Grooveshark employees settle labels' action

Four former and one current employee of the controversial streaming music service Grooveshark have signed agreements with the major music companies, led by Universal, who are suing the site and a  number of individuals, agreeing in a consent judgment that they will never again infringe the labels' copyrights, or to work for a company that "systematically infringes" copyrights.  Those individuals who had been targeted for infringement will now be removed from the lawsuit. 

Grooveshark lets users upload music into its libraries, meaning tracks are routinely available on the streaming service without the permission of relevant copyright owners. Because Grooveshark has a takedown system, removing infringing copyright material if made aware of it, the company argues it is operating within the US's DCMA ' safe harbor' provisions, even if taken-down tracks are soon replaced by users.

Grooveshark itself is far from out of the water regarding the copyright infringement case: TorrentFreak has published the relevant court documents, and points out that Grooveshark’s co-founders Sam Tarantino and Josh Greenberg have not yet signed similar agreements and  the label's case has focused on the question of whether the company’s own employees were involved in reuploading tracks taken down through that “strict compliance” policy. Tarantino recently described himself as “literally broke” and said 2012 was “a year of getting punched in the face 10,000 times”. 

For their part, Grooveshark owners Escape Media welcomed the development, telling reporters: "We are pleased that the case between Universal Music and Escape Media has been narrowed and simplified by the removal of some individual defendants from the case upon their stipulation to simply obey the law - something Escape Media does every day through its active licensing of millions of tracks and its strict compliance with the Digital Millennium Copyright Act. Escape Media Group will continue to deliver innovative new solutions and services that revolutionise music consumption for its growing audience of 30 million plus fans around the world".

Last month UMG secured a judgment in the New York State appellate court that held that the DCMA "safe harbor" defence did NOT apply to pre-1972 sound recordings.

http://musically.com/2013/05/20/grooveshark-copyright-case-moves-on-with-individual-settlements/

Six Striker Struck Down

The Center for Copyright Information, the organisation which administer the USA's voluntary  “six strikes” graduated response scheme, has come up against a significant problem: According to the Columbia Department of Consumer and Regulatory Affairs (DCRA), the company has had it's status revoked. The revocation means that CCI’s articles of organization are void, most likely according to reports, because the company forgot to file the proper paperwork or pay releveant fees. However it seems that whilst the status was actually revoked last year, The CCI has now filed the proper paperwork, although the Copykat imagines there are some very red faces: One blogger commented "It does raise the question of who, precisely, is running this show and why they’d make such an egregious error with something taken so seriously. But we’re sure that this won’t end with the CCI shutting down the Internet of some grandmother and going down in flames due to the bad publicity. This will not happen. Surely not."

The CCI's founder members are five major ISPs (AT&T, Cablevision, Comcast, Time Warner Cable and Verizon) and four rights owners organisations - AIM (independent music), MPAA (motion pictures), RIAA (sound recordings) and ITFA (film and TV). 

http://www.uproxx.com/technology/2013/05/the-center-for-copyright-information-gets-its-status-revoked/

http://en.wikipedia.org/wiki/Center_for_Copyright_Information

Building models for architectural infringement in Houston homes

Of course I used a set square!

Although when I have taught copyright law, I have always mentioned architecture and the fact that architectural designs, drawings and blueprints can be protected in British law as a artistic work, I rarely see any relevant case law. In fact my trusted copy of Cornish has just five lines on the subsistence of copyright architectural works and models. But now comes news that a federal District Court in the USA has awarded $1.3 million to a Texas design firm in an architectural copyright case, finding that Houston-based Hewlett Custom Home Designs, Inc. had a valid claim against Frontier Custom Builders, Inc. in federal law. The jury in the U.S. District Court in Houston found that Frontier had infringed Hewlett's copyrights in designing, constructing and marketing 19 houses, and Frontier's owner, Ronald Wayne Bopp, was also held personally liable for Frontier's activities.

