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Men infringing copyright at work

Posted by Emil A. Georgiev on 8 July, 2010

Do you come from a land down under? Where music labels are keen to plunder?

I guess my readers will excuse this little joke with Men At Work’s “Down Under” lyrics, but it fits quite good in the context of this posting. I believe it is needless to introduce “Down Under” – you hardly cannot know the unofficial anthem of Australia! Despite its fame, since yesterday it is official – Men At Work’s song has been found to infringe the copyright in “Kookaburra”, a camp fire song written by Marion Sinclair in 1934 and currently owned by Larrikin Music Publishing Ltd Pty. “Down Under” was written and composed in 1978 by Colin Hay and Ronald Strykert, members of Men at Work, and was first published in about 1979. In 1981 the song was re-recorded for Men At Work’s “Business as Usual” album.

In 2007 Larrikin became aware that two bars of “Kookaburra” were reproduced once in the flute riff contained in the 1979 sound recording of “Down Under” and three times in the one of 1981. Alleging that “Down Under” infringed their copyright in “Kookaburra”, Larrikin started proceedings against Colin Hay and Ronald Strykert  as well as against EMI Songs Australia and EMI Music Publishing Australia, being the owner and licensee of copyright in “Down Under”. Larrikin further demanded a 60% share of the earnings “Down Under” has made since 1982.

On trial, Justice Jacobson accepted that the songs were objectively similar. Jacobson J based this finding on the cases of, inter alia, Francis Day & Hunter vs Bron and Austin vs Columbia Gramophone Co Ltd. Accordingly, objective similarity of musical works was not to be determined by a note for note comparison but by the eye as well as by the ear. Jacobson J further found that the portion reproduced in “Down Under” constituted a substantial taking from “Kookaburra”. Justice Jacobson achieved this finding referring to the judgment in Ice TV Pty Ltd v Nine Network Australia Pty Ltd, pursuant to which the determination of “substantial part” should be qualitative rather than quantitative.

Curiously, Larrikin did not claim damages for past performance on the ground of copyright infringement, but on passing off that in Australia is legislated in the  Trade Practices Act of 1974 and the Fair Trading Act 1989. In these proceedings, however, the court did not assess the quantum of damages or royalties to be paid to Larrikin.

In its very recently delivered ruling, Jacobson J referred to Larrikin’s 60% demand on “Down Under”‘s earnings as “excessive, overreaching and unrealistic”. Instead, his Honour ordered EMI to pay a percentage interest amounting to 5%.

Why is this case of any relevance at all?

Access to copyright works has never been so convenient as in the information society of today. Albeit inspiring for creators of later and ostensibly independent works, such access may turn to a risk for such creators. I am convinced that this Kookaburra decision shall be a far-reaching one and shall influence the judiciary in other common law jurisdictions such as England and Wales, New Zealand and Canada. Some aspects might be persuasive also for US Justices, although I guess that this very case would be decided by an US court rather on the grounds of fair use as “Down Under” is transformative to “Kookaburra”. My message to creators would be then: be cautious, if you are keen not to infringe copyright law at your work.

Posted in copyright | Tagged: , , , , , , , , | 1 Comment »

Do not misappropriate the law, guys.

Posted by Emil A. Georgiev on 25 June, 2010

It has been a long time since I wrote my last posting related to Bulgaria. During the last days, however, a police campaign or even a raid directed against the online content provider www. chitanka.info (chitanka meaning an alphabet book in Bulgarian) achieved a huge medial attention and, particularly, the one of the Bulgarian blogosphere. While the police claimed a success over a group engaged in “Internet piracy”, journalists and blog writers saw an attack against the knowledge society in Bulgaria.

What was the problem in the first place?

