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.
A blog relating to Internet legal issues by Professor John Swinson, University of Queensland
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Business Method Patents
For tonights class, in addition to the reading listed below, the following recent Australian Patent Office decisions are relevant:
- Celgene Corporation [2012] APO 12
- Discovery Holdings Limited [2011] APO 56 (9th August 2011)
Jail time for Facebook Photos
A New South Wales man has been jailed for six months for posting nude pictures of his former lover on Facebook, Fairfax media has reported.
In the first social networking-related conviction in Australian history, Ravshan ”Ronnie” Usmanov posted six nude photos of his ex-girlfriend on Facebook shortly after they broke up.
The photos showed his ex-girlfriend "nude in certain positions and clearly showing her breasts and genitalia."
"I put the photos up because she hurt me and it was the only thing (I had) to hurt her," Usmanov, 20, was quoted by the Sydney Morning Herald as telling the police.
According to the report, Usmanov also emailed his girlfriend after posting the pictures, saying, “Some of your photos are now on Facebook."
The woman, who cannot be identified, requested Usmanov to take the pictures down but called the police when he refused.
In 2010, a New Zealand man was sentenced to four months in jail for posting a naked photo of his ex-girlfriend on Facebook.
His act was described as one of "irresponsible drunken rage" by presiding judge, who also said, "Technology can't be used in this way. You would do incalculable damage to someone's reputation."Source: Yahoo website
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
"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 8: Internet and eCommerce Patents
Reading for the Internet patent class:
- Patent Wars
- What should be patented?
- Do Internet patents threaten ecommerce?
- History of software and Internet patents
- Mayo Medical Laboratories v. Prometheus Laboratories, Inc. (U.S. Supreme Court decision 20 March 2012)
- State Street Bank
- Welcome Real-Time
- Bilski
- CLS Bank v Alice
Also, please read the prior posts located here on patents.
e-book Price Fixing?
Last week, the United States Department of Justice and 16 U.S. States sued Apple and several publishers alleging a conspiracy to raise
retail prices for e-books.
In the Southern District of New
York, the Department sued Apple, Hachette, HarperCollins, Simon &
Schuster, Macmillan, and Penguin, reaching a settlement with Hachette,
HarperCollins, and Simon & Schuster. The Department’s
complaint and proposed final judgment can be found here:
http://www.justice.gov/atr/cases/applebooks.html
The Department’s press release
and statements by Attorney General Holder and Acting Assistant Attorney
General Pozen can be found here:
In the Western District of
Texas, the a number of States sued
Apple, Macmillan, Simon & Schuster, and Penguin. The States' redacted complaint can be found here:
https://www.oag.state.tx.us/newspubs/releases/2012/041112ebooks_complaint.pdf
The States were led by the Texas AG and the Connecticut AG. The States
did not sue HarperCollins or Hachette, but stated they had reached
agreement with the two publishers on
restitution and injunctive releif. Here is the Texas AG’s press
release:
https://www.oag.state.tx.us/oagnews/release.php?id=4026
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?
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:
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:
- MegaUpLoad and Kim Dotcom indictment; and users trying to get access to their data and MegaRetrevial
- Viacom v. Google decided by the Second Circuit on 5 April 2012; and see note here (and older notes here: YouTube and note and Summary Judgment)
- Bunt case
- Cooper case
- ACCC v Allergy Pathways and ACCC Press Release
- Stratton Oakmont and follow-up
- Communications Decency Act section 230
- TripAdvisor: Terms; Restaurant Gives Up; tips; and Findlaw note; and another lawsuit
- DMCA - Unintended Consequences White Paper
Google Liable for Misleading Advertisements
The Full Court of the Federal Court of Australia today decided that Google was liable for misleading advertisements placed by advertisers. See Australian Competition and Consumer Commission v. Google Inc. [2012] FCAFC 49.
The 3-0 judgment against Google included the following text:
"An ordinary and reasonable user would conclude from these circumstances that it was Google who was displaying the sponsored link in collocation with the sponsor's URL in response to the user's search. Even if all these circumstances would not be apparent to ordinary and reasonable users, so that Google could not be "seen" by them to be more than a mere conduit, these circumstances show that Google is, in fact, much more than a mere conduit. ... Critical to this conclusion is the fact that the sponsored link is displayed on the screen in response to a user's query which is made by the entry of selected key words. Thus, the user asks a question of Google and obtains Google's response. Several features of the overall process indicate that Google engages in misleading conduct. ...
Google supplies its advertising customers with the ability to select keywords which are expected to be used by persons making enquiries through Google's search engine. The ability of advertisers to select "broad match" keywords enables them to trigger sponsored links through Google's search engine based on known associations which are determined by Google's proprietary algorithm. Although the keywords are selected by the advertiser, perhaps with input from Google, what is critical to the process is the triggering of the link by Google using its algorithms. That is a further reason to conclude that it is Google's conduct as a principal, not merely as a conduit, which is involved in each of the four instances that form the subject matter of this appeal."
The 3-0 judgment against Google included the following text:
"An ordinary and reasonable user would conclude from these circumstances that it was Google who was displaying the sponsored link in collocation with the sponsor's URL in response to the user's search. Even if all these circumstances would not be apparent to ordinary and reasonable users, so that Google could not be "seen" by them to be more than a mere conduit, these circumstances show that Google is, in fact, much more than a mere conduit. ... Critical to this conclusion is the fact that the sponsored link is displayed on the screen in response to a user's query which is made by the entry of selected key words. Thus, the user asks a question of Google and obtains Google's response. Several features of the overall process indicate that Google engages in misleading conduct. ...
Google supplies its advertising customers with the ability to select keywords which are expected to be used by persons making enquiries through Google's search engine. The ability of advertisers to select "broad match" keywords enables them to trigger sponsored links through Google's search engine based on known associations which are determined by Google's proprietary algorithm. Although the keywords are selected by the advertiser, perhaps with input from Google, what is critical to the process is the triggering of the link by Google using its algorithms. That is a further reason to conclude that it is Google's conduct as a principal, not merely as a conduit, which is involved in each of the four instances that form the subject matter of this appeal."
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.
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.
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