The damages were based on the  profits Frontier had earned from the sales of houses and the court also ordered the destruction of infringing materials in Frontier's possession. Shane Hewlett, the principal of Hewlett Custom Home Design Inc., said, "I am extremely gratified that the jury vindicated our position and acted to help protect our intellectual property and the designs we proudly provide to clients."

Louis Bonham of Osha Liang LLP, who acted for Hewlett, said "Misappropriation of copyrighted building designs is a serious problem in the homebuilding industry and has been for many years. I hope the jury's message will be heard by those in the industry who do not take this issue seriously." 

Reports say that this is the second seven-figure judgment in an architectural copyright case entered by a Houston federal court. In 2012, the court awarded $3.2 million to an Austin architecture firm, Kipp Flores Architects, in a similar case against Hallmark Design Homes. Kipp had previously secured a third multi million dollar award back in 2001, in Norfolk Va.

Hewlett Custom Home Design, Inc. v. Frontier Custom Builders, Inc. and Ronald W. Bopp  Case 4:10-cv-04837; U.S. District Court for the Southern District of Texas, Houston Division.

and the CopyKat found this news story in the Sacramento Bee here http://www.sacbee.com/2013/05/20/5434324/osha-liang-llp-home-design-firm.html

More on the subsistence of copyright in architectural works, drawings, plans, designs and models here

http://en.wikipedia.org/wiki/Copyright_in_architecture_in_the_United_States

Lescure Report on Cultural Exception in France - The Way Forward?

On Monday May 13th, Pierre Lescure issued his long-awaited report to the French government on Act II of the Cultural Exception.  Highlights include the following recommendations:

- Creation of an obligation to digitally exploit copyright protected works (incumbent upon assignees and licensees of such works).

- Adapt the so-called media chronology rules (windowing) so that SVOD services can offer films 18 months after their release.

- Harmonize VAT rules so that no distinction is made between physical copies and intangible electronic versions of cultural products.

- Implement mandatory collective management of producers' neighbouring rights in sound recordings in the field of on-line music services (in the event that a last-ditch attempt at negotiations fails).

- Implement a 1% tax on connected devices (which will initially complement but utlimately merge with the private copy levy).

- Transfer HADOPI's graduated-response powers in the realm of P2P piracy to the CSA (French audio-visual watchdog) and abolish the final third strike of internet access being cut off (to be replaced with fines).  On Sunday May 19th the Minister of Culture confirmed that she was adopting this recommendation.

- Shift focus of anti-pracy action to large-scale for-profit piracy, bringing a follow-the-money approach to bear (actions against financial intermediaries).

For the full report see here

BREIN refused access to private banking information for infringement claim

PC World have run an article reporting that a Dutch court has dismissed a case brought by Dutch anti-piracy group BRIEN, saying that privacy laws protecting bank account holders are more important than providing information to identify potential  defendants in an alleged  copyright infringement caase. The ruling by the Amsterdam district court favoured ING Bank, saying that that the bank does not have to reveal who has access to a bank account, whose number is posted on the website FTD World

PC World explain

“FTD World, at ftdworld.net, is a Usenet-indexing website that lists links to binary files posted on Usenet. It also provides files in the NZB format listing that allows users to download the posted files more easily. By doing this, the site provides access to copyrighted entertainment files including books, movies, music, games, and software without the permission of the copyright holders, according to Dutch anti-piracy foundation BREIN.”

Unsurprisingly BREIN, which represents authors, artists, publishers, producers and distributors of music, film, games, interactive software and books, wanted the court to force ING to reveal who is behind a bank account and was receiving donations made via the site: BREIN had previously been unable to track down the domain name registrant and had received no reply to a letter sent to the Russian hosting provider. The only information BREIN had was that the bank account number belonged to a woman, identified only as "[F]" by the court, who was born in 1927 (so was an unlikely 90 year old file sharing platform owner)  and who had moved to Suriname in 2009. ING admitted that someone else was authorized to use the account on the woman's behalf, but added that Dutch data protection law prevented the bank from revealing this person's or persons' identity. The Bank, however, did reveal that the women's debit card was used for cash withdrawals in the northern part of Amsterdam between February 4 and February 18. BREIN had asked the court to order revelation of any other names, phone numbers, email addresses, and postal addresses linked to the bank account.