Chitanka.info had digitised numerous printed books and made them available on the Internet to the world at large. In legal terms chitanka.info had copied and adapted (mainly literary) works and subsequently communicated those to the public. On the grounds that the foregoing represented acts restricted by copyright law, publishers and right owners’ associations argued that chitanka.info had infringed the copyright in the works, because they acted without the consent of the respective copyright owners. Apparently, these very right owners instructed the police to raid chitanka’s premises and to seize the equipment hosting the arguably infringing materials.

The operators of chitanka.info raised several defences, some of which were legal by their nature and some that were not. Regarding the latter they argued that their offering addressed school kids and thus served to satisfy primary educational needs. They further argued that some of the books they offered to download represented sold-out editions, not re-published since then and thus no longer available in bookstores. Eventually they stressed on the misery reigning in public libraries and on the fact that today’s consumers demanded an online access to books, but publishers yet failed to (legally) satisfy this demand. Chitanka.info’s legal defences grounded on Art 24 (9) of the Bulgarian Act on Copyright and related Rights (Copyright Act) and on the fact that their offering was merely altruistic as it did not depend on a payment.

I would like to focus on chitanka.info’s legal defences in this posting. Art 24 deals with the free (fair) use of works for which users neither need tot obtain the copyright owners’ consent nor owe they any payments in connection with their use. Subsection 9 of this Article regards – as the Bulgarian and hence legally binding version of the act calls them -  “publicly accessible” libraries. Please observe that the English translation of the act accessible via the link above refers to “public libraries”. This ostensibly unimportant distinction, displayed by the translation and of later relevance, might prove decisive for chitanka.info’s case.

To the best of my knowledge neither the Copyright Act nor other legislation in force in Bulgaria defines the term of a “publicly accessible” library. By contrast, the Bulgarian Public Libraries Act delivers a definition of the term “public library”. Accordingly, a library needs to comply with the requirements set out in Art 8 of said act in order to be a “public library”. There is no doubt that chitanka.info does not comply with those requirements. The Public Libraries Act was, however, delivered in 2009, whereas Art 24 (9) of the Copyright Act was last amended in 2005.

The issue suggests a few logical questions:

  • What did the lawmakers have before eyes when they drafted the Public Libraries Act?
  • Did they consider the “publicly accessible” libraries as mentioned in the Copyright Act, and
  • Are public libraries to be equated with publicly accessible libraries at all?

Depending on the answer of these questions, there might be following solution approaches:

  1. The terms public library and publicly accessible library are identical. Since chitanka.info does not qualify as a public library it likewise fails to qualify for the limitation under Art 24 (9) granted to publicly accessible libraries.
  2. The terms are not identical and the lawmakers did not intend to curtail the limitation under Art 24 (9) to only public libraries. Moreover, the limitation should apply to any library that is publicly accessible. Chitanka.info would then qualify for the safe harbour provided by Art 24 (9). Public libraries would qualify as well as they are by their definition “publicly accessible”.

It will be up to a court of competent jurisdiction to decide somehow or other. I personally would support the second solution approach as I am of the opinion that copyright law is misappropriated when used to prevent the spreading of information, particularly for educational purposes. My friendly piece of advice to the police would then read: do not misappropriate the law, guys.

Posted in copyright | Tagged: , , , , , , , , , , , , | 19 Comments »

ISO Hunted Down

Posted by Emil A. Georgiev on 1 April, 2010

Stories involving file-sharing networks and copyright enforcers have become easily predictible: the latter commence court proceedings against the former and after a lengthy judicial argy-bargy (almost always) prevail thereby having the enabling network shut down. Unfortunately for all file-sharers among my readers, this post tells a story that makes no exception to the foregoing. It is dedicated to isoHunt and its legal battle against Columbia Pictures and its yesterday’s announced probable death.

The first proceeding in which isoHunt and its founder Gary Fung took the role of the defendants commenced somewhere in 2006 and has brought some legal clouds over that network. Notwithstanding, in this post I would like to more properly address the last ruling of the US District Court for the Central District of California which is capable to eventually provide the defendants with their Hemlock cup.

