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Showing posts with label copyright.. Show all posts
Showing posts with label copyright.. Show all posts

COPYRIGHT POLICY, CREATIVITY, AND INNOVATION IN THE DIGITAL ECONOMY

On December 12, 2013, the U.S. Department of Commerce’s Internet Policy Task Force held a roundtable to discuss issues involving copyright and the internet raised in the recently released “Green Paper.”  A copy of the Green Paper can be found here or here.

Lessig v. Liberation over takedown notice

Professor Lessig has sued Australian music label Liberation in the U.S. in relation to a computer generated take down notice sent to YouTube, to take down video of Lessig giving a seminar in Asia that included music licensed exclusively to Liberation in Australia.

If this case proceeds, there are interesting jurisdictional and fair use / fair dealing points that arise.  If the use of the music was fair use in the U.S., but not fair dealing in Australia, and the video is available in Australia, one would assume that there is copyright infringement in Australia.

Brisbane Times article
The video in question
EFF press release

Copyright in the Digital Era

A recent note on copyright:

Seven Copyright Principles for the Digital Era 
By John Villasenor. Brookings Institution, February 5, 2013 

Internet Simulcasting Decision

The Australian Federal Court recently decided a lawsuit involving radio stations simulcasting their broadcasts via the Internet.

"A broadcasting service is the delivery, in a particular manner, of a radio program, consisting of matter intended to entertain, educate or inform. Thus the delivery of the radio program by transmission from a terrestrial transmitter is a different broadcasting service from the delivery of the same radio program using the internet."

See Decision Phonographic Performance Company of Australia Limited v Commercial Radio Australia Limited [2013] FCAFC 11
See also Australian Copyright Council alert

Copyright First Sale Doctrine Reviewed by Supreme Court


Can United States copyright owners block importation of copies of their works sold or distributed outside of the United States?

Confronting this apparently straightforward question, the U.S. Supreme Court heard oral argument on 29 October 2012, that revealed complex interactions of the relevant statutes and the difficult consequences flowing from alternative interpretations of those statutes. Kirtsaeng v. John Wiley & Sons, U.S. No. 11-697.  See oral argument transcript.

The case involves Wiley text books printed and sold in Thailand, and Kirtsaeng’s unauthorized importation and resale of those text books in the United States. Wiley sued, claiming that the importation was an infringement under 17 U.S.C. 602(a), and Kirtsaeng defended that he had a right to resell the publications purchased in Thailand under the first sale doctrine codified at 17 U.S.C. 109(a).

On review is the Second Circuit’s decision for Wiley that the text books printed in Thailand could not satisfy the limitation in Section 109(a) that the first sale right applies only to copies “lawfully made under this title,” which the Court interpreted as copies physically made in this country.

Copyright and the Digital Economy Issues Paper


The Australian Law Reform Commission (ALRC) released the Issues Paper for its current inquiry into Copyright and the Digital Economy.

Headed by Professor Jill McKeough (Dean of Law at the University of Technology, Sydney), the review is focusing on the suitability of current exceptions and statutory licences in the evolving digital marketplace.

See Note here.

Copyright lecture

In this lecture we will focus on a number of important copyright decisions in Australia.  However, you should also be familiar with:

Copyright Act, and amending legislation relevant to the Internet - Computer Programs, Digital Agenda, 2004 amendments

Law reform

Australian cases - Kazaa (piracy), MP3s4free (piracy), Fairfax (newspaper headlines), Ice TV (compilations/databases), Telstra (computer generated compilations), iiNet (ISP liability) and TV Now

US cases - Napster, Grokster 

Recent news items - NSW police/Micro Focus, 92 year old pirate

Copyright/licensing bodies - Electronic Frontiers Australia, Creative Commons

info graphic - The Stop Online Piracy Act (SOPA)


A Technical Examination of SOPA and PIPA 
By Spencer Belkofer. LLRX.com, April 29, 2012 
SOPA is the Stop Online Piracy Act, and PIPA is the Protect IP Act.

Copyright Loss For Optus TV


National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd [2012] FCAFC 59 (27 April 2012)

"The two primary issues raised in the appeals can be stated shortly. The first is: When a cinematograph film (or copy) and a sound recording (or copy) were made when a television broadcast of one of the AFL or NRL matches was recorded for a subscriber, who, for the purposes of the Copyright Act 1968 (Cth) was the maker of that film, sound recording or copy? Was it Optus or the subscriber (or both of them jointly)? The primary judge’s answer to this was that the maker was the subscriber.

Ours is a different conclusion. The maker was Optus or, in the alternative, it was Optus and the subscriber. It is unnecessary for present purposes to express a definitive view as between the two. Optus could be said to be the maker in that the service it offered to, and did, supply a subscriber was to make and to make available to that person a recording of the football match he or she selected. Alternatively Optus and the subscriber could be said to be the maker for Copyright Act purposes as they acted in concert for the purpose of making a recording of the particular broadcast which the subscriber required to be made and of which he or she initiated the automated process by which copies were produced. In other words, they were jointly and severally responsible for the act of copying. That is our preferred view.

The second question is: If Optus’ act in making such a film would otherwise constitute an infringement of the copyright of AFL, NRL or Telstra, can Optus invoke what we would inaccurately, but conveniently, call the “private and domestic use” defence of s 111 of the Act? The primary judge did not have to consider this, given his answer to the first question.

Our answer is that Optus cannot either as maker alone or as a maker with a subscriber bring itself within the scope of the s 111 exception on its proper construction."

