Monday, 21 February 2011

usedSoft case on sale of "second hand" software downloads for ECJ

Via Huťko´s IT & IP legal blog comes this story about a freshly referred case from the First Senate of the German Bundesgerichtshof in Oracle v usedSoft (I ZR 129/08). This reference deals with the resale of downloaded software and the ECJ has been asked to clarify the legal position of software which has been sold not physically but online. There is no attached number or any mention on Curia's website so far.


According to an English-language press release from usedSoft,
"...the ECJ will now decide, presumably within one or two years, whether software which was transmitted to the buyer online may also be traded as used. ...
However, the future decision by the ECJ will have little impact on the trade with used software because the legal circumstances regarding trade with “used” software are largely clarified. As the BGH declared in its press release today: “According to Art. 5(1) of  directive 2009/24/EC [on the legal protection of computer programs], the reproduction of a computer program does not, in the absence of specific contractual provisions, require the authorisation of the rightholder ” 
Sabine Leutheusser-Schnarrenberger, German Federal Minister of Justice, also confirmed in September 2010 that trade with “used” software is essentially legal. Legal uncertainty exists only with respect to software which has been sold online. Courts in Munich and Hamburg have handed down similar decisions in recent years. The RC Munich, for example, ruled in April 2008 “that the sale or vending of single Microsoft software licences previously granted within the framework of volume licence agreements is fundamentally possible as an effective transaction even without the consent of Microsoft.” ".
The 1709 Blog will watch future developments with interest.

Pros and cons: piracy and the Culture Flat Rate

Piracy is not, to me at least, a very appealing subject. It is, however, by a long way, the most important copyright issue of our time.

Two recent reports remind us of the scale of the problem. ‘An Estimate of Infringing Use of the Internet’ (previously noted on this blog) estimates that 23.76% of internet traffic is copyright-infringing material. Since the report lumps porn in with non-infringing material, it is not unlikely that 1/3 of the internet is dedicated to copyright infringement.

Meanwhile the IFPI’s Digital Music Report 2011 notes such statistics as

— 76% of music obtained online in the UK in 2010 was unlicensed
— Nearly one in four active internet users in Europe visit unlicensed sites monthly
— This is in spite of wide availability of legal music sites (400+ services licensing more than 13 million tracks)
— 2004–2010: recorded music revenues declined by 31%
— New artists and smaller businesses have been hardest hit, e.g. 2003–2010: debut album sales in the global top 50 fell 77%

We have yet to see whether the Digital Economy Act will make a dent in these figures. But what if the current trend continues? An alternative is the ‘Culture Flat Rate’: non-commercial copying on the internet is legalized, paid for by a levy on internet access.

Of course, this solution presents some problems, but are any of them as big as the statistics above? In Germany, the Culture Flat Rate is advocated by the Green Party and last month the Association of the German Music Industry lined up ten arguments against it. However, Leonhard Dobusch has taken the trouble to rebut each one.

Given that this solution would require major changes to EU and perhaps international law and, governments being governments, this would take a long time to implement (in contrast to the speed at which the internet moves) perhaps it is worth giving this option serious consideration sooner rather than later, just in case…


Further reading: ‘The World is Going Flat(-Rate)’ and ‘New Momentum for Culture Flat-Rate in NL and DE’ by Volker Grassmuck

Hong Kong opts for private enterprise whistle-blowing

David Allison (Laracy & Co., Hong Kong) has drawn my attention to this link to a recent development on his patch which, as he puts it, "raises some interesting questions". As he explains:
"Hot on the heels of various amendments to the Copyright Ordinance in 2010 (which provides for increased criminal sanctions for business end-user infringement), a press release from the Hong Kong Customs and Excise Department notes that there is now a bounty payable to "whistleblowers" who inform Customs about copyright infringement in their organizations. There is a further bounty payable if the information leads to a conviction.

