Digital Economy Bill: Lib Dems scupper Clause 17, but come up with a new idea
Copyright , Internet / April 2010

COPYRIGHT Internet In the UK controversial Clause 17 of the Digital Economy Bill which was designed to allow ministers, rather than Parliament, the right to introduce new copyright rules has been dropped following a last minute move by the Liberal Democrats to amend the proposed legislation in the House of Lords. Liberal Democrat Lords Razzall and Clement-Jones proposed an amendment which could see UK Internet Service Providers forced to block web sites with a high proportion of copyright-infringing content with the key passage in the amendment saying: “The High Court shall have power to grant an injunction against an [internet] service provider, requiring it to prevent access to online locations specified in the order of the Court.” A further statement in the amendment says that this would apply when a substantial proportion of the content accessible at or via each specified online location infringes copyright. The amendment (120A) was then re-amended to include provisions to make anyone applying for an injunction responsible for both parties costs should the application fail, an obligation on content owners to warn ISPs and any alleged infringing site of the action, an appeals procedure and a need to provide evidence to the court of allegedly infringed…

Consumer group calls for private copying to be recognised
Copyright / April 2010

COPYRIGHT All areas Consumer rights group Consumer Focus have again called on the UK government to legislate to allow a clear right of private copying rights under British copyright law. At the moment it is illegal to make personal back up copies of CDs even when legitimately purchased and indeed it is illegal to ‘format shift’ tracks from a CD onto a PC or MP3 player. According to Consumer Focus research, over 80% of people are unaware of the fact that they are breaking the law and a survey of 2000 adults just 17% realised that making back up CDs was not technically allowed, while only 15% knew that CD tracks shouldn’t really be copied over to an iPod or similar. The 2006 Gowers Report recommended that the government “introduce a limited private copying exception by 2008 for format shifting for works published after the date that the law comes into effect”. According to the Intellectual Property Office’s website, consultation on that recommendation is expected to be launched in “late 2009”. Consumer Focus’ Jill Johnstone said “The credibility of UK copyright law has fallen through the floor. Millions of consumers are regularly copying CDs or DVDs and are unaware they…

US Court denies ‘innocent infringer’ defence to teenager
Copyright , Internet / April 2010

COPYRIGHT Internet As the Joel Tenenbaum and Jamie Rasset-Thomas cases plough onwards in the USA, leaving the RIAA looking somewhat ridiculous, another two cases have re-emerged to add to the record labels’ woes. One can only hope the film, TV and other content industries are looking hard and learning from some of these fiascos. There is a clear message here – don’t leave your future business strategy to lawyers! Anyway, a few years ago a teenager, Whitney Harper, who was sued by the record labels and RIAA for file sharing, claimed that the amount she should have to pay up should be less than the $750 statutory minimum, because she was an “innocent infringer,” unaware that what she was doing in listening to music was against the law.  Whilst winning with this argument in the lower court the RIAA appealed, and now the appeals court has overturned that decision and said that the statutory minimum of $750 per infringement should apply, saying that the innocent infringement defence isn’t applicable because the CDs the music came on (which she never saw) had proper copyright notices and she never uploaded from CDs!). The test is that the “innocent infringer” sustains the burden…

Baidu did infringe by using lyrics
Copyright , Internet / April 2010

COPYRIGHT Internet After a run of success in the Chinese courts, search engine Baidu has now lost a lawsuit in the Beijing courts. The new case centred on the lyrics of songs that Baidu posts next to its MP3 search function. It was sued by the Music Copyright Society Of China, which said the search firm did not have the appropriate licence to publish song lyrics owned by its members. The Beijing People’s Court for the Haidian District agreed and fined Baidu, 50,000 yuan plus 10,000 yaun legal costs  just over £5500). Baidu’s usual (and so far successful) defence that it only provides links to infringing sites failed on the facts of this case as the lyrics were actually posted and published on Baidu’s site (rather than linked to)  next to links to MP3 search functions. Baidu plans to appeal.

