copyright « The Reguligence Weblog

20 February 2010

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

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.

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13 February 2010

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

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.

12 February 2010

German court discharges family accused for file sharing

The District Court of Mainz has recently dismissed phonorecord producers’ charges against a family although their

Subscriber Line Was Demonstrably 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.

18 December 2009

GPL enforcer brandish their sword in a lawsuit

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 firmware 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.

16 December 2009

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

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!

8 November 2009

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

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.

30 October 2009

German Constitutional Court backs the private copying exception

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.

All in all an important clarification for nowadays’ use of copyright works.

27 October 2009

Making ringtones available to customers does not infringe public performance right

This is the outcome of an opinion & order issued by the District Court for the Southern District of New York in Verizon v. American Society of Composers, Authors, and Publishers (ASCAP).

ASCAP is a membership association of more than 360,000 U.S. composers, songwriters, lyricists, and music publishers of every kind of music. ASCAP licenses the public performance right in musical works established in 17 U.S.C. § 106(4).

ASCAP argued that

Verizon Engaged in Public Performances

of musical works when it made ringtones available to its customers. ASCAP contended that Verizon’s transmission of a ringtone to a customer’s cellular telephone was a public performance and thus required a public performance license. In addition, ASCAP argued that Verizon was both directly and secondarily liable for public performances of musical works when customers played ringtones on their telephones.

With respect to the transmission of ringtones to customers, the court found that even while the customer could listen to the download as it was being received, and contemporaneously perceive it as the musical work, that would not constitute a public performance. Regarding Verizon’s liability for its customers’ behaviour, the court opined that, besides the lack of a connection between Verizon’s sales and customers’ use of ringtones,

ASCAP Had Failed

to show any infringement of its members’ rights by the playing of ringtones in public from Verizon’s customers’ telephones. Thus the customers were not liable for copyright infringement, and neither was Verizon.

This court’s order & opinion is of interest and importance when dealing with digitised works. They make fine distinctions in terms of exercising exclusive rights under copyright law and set boundaries for the infringement thereof.

In my view a very good guidance to practitioners.

2 October 2009

Even communist prapaganda films pirated in China

Yes, it may sound a bit strange and it definitely is – not even propaganda films are safe from being unlawfully reproduced in the reign of the dragon.

As Associated Press reports, police in China are hunting down illegal copies of two new propaganda films made in honor of the nation’s 60th anniversary. These are the historical epic “The Founding of a Republic” and the World War II-era drama “The Message” that are currently being sold as fakes.

Is this going to be the last straw to break the Chinese law enforcement camel’s back?

We will see.

24 September 2009

Eminem in a legal battle against Apple’s iTunes

Associated Press informs in a very current report that a settlement attempt between Eight Mile Style LLC, being Eminem’s music publisher, and Apple Inc. has failed.

Eminem’s music publisher accuses Apple for making available 93 songs of Eminem on iTunes without having obtained relevant consent. Apple alleges it has a valid agreement with Aftermath Records, which controls the Eminem sound recordings at issue in the case.

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