While the issue of employees informing on their employers is interesting in itself (surely you would only do this if you were looking to leave your current employer — unless of course you are a particularly civic-minded individual) the really interesting part is the funding of the whole scheme. It transpires that the Hong Kong Copyright Licensing Association (HKCLA) and the Hong Kong Reprographic Rights Licensing Society (HKRRLS) are funding the scheme, which is then administered by Hong Kong Customs".
David is curious to know what readers think about private licensing bodies funding the government to do their work.  He concedes that it is of course it is in the licensing bodies' best interests do take this initiative since high profile convictions would certainly increase compliance and boost the number of licences sought – but he just has a rather uneasy feeling about private funding of public enforcement.

This blogger's feeling is that, irrespective of the industry concerned and the intellectual property right infringed, the time has come for a great deal more private funding of public enforcement.  With the best will in the world, police and customs can't stem the tide of trade in infringing goods all by themselves, and importers and infringers aren't kind enough to give due notice in writing of times and dates when they are planning to infringe, together with an appended list of rights infringed.  If the rights owners in question were not those attached to the copyright-based industries but to, for example, the proprietary pharma sector seeking information on imports of fake and potentially fatal medicines, would we not applaud such initiative?

Friday, 18 February 2011

The fundamental freedom of furnishings

The ECJ has received a copyright-law reference from Germany’s Bundesgerichtshof, the IPO reports. Case C-5/11 – Titus Alexander Jochen Donner (?) – is a dispute about furnishings that are copyright-protected in Germany and sold to German customers, but manufactured and distributed from Italy. The Court has been asked for a preliminary ruling on Article 4(1) of the Copyright Directive, namely: ‘Member States shall provide for authors, in respect of the original of their works or of copies thereof, the exclusive right to authorise or prohibit any form of distribution to the public by sale or otherwise.’

The question:

“Are Articles 34 and 36 TFEU governing the free movement of goods to be interpreted as precluding the criminal offence of aiding and abetting the prohibited distribution of copyright-protected works resulting from the application of national criminal law where, on a cross-border sale of a work that is copyright protected in Germany
—that work is taken to Germany from a Member State of the European Union and de facto power of disposal thereof is transferred in Germany,
—but the transfer of ownership took place in the other Member State in which copyright protection for the work did not exist or was unenforceable?”

Comments are requested by 24 February. After sitting down to watch Copyright v Freedom to Provide Services in the decoder card cases, here comes Copyright v Free Movement of Goods.

Tuesday, 15 February 2011

The Year of the Intermediary

On the internet, intermediaries occupy – literally – a central position. They are playing increasingly prominent roles everywhere from political revolution in Egypt to the feverish exchanges of the twittering classes. At other times they are the vehicles for infringement of intellectual property rights.

The UK government, it seems, has a special relationship with Silicon Valley and its intermediaries. While David Cameron has set Google as the homepage of his copyright policy, Google is home for his chief spin doctor, Steve Hilton, married to Google vice-president Rachel Whetstone. And David couldn’t wait to be friends with Facebook, though it began to look like a one-way relationship when Facebook refused to take down the ‘Raoul Moat you Legend’ page.

However, one of the core principles of the Conservative party’s Big Society is social responsibility, and that includes the internet. How much longer can society continue to turn a blind eye to mindless disrespect on the internet for the rights of those who are making creative contributions?

The European Commission is interested in knowing if intermediaries could be doing more:

‘…the currently available legislative and non-legislative instruments are not powerful enough to combat online infringements of intellectual property rights effectively. Given intermediaries’ favourable position to contribute to the prevention and termination of online infringements, the Commission could explore how to involve them more closely.’
2011 promises a packed programme of intermediary legal events. They address various types of legal responsibility (liability, injunctions, three-strikes law) and the different implications each of these has for different types of intermediary (ISPs and websites).

LIABILITY

A Communication on the E-Commerce Directive is due following last year’s consultation. This will revisit the legislation that exempts intermediaries from liability for third-party illegal content where they are hosting or ‘mere conduits’, and prevents them from being placed under a general obligation to monitor information they transmit or store.

The ECJ will be interpreting the Directive in L’Oréal v eBay (Case C‑324/09), deciding whether sites can be liable for any infringements for which they haven’t received a take-down notice. The advocate general has already given his opinion, saying that ‘if A has been discovered infringing trade mark X by listing an offer on the electronic marketplace in September, I would not exclude that the marketplace operator could be considered having actual knowledge of information, activity, facts or circumstance if A uploads a new offer of the same or similar goods under trade mark X in October.’

