Wednesday, 26 April 2017

CJEU in Filmspeler rules that the sale of a multimedia player is a ‘communication to the public’

This update from Eleonora Rosati writing on the IPKat 

Did you think that the story with copyright, linking, and the right of communication to the public was over? 

Of course not.

Today the Court of Justice of the European Union (CJEU) issued its long-awaited [even more keenly awaited is however the forthcoming ruling in Ziggo, aka The Pirate Bay case, heredecision in Filmpeler, C-527/15.

Background

As readers will remember, this reference for a preliminary ruling had arisen in the context of litigation between Dutch anti-piracy organization Stichting Brein and Jack Frederik Wullems over the sale, by the latter and through - among other things - his site www.filmspeler.nl, of various models of a multimedia player under the name ‘filmspeler’. 

Filmspeler is a player for connecting a source of image and/or sound signals to a television screen. If the multimedia player is connected to the internet, on the one hand, and to a user’s screen (for example, a television screen), on the other, the user is able to stream the image and the sound from a web portal or website.

Among other things, Wullems installed add-ons [over which he had no influence] containing hyperlinks which, if clicked, would redirect the user to streaming websites, controlled by third parties, on which films, television series and (live) sporting events could be enjoyed free of charge, with or without the authorisation of relevant rightholders. 

Stichting Brein sued Wullems for copyright infringement before the District Court of Central Netherlands, claiming that through the sale of the Filmspeler player, Wullems was carrying out a ‘communication to the public’ contrary to Dutch copyright law.

The District Court held the view that the relevant Dutch provisions should be interpreted in light of Article 3 of the InfoSoc Directive but considered that: 

(1) CJEU case law existing at that time [notably Svensson and BestWaterwould not provide criteria sufficient for reaching a decision in this case; and 
(2) it was unclear whether the defence for temporary copies, pursuant to the Dutch transposition of Article 5(1) of the InfoSoc Directive, would be applicable to relevant streaming activities.

The District Court decided therefore to stay the proceedings and seek guidance from the CJEU as to the following:

‘1)      Must Article 3(1) of the [InfoSoc] Directive be interpreted as meaning that there is “a communication to the public” within the meaning of that provision, when someone sells a product (mediaplayer) in which he has installed add-ons containing hyperlinks to websites on which copyright-protected works, such as films, series and live broadcasts are made directly accessible, without the authorisation of the right holders?
2)      Does it make any difference:
-      whether the copyright-protected works as a whole have not previously been published on the internet or have been published only through subscriptions with the authorisation of the right holder?
-      whether the add-ons containing hyperlinks to websites on which copyright-protected works are made directly accessible without the authorisation of the right holders are freely available and can also be installed in the mediaplayer by the users themselves?
-      whether the websites and thus the copyright-protected works made accessible thereon — without the authorisation of the right holders — can also be accessed by the public without the mediaplayer?
3)      Should Article 5 of the [InfoSoc] Directive (Directive 2001/29/EC) be interpreted as meaning that there is no “lawful use” within the meaning of Article 5(1)(b) of that Directive if a temporary reproduction is made by an end user during the streaming of a copyright-protected work from a third-party website where that copyright-protected work is offered without the authorisation of the right holder(s)?
4)      If the answer to the third question is in the negative, is the making of a temporary reproduction by an end user during the streaming of a copyright-protected work from a website where that copyright-protected work is offered without the authorisation of the right holder(s) then contrary to the “three-step test” referred to in Article 5(5) of the [InfoSoc] Directive (Directive 2001/29/EC)?’

Today's decision

At a first glance it would appear that the CJEU substantially followed the Opinion of Advocate General (AG) Manuel Campos Sánchez-Bordona [here], who proposed a broad(er) interpretation of the right of communication to the public and, with it, a broader reading of what amounts to an 'indispensable intervention'.

The CJEU decision is not yet available on the Curia website, but according to the press release:

"In its judgment today, the Court of Justice holds that the sale of a multimedia player, such as the one in question, is a ‘communication to the public’, within the meaning of the directive. 

The Court recalls, in that regard [and unsurprisingly], its case-law according to which the aim of the directive is to establish a high level of protection for authors. The concept of ‘communication to the public’ must therefore be interpreted broadly. In addition, the Court has already held that the availability, on a website, of clickable links to protected works published without any access restrictions on another website offers users of the first website direct access to those works. That is also the case in respect of a sale of the multimedia player in question. 

In the same way, Mr Wullems, in full knowledge of the consequences of his conduct, preinstalls, on the multimedia player add-ons that make it possible to have access to protected works and to watch those works on a television screen. Such actions are not to be confused with the mere provision of physical facilities, referred to in the directive. In that regard, it is clear from the observations submitted to the Court that streaming websites are not readily identifiable by the public and the majority of them change frequently. 

