Cox targeted again by rights owners

The three major recorded music companies and numerous of their labels have launched a new legal action against US internet service provider Cox Communications for copyright infringement. The move follows the earlier 2014 action from BMG, who took umbrage at  what it considered was Cox's poor and ineffective approach to dealing with customers who used Cox's services to infringe their copyrights. Cox, the privately owned subsidiary of Cox Enterprises, provides digital cable television, and telecommunications services in the United States, has more than 4 million subscribers and relied on the 'safe harbor' defence in US law.

Whilst BMG acknowledged Cox had policies in place to deal with users who repeatedly infringed copyrights, it accused  Cox of failing to implement it's own policies and argued that this meant the ISP should be denied safe harbor protection and should be liable for the infringement of its copyrights  by Cox's customers. 

And at first instance BMG prevailed and in August 2016 Cox Communications were ordered to pay a $25 million dollar penalty for copyright infringements to the music rights management company by a federal judge. The ruling followed a jury decision which found Cox liable for illegal movie and music downloads by its customers and the court found that the company's behaviour amounted to wilful infringement of copyright.

The Eastern Virginia District Court dismissed Cox’s appeal of the earlier verdict, and ordered Cox to pay BMG $25m in damages for copyright infringement - a ruling which at the time was thought to have widespread repercussions for online copyright infringement in the US. The court decided that Cox did not do enough to stop users pirating music from BMG, and therefore did not qualify for Digital Millennium Copyright Act (DMCA) ‘safe harbor’ protections. Crucially, BMG provided evidence that its agent, Rightscorp,  had identified individual infringers and then alerted Cox to their wrongdoing - which Cox then failed to act on.  

However, that ruling was subsequently overturned on appeal - but it was an interesting ruling: The decision, by a three-judge panel of the 4th Circuit Court of Appeals, returned the case to the District Court for a new trial, based on a decision that there was an error in jury instructions. Irrelevant of arguments about safe harbor protection at the heart of the case, Cox might not been responsible for users' infringement as companies are only liable for contributing to infringement if the companies either know about acts of infringement, or are wilfully blind to them, and the appellate court ruled that the trial judge, District Judge Liam O'Grady, had incorrectly told the jurors that they could find Cox liable if it knew or should have known about infringement by users. "The formulation 'should have known' reflects negligence and is therefore too low a standard," the appellate judges wrote. "Because there is a reasonable probability that this erroneous instruction affected the jury’s verdict, we remand for a new trial."

But, and its a big but, the 4th Circuit took a long hard look at how and why Cox would be protected by US  "safe harbor" provisions that protect service providers from liability when users infringe copyright. - and here the Court ruled against Cox on a key point. The DMCA provides a degree of protection to ISPS and other platforms that respond expeditiously to takedown requests. But one of the requirements is that the ISP and other intermediaries have "adopted and reasonably implemented … a policy that provides for the termination in appropriate circumstances of subscribers … who are repeat infringers." The appeals judges said that as it stood, Cox wasn't entitled to rely on safe harbor because it did very little if anything even when told about repeat offenders, re-affirming the jury decision that sided with BMG and against Cox when they found the broadband carrier liable for piracy by its subscribers. 

Indeed despite 'losing' the case, many in the entertainment sector were pleased with the February 2018 decision and the appeal court's conclusion that the safe harbor provision of the Digital Millennium Copyright Act require a meaningful implementation of a policy that terminates the service of repeat copyright infringers - not least because the appellate judges agreed with BMG that Cox wasn't entitled to rely on the safe harbor protections, writing that the broadband provider's policy was lacking. Cox had in place a "13-strike" repeat-offender policy, meaning that the company would consider terminating subscribers after they received 13 notices of copyright infringement. In practice, it has been alleged the company went to great lengths to avoid disconnecting people with the court acknowledging  "Cox formally adopted a repeat infringer 'policy,' but ... made every effort to avoid reasonably implementing that policy ...... Indeed, in carrying out its thirteen-strike process, Cox very clearly determined not to terminate subscribers who in fact repeatedly violated the policy." It was alleged that Cox really maintained an "under the table policy purporting to terminate repeat infringers while actually retaining them as high-speed internet customers." 