Rapidshare told to proactively block book uploads
Copyright , Internet / April 2010

COPYRIGHT Intenet A German court has ordered free file-hosting site RapidShare to proactively block uploads of copyrighted textbook. The service was sued in February by textbook publishers including Macmillan, Elsevier, McGraw-Hill and Pearson, and the Hamburg Court has now ruled that RapidShare must monitor uploads and ensure that 148 titles are not made available to its users. Failure to comply with the Hamburg court ruling could result in $339,000 in fines, and jail time for executives. Last year, a German court similarly ordered Rapidshare to proactively filter media whose copyrights were controlled by German rightsholder organization GEMA.

AFACT appeal goes ahead in iiNet case
Copyright , Internet / April 2010

COPYRIGHT Internet The Australian Federation Against Copyright Theft has said it will appeal that previously reported court ruling by Justice Cowdroy regarding the liabilities of internet service providers to police copyright infringement undertaken by their customers via their servers (see Music Law Updates March 2010). AFACT lost the original case against Aussie ISP iiNet where it had been looking to force Australian net firms to become more proactive in stopping illegal file-sharing on their networks. AFACT had been relying on case law including the frequently cited High Court decision in favour of Frank Moorhouse who successfully sued the University of NSW after a student used a photocopier in the institution’s library to copy his book. AFACT also relied on recent cases involving online piracy including the Kazaa copyright trial and Universal Music v Cooper. Justice Cowdroy said that in those cases the respondents were sued successfully because they provided the means of infringement. “There does not appear to be any way to infringe the applicants copyright from mere use of the internet. Rather, the means by which the applicants’ copyright is infringed is an iiNet users’ use of the constituent parts of the BitTorrent system. iiNet has not control over the BitTorrent system and…

Universal Music might have to pay for pulling video of a dancing baby off YouTube
Copyright , Internet / April 2010

COPYRIGHT Internet U.S. District Judge Jeremy Fogel has ruled that Universal will have to pay damages to Stephanie Lenz for ordering YouTube to drop a 29-second video of her son dancing to the music of Universal artist Prince. Lenz still must prove her case before collecting anything, but this  appears to be the first answer to the question of how an apparently ill-brought takedown notice should be punished under the US Digital Millennium Copyright Act.   The Electronic Frontier Foundation brought the action against Universal on behalf of Lenz in 2008, arguing that the music company’s lawyers should have taken a moment to consider whether Lenz had a fair-use right to post the clip before firing off a takedown notice to YouTube. YouTube removed the video, but restored it six weeks later when Lenz filed a counter notice.

Pink Floyd win important battle with EMI
Internet , Record Labels / April 2010

COPYRIGHT Internet, record labels In what looks like an interesting decision, the High Court has upheld a claim by Pink Floyd that their label EMI had no right to allow iTunes to sell individual tracks from the band’s albums – and that the label had to adhere to a contract that prohibited single track sales in any format – physical or digital. The label had argued that a 19667 (renewed in 1999) contract clause between the artist and the label which prohibited single track sales was clearly limited to the physical realm as it referred to “records”. The argument that the 1999 contract predated the digital market in some way was something the band, famed for their ‘concept’ albums such as Dark Side of the Moon and The Wall were strongly opposed to  and the High Court agreed that EMI’s argument was clearly nonsensical with Sir Andrew Morritt VC granting the band a declaration saying that the contract meant that EMI is not entitled to exploit recordings by online distribution or by any other means other than as the complete original album without Pink Floyd’s consent, accepting that the purpose of a clause in the contract, drawn up more than a decade ago, was…

Eddy Grant furious at Gorillaz heist
Copyright , Music Publishing / April 2010

COPYRIGHT Music Publishing Eddy Grant has threatened to sue Gorillaz, claiming that the Damon Alban fronted project has  stolen his 1977 song‘Time Warp’ and used it as the basis for their current single ‘Stylo’. In a statement, Grant said “I am outraged that the Gorillaz have infringed the copyright of my song ‘Time Warp’ [while] claiming their song ‘Stylo’ to be an original composition. My song sits almost note to note with their release [which] is a blatant rip off. ‘Time Warp’ is a very popular song and has been a staple of the DJ scene for many years and I feel total disrespect from Gorilliaz and their management company, especially as they are an established act”. Grant also pointed out that he and Gorillaz share the same publisher and that ”someone should have noticed the similarity sooner” saying “I am very angry that this was not picked up by our mutual publisher EMI’s administration division. I do not blame my publishers but [rather] the state of the industry at the current time with all labels and publishers folding into one and becoming incestuous. It’s such an obvious copy that from day one the band and their management should have taken control of this situation with EMI Publishing….

