|Naruto by ?|
In February the Higher Regional Court Munich (OLG) decided that YouTube and its service cannot be called to account for any user generated copyright infringements. Instead, the judges found that the sole responsibility lies with individual uploaders, even though German collection society GEMA was keen to point out "YouTube generates substantial economic profits by making the videos available". Based on this decision, YouTube is currently not held financially accountable within the current legal framework when works protected by copyright are used on the platform. But read on! In the USA, despite a $25 million rebuke by a federal jury in December 2015 for contributing to piracy on its Internet service, Music publisher BMG said that Cox Communications had not learned its lesson. BMG said Cox's network continued to be used by its customers for massive copyright infringement, undermining BMG's music sales. The company asked U.S. District Judge Liam O'Grady in Alexandria, Virginia, to grant a permanent injunction to force Cox to stop the illegal file sharing saying “Now, more than a month later, Cox’s network continues to be the site of massive, ongoing infringement of BMG’s copyrights” and “This ongoing infringement inflicts irreparable harm on BMG.” For its part Cox wanted the jury's decision reversed as "a matter of law". In the UK, PRS for Music and Phonographic Performance Limited (PPL) confirmed that, following a strategic review commenced in 2015, the two companies would create a new joint venture focusing on serving all PPL and PRS for Music UK public performance licensing customers for both music and sound recording rights. And finally this month, The U.S. Department of Commerce’s Internet Policy Task Force published a White Paper on Remixes, First Sale, and Statutory Damages which addressed three issues: (i) the legal framework for the creation of remixes; (ii) the relevance and scope of the first sale doctrine in the digital environment; and (iii) the application of statutory damages in the context of individual file-sharers and secondary liability for large-scale online infringement.
|Phasers to kill|
In March UK record label association the BPI said that its members had issued more than 200m takedown requests to Google for removal of copyright infringing links in just twelve months. The BPI, which represents the three major recorded music labels, Universal, Sony and Warner as well as many independent labels, sent its first takedown request to Google in July 2011. In 2015 the BPI sent 65m takedown requests and said they are now, perhaps understandably, calling for a more permanent solution. Donald Trump’s presidential campaign was sued by an award-winning wildlife photographers who said Trump's team were using their copyright-protected image of an American bald eagle without permission. Attorneys for Wendy Shattil and Robert Rozinski filed the civil complaint in federal court after watching a Trump presidential rally on television and noticing that an attendee was holding a campaign sign that incorporated one of their photographs of the national bird. Asim told us that the Paris Court of Appeals upheld a lower court's decision that internet access providers (ISPs) and search engines were obliged to block access and/or remove links to pirate sites and reversed the trial court's decision that the rightsholders (here movie companies) had to bear the costs associated with the implementation of such measures, with the appellate court finding that such costs should be borne by the ISPs. In the 'Star Trek' case, the Star Trek rights holders came back with an amended complaint that listed many of the alleged specific instances of infringement by the makers of Prelude to Axanar of what they say are copyrighted elements in Star Trek itself: These include the language and culture of alien races such as the Klingons and Vulcans, the cowl-neck uniform that Majel Barrett wore as the Enterprise’s first officer in the original series episode The Cage, and the concept of “Stardate." Some 57 instances of infringement were listed in the amended complain including the concept of dilithium crystals and phasers. Appropriation artist' Richard Prince responded to the recently-filed copyright infringement lawsuit, claiming he should be shielded from infringement charges because his use of others’ copyright-protected images amounts to fair use. Prince asked the Southern District of New York court to dismiss the case with prejudice as it was an attempt to ‘essentially re-litigate’ his controversial fair use victory against another photographer Patrick Cariou. And John updated us on not one but two public consultations on copyright, one from Brussels and one from the UK 's IPO. The Brussels offering was a consultation on two things, the role of the publisher and the "panorama" right, and the IPOs a further consultation and technical review "on changes to Section 72 of the Copyright, Designs and Patents Act 1988 (which permits the free public showing or playing of a film contained in a broadcast)."