In dismissing BREIN's claims, the court noted that ING were not instrumental in the alleged copyright infringement by FTD World, and only provides bank transactions, which are not essential to the potenttail copyright infringements, with Judge Sj.A. Rullmann saying "There is no relationship between ING Bank and copyright infringement" and put the onus  on BREIN to so more  to trace the person behind the site,  noting that BREIN didn't even try to write to the woman attempt to trace her. Judge Rullmann held that all bank clients should be able to trust their banks, and client data should only be communicated in very exceptional circumstances. Further IF that data should be shared, it should be into ‘safe hands’.  The Judge did note that BREIN could also have filed a criminal complaint.

BREIN were ordered to pay £1,800 (€2,100) t cover ING's costs (litigation fees).

http://www.anti-piracy.nl/english.php

http://www.pcworld.com/article/2038975/banking-privacy-prevails-over-copyright-enforcement-dutch-court-rules.html

Further UK Site Blocking actions imminent

According to news first broken by TorrentFreak and subsequently confirmed by MusicWeek, the UK music industry is undertaking a validation exercise prior to issuing the next round of site blocking requests.

As previously observed on this blog, following the landmark "Newsbinz 2" decision, both the record industry and movie industry have used the section 97A injunction route as a way to prevent consumers from accessing illegal file sharing sites.

In this latest move, PPL has written to a number of its members in order to verify that they have not licensed a range of sites, from the blatantly pirate Isohunt to Grooveshark, a site which in the past has at least asserted that it is licensed.    This is a pre-cursor to issuing proceedings, as rightsholders are clearly concerned that the section 97A process remains totally rigorous and is not discredited in the manner in which, for example, the Norwich Pharmacal process against file sharers was discredited by ACS and others.  

No doubt we will shortly hear that proceedings have actually been filed against at least some of the names on the list.  

In the meantime, are the rightsholders concerned that their activities have been leaked?  This blogger thinks that is unlikely - most of the sites concerned are unlikely to change their spots ahead of any possible court action and it seems implausible that they did not know that they were unpopular among rightsholders - after all, according to TorrentFreak, some of the sites had been the subject of hundreds of thousands of take-down requests aimed at google and requiring google to remove specific links, while others operate their own DMCA take-down protocols and have received similarly large numbers of requests.

A plague of trolls?

Can I  trade in the club?
I use embarrassing letters now

My oh my, trolls are in the news! I can hardly fight through the blizzard of furious outpourings of bloggers and webactivists rallying against the threat of copyright trolls, whose evil appears to be on a par with some of the worst crimes ever committed in human history and whose menace far surpasses the treats of nuclear war, plague, starvation, global warming and fur balls. Still, it IS an interesting topic. Well, to me it is.

In a blog titled “Welcome no more in U.S. courts, copyright trolls look to Canada” MacLeans.ca looks at the world of Canipre,  a Canadian company that seemingly offers to track down people who are illegally downloading copyrighted material on behalf of record companies and film studios, and whose own website says they have issued more than 3,500,000 takedown notices: Jesse Brown's blog says this: “Here’s how it works: you get a threatening letter in the mail from a law firm representing a film production company. It says you illegally downloaded Paparazzi Princess: The Paris Hilton Story. It demands you fork over $2,000, or else be hauled in to court where evidence of your guilt will be presented. You don’t remember downloading Paparazzi Princess: The Paris Hilton Story, but maybe your wife did? Or perhaps your niece … or that houseguest last summer?  What about your neighbours: you did give them your WiFi password that one time — You think about hiring a lawyer, but realize legal fees alone will likely top two grand. Instead you visit the website mentioned in the letter, enter your credit card number and pay some stranger a good deal of money to leave you alone.”  More at MacLeans here http://www2.macleans.ca/2013/05/13/welcome-no-more-in-u-s-courts-copyright-trolls-look-to-canada/

However it seems Canipre have been caught using third party photographs without permission on their own website   – in particular a self-portrait by photographer Steve Houk who is less than amused by the alleged infringement – and the lack of meaningful response from Canipre, who are seemingly blaming a third party web designer. http://www.techdirt.com/articles/20130514/20283923089/canadian-anti-infringement-enforcement-company-caught-using-infringing-photos-its-website.shtml

Trolling tonight?