Judge Diana Motz was clearly unimpressed with Cox's efforts to stem piracy by its customers saying: "Indeed, the risk of losing one's Internet access would hardly constitute a 'realistic threat' capable of deterring infringement if that punishment applied only to those already subject to civil penalties and legal fees as adjudicated infringers" and saying a "ISP has not 'reasonably implemented' a repeat infringer policy if the ISP fails to enforce the terms of its policy in any meaningful fashion. Here, Cox formally adopted a repeat infringer 'policy,' but ..... made every effort to avoid reasonably implementing that policy. Indeed, in carrying out its thirteen-strike process, Cox very clearly determined not to terminate subscribers who in fact repeatedly violated the policy." Motz added that failure to implement a consistent and meaningful repeat infringer policy essentially means it has no policy and can't be entitled to a safe harbor defence.

In the wake of the appellate court's ruling, the Recording Industry Association Of America (RIAA) used the appeals court judgement in an action against another ISP,  Grande Communications. In am April 2018 filing related to that case, the RIAA argued that the appeals court ruling in BMG v Cox "affirmed the holdings ... that [we] rely on here, and expressly rejected the central arguments [Grande] advance in their motions to dismiss" and accused Grande of “refusing to take meaningful action against repeat infringers”,  users who repeatedly downloaded music illegally over BitTorrent networks.

Now Sony, Universal and Warner are also using the BMG decision to underpin a new lawsuit against Cox (Sony Music Entertainment et al v. Cox Communications, Inc. et al). The claimants say that while Cox claims to have an internal procedure to deal with repeat infringers in its customer base, the earlier case confirmed this process to be a "sham" and the labels say that Cox "knowingly contributed to, and reaped substantial profits from, massive copyright infringement committed by thousands of its subscribers" and that when the labels notified Cox of infringements by its users "rather than working with plaintiffs to curb this massive infringement, Cox unilaterally imposed an arbitrary cap on the number of infringement notices it would accept from copyright holders" and this, the labels say, meant Cox was "wilfully blinding itself to any of its subscribers' infringements that exceeded its 'cap'" and the only justification for the arbitrary cap is alleged to be that "rather than stop its subscribers' unlawful activity, Cox prioritised its own profits over its legal obligations".

http://the1709blog.blogspot.com/2018/02/us-appeals-court-tells-isp-that-safe.html

https://www.mediapost.com/publications/article/313895/court-reverses-25-million-copyright-verdict-again.html

https://jolt.law.harvard.edu/digest/bmg-v-cox-court-of-appeals-denies-dmca-safe-harbor-in-landmark-copyright-case

https://www.billboard.com/articles/news/7768055/riaa-suing-grande-communications-copyright-infringement

http://www.completemusicupdate.com/article/major-labels-sue-cox-communications/

The CopyKat - appealing to copyright fans far and wide!

The Shaghai Daily tells us that China's copyright regulator has strengthened its law enforcement policy against alleged piracy in cloud-storage services, which, despite a previous crackdown, "had long provided Internet users a covert channel to download movies and TV series." As part of the 'Sword Net' initiative, cloud-storage services have been ordered to prevent users from uploading, storing or sharing files that may infringe copyright, pursuant to a regulation from the National Copyright Administration (NCA) dated October 14th 2015. The new move was published after a meeting Tuesday attended by leading online data hosting services such as Baidu, Qihoo360, Tencent and Huawei. The new regulation means that cloud service providers must deal wuth those copyright offenders by putting them on blacklist, or suspending or terminating their services. Service providers should also notify copyright holders how to lodge complaints, and commit to handling complaints in a timely manner.

