Is Streaming on the Internet a Broadcast?

A recent Australian Federal Court case determined whether whether the scope of the non-exclusive licence of the right to broadcast certain sound recordings granted by a copyright collection agency to radio stations included the right to play those recordings in radio programs transmitted by FM broadcast as a simulcast with transmission of the same program via the Internet.

"The service which transmits the very same radio programs at essentially the same time both to the FM transmitters and beyond and to the web stream servers and beyond is the one service. On the facts before me, the members of CRA who stream their radio programs on the Internet do so only as part of a program package which also simultaneously transmits those programs via frequency modulated radio waves to the consumer’s FM receiver. In truth, the service is but one service being a service which combines various delivery methods or platforms and which delivers the same radio program using the broadcasting services band. It falls within the exception to the exclusion set out in the Ministerial Determination.

Therefore, in my view, the service provided by the members of CRA is a broadcasting service.

That being so, the simulcast transmission of the same radio program via the FM waves and the Internet is also a “broadcast” within the current definition of that term in s 10(1) of the Copyright Act and, for that reason, is within the scope of the licence which PPCA agreed to grant to the members of CRA and which it did grant from time to time to members of CRA upon the terms and conditions set out in the Member Agreement."

See Phonographic Performance Company of Australia Ltd v Commercial Radio Australia Limited [2012] FCA 93 (15 February 2012)

Interview with Kim Dotcom Lawyer

Here is an interview from NZ TV with Mr Kim Dotcom's U.S. lawyer.  Can the operator of a file storage system be criminally liable for copyright infringement of its users?  Or is there more to this case than this?

Mr Kim Dotcom Arrested - No Need for SOPA?

With the recent arrest of Mr Kim Dotcom in NZ for online piracy, one wonders why new legislation such as the SOPA in the U.S. is needed.
See SMH and NZ Herald.

"The Electronic Frontier Foundation, which defends free speech and digital rights online, said in a statement that the arrests set "a terrifying precedent. If the United States can seize a Dutch citizen in New Zealand over a copyright claim, what is next?""

Is it true that the president of Activation visiting Mr Dotcom this month, before his arrest?  Why has it not been reported that members of the Black Eyed Peas were in Mr Dotcom's home when he was arrested, and have attended some of the NZ court proceedings?

Jurisdiction: Penguin v. American Buddha

See this decision from the highest court in NY: Penguin Group v. American Buddha

The case concerns whether NY courts have jurisdiction in a copyright case, involving a website controlled and located out of NY State. The Court decided that the situs of the injury was the location of the copyright holder -- i.e., in New York.

Google Copyright Settlement Rejected

Google infringes copyright on a grand scale.

Yesterday, Judge Denny Chin of the District Court for the Southern District of New York rejected the proposed settlement in The Authors Guild v. Google Inc. in relation to Google digitizing books.  The judge stated:  "The question presented is whether the [Amended Settlement Agreement (the “ASA”)] is fair, adequate, and reasonable.  I conclude that it is not.

While the digitization of books and the creation of a universal digital library would benefit many, the ASA would simply go too far.  It would permit this class action – which was brought against [Google] to challenge its scanning of books and display of “snippets” for on-line searching – to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books without permission of the copyright owners.  Indeed, the ASA would give Google a significant advantage over competitors, rewarding it for engagin in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case."  

Seizure of Domain Names

A post from a student:

"Earlier this year an Act was passed by the US government (Combating Online Infringements and Counterfeits Act) which specifically allows the seizure of any website which has been "'primarily designed' to offer goods and services in violation of the Copyright Act and / or the Lanham Act".

In February the US Department of Homeland Security used this new act to seize 83 internet domains. The seizure involved re directing the DNS of that domain to a banner as shown here. One domain in particular was channelsurfing.net, this web site hosted links to other sites which hosted copyrighted material. The site operator Brian McCarthy is now facing court for Criminal Infringement of a Copyright.

As a part of this DNS seizure the DNS hosting provider FreeDNS was disabled. This caused the approximately 84,000 customers of FreeDNS to be redirected to the DHS 'banner', some of whom were not related to the original seizure at all (eg RapGodFathers.com)."

Compare the Australian case of

Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187

See also

http://news.cnet.com/8301-1023_3-20023918-93.html

http://www.rawstory.com/rs/2011/03/10/new-york-man-faces-five-years-in-jail-for-linking-to-online-videos/

http://act.demandprogress.org/sign/dhscomplaint/?source=front

Chasing Pirates

See Inside Microsoft's War Room

Copyright in databases

In December 2010, the Full Federal Court decided that there was no copyright in White Pages and Yellow Pages telephone directories.