Arts Technica have published an update on one of the early 'trolls',  Righthaven, who they say tried to turn newspaper article copyright claims into a business model: We first wrote about Righthaven on the 1709 Blog in November 2011 (see here) and now the US Court of Appeals for the Ninth Circuit has now ruled on the two Righthaven appeals in what appears to be a terminal judgment saying (amongst other things!)  which begins with this:

"Abraham Lincoln told a story about a lawyer who tried to establish that a calf had five legs by calling its tail a leg. But the calf had only four legs, Lincoln observed, because calling a tail a leg does not make it so" 

http://arstechnica.com/tech-policy/2013/05/copyright-troll-righthaven-finally-completely-dead/

The Electronic Frontier Foundation have filed a brief urging the U.S. District Court of Appeals for the District of Columbia Circuit "to stop a copyright troll's shakedown scheme in a case linked to the notorious Prenda Law firm”. More at http://www.networkworld.com/community/node/83049 and see our previous blogs on Prenda here and here.

And more opinions on Prenda and the business of trolls on Boing Boing here

http://boingboing.net/2013/05/08/welcome-to-the-century-of-the.html 

And number of US internet service providers including AT&T, Cox, Bright House and Verizon have filed an appeal in their ongoing battle against "porn copyright troll" AF Holdings whose name first surfaced in the 'Prenda' reports . AF Holdings has accused 1,058 broadband users of illegally sharing adult movies on BitTorrent, and last year won their initial legal attempt to force the ISPs to hand over the identities behind those IP addresses. http://www.dslreports.com/shownews/Cox-ATT-Verizon-Battle-Porn-Copyright-Troll-124231?nocomment=1

Finally on trolls, TorrentFreak says that it has uncovered a new tactic in the supposed war against piracy in the US: the threat of exposure. I am not sure it’s that new, but anyway, they say that a legal entity calling itself the Anti-Piracy Law Group (descried elsewhere as "the latest Prenda reincarnation" ) has sent letters to people suspected of pirating pornographic material that insinuates the group will be interviewing family and neighbours about the downloads saying “ The purpose of this step is to gather evidence about who used your internet account to steal from our client. The list of possible suspects includes you, members of your household, your neighbours (if you maintain an open Wi-Fi connection) and anyone who might have visited your house. In the coming days, we will contact these individuals to investigate whether they have any knowledge of the acts described in my client's prior letter.” The ‘extensive letter’  goes on to detail examples of people who have been fined large amounts for copyright infringement before offering this gently worded (but undeniably intimidating) suggestion that the accused make an out-of-court cash settlement. More on this one here http://www.cnet.com.au/copyright-lawyers-threaten-porn-pirates-with-exposure-339344265.htm and 

In related news, Gizmodo are (re)alerting the world to the TPP – the Trans Pacific Agreement – “the biggest global threat to the Internet since ACTA” saying “The United States and ten governments from around the Pacific are meeting yet again to hash out the secret Trans-Pacific Partnership agreement (TPP) on May 15-24 in Lima, Peru. The TPP is one of the worst global threats to the Internet since ACTA. Since the negotiations have been secretive from the beginning, we mainly know what's in the current version of this trade agreement because of a leaked draft from February 2011. Based upon that text, some other leaked notes, and the undemocratic nature of the entire process, we have every reason to be alarmed about the copyright enforcement provisions contained in this multinational trade deal.” Countries involved are the USA, Peru, Chile, Malaysia, Singapore, Vietnam, Brunei, Australian and New Zealand - with Mexico, Japan and Canada in the process of joining the ring of copyright fire.

