13 February 2010

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


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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


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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.

16 December 2009

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


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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.


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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.

27 October 2009

Making ringtones available to customers does not infringe public performance right


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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


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建国大业photo © 2009 choo chin nian | more info (via: Wylio)

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.

7 May 2009

No three-strikes out – EU Parliament rejects Sarkozy’s plan


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Berkman strikephoto © 2006 Michael Glasgow | more info (via: Wylio)

Do you rememeber Mr Sarkozy’s “three-strikes and you are out plan to fight file-sharers?

The intention of the french presidency was to use the reform of the EU telecommunications regulatory framework to insert provisions restricting the internet access of users engaged in copyright infringement. The plan aimed to primarily fight the use of P2P file-sharing platforms. Fortunately for file-sharers, because the plan is unlikely to be realized as the EU Parliament amended an informal agreement previously reached with the EU Council.

I personally have an understanding for the entertainment industry’s attepmts to achieve protection for its content in the digital era. It is also true that the internet constitutes an obstacle regarding the detection of and the law enforcemenet against copyright infringers. The internet service providers thus appear to be the convinient victim as they can barely run and/or hide.

On the other hand the entertainment industry must acknowledge that many users, due to several reasons, are more than limited in their efforts to lawfully access content. The infinging one remains then the only possibility they have in today’s entertainment coined society. That is why these users neither understand nor support the measures undertaken by the industry.

In my view, the industry should reconsider its current business models for content dissemination and attept to create new ones. This could be the path leading to reconcilliation with the users, not the “three-strikes” model.

10 April 2009

Catch the Ipredator if you can


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Ipredator setupphoto © 2009 Espen Klem | more info (via: Wylio)

The music and entertainment industry representatives have very often during the, say, last decade set up the theory that the growth of broadband internet access has a causal connection with the more and more increasing

File Sharing

Some recent developments demonstrate the falling internet traffic in Sweden following a more rigid legislation in the course of IP rights enforcement, obviously dictated by the trial against the Pirate Bay.

The operators of the Pirate Bay have thus decided to technically enable an anonymity service for their users, called

Ipredator

The idea behind the Ipreadtor is not to log the users’ data in order not be obliged to provide right holders therewith. I am wondering as to whether this act does not conflict with the general obligation to retain communication related data imposed by the Data Retention Directive 2006/24/EC.

But even assuming the prevailing provisions of the Directive, a further maybe much more interesting question arises: does an alleged copyright infringement constitute a

Serious Crime

in the sense of the Directive, which would entitle law enforcement agencies to process user related information on the grounds of the Directive?

24 March 2009

There ain’t no such thing as a free lunch or the clash between YouTube and Warner Music


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YouTube and its “broadcast yourself” is such a nice thing, isn’t it? One can view and listen to different content, either user generated and implicitly licensed or copyrighted and allegedly infringed, but in any case free of charge.
Many of the readers, however, will know that communicating a work of copyright to the public represents an exclusive right of the author of the work or of the respective copyright holder, such as a record label.

But how many of the users willing to broadcast them selves to the world at large have considered a possible copyright infingement prior to upload their videos showing them singing a Christmas song, providing tips and tricks with regard to a dificult piece of music or even dancing to a song hearable from the background? Appearantly very few…

The New York Times reports on the ongoing disputes between YouTube and Warner Music, meanwhile leading to removals of copyrighted material or to setting said material mute in order not to infringe the copyrights in dispute.

No doubt, Warner have a just cause to protect their rights. Nevertheless they will have a serious issue to deal with, as any omission of theirs to undertake appropriate protective measurements could be interpreted as a weakness. On the other hand Warner are about to disgruntle their customers, for what the customers might respond on a tit-for-tat basis and punish Warner by boycotting their content.

Anyway an interesting case, where the last word has not yet been spoken.

20 February 2009

How to kill a headless snake or about the prosecutor’s troubles with Pirate Bay


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Apoyando a The Pirate Bayphoto © 2009 Enrique Dans | more info (via: Wylio)

 

No doubt, copyright infringement is a serious thing. And whether Pirate Bay’s torrent technology infringes copyright in digital works is currently to be decided by a Swedish court.

No doubt, many of you know or are aware of Pirate Bay, but maybe also of other possibilities to download and upload digital works.
Unlike other technologies, the Pirate Bay does not host any content itself but acts as a search engine for video and audio information held on users’ computers.
Thus, it has so far successfully dodged lawsuits for a number of years, arguing that it is a not-for-profit site. Unlike Napster and other file-sharing sites like Kazaa (which both now sell music legitimately after being on the end of a string of lawsuits), the Pirate Bay does not have a central hub that can be closed down. Besides, the Pirate Bay does not have a typical hierarchy structure and this is about to become the prosecution’s nightmare.

As the present case has the potential to get a leading one in the course of (authorised) copyright infringement, I secretly support the prosecution and hope it will not give up quickly allowing also the court to derive a sound ruling on that serious thing!