In the instant case claimants had moved for a summary judgment against the defendants on the grounds that defendants’ users have infringed claimants’ copyrights and defendants are therefore liable for such infringement under the theories of inducement, contributory infringement, and vicarious infringement. Not surprisingly, Judge Wilson granted claimants’ motion for a summary judgment. What makes this ruling noteworthy is Court’s profound discussion of the torrent technology concerned and its findings on defendants’ liability.

A good starting point in the discussion could be made by the fact that the ruling in question was delivered by the Honorable Stephen Wilson – the judge who presided over the original Grokster case. Whether therefore or not, but his Honour seems somewhat exerted to make as many references to the Grokster cases as only possible. Thus, in his view, defendants’ torrent sites, albeit demonstrating a unique download process, represent an evolutionary modification of traditional “peer-to-peer” sharing sites such as Napster and Grokster. They would only differentiate in that the files, awaiting to be shared, are hosted locally on the file-sharers’ computers and not on a centrally operated server. In order to accesss the files, the file-sharers would need a “library” that maintains an index of torrent files available to download. These files do not contain copyrighted materials themselves, but the data used by a torrent client to retrieve copyrighted materials through a peer-to-peer transfer. Such files have been previously uploaded by (other) users who host the copyrighted materials locally. Once a user downloads a given content file, he also becomes a source for future requests and downloads.

In its liability analysis the Court found that defendants’ inducement liability was so overwhelmingly clear, and that a discussion on the remaining two liability theories, ie secondary and vicarious liability, would be unnecessarily duplicative.

The Court stated that claimants have used IP-address data to locate defendants’ users and show that particular infringing downloads took place in the United States. Further, claimants have provided, in Court’s view, sufficient evidence that, contrary to defendants’ wholly unsupported (arg!) assertions, torrent files downloaded from defendants’ sites correspond to and automatically cause the downloading of claimants’ copyrighted materials.

In determining defendants’ inducement liability, Judge Wilson quoted one of US Supreme Court’s dicta in MGM vs Grokster, according to which “one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.” In citing the Supreme Court in Grokster anew, the Court stated that the classic instance of inducement was by advertisement or solicitation that broadcasts a message designed to stimulate others to commit violations. By the same token, claimants, in Court’s determination, presented a variety of undisputed evidence that defendants disseminated a message “designed to stimulate others” to commit infringements. Thereafter, the Court found, defendants’ liability for inducement was no longer open to any doubt. Moreover, claimants engaged in “purposeful, culpable expression and conduct” aimed at promoting infringing uses of the torrent websites.

In a next procedural step, the defendants had raised a defence based on the Digital Millenium Copyright Act (DMCA) that favours providers of certain internet services. However, upon stating that claimants had established defendants’ knowledge of their users’ infringing activities and, as defendants (i) failed to show they were not aware of facts or circumstances relating to infringement, and as defendants (ii) failed to evidence that they had removed the infringing material once they became aware of an infringing activity, the Court dismissed the defence and denied claimants’ entitlement to statutory safe harbour under the DMCA.

In its conclusion, the Court once again quoted Grokster and ruled that defendants’ technology is nothing more than “old wine in a new bottle”, consequently the outcome in the instant case could only be the same as in Grokster.

In my personal view, the above ruling is in full compliance with the currently applicable US legislation and judicial authority. Notwithstanding, developments such as in this case show at least two things. First, there is an ever-growing demand to access copyrighted material online and the shutdown of, say, Grokster did not prevent the establishing of isoHunt and Pirate Bay and it is very likely that their shutdown shall be accompanied by new creations in the file-sharing realm. Second, the rights’ owners should more extensively and, within the boundaries of applicable law, consider opportunities that employ the new technologies and lead to, maybe less excessive, but still good earnings, instead of prosecuting its own prospective customers.

