Anti-Piracy

Starting to look at what is going on in this area, I can see that there are several initiatives for developing the law in the Copyright and anti-Piracy space, examples:

Commission asks ECJ to rule on ACTA compatibility:
The European Commission is to ask the European Court of Justice (ECJ) to rule whether a controversial international anti-piracy agreement is compatible with "fundamental EU rights and freedoms".

As mentioned in the earlier Blog discussions, it seems that copyright infringement might be considered a criminal offence according to ACTA!

Member countries of ACTA must ensure that IP that exists in "the digital environment" can also be enforced through civil and criminal legal procedures.

Introduce anti-piracy measures now, says shadow culture secretary

The Government must introduce anti-piracy regulations under the Digital Economy Act (DEA) in order to tackle illegal file-sharing, the shadow Culture Secretary has said.

This is a UK measure, requiring ISPs to combat illegal file sharing based on a procedure provided by OFCOM.

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I wonder if the UK (or any other EU country) would suffice by having their own regulation rather than enforcing ACTA?

I would prefer international regulations, especially in the case of Internet, where no borders exist.

Dramatico

I tried to post this as a comment to Neil's posting but it seems too big.


A bit later than Neil - and not disagreeing with anything he has written, this  is a copy of what I have written for my IT Law blog

An earlier post described the High Court ruling of Mr Justice Arnold in the litigation between a number of copyright owners and BT. In the case, the copyright owners sought and obtained an order requiring  BT to to take specified steps to block its Internet users access to the file sharing website Newzbin2. In subsequent proceedings a similar order was made against two further  ISPs, British Sky Broadcasting and Talk,Talk.  A further case has now been before the High Court, again before Mr Justice Arnold. Although not named as a party in the litigation, the elephant in the room in the case of Dramatico Ltd (and others) v. British Sky Broadcasting (and others) is the famours, or infamous, web site 'The Pirate Bay' Originally based in Sweden, a number of the individuals involved in the administration of the Pirate Bay file sharing web site were the subject of successful criminal proceedings in that country. The affair has been controversial with a Pirate Bay political party being founded subsequent to the convictions and securing representation in Swedish parliament on an anti-copyright platform. As in Newzbin2, copyright owners are asking the courts to order ISPs to take steps to block access to the Pirate Bay from England and Wales. Interestingly from the perspective of a Scots lawyer there do not appear to have been similar proceedings in this jurisdiction. In Newzbin2, a  civil action had previously been raised by right owners against Newzbin2 and to a great extent this served as the basis for the action seeking the blocking of access. This has not been the case with the Pirate Bay and when the case first came before the High Court in January 2012 it was ruled that prior to determining whether a blocking order should be made there should be an initial hearing to determine whether The Pirate Bay and its users were guilty of copyright infringement. In some respect the subsequent proceedings were rather one dimensional. The various ISPs identified as defendants in the case were not represented. As Mr Justice Arnold explained, the reasoning, which has been a feature of many cases involving the making of, Norwich Pharmacalorders requiring the identification of an individual who has made use of Internet facilities provided by an ISP or a web site, was that it was for the court rather than the defendants to take a view as to the legality or otherwise of conduct. Again, no notice of the proceedings was served on the Pirate Bay administrators; partly it appears because of uncertainty as to their locations (one was believed to be living in Cambodia but also, and perhaps more contentiously because of their expressed contempt for laws and legal processes. As was noted:

The operators’ attitude is clear from the following passage on the “about” page of TPB: “Only torrent files are saved at the server. That means no copyrighted and/or illegal material are stored by us. It is therefore not possible to hold the people behind The Pirate Bay responsible for the material that is being spread using the tracker. Any complaints from copyright and/or lobby organisations will be ridiculed and published at the site.” True to their word, the “legal threats” page of the website contains links to copies of a series of cease and desist letters sent by right owners together with the operators’ responses, which tend to the profane. The page ends: “No action (except ridiculing the senders) has been taken by us because of these. :-) Nice graphs for the law firms who don’t get the hint above: (we used to have a nice graph here, but it’s simpler to just say: 0 torrents has been removed, and 0 torrents will ever be removed.)”