An Illinois couple who own several recording companies specializing in doo-wop, jazz, and rhythm and blues have filed law suit against the major satellite and Internet radio companies in the US over their playing of pre-1972 songs. Following on from the actions from Flo & Eddie of the Turtles and and RIAA, it's the third lawsuit that seeks to obtain payment for use of sound recordings under state copyright laws. Arthur and Barbara Sheridan filed two lawsuits in New Jersey federal court: one against Pandora and Sirius XM (PDF) and another against iHeartMedia (PDF), the parent company of online music service iHeartRadio. Their lawsuits seek class action status, looking to represent owners of pre-1972 songs. The action says that the companies have derived "significant benefits," including "millions of dollars in annual revenue," by playing those songs without permission, the suit alleges. In an action brought by ABS Entertainment, which owns the recordings of Al Green, among others, terrestrial radio broadcaster CBS has argued that not only does state law not apply to their use - a matter the recorded music industry had until recently accepted this interpretation of the law - CBS also says that as it only plays re-mastered versions of pre-1972 sound recordings, these actually have a post 1972 copyright copyright saying "In fact, every song CBS has played in the last four years has been a post-1972 digital sound recording that has been re-issued or re-mastered".  Meanwhile Pandora has confirmed that it has reached a settlement with the major labels over its use of pre-1972 sound recordings. The streaming platform follows the lead of US satellite radio service Sirius which, back in June, agreed to pay $210 million to the three majors - Universal, Sony and Warner - and ABKCO Music, which is best known for controlling the early Rolling Stones catalogue, with Pandora paying the labels $90 million for past and future usage of pre-1972 repertoire More on ArtsTechnica here and the Hollywood Reporter here.

Adolf Hitler's ‘Mein Kampf”  falls out of copyright next year when the term of the copyright, owned by the State of BAvaria, expires. is almost certainly going to re-published and it seems annotated German and French reprints are being prepared. Last week a Paris publisher, Fayard, confirmed in a statement it was going ahead with an annotated French print, after pondering on it for the past four years. A German-language reprint will be handled by the government-funded Institute of Contemporary History in Munich, which emphasizes the book’s historical importance. It too, will be annotatated. More on the Times of Israel here.

The Supreme Court of India has held that no copyright exists on the "title" of a literary work, reversing the decision of the Bombay High Court: "No copyright subsists in the title of a literary work and a plaintiff or a complainant is not entitled to relief on such basis except in an action for passing off or in respect of a registered trademark comprising such titles. The Times of India has more.

The 'Dancing Baby' case is not over - with BOTH sides aiming for a rehearing: Whilst at the time of the appelate court's judgement, the EFF called it “an important win for fair use,” but now both the EFF (which is representing the plaintiff, Stephanie Lenz, who filmed her then toddler dancing to Prince's "Let's Go Crazy" ) and Universal Music Corp. have requested an en banc rehearing from the Ninth Circuit. It seems the EFF are looking to strengthe the case for 'fair use' by breathing new life in section 512(f), which allows the targets of illegitimate takedowns to sue the people who sent the invalid notices - potentially arguing that on the facts of this case, Universal could not possibly have acted in 'good faith' when issuing a DMCA takedown' notice  The Universal petition claims that Lenz had no standing for an appeal in the first place because she was not injured by the takedown. UMG will also ask the court to clarify some of the language in the opinion.

Jay Z at Glastonbury 2008 (Nick Cordes)

US district judge Christina Snyder has abruptly dismissed the lawsuit against Jay Z and his producer Timbaland before it went to a jury at a federal court in Los Angeles, ruling that Osama Ahmed Fahmy, the heir of an Egyptian composer Baligh Hamdy, lacked the right to pursue a copyright infringement claim against Jay Z's Big Pimpin in a case that looked at copyrights, moral rights and chain of title. After hearing from experts in Egyptian law, The judge ruled that Egyptian law did not apply and that the case should not go to a jury. “Fahmy lacked standing to pursue his claim. In light of that decision, it will not be necessary to submit to the jury whether Big Pimpin’ infringed Khosara Khosara,” she said. The plaintiffs have said they will file an appeal