Posted in copyright | Tagged: , , , , , , , , | 2 Comments »

Templates designed to capture a physician-patient encounter are not copyrightable

Posted by Emil A. Georgiev on 20 February, 2010

The case of Utopia Provider Systems vs Pro-Med Clinical Systems was recently referred to the United States Court of Appeal for the eleventh Circuit. The claimant Utopia had developed paper templates to capture a physician-patient encounter, and had obtained a Certificate of Registration as “compilation of terms” with the US Copyright Office. The claimant had also concluded a license agreement with the defendant Pro-Med with respect to the templates. Somewhen the defendant began to copy the templates and to create derivative electronic files thereof and has eventually ceased to pay the contractually agreed royalties. No wonder, the claimant sued for copyright infringement and the defendant, not surprisingly, argued that the templates were not copyrightable because they were blank forms that did not convey information.

The District Court for the Southern District of Florida, being the court of first instance, dismissed claimant’s action and found in favour of the defendant.

The Court of Appeal for the eleventh Circuit affirmed the District Court’s ruling and delivered a reasoning based on its previous judicature.

The Court started with stating the statutory requirements for copyrightability in 17 U.S.C. § 102(a) and cited the Supreme Court’s ground-breaking decision in Feist vs Rural, according to which a work under copyright law need possess at least some minimal degree of creativity in order to be original and hence copyrightable. The Court’s relevant precedent as to whether the templates in suit were copyrightable was its previous decision in Clarke Checks. Accordingly, blank forms which “do not convey information” or contain original pictorial expression were not copyrightable. The relevant test for copyrightability of the templates, therefore, was whether their forms “conveyed information”. The Court went then further citing the Second Circuit which in Kregos vs Associated Press offered examples of works that “conveyed information” opposing them to such that did not. Accordingly, and as the originality claimed in the templates in suit was in the “selection and arrangement of their terminology”, the Court did not find that such selection and arrangement conveyed information, wherefore they were not sufficiently original and hence failed to attract copyright protection.

Coming to my analysis, it is positive that a higher court in the US has fortified its authority in barring trivial templates and forms from copyrightability. Copyright law is, in the sense of the ruling in Feist, supposed to grant a limited monopoly over works of creativity. There is nothing creative in non-informative templates and their unauthorized use should not be referred to copyright law, but rather to provisions relating to unfair competition.

Posted in copyright | Tagged: , , , , , , , , , , | 2 Comments »

Will Verizon adopt a “three strikes and you are out” policy?

Posted by Emil A. Georgiev on 13 February, 2010

Verizon was once acclaimed for its firm standing in opposing copyright holders’ attempts to access the personal data of subscribers who had allegedly infringed copyrights by means of peer-to-peer file sharing platforms. That was 2003 and, no doubt, everything flows, but same company’s newer policy nearly condemns those glory days to oblivion.

CNET as well as Wired have recently reported that Verizon has begun terminating some subscribers’ Internet access due to said subscribers’ alleged copyright infringing dealings.

According to FindLaw columnist Anita Ramasastry this is to be viewed as the result of RIAA’s “alternative approach” to work with ISPs to police illegal downloading, instead of – after having lessons learned – suing the downloaders themselves. In this respect a crucial question is awaiting an answer – does RIAA by any means “support” Verizon or how does Verizon learn of its subscribers’ alleged copyright infringement at all? In the state of such intransparent policies, I personally could only encourage subscribers to Internet services to play question-and-answer games with their ISPs, and with Verizon in particular, in order to gain as much information thereon as just possible.

While Canadian law professor Michael Geist blogs that Verizon’s actions are not exactly “three strikes and you are out”, as concerned subscribers still can go to another ISP, he nevertheless points out that the lack of due process is very disturbing.

It is hard to predict as to whether Verizon will introduce a zero tolerance three strikes policy, it is nonetheless just pity that one of America’s major ISPs has yielded to copyright holders’ and their representatives’ demands by thus demonstrating readiness to sacrifice its customers’ fundamental rights in the information society.