Chief Justice Keane was convinced by the respondents argument that the White and Yellow Pages “were compiled, not by the individuals engaged to facilitate the process, but by a computerised process of storing, selecting, ordering and arranging the data to produce the directories in the form in which they were published.” [7-8]

See Australian Copyright Council note

For the full decision, see http://www.austlii.edu.au/au/cases/cth/FCAFC/2010/149.html

iiNet copyright case - Full Federal Court Appeal Decision

iiNet succeeded in its appeal, but on narrower grounds. The case concerns whether an ISP is liable for copyright infringement of its users.

See case, and SMH article, and ZDnet

No Copyright In This Headline

The Federal Court of Australia decided today that newspaper headlines are not protected by copyright. How will this impact Google News?

Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd [2010] FCA 984 (7 September 2010)

See Mallesons Alert

The Australian

BusinessWeek

Software Licensing

Is the software installed on your computer something you own -- or did you simply buy a "license" to use it? That's the issue at the heart of Vernor v. Autodesk Inc., a case argued Monday before the 9th U.S. Circuit Court of Appeals that represents a broad challenge to the software industry's fundamental business model.

See law.com

YouTube and DMCA

YouTube wins copyright case, and found to be protected by DMCA.

See Mallesons and NYT

Facebook, MySpace, Yahoo

Facebook, MySpace Messages Are Protected: Judge

A district judge has reversed a magistrate judge's ruling that fashion house Christian Audigier Inc. can subpoena the Facebook Inc. and MySpace Inc. communications of an artist who sued the designer for copyright infringement, finding that messages on the social networking sites are protected information.

Yahoo, Facebook Back Google In YouTube IP Case

Facebook Inc., eBay Inc., IAC/InterActiveCorp and Yahoo Inc. have urged a federal judge to rule against Viacom International Inc. in its copyright lawsuit against Google Inc. over video-sharing website YouTube Inc., arguing that a victory for Viacom in the case would hurt online commerce.

ISP Liaibility

The main reading for the class on Monday, 24 May is the iiNet case:

• decision
• case note
• iiNet press release
• Appeal lodged

Also: The Bunt case

High level note

Copyright class

This lecture will give a brief overview of copyright law generally. For some background, see:

Berne Convention
Australian Copyright Council
Copyright Act

There have been a number of interesting Australian cases dealing with copyright infringement, see for example:

Kazaa
MP3s4free
Stevens v Sony

The iiNet case will be discussed in detail in the Liability of ISPs lecture.

We will also discuss how other countries treat piracy:

US - Digital Millenium Copyright Act, and the case of Napster
UK - Ditigal Economy Bill, and the recent case of Newzbin

Hot News

"Breathing some new life into the “hot news” doctrine, Judge Cote of the Southern District of New York recently issued a permanent injunction requiring the Internet-based financial news site TheFlyOnTheWall.com (Fly) to delay its reporting of stock recommendations from Wall Street research analysts. ..."

See Case Note for Barclays Capital, Inc., Merrill Lynch, Pierce, Fenner & Smith Inc., and Morgan Stanley & Co., Inc. v. THEFLYONTHEWALL.COM , 06 Civ. 4908 (S.D.N.Y. 2010)

Google and Copyright

Viacom and Google broke their silence Thursday in their legal battle, as Viacom claimed that Google's YouTube unit had sought to exploit copyrighted works for profit, while Google argued that Viacom itself had secretly uploaded copyrighted clips it later demanded YouTube remove. The claims are among the many divulged as a federal judge and the parties to the case released a slew of documents.

Copyright in Directories

This recent judgment also includes interesting comments regarding computer generated works.

Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCA 44 (8 February 2010)

http://www.austlii.edu.au/au/cases/cth/FCA/2010/44.html

"Even if the authors of the Works could be identified with sufficient clarity and certainty (and they cannot), the people suggested to be the authors of the Works did not exercise “independent intellectual effort” and / or “sufficient effort of a literary nature”. A majority of the creation process of the WPD and the YPD was heavily automated. Human intervention was regulated and controlled according to either the various computer systems in place including the Rules (see Part V Sections B and C above). Further, the contribution of the people suggested to be authors of the Works was anterior to the work taking its material form. Very few people had any part to play in the final presentation of the Works or the particular form of expression of the information. Those people, again, could not have been said to have exercised “independent intellectual effort” and / or “sufficient effort of a literary nature”: see [20(3)] above."

iiNet copyright case

The iiNet copyright case was decided this week. It concerns the copyright liability of an Internet service provider (ISP) for the conduct of its customers.

Background: www.iinet.net.au/copyrightcase

Case note.

Judgment.

Challenges for Google

From The New York Times:

In Europe, Challenges for Google

On issues like privacy, copyright protection and the dominance of its search engine, Google is increasingly clashing with lawmakers and regulators.

http://s.nyt.com/u/ejr