The CopyKat - keeping bang up to date with the technoKats

Facebook has responded to criticism from top web video creators who have accused the social networking giant for failing to prevent Facebok users  from posting their videos without permission.  Facebook already has a technology partner, Audible Magic, that helps it identify unauthorized video content through audio fingerprinting and Now the company is introducing a video matching technology product designed to quickly identify videos uploaded by people that are duplicates of videos already uploaded directly by the creators. As it stands, the new technology will not be fully automated. Creators will have access to a Web-based dashboard that will allow them to identify videos they’d like to monitor. If the system finds a matching video, the creators then have the option to report the clips to Facebook. More here.

Having recently 'upgraded' to Windows 10 operating system  I can't say that I am that impressed with Microsoft at the moment. The new software is counter intuitive - clunky - and all the bad things that Microsft should probably avoid developing when faced with the growing dominance of all things Apple. What I didn't notice was that Microsoft had recently announced further steps to protect Windows 10. Luckily Ian Dowling at Reddie & Grose did and in a very good article on digital piracy, Ian notes that according to an updated End User License Agreement from Microsoft, "Windows 10 will allow Microsoft to download software updates or configuration changes, including those that prevent access to services, playing counterfeit games, or using unauthorised hardware peripheral devices. Presumably in an attempt to roll out such countermeasures against all users, Microsoft has been offering free upgrades to Windows 10 to all users of Windows 7 or 8.1, including those running non-genuine versions of the operating system, seemingly an attempt to lure copyright infringers into its anti-piracy net." 

The DRM protection on Netflix's ultra-high definition content has been broken for the first time, allowing pirates to upload a 4K episode of Breaking Bad to a private torrent site - a mighty 18GB of high quality piracy. TorrentFreak reports that iON uploaded the episode to a private torrent tracker. It has already been downloaded a few times and is expected to make it to public providers eventually.  Leaked drafts of the 4K copy protection agreement between Sony and Netflix reveals that the streams are generally well-protected. They also include a watermark so that leaks can be traced back to the source.

And so it comes to this: ABS Entertainment, which owns a catalogue of golden oldie recordings, including tracks by Al Green, has filed lawsuits in both California and New York against US radio giants CBS, iHeartMedia and Cumulus, claiming the broadcasters are infringing its copyrights by playing pre-1972 repertoire without licence. The radio firms are expected to argue against any suggestion that they need licences to play pre-1972 sound recordings, with CBS Radio already saying it will "vigorously defend" the lawsuits. You can read more on this whole topic, and the current claims brought by Flo & Eddie of the Turtles , the claims brought by the record labels and much much more on pre-1972 copyright legal shenanigans on CMU here. 

Thanks to a recent contract with Sony Music, Russia's Zvooq has become the country's only fully licensed and independent music service. The platform was already licensed by Warner Music and Universal. Currently, Zvooq uses a freemium model - incorporating both ad-sponsored and subscription tiers -- and is planning to introduce a new subscription model for the market, in which a specific advertising brand will pay for subscriptions of selected users.

And what of those MegaUpload servers - locked away and unused ever since the anti-piracy investigations into Kim Dotcom and his team? Well, the US government doesnt need them and doesn't want them and doesn't want to pay for them .... United States Attorney Dana Boente has now said: "The government has already completed its acquisition of data from the Carpathia servers authorised by the warrant, which the defendants will be entitled to during discovery. As such, there is no basis for the court to order the government to assume possession of the Carpathia servers or reimburse Carpathia for 'allocated costs' related to their continued maintenance". TorrentFreak says that Boente told the court "The United States continues to request that the court deny any effort to impose unprecedented financial or supervisory obligations on the United States related to the Carpathia Servers".