Posted in copyright | Tagged: , , , , | 3 Comments »

German court discharges family accused for file sharing

Posted by Emil A. Georgiev on 12 February, 2010

The District Court of Mainz has recently dismissed phonorecord producers’ charges against a family although their subscriber line was provenly used to access, download and make music files available on a file sharing platform. The Court’s ruling bears the file reference 24.9.2009 – 2050 Js 16878/07.408ECs and has been published in the German journal Multimedia und Recht (MMR). The family’s attorney, Dr Jan Peter Müßig, has prepared an abridgement that is publicly accessible on MMR’s website.

The accused faced a criminal charge for having made available a certain amount of music files whose copyright was owned by different phonorecord producing companies.  Representatives or agents of those companies managed to download some of the files and succeeded to detect the IP address and consequently the subscriber line of the accused. The subscriber line led to a family consisting of two adults and two minors. The Court ordered the search of the family’s home and thereafter the seizure of the computers and an external hard drive that the enforcement officers retrieved. The mother in the family could be identified as the principal of the subscriber line.

Initially, the Court found that identifying the subscriber line used for file sharing purposes equated the identification of that line’s principal as perpetrator and ordered  the mother to pay a fine of 1.500 Euro. On appeal she referred to the doctrine “in dubio pro reo” as she was not the sole user of the computers and the line in suit.  She further pointed out that the prosecution could not demonstrate her presence at home while songs were made available to the public and successfully downloaded by the right owners.

Failing to determine a proper perpetrator, the Court accepted the reasoning of the accused, vacated its previous order and did eventually dismiss the charge against them.

Having done so, the German court has demonstrated that it abides by nothing, but the law.

Posted in copyright | Tagged: , , , , | 2 Comments »

GPL enforcer brandish their sword in a lawsuit

Posted by Emil A. Georgiev on 18 December, 2009

The Software Freedom Law Center has undertaken proceedings against 14 hardware vendors, among which Samsung, Best Buy and JVC, for their alleged infringement of the GPL‘s license terms. Pursuant to claimant’s press release they attempted to approach the defendants giving them the opportunity to comply with the GPL prior to starting court proceedings, but those attempts were in vain.

The claimant asserted that the companies in suit have sold products containing BusyBox in violation of the terms of its license, the GPL (v2). In particular, the defendants faced the charge that they have distributed their products or firmware that contain BusyBox without claimant’s approval or authorization, since defendants had made the BusyBox in their distributions available in object code only. The defendants thus failed to include either (i) the “complete corresponding machine-readable source code” or (ii) a “written offer … to give any third party … a complete machine-readable copy of the corresponding source code.” Interestingly, the claimant forborne to question the interaction between the firmware and the BusyBox, especially as to whether the firmwares were to be considered a “derivative work” of the BusyBox.

BusyBox has been referred by many to as the “Swiss Army Knife” for Linux and is thus a common component of numerous household devices that employ Linux as an operating system. Not surprisingly, the present lawsuit discovers how many commercially offered devices and appliances embody open source software.

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Would you still use Yahoo!, if you knew they sold your personal data at a fixed price?

Posted by Emil A. Georgiev on 16 December, 2009

Have you got an e-mail account on Yahoo! or do you use any of the services, such as messenger, groups or Flickr, provided by the Sunnyvale company? You were certainly aware of Yahoo!’s privacy policy, weren’t you? What you most probably did not know is the fact that Yahoo! surveil your personal data and then offer them to law enforcement at a fixed price. Not bad, huh?

Cryptome, a website hosted in the US that functions as a repository for information about freedom of speech, cryptography, spying, and surveillance got the ball rolling since it has obtained and made Yahoo!’s Compliance Guide for Law Enforcement available on its website. Seemingly, Yahoo! were not amused and served Cryptome with a takedown notice based on the US Digital Millenium Copyright Act (DMCA). Stretching copyright law for the purposes of preventing access to information is an interesting, albeit not novel, strategy. By the way, this is the reason why the DMCA and, particularly, its Section 512 has come under criticism – it causes a so called chilling effect on free speech.