The Court also observes that, according to the referring court, the multimedia player has been purchased by a fairly large number of people. Furthermore, the communication at issue covers all persons who could potentially acquire that media player and have an internet connection. Thus, that communication is aimed at an indeterminate number of potential recipients and involves a large number of persons. In addition, the provision of the multimedia player is made with a view to making a profit [clearly consideration of the defendant's profit-making intention was due to become central, especially after GS Media], the price for the multimedia player being paid in particular to obtain direct access to protected works available on streaming websites without the consent of the copyright holders. 

The Court also finds that temporary acts of reproduction, on that multimedia player, of a copyright protected work obtained by streaming on a website belonging to a third party offering that work without the consent of the copyright holder, cannot be exempted from the right of reproduction [within Article 5(1)]

Under the directive, an act of reproduction is only exempt from the right of reproduction if it satisfies five conditions, namely (1) the act is temporary, (2) it is transient or incidental, (3) it is an integral and technical part of a technological process, (4) the sole purpose of that process is to enable a transmission in a network between third parties by an intermediary or a lawful use of a work or subject matter, and (5) that act does not have any independent economic significance. Those conditions are cumulative in the sense that non-compliance with one of them will lead to the act of reproduction not being exempted. Furthermore, the exemption is to be applied only in certain special cases which do not impair the normal exploitation of the work or other subject matter and do not unreasonably prejudice the legitimate interests of the right holder. 

In the present case and having regard, in particular, to the content of the advertising of the multimedia player and to the fact that the main attraction of that player for potential purchasers is the pre-installation of the add-ons concerned, the Court finds that the purchaser of such a player accesses a free and unauthorised offer of protected works deliberately and in full knowledge of the circumstances. 

Furthermore, acts of temporary reproduction, on the multimedia player in question, of copyright-protected works adversely affects the normal exploitation of those works and causes unreasonable prejudice to the legitimate interests of the copyright holders because it usually results in a diminution of the lawful transactions relating to those protected works."

*Who* makes
acts of communication to the public?
Flash comment

A more detailed analysis will be provided as soon as the judgment becomes available. 

In the meantime, I can just say that this judgment is good news for rightholders, including those who are advocating the introduction of the 'value gap' provision in Article 13 of the draft directive on copyright in the Digital Single Market. The reason is that with this decision the CJEU appears to have relaxed the notion of 'indispensable intervention' and potentially paved the way to a broadening of the types of subjects that might be regarded as primarily responsible for acts of communication to the public.

In this article I wrote on GS Media I suggested in fact that, should the CJEU follows the AGs in both Filmspeler and Ziggo, the consequence indicated above might naturally follow.

In this sense, the concept of ‘communication to the public’ has been undergoing an evolution and the frontier Filmspeler and Ziggo represent is that of determining not just what amounts to an act of communication to the public, but also who makes an act of communication to the public. 


Monday, 24 April 2017

Introducing our New Guest Bloggers


David Liao
We are delighted to announce that David Liao and Tibbie McIntyre have joined our team as guest bloggers.

Tibbie McIntyre
Our readers have already had the opportunity to read their posts, as David and Tibbie have been interning with us for the last six months.

We have been so impressed by the quality of their work that we invited them to join the team as guest bloggers, and we were delighted when they both accepted the invitation.

David and Tibbie will help us keep a fresh perspective on copyright and help us provide our readers with informative and enjoyable posts over the next few months.  

Welcome David and Tibbie!

Higher Regional Court of Düsseldorf applies CJEU Mc Fadden decision

1709 Blog readers will recall that last September the Court of Justice of the European Union (CJEU) issued its decision in the important Mc Fadden case [here and here], a reference for a preliminary ruling from Germany.

The CJEU ruled that the provider of a password-free, free WiFi can be requested to have his internet connection secured by means of a password. 

Via 1709 Blog friend Mirko Brüß (Waldorf Frommer Rechtsanwälte) comes the news that a German court (though not the one that had made the Mc Fadden reference) has recently applied the CJEU judgment, and the principles laid down therein 
[Mirko also wishes to let readers know that a new reference on the right of communication to the public and filesharing was made by the Regional Court of Munich on 17 March last (Case No21 S 24454/14): details are not yet available on the Curia website, but as soon as they are this blog will provide relevant information].

Here’s what Mirko writes:

In a judgment on 16 March 2017 the Higher Regional Court of Düsseldorf requested the operator of an open WiFi (and a TOR exit node) to take action against repeated copyright infringements by users of his IP-addresses (case no. I-20 U 17/16). 