http://gizmodo.com/what-is-tpp-the-biggest-global-threat-to-the-internet-505873598 and see http://the1709blog.blogspot.co.uk/2012/05/more-on-dajaz1com-and-is-tppa-next-acta.html

You can see a LOT more about copyright trolls at http://fightcopyrighttrolls.com/tag/anti-piracy-law-group/

And in the Autumn of 2013 we can look forward to an article by Brad Greenberg for the University of Colorado Law Review:  This article discusses the threat copyright trolls present to speech and innovation, and building on the historical evolution of the Fair Use Doctrine, it argues that a fair use presumption is warranted because: (1) There is no market harm because the troll has no market other than litigation; (2) the secondary use is for a different purpose and thus transformative; and (3) courts may excuse infringements because enforcement would not support the objectives of copyright law. Brad has kindly let the 1709 Blog know that an early draft of the entire article is downloadable (free) at this address: http://ssrn.com/abstract=2229931

Class action against YouTube fails

A U.S. federal court has denied class-action status to copyright owners suing Google Inc. over the usage of material posted on YouTube. U.S. District Judge Louis Stanton, in the District Court for the Southern District of New York, rejected a motion to approve a worldwide class of copyright owners in a long-running lawsuit over videos and music uploaded on the popular website. In denying class certification Judge Stanton said that that copyright claims have only superficial similarities ruling

Can we all join in? Errrrrr NO!

"The suggestion that a class action of these dimensions can be managed with judicial resourcefulness is flattering, but unrealistic"

The proposed class action lawsuit was filed in 2007 and included as named plaintiffs the English Premier League, the French Tennis Federation, the National Music Publishers' Association (NMPA) and individual music publishers. The NMPA settled with Google in 2011.

In April this year Judge Stanton had dismissed the 2007  copyright infringement complaint by Viacom International and others against YouTube over the Google company's alleged unauthorized hosting on YouTube of clips uploaded by users from "The Daily Show with Jon Stewart", "SpongeBob SquarePants" and ""South Park" stating that YouTube was protected under the safe harbor provisions of the Digital Millennium Copyright Act. Judge Stanton threw Viacom's case out on April 18th, a year after the 2nd U.S. Circuit Court of Appeals reinstated the copyright infringement case. after his initial ruling in favour of YouTube.   Viacom has filed a notice of appeal from Stanton's new ruling.

The current case would have allowed a proposed class which could have included any copyright owner whose allegedly infringed videos were on the popular web service, and music publishers whose compositions were allowed to be used on YouTube without proper permission. Judge Stanton said that while the legal analyses he would have had to apply in the case would have been similar for the various plaintiffs, each copyright owner's case would need to be decided based on facts particular to their individual claims commenting 

"Generally speaking, copyright claims are poor candidates for class-action treatment" and the case would turn into a "mammoth proceeding", with potentially thousands of plaintiffs worldwide, and that

"Each claim presents particular factual issues of copyright ownership, infringement, fair use, and damages, among others” and

"Plaintiffs offer no explanation of how the worldwide members of this proposed class are to be identified, how they are to prove copyright ownership by themselves or by their authorized agent, or how they will establish that defendants became aware of the specific video clips which allegedly infringed each of the potentially tens of thousands of musical compositions incorporated into specific videos”

Citing the Viacom case, the Judge said that YouTube does not generate infringing material, had a take down system and unless an exception applies, the DMCA requires that YouTube have legal knowledge or awareness of the specific infringement to be liable for it.

Football Association Premier League Ltd et al v. YouTube Inc et al, U.S. District Court, Southern District of New York, No. 07-03582.

http://www.computerworld.com/s/article/9239276/Copyright_owners_denied_class_status_in_YouTube_suit?taxonomyId=18

Image Glastonbury crowd (c) 2009 The Television Company (London) Ltd