saying 


"This order does not hold that Java API packages are free for all to use without license" adding "It does not hold that the structure, sequence, and organization of all computer programs may be stolen. Rather, it holds on the specific facts of this case, the particular elements replicated by Google were free for all to use under the Copyright Act."


Google applauded the decision saying "The court's decision upholds the principle that open and interoperable computer languages form an essential basis for software development. It's a good day for collaboration and innovation." 


More on CNET here http://news.cnet.com/8301-13578_3-57444928-38/judge-says-37-oracle-apis-are-not-copyrightable/?tag=nl.e496 and the full judgment can be found here http://www.scribd.com/doc/95478789/Oracle-v-Google-Judge-rules-APIs-not-copyrightable

In a statement Oracle said that they will appeal the decision saying that a 'licence has always been required for an implementation of the Java specification".

API battle for Google

The Electronic Frontiers Foundation have reported on the legal debates surrounding the action brought by Oracle against Google for the use of Oracle's APIs, whether copyright can subsist in those API's and if it did, could Google claim fair use.

Before we go any further - a brief definition of APIs "An application programming interface (API) is a specification intended to be used as an interface by software components to communicate with each other. An API may include specifications for routines, data, structures, object classes. In 2010, Oracle bought Sun Microsystems, which developed Java. When it implemented the Android OS, Google wrote its own version of Java -but in order to allow developers to write their own programs for Android, Google relied on Java’s APIs."

This is what the EFF have to say:

"Here’s the problem: Treating APIs as copyrightable would have a profound negative impact on interoperability, and, therefore, innovation. APIs are ubiquitous and fundamental to all kinds of program development. It is safe to say that all software developers use APIs to make their software work with other software. For example, the developers of an application like Firefox use APIs to make their application work with various OSes by asking the OS to do things like make network connections, open files, and display windows on the screen. Allowing a party to assert control over APIs means that a party can determine who can make compatible and interoperable software, an idea that is anathema to those who create the software we rely on everyday. Put clearly, the developer of a platform should not be able to control add-on software development for that platform. 

Take, for example, a free and open source project like Samba, which runs the shared folders and network drives in millions of organizations. If Samba could be held to have infringed the Microsoft’s copyright in its SMB protocol and API, with which it inter-operates, it could find itself on the hook for astronomical damages or facing an injunction requiring that it stop providing its API and related services, leaving users to fend for themselves.

Another example is the AOL instant messaging program, which used a proprietary API. AOL tried to prevent people from making alternative IM programs that could speak to AOL's users. Despite that, others successfully built their own implementations of the API from the client's side. If copyright had given AOL a weapon to prevent interoperability by its competitors, the outcome for the public would have been unfortunate.

Setting aside the practical consequences, there’s a perfectly good legal reason not to treat APIs as copyrightable material: they are purely functional. The law is already clear that copyright cannot cover programming languages, which are merely mediums for creation (instead, copyright may potentially cover what one creatively writes in that language).  Indeed, the European Court of Justice came to just that decision last week (Ironically enough, when Sun Microsystems was an independent company, one of its lawyers wrote amicus briefs arguing that interoperability concerns should limit copyright protection for computer programs.) 

Improvidently granting copyright protection to functional APIs would allow companies to dangerously hold up important interoperability functionality that developers and users rely on everyday.  Let’s hope the judge agrees."

https://www.eff.org/deeplinks/2012/05/oracle-v-google-and-dangerous-implications-treating-apis-copyrightable

SAS Institute Inc.  v World Programming Limited : CJEU: "to accept that the functionality of a computer program can be protected by copyright would amount to making it possible to monopolise ideas, to the detriment of technological progress and industrial development".