This appears to be the first time a German court has dealt with such a case after the CJEU handed down its Mc Fadden decision on 15 September 2016 ... At least, this is the first publicly available decision. 

The ruling of the court does have wide implications for the operators of open WiFi networks, so-called hotspots.

Tobias McFadden
Factual background

The defendant was an operator of five so-called hotspots, ie access points that can be used by anybody to log into the internet using the defendant‘s internet connection. It remained disputed between the parties whether the defendant operated his network commercially or privately, and whether or how users needed to register themselves to be able to use the network. The defendant claimed that users were asked to refrain from ‘illegal activities’, but did not explicitly ask users to refrain from sharing copyright-protected material via peer-to-peer networks. The defendant also operated a ‘TOR exit-node’ on his IP-address, thus enabling anonymous users to access the internet via his IP address (see this infographic on general TOR functionality).

The claimant is the owner of copyright in a computer game. He had noticed the defendant’s IP-address on several occasions as being the source of an infringing download offer of other works via a BitTorrent network. After obtaining knowledge of the defendant‘s name and address via the court proceedings provided for such cases in Germany (§ 101 Abs. 2, 9 Urheberrechtsgesetz, = UrhG, German copyright code), the claimant sent several cease-and-desist letters to the defendant in 2011, asking him to stop the infringing activities.

However, further infringements were found in 2013, even after the cease-and-desist letters were served to the defendant. At this point, the claimant took matters to court, and obtained a judgment of the District Court of Düsseldorf, that enjoined the defendant from aiding third parties to make available to the public the claimant’s game via peer-to-peer networks and via his own IP-addresses. The court also ordered the defendant to pay the claimant's out-of-court costs for EUR 651,80 (judgment on 13 January, 2016, case no. 12 O 101/15).

The defendant appealed the decision. He claimed that unknown users of his network were the culprits, and he had no way to identify them and no obligation to stop their activities.

View of Düsseldorf
The Higher Regional Court‘s decision

The Higher Regional court of Düsseldorf rejected the appeal and upheld the first decision. While the Regional Court’s judgment was issued before the CJEU decided Mc Fadden, the Higher Regional Court had knowledge of this decision and applied it to the case.

In so doing, the court found that it did not matter whether the defendant operated the hotspots commercially or privately. Furthermore, it did not matter to the court whether the copyright infringements were committed by users of the Hotspots or users of the TOR exit-node.

In all scenarios, the defendant was liable for the infringements and was requested to take reasonable measures to prevent further infringements. To justify this, the court cited Mc Fadden, especially paras 80 – 96. The judges found that, because of the earlier infringements, the operator should have taken reasonable measures to ensure that his users would not continue to infringe third-party copyrights. With regards to the WiFi network, the court sided with the CJEU and ruled that password-protecting the internet connection may dissuade the users of that connection from infringing copyright, provided that such users are required to reveal their identity in order to obtain the required password and may not therefore act anonymously. If this could have been asked of the defendant irrespective of earlier infringements was left undecided by the court.

With regards to the TOR exit-node being the possible source of the infringements, the court found that the defendant could have and should have taken measures against copyright infringements by disabling peer-to-peer communication via the TOR network. It remained undisputed between the parties whether this is technically possible, so the court took such a measure for granted.” 

Sunday, 23 April 2017

CopyKat - April


Beyoncé attempts to “kick out” infringement claim
As previously covered in the CopyKat here, a copyright infringement claim has been made against Beyoncé for samples taken from Messy Mya (Anthony Barré) – the singer has now responded by asking a federal judge in Louisiana to dismiss the claim. First, the filing claims that the sample amounts to no more than 10 seconds and falls within fair-use doctrine, especially as the raw material was then allegedly “transformed”.  Secondly, and admittedly outside the scope of the application, it is claimed the material was licenced from Barré’s family. Source here

Fan subtitles illegal
The Amsterdam District Court has handed down a recent decision in a claim made by the “Free Subtitles Foundation” (Stichting Laat Ondertitels Vrij) against BREIN, the latter of which has been active in taking fan subtitles and translations offline.
The lawyer acting for the Free Subtitles Foundation, Camiel Beijer, had previously told TorrentFreak that the case revolved around two issues:
  1. Whether the creation and publishing of film subtitles is an act only reserved to the maker of the film work in question; and
  2. A review of the conduct of BREIN against people who create and reproduce subtitles.
While hoping for an outcome which would favour fair-use, the Court in fact reached the opposite decision and held that subtitles can only be created and distributed after permission has been obtained from copyright holders – anything else would amount to infringement. With the potential to set a precedent for “fansubbing”, see here for more details.