Perhaps more fundamentally, the specific proceeding s sought to order intermediaries to block access to the Pirate Bay. In the particular case there was, it seems to me, ample evidence of the nature of the web site and the conduct at issue. There is, however an underlying tension which may need to be considered more fully in the future between the rights of copyright owners and the provisions of Article 10 of the European Convention on Human Rights which guarantees (subject to the inevitable exceptions) the right to receive and to impart information. Turning to the substance of the case - or at least this stage of the case - the task for the claimants was to establish that both the users of the Pirate Bay web site and its controllers were guilty of copyright infringement.  Insofar as individual users were concerned the most interesting issue concerned the question whether they might have committed infringements by making copies of a protected work available to the public. This relates essentially to the nature of file sharing web sites whereby a user can download material but, as a sort of quid pro quo, makes material on his or her own material available to other users. In previous eras. communication to the public required operations on a signifcant scale, today, we are all potential broadcasters.

In respect of the Pirate Bay itself, the arguments and issues were effectively the same as with Newzbin2. The conclusion that the Pirate Bay purported to authorise infringement and/or were jointly liable with individual users was not surprising. As was commented by Mr Justice Arnold:

Infringement is not merely an inevitable consequence of the provision of torrent files by TPB. It is the operators of TPB’s objective and intention.

and again

Despite their ability to do so and despite the judicial findings that have been made against them, the operators of TPB take no steps to prevent infringement. On the contrary, as already explained, they actively encourage it and treat any attempts to prevent it (judicial or otherwise) with contempt.

There is little if anything to disagree with in this ruling. As, however, is is normal in cases of this sort, there is reference to the decision of the House of Lords in CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] 1 AC 1013. As someone who recalls the original case, it is frightening to realise that it is nearly a quarter of a century old. Where did all the years go?

The concern of copyright owners in the 1980s was that giving individuals the ability the make copies of pre-recorded tapes would lead to the destruction of  the creative industries. In spite of the copyright owner's loss in the Amstrad case, that did not happen. Moving on a couple of decades we have the Hargreaves report Again, I have commented on this before. I think my key concern is that we have moved from a situation where copyright and the creative industries have been peripheral to the mainstream economy to today's reality where they are pivotal. In spite of this, we lack hard evidence of the impact of infringement - or indeed what should be perceived as infringement?

It may well be that the Pirate Bay is a vessel which should be sunk. This is only part of the problem. The legal mechanisms for seeking redress, as seen in the present case, are clunky and expensive. Although Mr Justice Arnold indicated that different approaches might be followed in future cases, what we have had here has been a High Court application, a High Court hearing on preliminary issues and - presumably - there will now be a further hearing seeking enforcement. Assuming, as seems likely, the enforcement order will be made, there do seem to be real questions (beyond my technical ken) how easy and effective enforcement will be.

There is an old Irish joke about a traveller who gets lost and seeks directions to the intended destination from a passer by.  There follow a series of 'take the third turning left and then the fifth right  .... or maybe the second right and seventh left" before the concluding line 'but if I were you, I wouldn't be starting from here in the first place". There are elements of truth in that for the present situation. Copyright concepts developed centuries ago are under pressure. Fundamental reform will certainly not be easy but it may be necessary.

Dramatico v. BSkyB (Pirate Bay)

The High Court has ruled on the case of Dramatico v. BSkyB, relating to the operation of Pirate Bay, and the actions of users.

Despite being hosted in Sweden (and now elsewhere), the court (Arnold J) held that:

... the operators of TPB do authorise its users' infringing acts of copying and communication to the public. They go far beyond merely enabling or assisting. On any view, they "sanction, approve and countenance" the infringements of copyright committed by its users. But in my view they also purport to grant users the right to do the acts complained of. It is no defence that they openly defy the rights of the copyright owners. I would add that I consider the present case to be indistinguishable from 20C Fox v Newzbin in this respect. If anything, it is a stronger case.

... the operators of TPB induce, incite or persuade its users to commit infringements of copyright, and that they and the users act pursuant to a common design to infringe. It is also relevant in this regard that the operators profit from their activities. Thus they are jointly liable for the infringements committed by users.