The online system used to register initial copyright claims at the U.S. Library of Congress has failed after scheduled maintainence on August 29th - with no solution to the problems with eCO on the horizon. sight. This means users will have to revert to 'snail mail' and post in paper copies of registration forms for the time being. The eCO website informs users that there is no "estimated time for service resumption." A spokesperson told FCW that the CIO team is "working to restore the system as quickly as possible."

A Canadian firm which had been releasing low cost CDs of public domain recordings by the Beatles, the Beach Boys  and the Rolling Stones, amongst others, is accusing two major record labels of using their clout and their combination of both recording and music copyrights to circumvent provisions of Canadian copyright law that had put some recordings by the Fab Four and others into the public domain. The term of copyright protection for sound recordings for Canada was extended from 50 years to 70 years this year. The extension was not applied retrospectively, so gives the extended term of protection to recordings from 1965 onwards. Now record label Stargrove has filed a 408 page complaint with the Canadian Competition Tribunal claiming market interference by the vertically integrated music giants, Universal and Sony, who have blocked releases of public domain sound recordings: It is alleged their publishing arms (for Sony this is Sony/ATV) instructed the local music collection society Canadian Musical Reproduction Rights Agency (CMRRA) to refuse mechanical licences for the compositions included in the recordings. The complaint says the refusal of licences means that rights holders are denying Stargrove mechanical licences on the usual trade terms (contra to Section 75(1) of the Competition Act), and that the moves are a violation of the illegal price maintenance provisions (Section 76 of the Competition Act) designed to keep Stargrove out of the market and maintain market share and higher pricing, and a further violation of Section 77 of the Competition Act. Stargrove has asked the Competition Tribunal to order a stop to the violations and to enter into an agreement on standard trade terms. More here.

And finally - here's a novel way to have a go at those who might, and might not, be illegally streaming or downloading movies. U.S. attorney Carl Crowell has taken the unusual step of using Oregon's"going equipped" state laws against them on behalf of movie company clients - in effect trying to argue that mere possession of Popcorn Time software (a service that has been called the "Netflix for Torrenting") is a criminal act under Oregon state law ORS 164.235 which bars the possession of "burglary tools" and which says that a person commits the crime of possession of a burglary tool or theft device if the person possesses a burglary tool or theft device and the person (a) Intends to use the tool or device to commit or facilitate … a theft by a physical taking; or (b) Knows that another person intends to use the tool or device to commit or facilitate a … theft by a physical taking. In the UK ISPs have been ordered by the High Court to block access to websites hosting Popcorn Time software. More on TechDirt here.

The CopyKat - food for thought

Whilst (and for an unexplained reason) numerous blogs including Boing Boing and TechDirt focussed on a 2013 ruling in Germany that "Germany Says Taking Photos Of Food Infringes The Chef's Copyright", The CopyKat was more intersted in the ruling in the the Australian Federal Court which dismissed an interlocutory application by Seven Network (Operations) Limited (Seven) to restrain the Nine Network (Nine) and production company Endemol from continuing to broadcast the kitchen reality TV show, The Hotplate. Seven alleged that, by producing and broadcasting episodes of The Hotplate, Nine was infringing Seven’s copyright in its program, My Kitchen Rules (MKR) - its format wars again folks! Seven had argued that key elements of MKR sufficient to constitute a substantial part of one or more of the MKR literary works had been incorporated into The Hotplate and that Endemol had access tho the MKR production 'Bible'.  The Court dismissed the application, finding that  the balance of convenience of either granting or withholding the interlocutory relief weighed in Nine’s favour, not least as if The Hotplate were halted, it would be increasingly difficult to re-start as successfully at a later date. This means that the remainder of the first season of The Hotplate can continue to be broadcast (at least until the next hearing).  Justice Nicholas did find that Seven has a reasonably arguable case that the formats of MKR and The Hotplate are very similar and that this close similarity was (at least to some extent) the result of copying by Nine.  Sonia Borella and Sam Berry (Holding Redlich) have some useful observations here.