INJUNCTIONS

—against websites

‘As to the scope or contents of an injunction to be given against an intermediary,’ the AG continued, ‘I do not see that EU law would impose any specific requirements beyond efficacy, dissuasiveness and proportionality.’ In practice, for a site like eBay, he suggested injunctions have the same scope as liability (same user infringing same trade mark), which, curiously, seems to make injunctions superfluous. ‘Reasonable measures to reveal the true identity of a user hiding behind several user identifications may be required from the service provider: this would not constitute an obligation of general monitoring forbidden by Article 15(1) of Directive 2000/31 but an acceptable obligation of specific monitoring.’ It seems implicit that a site would have to do this ‘specific monitoring’ anyway to retain the Hosting Defence and avoid liability?

Where does specific monitoring end and general monitoring begin and what precisely are the objections to ‘general monitoring’ anyway? We are already used to our communications undergoing computerized monitoring in the form of anti-virus software – is privacy a genuine concern or just an excuse rehearsed by those who have something to hide?

—against ISPs

The ECJ may get to the bottom of such questions in relation to injunctions against ISPs in SABAM v Scarlet Extended (C-70/10). In this case the question is whether an injunction can require an ISP to filter all traffic to identify and block unauthorized copyright content. The hearing took place on 13 January, and the Content and Carrier blog expects the opinion of the advocate general by mid April, so a judgment might just be squeezed into 2011.

In the UK the Digital Economy Act’s s. 17 site-blocking injunction is under scrutiny – judicial review to see if it is legal; Ofcom to check it can be done.

Usenet-indexing site Newzbin, which was found liable for copyright infringement last year, went into administration, failing to pay damages, and popped up again as Newzbin2 hosted in Sweden. A court will be deciding whether the claimants can have an injunction under s. 97A CDPA requiring BT to block the site.

Meanwhile, injunctions against intermediaries of all kinds are also the subject of legislative review in the ongoing consultation on the Enforcement Directive. Although the Directive does not cover injunctions relating to copyright infringement, which are covered by Article 8(3) of the Copyright Directive, the Commission’s Staff Working Document takes the opportunity to consider them anyway and raises a number of issues:

—Some Member States have failed to grasp that injunctions may be granted against intermediaries without liability being implied.
—There is no established jurisprudence on cross-border injunctions.
—There is confusion over whether injunctions can apply to future, unspecified infringements (which has given rise to the questions in L’Oréal and SABAM).

THREE STRIKES

The judicial review of the Digital Economy Act will consider whether ISPs can be placed under obligations to notify subscribers about their alleged infringements and perhaps suspend their accounts. The court will be measuring the Act against EU laws – which are moving goalposts given the consultations.

There is substantial overlap in the scope of these judgments and consultations and it will be interesting to see how they influence one another. It looks like the intermediaries for our communications will continue to be one of the subjects of our communications for some time to come.

Sunday, 13 February 2011

Are you an ordinary internet user? Do you use what you find online? If so, read on ...

Are you Mr?Ms  Average? If so,
 this survey is just for you!
1709 Blog team member Aurelia tells us that Simone (a colleague of hers who hails from Italy) is doing some research for his PhD. His goal is to survey people who are casual technology users (i.e. not devoted geeks, nerds and obsessives) about their ideas of how creative works like pictures, music and writing are used on the internet. Says Aurelia, "It would be very helpful if you could take just a few minutes and fill out Simone's survey at http://www.aliprandi.org/en/survey".

This would be useful not only for Simone but also for those good folk at Creative Commons who do try to get their terms to reflect the way people use materials online, their expectations and their aspirations.

Simone provides a little further explanation of this legal/sociological survey, which is entitled "Copyright in the digital age: attitudes, social perception and level of awareness".
"The questionnaire takes approximately 15 minutes to complete; it is online and completely  anonymous (we do not ask your name and we do not record your IP address; so please relax and sincerely answer the questions). The results of this research will be included in my Ph.D. thesis and
made available with an open access/copyleft approach. Every person's participation is important in order to accomplish my research, so I hope that you will be able to dedicate the time to answer the survey. It would also be very useful and appreciated if you could share this announcement with your friends and colleagues".
Now's the chance for all you casual and non-addicted twitterers, facebookers and bloggers to do Simone a favour -- tell your friends!