Upcoming events
Dr Eleonora Rosati, a member of the 1709 Blog Squad, will be speaking at the following events:
  • IPSoc’s event “Latest Developments in copyright”: this will be held on Wednesday 10 May 2017 from 18:30 to 21:30 at Simmons & Simmons offices at 1 Ropemaker Street, EC2Y 9SS, London United Kingdom. IPSoc is a society for junior IP practitioners from all areas of intellectual property which hosts CPD accredited educational and social events for members to learn and socialise in a fun and relaxed environment. 2016/2017 membership will need to be confirmed before you can sign up for this event, and will also allow you to sign up to other events. The membership form and further information on membership can be found at http://www.ipsoc.org/membership.htm. For any queries relating to membership, please contact the Membership Secretary (membership@ipsoc.org).
  • ASK Centre (Art, Science and Knowledge) at Bocconi University will be hosting a seminar “Second-hand Markets for Digital Copies - An EU copyright chimera?” on Friday 5 May 2017 at 12:30pm in Room 32 via Sarfatti 25. Registration is required here.

 Open Call for Speakers – CopyCamp

The biggest conference about social and economic aspects of copyright in Europe invites our prospective speakers to submit presentation proposals on the following:
·       business models, heritage digitization, remix
·       health, food, security, and exclusive rights
·       text and data mining, machine learning, online education
·       the Internet of Things: autonomous cars, smart homes, wearables
·       hacking government data, public procurement, public aid in culture

Deadline is 31 May 2017 – for more details and how to apply, see here.  

Copyright or Wrong?
Finally, for those that may have missed it, copyright lawyer and author Richard Taylor discussed copyright law in the digital age on BBC Radio 4 last Friday – still available here for those who wish to listen.


Monday, 17 April 2017

Easter COPYKAT Part 2




Appropriation art and fair use, the latest twist – the estate of Andy Warhol sues photographer Lynn Goldsmith over ‘Prince’ series

The legal status of most (if not all) appropriation art cases within the U.S. hinge on the court’s case-by-case analysis of the fair use doctrine. Many recent cases have involved Richard Prince and his artworks (more information on this can be found here and here). This writer has always found appropriation art fascinating. From Handel’s famous borrowings to the ground-breaking ‘It Takes a Nation of Millions to Hold Us Back’, taking something old and re-imagining it enriches our culture. Within the jurisdiction of the US, the contentious issue has always been (and will always be) whether the new use of the work falls under fair use, or whether it falls outwith the doctrine and is therefore an infringement of copyright.

Andy Warhol
The estate of Andy Warhol is at the centre of the most recent twist relating to the interaction between appropriation art and copyright law. In an interesting turn of events, the estate of Warhol has pre-emptively filed suit against photographer Lynn Goldsmith. Goldsmith had complained to the Warhol Foundation that Warhol’s 1984 ‘Prince’ series infringes her copyright in a publicity photograph taken in 1981. Goldsmith reportedly stated in an email to Daily News that, “I believe that Warhol infringed my rights and I will oppose their action and counter claim for copyright infringement.”

Amongst the four causes of action in the complaint submitted by the estate, a declaratory judgement of fair use is being sought. The complaint reads: “Although Warhol often used photographs taken by others as inspiration for his portraits, Warhol's works were entirely new creations… As would be plain to any reasonable observer, each portrait in Warhol’s Prince Series fundamentally transformed the visual aesthetic and meaning of the Prince Publicity Photograph.”

The complaint is also seeking declarations that Warhol’s Prince Series does not infringe Goldsmith’s copyright and that any potential copyright claims are barred by the statute of limitations (set at three years under § 507 of the US Copyright Act) and the doctrine of laches. Therefore, if the court action does eventually come to fruition, a fair use analysis may not be necessary if the court finds in relation to any of the other causes of action. The Copykat will no doubt issues updates on this case as they come.

Ed Sheeran’s ‘Photograph’ suit is settled

Ed Sheeran
In her very first post for the 1709 blog, this writer covered Ed Sheeran’s ‘Photograph’ lawsuit. The suit was brought by Martin Harrington and Thomas Leonard in relation to their 2010 single ‘Amazing’. The two songwriters alleged in the initial lawsuit that Ed Sheeran’s ‘Photograph’ was ‘verbatim, note-for-note copyright’.

This case is now settled, with full details of the deal having been kept confidential. However,
according to the Hollywood Reporter, songwriting credits on the BMI database relating to Ed Sheeran’s Photograph have now been updated - the two plaintiffs Martin Harrington and Thomas Leonard are now listed as co-authors alongside Ed Sheeran and Johnny McDaid.