The Motion Picture Association Of America has dropped their somewhat controvesrial request for a preliminary injunction that would have required U.S. internet service providers to block access to the copyright infringing MovieTube we mentioned in our last (catscratching) post.

Paul Duffy, one of the attorneys behind the somewhat notorious copyright 'troll' Prenda Law, has died. His death was confirmed by the  Cook County Medical Examiner. The cause of death is still pending and could take up to three months to confirm. The Madison Recorder noted that Duffy died at a Chicago hospital. He was 55. . US District Judge Otis Wright had Prenda's practices referred to the Internal Revenue Service's criminal investigation unit and in August 2014, the US Court of Appeals for the Seventh Circuit upheld judicial sanctions against Duffy and fellow attorneys John Steele, and Paul Hansmeier for engaging in “abusive litigation” and failing to pay attorney's fees to defendant Anthony Smith in a porn-downloading lawsuit. ArtsTechnica also say that in June this year US District Judge David Herndon ruled that Steele and Duffy had "engaged in unreasonable, wilful obstruction of discovery in bad faith" in its case against Smith. Herndon ordered Duffy and Steele to pay for the defence's discovery costs.

The Chinese State Administration of Press & Publications, Radio, Film & Television (SAPPRFT) has announced a regulatory notice to control reality television programmes that are “vulgar and damaging to social ethics”. The notice does not give details of mechanisms that will be used to define or ban problematic programmes. The notice may affect licensing of programme formats and content from overseas, for both on- and off-line screening. More here (in Chinese). This from the IPO's excellent monthly China IP Newsletter.

Kim Dotcom has posted a recording of a phone call he had with some Universal Music executuves a few years ago in which the major label men –- at that point major foes of the MegaUpload founder and about to shut him down - discussed the possibility of participating in a new venture he was experimenting with at the time called Megakey. CMU Daily have an interesting update on this here. 

A Los Angeles federal judge has now scheduled the trial in a copyright-infringement case involving Led Zeppelin’s iconic rock anthem “Stairway to Heaven.” A lawsuit, filed last year in Philadelphia and subsequently transferred to Los Angeles, alleges that the guitar arpeggio opening of “Stairway,” released 44 years ago, was lifted from the 1968 instrumental “Taurus” by the long-defunct Los Angeles band Spirit who suppirted Led Zepplin on tour. The complaint was lodged on behalf of the estate of Spirit’s guitarist- songwriter Randy California, who drowned in 1997 off the coast of Hawaii. The trial is set to begin on May 10th.

And finally: So you're a farmer in rural America - the land of the free and the self reliant - and your John Deere 8520T tractor plays up - and needs a fix:  the problem is that it's all run by a computer and you can't actually do repairs as there's a digital lock on the software and only the autorised dealer can fix the tractor.  Tamper and you run the risk of a copyright infringement suit. Now farmers and mechanics are asking the Library of Congress' copyright office to review the law and make an exemption.  More here.

Prince and the Toddler - a universal case of forgotten fair use?

Prince: the 1988 Lovesexy Album

Cast your minds back to 2007 and you might remember that Prince (or even 'The Artist Formerly Known as Prince')(or 'Squiggle' being more unkind)(or Prince Roger Nelson, the 58 year old rock star) persuaded his publisher, Univeral Music, to take down a slighly blurry user generated video on YouTube of a toddler dancing to a snippet from his song (and recording) "Let's Go Crazy". The mum who uploaded the video, Stephanie Lenz, was not amused. 

In fact Prince had publicly said in a September 2007 statement that he intended to "reclaim his art on the internet".

Lenz was put on notice that her use of Prince's music violated the U.S. Digital Millennium Copyright Act, and that if she violated it again, she could lose her YouTube account and any videos she'd uploaded to it.