|What is the Klingon for|
In May came the news that Pirate Party MEP Julia Reda had got herself into a bit of a pickle after a tweet on World Intellectual Property Day saying that she was “trying to read Anne Frank’s Diary” but couldn’t because of copyright laws. The Anne Frank Foundation has claimed that despite Anne's death in 1945, the Diary is still protected under EU law as Anne's father Otto was the co-author of the Diary, he had edited the published editions, and he didn't die until 1980. However, putting aside whether or not the book should be in the public domain, Canadian poet and head of the Writers Union of Canada, John Degen, pointed out that Ms Reda could of course read the book (available on Kindle for as little as $1.99) - it was just that she did't want to pay to read it - and her 'struggle' somewhat paled into insignificance when compared to Frank's own persecution at the hands of the Nazis. YouTube promised to update its Content ID system - not just to appease the record companies and movie studios who complain about it is remarkably unsophisticated nature (remembering that parent company Google is a leading technology company), but also to appease YouTubers who say that their material is sometimes taken down by mistake, and revenues they are due withheld. Universal Music and Capitol Records obtained summary judgment against IFP and parent company Global Eagle, an in-flight airline music licensing company, and the two recorded music companies could now look forward to a jury deciding the quantum of damages to be awarded, with reports saying this "could be worth hundreds of millions of dollars." And we received our first ever correction over the use of Klingon on this Blog - thank you qurgh lungqIj for your wise and lucid comments. You might begin to suspect there is more than one Trekkie writing for this Blog .........
|Is sampling back in vogue?|
|Black and gold|
In August, tattoo artists Solid Oak Sketches lost an important battle in their claim against the animators behind the NBA 2K video game series - which feature several NBA stars including James, Kobe Bryant and Eric Bledsoe - tattoos and all! The tattoo designers were seeking actual damages in an amount to be determined at trial, or statutory damages and attorneys' fees — but a New York federal judge Laura Taylor Swain ruled out the latter saying "[I]n order to obtain statutory damages and attorneys' fees, a plaintiff must have registered its copyright prior to the alleged infringement" and the copyrights in the tattoos were not registered until 2015 - AFTER the alleged infringements began. Cox Communications were ordered to pay that $25 million dollar penalty for copyright infringements to the music rights management company BMG by a federal judge. The ruling follows the earlier jury decision which found Cox liable for illegal movie and music downloads by its customers. The company's behaviour amounted to wilful infringement of copyright in the eyes of the jury. The Eastern Virginia District Court dismissed Cox’s appeal of the earlier verdict, and ordered Cox to pay up - a ruling which may have widespread repercussions for online copyright infringement in the US as the court decided that Cox did not do enough to stop users pirating music from BMG, and therefore did not qualify for Digital Millennium Copyright Act (DMCA) ‘safe harbor’ protections. And it came as no surprise that Pharrell Williams, Robin Thicke and TI filed their appeal against the verdict in the 'Blurred Lines' case that saw them ordered to pay $5.3m (reduced from $7.3 million) and pay over 50% of songwriting and publishing revenues to the family of Marvin Gaye, after a jury ruled last year that their song copied Gaye’s 1977 hit 'Got to Give It Up'.
|The Turtles have kept us busy|
|Donald Trump by Gage Skidmore|
We have lost some true giants of music this year, and David Bowie and Prince are just two of the outstanding creative talents who passed on. I write this on the news of the untimely death of George Michael aged just 53, another sad sad loss. So all we can do is wish that you 'live long and prosper'.
And here's a link to the EFF's This Year in U.S. Copyright Policy: 2016 in Review
As ever - readers will have their own views on what should (or perhaps should not) be in the copyright year. The CopyKat writes from a UK/US, music industry and common law perspective: So please let us know if you think something important is missing - comment is free on the 1709 blog, but please be polite and thoughtful!