Friday, 11 February 2011

Map Those Treaties

Treaties, treaties, treaties.  Keeping track of all the different, an often overlapping, copyright treaties can be quite the task.  Who’s signed it? When?  What’s included?  It’s a lot of information to sort through.  But it’s just gotten easier, at least for copyright treaties to which the United States is a partner.

Puneet Kishor has put together “Copyright Treaties With the US,” a wonderful map viz that gives an interactive picture of the major international copyright treaties.  The map features a list of 17 options ranging from “Show all” to “None” and including five incarnations of Berne, several WIPO treaties, and of course the WTO TRIPs agreement.

Clicking on a treaty option brings up an array of blue circles across the map.  Each circle represents a country or territory that matches the chosen option.  Users can get more information by clicking on the circles.  Here’s a screen shot of the “Unclear” option for an example.

image

Since the map is designed to show treaty relations with the United States, the United States does not get a clickable circle on any of the options.  As Puneet explained, “The US can’t have a treaty with itself.”

Puneet developed the map to meet his own needs while doing research on different copyright regimes and the concept of an “international copyright.”  He had located the information he needed in Circular 38a, but found it’s pdf format less than ideal.  The interactive map was born.

Recognizing the huge potential of usefulness to others, he’s made the map available via his website under CC0, waiving his rights in the work.  As someone who’s tried to make a similar map in the past with Paint and color coding, I know I’ll be referring to this new resource often.

Thursday, 10 February 2011

Nana-na-boo-boo, You Can’t Sue Me

imageWilcox v. Career Step, the case is a few months old now, but it hasn’t been mentioned on this blog yet and is worth a look.

The main heart of the Wilcox case is a dispute over ownership of copyright between the author of a medical coding course, Ms. Wilcox, and an online course distributor, Career Step, that offered the course and helped pay for its development and may have employed Ms. Wilcox.  However, these work-for-hire and ownership questions are not the interesting item from the recent decision.

In addition to suing Career Step, Ms. Wilcox also sued a number of individuals and colleges who received the course from the Career Step.  Some of these colleges that were sued are state-run, public institutions.  And one of these state-run, public institutions, West Virginia Community and Technical College, challenged the suit on grounds of sovereign immunity under the 11th Amendment of the US Constitution.  That motion to dismiss was granted.

The 11th Amendment prohibits law suits against a state by citizens of another state unless the state has consented to be sued or a federal law permits the suit.  West Virginia Community and Technical College is considered to be an arm of the state of West Virginia because it is controlled by and receives most of its funding from the state.  The court held that West Virginia did not consent to be sued and that there was no federal law to change the standard 11th Amendment rule.  Thus, the court granted West Virginia Community and Technical College’s motion to dismiss the copyright claims against it.

This case is unusual for a few reasons.  First, this case is going on in the District Court for the District of Utah.  This is not one of the common places for a copyright infringement suit, such as the Eastern District of New York or the Central District of California.

Second, a sovereign immunity claim in a copyright infringement suit is, I believe, a very novel defense.  (Readers can please correct me if they know of other similar cases.)  And, the success of the defense raises questions for the future of interactions between copyright holders and public education.

The United States has a large number of public universities, colleges and technical training schools, as well as an extensive public K-12 system.  If state-run institutions have immunity from copyright infringement suits, do they have a free license to ignore copyright law and infringe content as much as they would like? 

What about secondary liability concerns for things like file-sharing?  A growing number of universities, both public and private, have instituted programs and partnerships with big content to deter file-sharing on their campuses.  If state-run universities can claim sovereign immunity protection, will they have no need for these programs?  Will state universities become sanctuaries for file-sharing students?

The White House has announced recently that IP Czar Victoria Espinel is suggesting new copyright laws.  Will these include a copyright infringement exception to the 11th Amendment?

Decision dismissing claim against West Virginia Community and Technical College

First decision in case addressing a number of joinder and dismissal claims