Questions that Media CAT leaves hanging in the air…

In yesterday’s judgment in Media CAT Ltd v Adams, His Honour Judge Birss QC said that the case raised the following issues:

i) Does the process of identifying an IP address in this way establish that any infringement of copyright has taken place by anyone related to that IP address at all. The technical issues raised by Mr Davey (and Mr Stone) relate to this point. [See para 7 of the judgment.]

ii) Even if it is proof of infringement by somebody, merely identifying that an IP address has been involved with infringement then encounters the Saccharin problem. It is not at all clear to me that the person identified must be infringing one way or another. The fact that someone may have infringed does not mean the particular named defendant has done so. Perhaps the holder of the account with the ISP has a duty to assist along the lines of a respondent to another Norwich Pharmacal order but that is very different from saying they are infringing. [See paras 27–31 of the judgment.]

iii) The damages claimed deserve scrutiny. If all that is proven is a single download then all that has been lost is one lost sale of one copy of a work. The sort of sum that might represent would surely be a small fraction of the £495 claimed and the majority of that sum must therefore be taken up with legal costs. If so, a serious question of proportionality arises but again this has not been tested. Clearly if the defendant has infringed on a scale as in the Polydor case then would be a very different matter but there is no evidence of such infringement here.

TorrentFreak says that the judgment has implications for the Digital Economy Act as right owners will be relying on similar processes to identify infringements before sending out reports to ISPs. However, it would not be correct to say that the architects and implementers of the Digital Economy Act have been oblivious to questions of evidence.

Ofcom’s draft code states: ‘For the notification process to be credible, effective and fair for consumers it is essential that the allegations of copyright infringement are evidentially robust and accurate … We are also proposing that Copyright Owners must act on an Ofcom direction to take specified steps in relation to the maintenance or enhancement of the evidence gathering procedures.’ The Patents County Court says that it has not yet investigated whether Media CAT’s processes were adequate but insisted that it would be perfectly able to do so. Ofcom is also presumably able to carry out such an assessment. However yesterday’s judgment certainly emphasizes the need to justify why a particular process of identifying an infringer may be considered sufficiently reliable and what evidence a right owner will have to produce to convince the appeals body that a subscriber has infringed copyright. Presumably the detection process wouldn’t need to be 100% watertight, but reliable on the balance of probabilities?

Last week, Ofcom was asked to investigate whether the DEA’s s. 17 site-blocking provision is practically feasible and the copyright provisions of the Digital Economy Act are also to be judicially reviewed, so these are just a few more questions to which a plausible response may be required.

See the Telegraph here for another angle.

Media CAT saga: now for the obituary

The popular media in the UK have reported extensively on the termination of the unpopular proceedings -- call them bullying, copyright trolling, public opinion blunder or what you will -- brought by Media CAT, as represented by Andrew Crossley (ACS:Law), against 26 of the large number of defendants who were alleged to have infringed copyright in porn films by means of illicit file-sharing (see eg BBC, ZDNet, Guardian).  Today, in Media C.A.T. Limited v Malcolm Adams, Katherine Taylor, Hooper, Mitchell Chance, Miss Gonzalles Romeo, Mark Jimack, Miss Maria Shewan, Keith Wood, William Wickam, Sean Allen, Christopher Beck, Dave Cundall, Danny Cowan, Glyn Bentley, Pana Begum, Peter Armitage, Allan Billington, James Bryant, Julia Abbott , Christopher Birkett, M Brunt, Gareth Bacon, Wayne Bacon, Michelle McGlade, Elaine Cox, David Bick [2011] EWPCC 006 Judge Colin Birss QC, in the Patents County Court, delivered the last word on the subject:

"114.      On 26th January I received a letter from ACS:Law.  It included copies of documents relating to the firm’s retainer with Media CAT on the basis that I had asked to see them.  In fact I had not asked to see them, the defendants had and I had not ordered them to be produced, ACS:Law had volunteered.  In any event the letter also states that Media CAT has ceased trading as it has become insolvent and that ACS:Law is no longer instructed save to perfect consent orders already notified to the court.  The letter concludes with a statement that the claimant has asked Mr Crossley to notify the court that it has ceased all activities and will not at any time in the future be sending letters or pursuing anyone in relation to the alleged infringements of copyright.  Also ACS:Law will close permanently on 31st January 2011 and there will be no successor practice".