US Safe Harbour – moderators with actual or ‘red flag’ knowledge of infringement might disqualify platforms from safe harbour protection

Safe harbour is the qualified limitation of liability for hosting providers which host third party content, where users have uploaded infringing content (§ 512 of the US Copyright Act). Safe harbour was introduced through the Digital Millennium Copyright Act (“DMCA”) nearly two decades ago.

The 9th Circuit recently issued a ruling in Mavrix Photographs v LiveJournal, which states that; where volunteer moderators can be legally classified as agents of a company, and that said moderators had actual or ‘red flag’ knowledge of infringement in posts they reviewed and authorised, a company might lose its safe harbour protection.

The case surrounds 20 photos belonging to celebrity news photo agency Mavrix. These photos had been published (without Mavrix’s permission) on the gossip site LiveJournal, specifically, its blog ‘Oh No They Didn’t’ (“ONTD”). Of significant importance to the case, the ONTD blog content is uploaded by users. However, before this content is published on the site, it is reviewed by a moderator to ensure adherence to site rules.

Rather than issue a takedown request, Mavrix chose instead to file suit against LiveJournal for copyright infringement. LiveJournal subsequently invoked the safe harbour defence. LiveJournal’s downfall in this case was the fact that it employs a team of volunteer moderators who review all posts according to the website’s rules before any posts are published on the site. According to the court, if the moderators can be classified as agents of LiveJournal, and the agents had ‘red flag’ or actual knowledge of copyright infringement, the safe harbour exception may not apply.

Judge Paez states that “Although LiveJournal calls the moderators 'volunteers,' the moderators performed a vital function in LiveJournal’s business model. There is evidence in the record that LiveJournal gave moderators express directions about their screening functions, including criteria for accepting or rejecting posts. Unlike other sites where users may independently post content, LiveJournal relies on moderators as an integral part of its screening and posting business model.”

The Electronic Frontier Foundation has criticized the decision, stating that “The DMCA does not forbid service providers from using moderators … many online services have employees (or volunteers) who review content posted on their services, to determine (for example) whether the content violates community guidelines or terms of service. Others lack the technical or human resources to do so. Access to DMCA protections does not, and should not, turn on this choice."

This case is reminiscent of the Grooveshark case, where safe harbour protections were denied where employees uploaded infringing content in order to attract users to the service, as also the MP3tunes case, where the  company’s inadequate repeat infringer policy cost it its safe harbour protection.

Pornhub ordered to hand over details of copyright infringers

As a site that relies on content uploaded by third party users, Pornhub falls under the DMCA safe harbour protection. While most copyright owners submit DMCA takedown requests as a means of controlling their copyright, Foshan Limited – known for a particular type of porn brand – has obtained a DMCA subpoena compelling Pornhub to hand over all information available on infringing individuals by 1 May. This includes names, email addresses, IP addresses, user and posting histories, physical addresses, telephone numbers, and any other identifying or account information. The subpoena was issued by a federal court in California.

When Foshan Limited receives the information covered under the subpoena (that is, if Pornhub doesn’t appeal), it may potentially launch legal action against the infringers.

TorrentFreak asserts that, “As far as we’re aware, this is the first time that a rightsholder has used a DMCA subpoena to obtain information about Pornhub uploaders. And since it’s a relatively cheap and easy way to expose infringers, this might not be the last.”

In another recent case, Malibu Media, LLC v Doe, a similar subpoena has been issued to the Internet Service Provider of an alleged infringer who has illegally uploaded pornography. This time, proceedings took place in the district court of Connecticut.

In this case, the subpoena issued had several caveats to protect the identity of the alleged infringer. As reported by William Dalsen, these are “First, the court limited the subpoena solely to the name and physical address of any subscriber associated with the IP address at issue, and not any additional contact information. Second, the court required the ISP to delay its response to the subpoena, pending notice to the subscriber of the lawsuit and of the subpoena, notice to the subscriber that the ISP would comply with the subpoena, and after allowing the ISP itself an opportunity to quash the subpoena. Third, the purported defendant had 60 days from notice of the subpoena to move to quash the subpoena. Fourth, the court would permit the purported defendant to litigate the subpoena anonymously. Finally, plaintiff could not publicly file any identifying information about the supposed defendant without further order of the court.”

These unusual caveats reflect the court’s concern that a defendant, having been accused of distributing pornographic content, may feel coerced into settling any lawsuit merely to avoid being publicly named in that suit.




The photo of Andy Warhol is courtesy of moscot, moscot.com under the CC BY-SA 4.0 licence.