... I conclude that both users and the operators of TPB infringe the copyrights of the Claimants (and those they represent) in the UK.

As per Newzbin, Grokster (US) and Sharman Networks Pty (Australia), Pirate Bay was found to have authorised infringement — paragraph 78 of the judgment lists the reasons for finding that infringement was more than a "merely inevitable conclusion"; of these, I'm slightly concerned that the judge took into account that Pirate Bay was 'founded by a "Swedish anti copyright organisation"' — I am not aware that considering copyright is out of touch and unviable in a digital age should be a contributory factor towards a finding of infringement!

Interestingly, a number of ISPs, both fixed and mobile, were cited as defendants to the case — I would expect a court order akin to that of Newzbin2 to follow rather quickly, blocking access to the site, although a finding of copyright infringement should not automatically lead to the grant of an injunction to block access without determination on the wider questions of proportionality, fairness and appropriateness of cost, as well as balancing the other fundamental rights at stake.

I enjoyed this

This is a link to a video on the BBC web site about the number of patents involved in the IPhone. I recommend it highly.

To add some of my own contribution, this is something I posted on my IT Law blog last year.

Intellectual property issues do seem to be dominating (apart from ongoing phone hacking issues)  the legal landscape. I’ll comment today on two developments, both of which have been referred to in previous postings.

The patent saga in respect of smart phone technology continues to rumble on.  You may recall that a consortium featuring Apple and Microsoft won an auction for a portfolio of patents owned by a bankrupt company with Google being an unsuccessful bidder and, as it seems from a recent posting from one of its senior legal advisers, a rather sore loser (http://googleblog.blogspot.com/2011/08/when-patents-attack-android.html).

It does seem this saga may run and run.  I’ve previously commended Charles Arthur’s column in the Guardian. There is a fascinating diagram in this piece (http://www.guardian.co.uk/technology/2011/jul/26/google-software-patents-warning?INTCMP=SRCH) which shows just how pervasive patents have become in the field. 

Increasingly it does seem as if patents are being used to stifle competition, if not necessarily innovation and it does seem to me that we are moving away from modern notions of patents and back to the Middle Age view that patents are a licence to print money.

This week has also seen the UK Government’s response to the Hargreaves Report on Intellectual Property Law (http://www.ipo.gov.uk/ipresponse-full.pdf) .  The response is very positive with all of the report’s recommendations being accepted and a promise made of legislation within the lifetime of this Parliament (until possibly 2015).

There are certainly some aspects of IP rights which can be resolved in a domestic context. An expansion, for example, in the exceptions made available for private copying of copyright protected works is a good example.  Increasingly, however the topic is assuming global dimensions. Recent reports have suggested, for example, that some UK developers are withdrawing their works from the Apple App store in the United States out of concerns that they may be sued for infringement of US patents. (http://www.guardian.co.uk/technology/appsblog/2011/jul/15/app-developers-withdraw-us-patents) It may be questionable how much the UK can achieve in isolation.

CJEU: Sabam v. Netlog

The CJEU has just ruled in the case of Sabam v. Netlog, dealing with the imposition of filters on a social network, aimed at preventing the unlawful use of copyright works.

The ruling is not surprising, in my opinion, given the "other" Sabam ruling (against the Belgian ISP, Scarlet) at the end of last year, and supports the court's previous ruling in Promusicae that any injunction must balance the fundamental rights involved, rather than siding solely with a rightsholder.

The concluding sections of the court's rationale is:

50 ... injunction could potentially undermine freedom of information, since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications. Indeed, it is not contested that the reply to the question whether a transmission is lawful also depends on the application of statutory exceptions to copyright which vary from one Member State to another. In addition, in some Member States certain works fall within the public domain or may be posted online free of charge by the authors concerned (see, by analogy, Scarlet Extended, paragraph 52).

51 Consequently, it must be held that, in adopting the injunction requiring the hosting service provider to install the contested filtering system, the national court concerned would not be respecting the requirement that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information, on the other (see, by analogy, Scarlet Extended, paragraph 53).