Now the case has reached the Ninth Circuit Court of Appeals in a case that has all the trappings of the a PR fiasco for the Purple One: "The video bears all the hallmarks of a family home movie," court documents said. "[I]t is somewhat blurry, the sound quality is poor, it was filmed with an ordinary digital video camera, and it focuses on documenting [Lenz's son] Holden's 'dance moves' against a background of normal household activity, commotion and laughter." The entire "performance" lasted 29 seconds, with "Let's Go Crazy" heard for about 20 of them, the documents state. Lenz posted the video on YouTube to share it with family and friends, particularly her mother (Holden's grand mother)  in California.

Following the procedures set out in the DMCA, Lenz requested that YouTube repost the video, which was called "Let's Go Crazy #1," and she sued Universal Music, arguing that entertainment company misrepresented the basis for its takedown request, saying the Universal had clearly not considered fair use, suggesting that her "use of the Prince song 'Let's Go Crazy' is a self-evident non-infringing fair use" and "(T)he Holden Dance Video non-commercially transforms the song into partially obscured background music for a family video about a toddler just learning to dance, uses only a small, nonsubstantial portion of the original work, and does not substitute for the work or harm any market for the work". Coincidentially the use of the word 'transforms' brings to mind yet another Prince - Richard Prince - the 'appropriation artist' who has been on the recieving end of a number of lawsuits for his 'transformative art - and a fascinating look at fair use by the U.S. Court of Appeals for the Second Circuit  (see Cariou v Prince).

In 2012 in the San Jose Federal Court, U.S. District Judge Jeremy Fogel refused to dismiss the case - or hand Lenz a victory - without a trial and considered that Lenz might persuade a jury in her claims that Universal showed willful blindness to the possibility of fair use, and that fair use was self-evident. The Judge also considered Universal's position,saying that equally they could explain their position to a jury and explain that there was no bad faith - and Universal "lacked the subjective intent to misrepresent the reasons it asked YouTube to take down the video."

Universal appealed and Lenz cross appealed to the Ninth Circuit. In brief, it's not been a great case for Universal and the Purple One so far - but it's not over yet.  U.S. Circuit Judge Milan Smith said the concept of fair use is an integral part of the language of the DMCA, roundly criticising the music company saying: "I struggle with how anyone looking at this from Universal's perspective would doubt that little children playing and dancing around to music by the artist formerly known as Prince could view it as anything other than a fair use." U.S. Circuit Judge Richard Tallman looked at the arguments put forward by Lenz's lawyer (Corynne McSherry, of the Electronic Frontier Foundation) who had suggested that under the DMCA, Universal needed to come to a legal conclusion about fair use before it issued a takedown notice. Judge Tallman said the court was struggling with whether the video was fair use - although McSherry's point was that whether or not the use was fair use - Universal hadnt even considered this before issuing a takedown notice.
     
The case continues: Judge Tallman adjourned with a warning that a ruling may take a while, and that the court would "puzzle" over the issues.

http://www.entlawdigest.com/2015/07/08/3903.htm

Cariou v Prince  11-1197-cv (2d Cir. April 25, 2013)

Lenz v. Universal Music Corp

Closing the window – but have the little birds flown?

Readers of this blog may or may not be aware that almost ever since radio, and then television, became the music industry’s most important marketing tools, record labels and artists have used what seems to be an ever extending time period between releasing a track to the media and actually selling discs (and now downloads) to the consumer to promote the song and the sound recording. For the last few years, as rampant peer to peer file swapping and illegal downloading seriously decimated record label’s profits, many commentators have warned the labels that the ‘I want it now’ generation – brought up in a digital world of instant gratification - Google, Youtube, Spotify, We7 - simply won’t play the waiting game, however hard the labels try.