The judgment is a good deal longer and more interesting than one might imagine.  It explains the status of the mysterious Media CAT and considers whether the court might have been able to make a novel order, requiring Media CAT to stop writing any further letters demanding £495 a shot in settlement of the alleged infringement claims (or having them sent on its behalf) at least until they had returned to court with a properly pleaded Particulars of Claim which could be considered.  It also shows how well-equipped the Patents County Court is to handle litigation of this nature in a fair and responsible manner.

ACS:Law judgment

I feel sure that some readers can't wait to get their hands on this - so here it is - the ACS:Law judgment!

A fable of copyright communication

While the spotlight has been on possible problems with the UK’s IP framework, the High Court has been mopping up some copyright problems that have nothing to do with the legal framework, but everything to do with human beings: in particular, how they manage and communicate about their intellectual property.

Looney v Trafigura [2011] EWHC 125 (Ch) isn’t a copyright law case as such (nor does it feature Bugs Bunny or superinjunctions) – the issue was whether Trafigura was entitled to terminate its contract with Kieran Looney. Where copyright comes in is that it was an important part of why Trafigura wanted to part company with Looney.

Looney was providing Trafigura with a performance management programme, charging out his time at £3 million a year. Participants in his programme signed a ‘Materials Agreement’ saying that his materials were only to be used as expressly licensed in writing.

But Trafigura didn’t seem to be handling the materials as Looney wished.

Trafigura’s CFO made smaller copies of the materials, which would be easier to carry when travelling: Looney asked him to hand them over. And when the CEO told employees at a training session to email 90-day plans to him, Looney objected and the CEO had to tell employees to destroy documents. Subsequently Looney spent quite a lot of his rather expensive time drilling the managers and employees on his IP rights and how his materials should be disseminated.

In the judge’s view, the Materials Agreement was not ‘sufficient to alert the recipients to, say, the existence of a bar on creating online templates.’ If a judge has trouble understanding your contract’s small print, then it must be unrealistic to expect others to have taken it on board and be putting it into practice.

When the COO asked Looney to summarize what they weren’t allowed to do with the materials, Looney ‘rather unhelpfully’ (in the judge’s view) instructed the COO to refer his question to his in-house lawyer. If Looney couldn’t easily express how things stood with his IP, how could he expect others to get his drift?

The story illustrates that in the digital age, those who care about their intellectual property either need to relax a little or they should learn how to communicate their rights and permissions EXTREMELY CLEARLY (and nicely) … so that even judges know what they want.

Decoder cards and the Euro-licence

Although the Advocate General’s opinion in the decoder card cases covers a number of important copyright law points, probably the most striking conclusion is the contract-law point, which has potentially far-reaching consequences in the way rights are licensed in Europe.

FAPL licenses the right to broadcast Premier League games to different broadcasters in different territories. Because the broadcasts are delivered by satellite, the only way of ensuring that each licensee’s broadcast is limited to its territory is to stipulate in the licence that the licensee makes sure that its decoder card is only available in its territory.

The AG says that this contractual term is incompatible with Article 101(1) TFEU because the term has an anti-competitive objective and no exemption applies. She argues that no exemption is possible on the basis of protection of industrial and commercial property because this partitioning of the market is not to protect the right of commercial exploitation (if a Greek card is sold in the UK, FAPL still gets paid – that’s debatable, isn’t it? The Greek broadcaster gets paid but doesn’t FAPL just get a licence fee for the exploitation in Greece?), rather it is to optimise exploitation (FAPL gets more from selling lots of separate licences than one big licence).

The AG acknowledged that the importing of Greek decoder cards might result in FAPL no longer licensing rights in Greece. ‘In this regard,’ she said, ‘it would appear relevant in particular whether alternative marketing models can be developed, as the Commission demands…’ This sounds like an allusion to the Commission’s idea that copyright in the EU could be only licensable in Europe as a whole.