52 In the light of the foregoing, the answer to the question referred is that Directives 2000/31, 2001/29 and 2004/48, read together and construed in the light of the requirements stemming from the protection of the applicable fundamental rights, must be interpreted as precluding an injunction made against a hosting service provider which requires it to install the contested filtering system.

This seems like a sensible decision to me — but what do you think?

Injunction against ebook hosting site

The Huffington Post is reporting about a coordinated injunction obtained by a group of publishers against a site which allegedly offers/ed ebooks for download.

The story perhaps demonstrates the complexity in taking action against online resources such as websites; in this case, several jurisdictions seem to be involved, at least one of which outside the reaches of EU law.

With the rise of electronic ink / other ereading devices, it's perhaps unsurprising that there would be an increase in the downloading of electronic books — now that there is a massive increase in the number of books available in electronic form legitimately, perhaps the number of infringing downloads will decrease. I have certainly studied the entire course so far purely in electronic form, and would much rather buy books electronically than in paper copy; I have a problem at home when it comes to storage of hard copy books, for lack of space. I do, however, object to being tied to a particular software or hardware platform for reading, which makes books wrapped in DRM far less attractive to me — fortunately, much of the common DRM is easily removed, which means the publishers still get my money and I still get the book I want to read.

I'm sure that there are people who would download books in a way which infringes copyright even if they were priced fairly and without DRM, but I am not sure if these people represent a loss — if they would not have paid for the work in any case, the only loss is effectively the equivalent of their unjust enrichment. Far better to focus on making offers attractive to those who would pay, to encourage and ensure that they do so, in my opinion!

What do you think? Do you read electronic books? Would you download a book without a licence if you could not find a suitable electronic copy legitimately?

Theft?

An interesting post here from the BBC.

I think there are some issues. As I understand the law - and I am often wrong - there is no such offence as theft of intellectual property. There are statutory offences of copyright infringement but copyright infringement is not theft. I am wary at attempts to invoke offences such as conspiracy to defraud. Right owners deserve to be protected but I am not sure that the involvement of police units normally used in the fight against organised crime and drug dealers is necessarily appropriate in an IP context.

Confidence, privacy and the public domain?

An interesting piece about the publication of a work by James Joyce by a small publisher in Ireland.

The Joyce foundation has apparently called the publication an "outrage" as "it had not granted permission for the book's release" — despite the work seemingly being in the public domain.

On what basis, then, does (or should) the foundation be entitled to grant, or withhold, permission — on what right is the permission founded?

I'd question whether there should be an expectation of privacy now that Joyce is so long dead, particularly since the publication here does not harm (other than in the sense of a perceived right of control / remuneration) any of his remaining family, and I'm skeptical that confidence should apply here either.

There's an interesting question behind this; after the term of copyright has expired, is there, or should there be, a right to prevent publication of what was previously a copyright work?

Virtual items, real theft

An interesting contrast to the case below, a Dutch court has held that tricking someone into giving up digital items in the online game RuneSpace amounted to the theft of those items — a concept generally more relevant to the physical world.

(I recall a reasonably relevant discussion back in 2007, on whether the offence of rape could be committed in an online environment; here's an analysis of the Belgian decision to prosecute, and an interesting view on it.)

Temple Island v. New England Teas

An amazing decision of the Patents County Court — Temple Island v. New England Teas — that a person who stood in the same place as a previous photograph, and took a photograph which looks a bit similar, infringed the copyright in the original photograph.

The judge held that the defendant "cannot have ... a southbound Routemaster on Westminster Bridge before the Houses of Parliament at the same angle as the claimant's work on a greyscale background and a white sky, in circumstances where they have admitted seeing the claimant's work."

I am lost for words with this one...

Briefing note on new copyright legislation in Ireland

In the Irish case of EMI v. UPC (a follow up on the EMI v. Eircom case, the judge (Charleton J) held that Irish law was incompatible with EU obligations on ensuring appropriate protections for copyright, under directive 2004/48/EC - paragraphs 137 - 138 of the ruling.

Ireland has announced legislation to remedy the alleged problem; the briefing note to the Irish parliament is interesting, and is available here.