Prince settles on Dublin cancellation
Contract , Live Events / April 2010

CONTRACT Live events industry Irish promoters MCD have settled a court action with Prince for cancelling a concert scheduled at Dublin’s Croke Park in 2008. MCD had alleged that the last minute cancellation was the fault of Prince, or his booking agents the William Morris Agency. Prince’s defence was that the singer never agreed to the gig, and the William Morris Agency had no business in telling MCD he had. MCD were looking for damages of 1.7 million Euros in the Dublin Commercial Court and MCD representative Denis Desmond told reporters that he was “delighted” with the outcome of the lawsuit.

Ozzy sues for a share of Sabbath, Keisha sues to block new babes
Artists , Trade Mark / April 2010

TRADE MARK Artists Ozzy Osbourne is taking former bandmate Tommy Iommi to court over the rights to the Black Sabbath name. Iommi filed for sole ownership of the mark in the US last year and Iommi alleges that Ozzy Osbourne waived his rights to the band’s moniker when he left the band in 1979, which Ozzy counters by saying that he enhanced the band’s ‘quality control’ when he rejoined Sabbath in 1997. In the pop world, Keisha Buchanan is to commence legal proceedings against the girl group she founded, the Sugarbabes, seeking to prevent the current line-up using the name. The word SUGARABES has not yet been secured as a European Community Trade Mark, but an application to register it as a CTM was published just three weeks ago, the applicant being Keisha’s erstwhile colleague, and co-founder-member Mutya Buena. The HolyMoly website seemed to think that all three original members – Mutya, Keisha and Siobahn Donaghy are planning to reform and wish to stop the current line up, which features no original members, using the name.

Google executives convicted over privacy claim
Internet , Privacy / April 2010

PRIVACY Intenet An Italian court has convicted three Google executives of violating the privacy of a child with Down’s syndrome, after a video of the child being bullied in a Turin schoolyard was posted to the company’s YouTube video site. The executives were acquitted on charges of defamation, but received six-month suspended sentences on the privacy violation charges. Google said in a statement on its blog that it will appeal “this astonishing decision,” which the company said “attacks the very principles of freedom on which the Internet is built.” Google called the video in question “reprehensible,” and maintains that it “took it down within hours of being notified by the Italian police.” The company added that it worked with local police to identify the uploader who, along with several other classmates, was sentenced to community service. None of the Google executives convicted — senior vice president and chief legal officer David Drummond; former Google Italy board member George De Los Reyes; and global privacy counsel Peter Fleischer — reside in Italy or were present at the court proceedings. David Drummond, told the BBC: “I intend to vigorously appeal this dangerous ruling. It sets a chilling precedent. If individuals like myself…

Twentieth Century Fox Film Corporation and others v Newzbin Ltd
Copyright , Internet / April 2010

COPYRIGHT Internet, all areas  This from the simply puuurfect IPKat Fox and other film makers and distributors sued Newzbin, which ran an internet discussion system called Usenet, for copyright infringement, alleging that Newzbin is focused on piracy in that it locates and categorises unlawful copies of films and then (i) displays the titles of these copies in its indices, (ii) provides a facility for its users to search for particular unlawful copies, (iii) displays their search results and (iv) provides a simple one-click mechanism for users to acquire the unlawful copies of their choice. The defendant company, which owned and ran Newzbin, says its website is simply a search engine like Google — but that it was directed to Usenet rather than to the worldwide web. It also said it is “content agnostic”, being designed to index the entire content of Usenet. Where possible, it provided hyperlinks so that any supply of unlawful material is an act occurring exclusively between the hyperlink user and the relevant Usenet server operators — but that it played no part in any such activity. In a long and carefully-expressed judgment in which he explains how Usenet and Newzbin work and what Newzbin actually does,…