If the ECJ follow the AG, then the effects of this new licensing model will be felt beyond Europe. To begin with, if people start exporting the Greek NOVA card all over Europe presumably it will give viewers access not only to football but to everything else on that service (see illustration). Most of the NOVA Sports + Value package is US TV (in English).

Presumably the effect of having one European territory (and one EU copyright) would be to lead to consolidation of broadcasting among a handful of pan-European broadcasters – which may satisfy economic logic but may not be conducive to nurturing the cultural diversity that is Europe.

Decoder cards: the Advocate General’s opinion

In 2006 the customers of a number of English pubs – the Red White and Blue, the Pig & Whistle, Earls, the Crabtree Inn and London House – settled down to watch the footy. Little did they know that this apparently innocent activity was to give rise to a staggering number of complex legal questions. These were referred in the cases FAPL v QC Leisure and Karen Murphy v Media Protection Services. Today Advocate General Kokott has given her opinion. She began by explaining the background:

‘Football Association Premier League … grants its licensees the exclusive right to broadcast and economically exploit the matches within their broadcasting area, generally the country in question. In order to safeguard the exclusive rights of other licensees, they are at the same time required to prevent their broadcasts from being able to be viewed outside the broadcasting area … Undertakings import decoder cards from abroad, in the present cases from Greece and Arab States, into the United Kingdom and offer them to pubs there at more favourable prices than the broadcaster in that State. The FAPL is attempting to stop that practice.’

The Advocate General’s proposed answers to the questions referred are:

1. Question 1 in Case C‑403/08:
Being ‘designed’ or ‘adapted’ within the meaning of Article 2(e) of Directive 98/84/EC means the manufacture or modification of equipment with the intention of providing access to a protected service in an intelligible form without the authorisation of the service provider. Where a conditional access device is made by or with the consent of a service provider and sold subject to a limited authorisation to use the device only to gain access to the protected service in particular circumstances, that device does not therefore become an ‘illicit device’ within the meaning of Article 2(e) of Directive 98/84 if it is used to obtain access to that protected service in a place or in a manner or by a person outside the authorisation of the service provider.

2. Question 3 in Case C‑429/08:
Article 3(2) of Directive 98/84 does not preclude a Member State from invoking a provision of national law that prevents use of a conditional access device in the event of breach of contractual agreements concerning the accessibility of programmes in certain Member States, following the provision of false names and/or addresses in the acquisition of the access device, or the use, for commercial purposes, of an access device intended for private or domestic use.

3. Question 4 in Case C‑403/08:
(a) The question whether works have been reproduced in whole or in part must be answered by means of an interpretation of Article 2 of Directive 2001/29/EC.
(b) Acts of reproduction occur where frames of digital video and audio are created within the memory of a decoder, as those frames constitute part of the broadcast author’s own intellectual creation.
(c) The display of a broadcast on a screen also constitutes reproduction.

4. Question 5 in Case C‑403/08:
Transient copies of a work created on a television screen linked to the decoder box have independent economic significance within the meaning of Article 5(1) of Directive 2001/29, whereas transient copies created in a decoder’s memory do not.

5. Question 6 in Case C‑403/08:
A copyright work is not communicated to the public by wire or wireless means, within the meaning of Article 3(1) of Directive 2001/29, where it is received or viewed as part of a satellite broadcast at commercial premises (for example, a bar) or shown at those premises, free of charge, via a single television screen and speakers to members of the public present in those premises.

6. Question 7 in Case C‑403/08:
The right to communicate copyright works by satellite under Article 2 of Directive 93/83/EC includes the right also to receive and watch that broadcast abroad.

7. Questions 6 and 7 in Case C‑429/08 and Questions 7, 8(c) and 9 in Case C‑403/08:
(a) Freedom to provide services under Article 56 TFEU (previously Article 49 EC) precludes provisions which prohibit, on grounds of protection of intellectual property, the use of conditional access devices for encrypted satellite television in a Member State which have been placed on the market in another Member State with the consent of the holder of the rights to the broadcast. It is irrelevant whether such devices were procured and/or enabled in the other Member State by the provision of a false name and false residential address. An individual agreement to use decoder cards only for domestic or private use also does not affect that conclusion.
(b) Freedom to provide services does not preclude national rules which allow the holder of rights to a broadcast to object to its communication in a pub, provided that the restriction of freedom to provide services stemming from the exercise of that right is not disproportionate to the share of the protected rights to the broadcast.
(c) It is irrelevant for the purposes of the present references for preliminary rulings whether the provision of national law infringes freedom to provide services because it applies to programmes included in a broadcasting service provided from a place in the United Kingdom but not from any other Member State.