Now Sony and Universal have finally decided to give in - by making legal downloads available on the same day that tracks hit the radio airwaves. With labels have sometimes waiting up to six weeks between starting promotion and releasing tracks to customers the writing was definitely on the wall for the practice – enhanced by the idea that if the digital customer can’t buy then they might just might ‘steal’. Universal Music CEO David Joseph seemed to acknowledge this saying "what we were finding was the searches for songs on Google or iTunes were peaking two weeks before they actually became available to buy ... meaning that the public was bored of - or had already pirated new singles". Sony, which will begin its "on air, on sale" policy simultaneously with Universal Music next month, had massive success by immediately releasing X factor winner of Matt Cardle's single When We Collide as the TV series ended. It sold 439.000 digital copies in the UK – and Jessie J’s single “Do it like a Dude” was also released to radio and consumers on the same day – reaching No 5 in the charts last week.

Interestingly, Sony and Universal have both notified Ed Vaizey, minister for culture and the creative industries of the move. It will be interesting to see what the film industries make of the move – and whether or not we will see a shift in release patterns to cinemas, DVD and television to try to beat the pirates.

http://www.guardian.co.uk/business/2011/jan/16/universal-sony-music-singles-release

Veoh victory a blow to Viacom action?

Universal Music have lost a US legal challenge against Veoh, the YouTube rival who, Universal argued, were infringing copyrights by allowing users to upload content without the permission of content owners. Veoh’s defence was the now fairly familiar refrain that they would remove (‘take down’) any copyright infringing content if and when they were alerted to its presence on their system and that, by so doing, they were protected by the so called 'safe harbour' provisions in USA's Digital Millennium Copyright Act.

Now U.S. District Judge A. Howard Matz has granted Veoh's motion for summary judgment, and ruled that the company is protected against such claims saying

"On August 27, 2008, Magistrate Judge Howard R. Lloyd, sitting in the Northern District of California, wrote that the court does not find that the DMCA was intended to have Veoh shoulder the entire burden of policing third-party copyrights on its Web site (at the cost of losing its business if it cannot)”,

adding

"Rather, the issue is whether Veoh takes appropriate steps to deal with copyright infringement that takes place. The record presented demonstrates that, far from encouraging copyright infringement, Veoh has a strong DMCA policy, takes active steps to limit incidents of infringement on its Web site, and works diligently to keep unauthorized works off its Web site. In sum, Veoh has met its burden in establishing its entitlement to safe harbor for the alleged infringements here."

Universal has understandably vowed to appeal the ruling saying

"The ruling today is wrong because it runs counter to established precedent and legislative intent, and to the express language of the DMCA. Because of this and our commitment to protecting the rights of our artists and songwriters who deserve to be compensated for the use of their music, we will appeal this ruling immediately. The balance between copyright holders and technology that Congress sought in enacting the DMCA has been upended by this decision".

Apart from Universal’s setback, the decision might well be a problem for Viacom (owners of MTV) in their 2007 copyright action against YouTube on similar grounds. It is perhaps prudent to note that YouTube have been implementing measures to improve their ‘take down’ system and US commentators have noted that YouTube’s system, with ongoing filter system, is superior to Veoh’s system - which has now attracted safe harbour protection. YouTube has been developing new technical systems that automatically spots content previously banned by a content owner whilst it is being uploaded by a user, so YouTube can, in theory prevent such material ever going live and without receiving a specific take down notice from a content owner and these added ‘enhancements’ to YouTube’s system might well prove to be a major spanner in the works for Viacom’s $1 billion claim. Zahavah Levine, YouTube's chief counsel said.

"With the DMCA, Congress intended to foster online platforms like YouTube, which empower users, offer new distribution channels for content owners, and respect copyright".

Fred von Lohmann, senior attorney for the Electronic Frontier Foundation said "Veoh's policies are very similar to YouTube's," adding

"The judge gave Veoh a clean bill of health. I think the court in New York (where the Viacom-YouTube case is being heard) is going to take this ruling very seriously. The facts are very, very close".

But Viacom’s general counsel Michael Fricklas was not so sure saying

"Our case is in a different forum, not bound by the Veoh case ….we remain confident that we will prevail on the law and the facts. Today's decision contradicts the consensus that sites and copyright owners share the responsibility to use readily available tools to minimize copyright infringements".

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