So long Cryptome has not complied with Yahoo!’s demand and is still hosting the document in suit. It starts to get exciting!

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When does hip-hop sampling infringe copyright? The "Bow wow wow, yippie yo, yippie yea" case.

Posted by Emil A. Georgiev on 8 November, 2009

On 4 November 2009 the US Court of Appeals for the 6th circuit affirmed the US District Court for the Middle District of Tennessee’s decision that the unauthorized use of George Clintion’s “Bow wow wow, yippie yo, yippie yea”, being the rerfain in his “Atomic Dog“, by Public Announcement, an R&B and hip hop group, in their song “D.O.G. in Me”, constituted copyright infringement. The infringement was claimed by Bridgeport Music to which George Clintion has had assigned his rigts. Proceedings were then commenced against Universal Music Group that acquired A&M Records – the music label that had previously released the infringing “D.O.G. in Me”.

What makes this case remerkable, is the Court’s restated guidance on “sampling”. Sampling is widely used by many rap or hi-hop artists when creating their songs. The authority thereby dealt with questions relating to both, substantial similarity and a possible fair use defence.

Having personally found such guidance really usefull, I decided to make it an entry on my blog.

In opining as to whether the claimed substantially similarity was present, the Court decided to “identify which aspects of the artist’s work, if any, were protectible by copyright” and, second, to “determine whether the allegedly infringing work was substantially similar to the protectible elements of the artist’s work.”

Having done so, the Court dismissed the comparison between the two songs as a whole, but applied the “fragmented literal similarity” test by asking whether a smaller fragment of “Atomic Dog” has been copied literally, and not the overall theme or concept of the song. This view was backed by an expert testimony that described the copied elements of “Atomic Dog” as unique to the song and the “Bow Wow” refrain, in particular, as the most well-known aspect of the song. Thus, the Court found that there was substantial similarity, as the copied elements were found to have such great qualitative importance to the song.

While examining whether a fair use defence might be applicable, the Court overthrew Universal’s claim that the copying certain elements from “Atomic Dog” in “D.O.G. in Me” was intended as an homage or tribute to George Clinton and, thus fair use. The court came to this result upon applying the statutory factors from 17 U.S.C. § 107: “D.O.G. in Me” was indeed transormative (first factor); however “Atomic Dog” was clearly within the core of copyright protection (second factor); moreover, the copying covered the most distinctive and recognizable elements of “Atomic Dog” (third factor), and finally, given the fact that “Atomic Dog” is one of the most frequently sampled compositions of the Funk era, Bridgeport could lose substantial licensing revenues if it were deprived of its right to license content such as that used by Universal (fourth factor).

In my personal view this decision is capable of building an opposite pole to Campbell v. Acuff-Rose Music and hence a milestone in legal practice.

Posted in copyright | Tagged: , , , , , , , | 2 Comments »

German Constitutional Court backs the private copying exception

Posted by Emil A. Georgiev on 30 October, 2009

In a very current decision, the German Constitutional Court rejected the constitutional complaint of several phonogram producing companies. The companies in question demanded changes to section 53 (1) of the German copyright act that was amended as recently as of 1 January 2008. Section 53 is part of chapter 6 of the act which deals with limitations to copyright. In particular, section 53 provides that reproductions are permitted for the purpose of individual uses (that is, the use by the person making the copy).

The complainants asserted that section 53 (1) interfered with their constitutionally guaranteed right on property.

The Court rejected the complaint, however, on the grounds of late filing. Apart from that, the Court affirmed that private copying applied to digital works since the 2003 amendments to the copyright act. Seemingly, the Court opined, the legislator did not intend to undertake changes thereto in the course of the recent 2008 amendments.

The Court further advised on the obligation of manufacturers of copying devices to pay levies (eventually paid by consumers of such devices) that forms a balance to the private copying use.

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