8. Question 10 in Case C‑403/08 and Question 8 in Case C‑429/08:
Where a programme content provider enters into a series of exclusive licences each for the territory of one or more Member States under which the broadcaster is licensed to broadcast the programme content only within that territory (including by satellite) and a contractual obligation is included in each licence requiring the broadcaster to prevent its satellite decoder cards which enable reception of the licensed programme content from being used outside the licensed territory, such licence agreements are liable to prevent, restrict or distort competition. They are therefore incompatible with Article 101(1) TFEU; it is not necessary to show that such effects have actually occurred.

Guardian report here.

FT report here.

The Work of Art in the Age of Digital Reproduction

Visual artists, it seems, are avoiding making heavy weather of the Hargreaves Review. The DACS website has a succinct questionnaire where they can quickly express their views. That survey, which closes on 6 February, takes no longer than 15 minutes to complete and covers not only the Hargreaves Review but also the EU consultation on the Artist’s Resale Right!

In view of the market for original art works, perhaps some artists may find themselves saying copyright law is neither a help nor a hindrance…

The Artist’s Resale Right

It is this market for original works that is affected by the Artist’s Resale Right – the right for a visual artist or their heirs to receive a royalty when a work is resold. The Resale Right Directive says the right ‘forms an integral part of copyright’, which seems to sound better in French: ‘Le droit de suite fait partie intégrante du droit d’auteur.’ It has, after all, nothing to do with copying, apart from the fact that it only applies to works that are in copyright.

The Resale Right is, as has recently been demonstrated on this blog, a relatively contentious piece of EU law from a UK perspective. Before the introduction of the Directive, the right had existed in most European countries but not all – most notably the UK, which made Britain an internal-market-distortingly attractive place to sell art. As a transitional concession, the royalty is not currently payable in the UK on sales of works by deceased artists but it will be from next year. Since implementation of the Directive in the UK, artists have had a choice of collecting societies, DACS and ACS (and ARA) – ACS being established to mitigate the possible anti-competitive effects of a collecting society monopoly.

Balloon dogs

Meanwhile on the other side of the Pond, sculptor Jeff Koons has been generating considerable jollity by sending a cease and desist letter to a gallery/shop that sells balloon dog bookends, saying that they are violating his IP rights in his Balloon Dog Sculpture. Park Life are standing their ground, saying, ‘As virtually any clown can attest, no one owns the idea of making a balloon dog and the shape created by twisting a balloon into a dog-like form is part of the public domain . . . any similarities between the Balloon Dog Bookend compared with the Balloon Dog Structure are driven by the wholly unprotectable idea of depicting the shape of a balloon dog in a solid form.’ Perhaps the qualifying word ‘virtually’ indicates the presence of a few dissenting clowns.

Does Koons’s originality consist only of making that shape solid or could he own the copyright in the shape itself? US copyright protection subsists in original works of authorship including sculptural works. If clowns’ balloon dogs are not sculptures, then could the shape of Jeff Koons’s sculptures be original from a copyright perspective?

Context

Park Life describes itself as ‘a retail bookstore and art gallery featuring art and design products’. This suggests that the balloon dog bookends were being sold as art objects.

Physical-object art doesn’t just attract a Resale Right. Because it is physical and often unique, it may have a strong relationship with its physical context. Artists like Koons belong to the objet trouvé tradition. Their creativity is often about taking a commonplace object and putting it in a different context, designating it as ‘art’. Does the act of re-contextualizing an object count towards copyright protection? Is what you have to say about your artwork or the fact it is in a gallery relevant, meaning that selling the shape as an art object has a bearing on whether there is an infringement? If not (as seems likely), much modern art starting with Duchamp seems to fail to be protected by copyright.

Beyond copyright

But even if copyright and economics don’t count context as part of a work of art, that doesn’t mean it isn’t (moral rights do care about context).