German Court case fails to settle YouTube copyright controversy

A German court has ruled that YouTube must erase seven contested videos over copyright issues. However, the decision has failed to settle the protracted copyright row raging on the Internet. Hamburg's State Court ruled on Friday that YouTube will have to take seven videos offline, including "Rivers of Babylon" by Boney M.

The verdict strengthens the position of Germany's royalty collections body GEMA which has been battling Google-owned YouTube over copyright issues for years.

The last agreement expired in 2009 and the conflicting parties have since been at loggerheads over the proper method to collect copyright fees.  However, Friday's verdict is not the landmark ruling which some had hoped would once and for all settle the contentious issue of copyright protection in the Internet.

Limited culpability
The Hamburg court decided that Internet platforms like YouTube are not directly liable for the breach of copyrights committed by users uploading protected material. However, the platform is now obliged to "deactivate immediately any illegal videos" once alerted by those holding the copyright.

Notably, the ruling does not oblige YouTube to check all content that has already been uploaded to its site – a key GEMA demand.

The judges said YouTube was not the main culprit because it does not upload or steal any content. Rather it facilitated the copyright breaches by offering and operating the online platform.

In order to prevent further copyright breaches, the judges called on YouTube to employ specific software capable of detecting songs in videos.

iiNet High Court of Australia Decison - iiNet Wins

The High Court of Australia today handed down judgment in favour of iiNet in the copyright appeal, dealing with whether an ISP should be liable for copyright infringements of the ISP's customers.  Unanimous dismissal. French, Crennan and Kiefel in one judgment and separate judgment of Gummow and Hayne also dismissing appeal.

"Today the High Court dismissed an appeal by a number of film and television companies from a decision of the Full Court of the Federal Court of Australia. The High Court held that the respondent, an internet service provider, had not authorised the infringement by its customers of the appellants' copyright in commercially released films and television programs."

Summary:
http://www.hcourt.gov.au/assets/publications/judgment-summaries/2012/hcasum16_2012_04_20_iiNet.pdf

Judgment:
http://www.austlii.edu.au/au/cases/cth/HCA/2012/16.html

My commentary in The Age

Class 7: Liability of intermediatories and ISPs

This class deals with liability of intermediaries. For example, is an ISP liable for the conduct of its users? Is a web hosting company liable for the content of others that it hosts? Is TripAdvisor liable for reviews of hotels posted by users? Is Google liable for the content that appears on this blog?

Should such intermediaries be liable for the actions of others?

This is a very topical class, with a number of relevant decisions from the past two weeks.  Thus, there is a lot of reading for this class.

The main reading for the class is the iiNet case:
The iiNet case is currently on appeal to the High Court of Australia.  Oral argument has been heard, and we are waiting for judgment.  It is reported that judgment will be handed down on Friday, 20 April.  Transcripts and written submissions can be found on the High Court website.

Please also read the very recent case: Australian Competition and Consumer Commission v. Google Inc. [2012] FCAFC 49 decided last week; and compare UK position summarised here.

Also, read the following:

Copyright & Theft

"THE Justice Department is building its case against Megaupload, the hugely popular file-sharing site that was indicted earlier this year on multiple counts of copyright infringement and related crimes. The company’s servers have been shut down, its assets seized and top employees arrested. And, as is usual in such cases, prosecutors and their allies in the music and movie industries have sought to invoke the language of “theft” and “stealing” to frame the prosecutions and, presumably, obtain the moral high ground. ...


The problem is that most people simply don’t buy the claim that illegally downloading a song or video from the Internet really is like stealing a car. According to a range of empirical studies, including one conducted by me and my social psychologist collaborator, Matthew Kugler, lay observers draw a sharp moral distinction between file sharing and genuine theft, even when the value of the property is the same."


See NY Times opinion article from U.S. law school professor.

Copyright Exceptions To Be Reviewed

Draft terms of reference for an Australian Law Reform Commission (ALRC) inquiry into the operation of copyright exceptions in the digital environment were released today for public comment.
Attorney-General Nicola Roxon said the ALRC will consider whether the exceptions in the Federal Copyright Act are adequate and appropriate in the digital environment.  The draft terms of reference reflect the fact that technology is constantly evolving and testing the boundaries of copyright law Ms Roxon said.

"In our fast changing, technologically driven world, it important to ensure our copyright laws are keeping pace with change and able to respond to future challenges.  We want to ensure this review has enough scope to look at the key areas of copyright so were calling on stakeholders to provide us with their feedback before the ALRC begins its work."

The draft terms of reference ask the ALRC to examine the adequacy and appropriateness of a broad range of exceptions in the Copyright Act, including time shifting.

The draft terms of reference also direct the ALRC to consider whether exceptions should allow the legitimate non-commercial use of copyright works for uses on the internet such as social networking.

The Government has appointed Professor Jill McKeough, University of Technology Sydney Dean of Law, to the ALRC as a Commissioner to lead the copyright inquiry.

Wrong Takedown Demand

What happens if a person issues a copyright take down demand to a file sharing website such as Vimeo or YouTube, and it is wrong.  Potential liability for unjustified threats.
See Bell v. Steele
See also:  SMH Article and Note.

For Creators of Games, a Faint Line on Cloning

"Cloning the soul of a game — its gameplay mechanics, design, characters and storyline — is now commonplace in digital marketplaces like Apple’s iOS App Store and Google’s Android. And while the app stores have offered an unparalleled opportunity for independent software makers to reach customers and make money with an innovative game, they are learning it is just as easy for another game studio to compete with a very similar game."
See Full Article

How should damages be assessed for privacy and cybersecurity breaches

Listen to this podcast where I discuss how damages should be assessed in privacy and cybersecurity lawsuits. The Lawyers Weekly Show host J...