Walter Benjamin argued in The Work of Art in the Age of Mechanical Reproduction that mechanical reproduction has changed the social function of art from ritual to political. Reproduction, he said, challenges the here-and-nowness, the ‘aura’, the authority of the original work. Perhaps the field where mechanical reproduction has made least difference is visual art (people still value the genuine original article)? However, the reason for valuing these original works may be less about their ‘auras’ as their investment value (which mechanical reproduction increases because the works’ genuineness can’t be mechanically reproduced).

Building on Benjamin, it could be argued that before mechanical reproduction, art and its context were often inextricable, and not just visual art. Bach wrote for Sunday-morning mass, Michelangelo painted the ceiling of the Sistine Chapel, plays were written to amuse kings, poems for lovers etc etc. Mechanical reproduction, on the other hand, means an artist/author has less control over where or when his work is consumed – the work becomes a disembodied commodity that can be traded and copied. However, more recently, user-generated content is increasingly being created within the context of online communities. The significance of a photograph on Facebook may be less about its artistic qualities as the point someone is trying to make with it. Where economics does not make it necessary, it may not be imperative to sustain the myth that works of art exist in vacuum-packed isolation.

As "digital theft" grows, can the content empire strike back?

A new survey in the US commissioned by NBC Universal shows that 23.8% of global Internet traffic involves "digital theft," with the BitTorrent file-sharing protocol accounting for 11.4% of this figure. Brand and trademark monitoring firm Envisional's analysis of the top 10,000 peer-to-peer swarms found that 99.24% of non-pornographic material being traded was copyrighted material. It also found that "infringing cyberlocker sites" accounted for 5.1% of global Internet traffic, while "infringing video streaming sites" made up 1.4% of global traffic.

With that statistic in mind, it still seems surprising to this writer that nearly 100,000 North Americans have been sued for suspected copyright infringement on file-sharing networks over the past twelve months according to details of a study published by TorrentFreak. Again, the majority are alleged to have utilised BitTorrent, although some users of eDonkey were also targeted. The 99,924 defendants were sued as part of a total of just 80 lawsuits, which seek the identities of the many "John Doe" defendants from their various Internet service providers. Some 70,914 case are active and the porn industry is now having to take steps to protect its hitherto much admired internet economic model - nearly all of the recently-filed cases target alleged downloaders of adult content although the mainstream movie industry is actively represented too, against users who have illegally downloaded feature films such as "The Hurt Locker"

Torrentfreak say “through these mass lawsuits the copyright holders are trying to obtain the personal details of (mostly) BitTorrent users who allegedly shared their material online. Once this information is handed over, they then offer the defendant the opportunity to settle the case for a few hundred up to a couple of thousand dollars, thereby avoiding a full trial and potentially even bigger financial penalties”. I find myself reminded of comments from my blog on ACS:law last week (25th January) when Torrentfreak comments “One of the main points of critique is that the copyright holders have no intention of going to a full trial against each of the defendants. They are out to get a settlement, which means that the (possibly weak) evidence will never be tested in court. Two weeks ago the EFF filed an amicus brief in which it asked an Illinois judge to quash subpoenas issued in pay-up-or-else lawsuits involving alleged illegal file-sharing of pornography, with EFF Intellectual Property Director Corynne McSherry saying “Copyright owners have a right to protect their works, but they can’t use shoddy and unfair tactics to do so,” adding “We’re asking the court to protect the rights of each and every defendant, instead of allowing these copyright trolls to game the system.”

It also appears that Google has responded pressure from the entertainment industries by implementing active censors for “piracy related” terms including BitTorrent, torrent, utorrent, RapidShare and Megaupload from its instant and autocomplete services. BitTorrent Inc., RapidShare and Vodo have all spoken out against “commercial censorship”. Among the list of forbidden keywords are “uTorrent” and “BitTorrent” and these keywords will no longer be suggested by Google when the first letter is entered, nor will they show up in Google Instant and all combinations of the word “torrent”

http://torrentfreak.com/100000-p2p-users-sued-in-us-mass-lawsuits-110130/


http://torrentfreak.com/google-starts-censoring-bittorrent-rapidshare-and-more-110126/