Informationoverlord

The Ninth Circuit Court of Appeal has vacated Mattel’s hard-won injunction on behalf of its Barbie doll, finding the remedy imposed by the District Court too broad.

In 2008, Mattel won a lawsuit claiming MGA had infringed its copyright and breached a contract because the designer of Bratz dolls was still under contract to Mattel when he developed the Bratz concept for MGA Entertainment, the makers of the rival (and currently more popular) Bratz doll range. A jury awarded Mattel $100 million.

Mattel had argued that Carter Bryant had come up with the Bratz dolls concept when he was working for Mattel. He left Mattel in or around 2000 for MGA and shortly after his move, MGA had started marketing the Bratz doll. MGA had argued that the Bryant had created the concept during a period of time when he was not working for Mattel. However, this argument fell by way side during the original case and Mattel convinced a federal jury that the employee conceived the Bratz idea whilst in its employ.

In April 2009, a federal judge upheld the jury verdict and imposed a constructive trust over all trademarks including the terms “Bratz” and “Jade,” essentially transferring the Bratz trademark portfolio to Mattel.

The Ninth Circuit has now ruled the District court erred in making this decision. “It is not equitable to transfer this billion dollar brand— the value of which is overwhelmingly the result of MGA’s legitimate efforts—because it may have started with two mis-appropriated names. The district court’s imposition of a constructive trust forcing MGA to hand over its sweat equity was an abuse of discretion and must be vacated. ” The Court pointed out that evebn the jury seemed to grasp this point when it awarded Mattel only $10 million, or about 1% of $1 billion it sought, because it found only a small portion of the Bratz dolls infringing.

The Court also took issue with the District Courts decision prior to trial, to find that Bryant’s employment agreement assigned his ideas to Mattel, and so instructed the jury. The Ninth Circuit judges however concluded that whilst the agreement could be interpreted to cover ideas, and a Mattel executive claimed during her deposition that it was common knowledge in the design industry that terms like “invention” and “design” did include employee ideas, the text doesn’t compel that reading and other Mattel employee contracts actually specified that ideas were covered.

Bryant’s 1999 employment agreement, which provides: “I agree to communicate to the Company as promptly and fully as practicable all inventions (as defined below) conceived or reduced to practice by me (alone or jointly by others) at any time during my employment by the Company. I hereby assign to the Company . . . all my right, title and interest in such inventions, and all my right, title and interest in any patents, copyrights, patent applications or copyright applications based thereon.” (Emphasis added.) The contract specifies that “the term ‘inventions’ includes, but is not limited to, all discoveries, improvements, processes, developments, designs, know-how, data computer programs and formulae, whether patentable or unpatentable.”

The court also found that the phrase “at any time during my employment” is ambiguous stating that it could easily refer to the entire calendar period Bryant worked for Mattel, including nights and weekends – or just working hours. The District court erred in deciding there was no ambiguity. It also erred in affording broad protection against substantially similar works to the original sculpt of the dolls; and whilst it didn’t err in affording the doll sketches broad copyright protection against substantially similar works, it did err in failing to filter out all the unprotectable elements of Bryant’s sketches – “Mattel can’t claim a monopoly over fashion dolls with a bratty look or attitude, or dolls sporting trendy clothing—these are all unprotectable ideas… This error was significant. Although substantial simi-
larity was the appropriate standard, a finding of substantial similarity between two works can’t be based on similarities in unprotectable elements. ”

The Court concluded ” On remand, Mattel will have to convince a jury that the agreement assigned Bryant’s preliminary sketches and sculpt, either because the agreement assigns works made outside the scope of employment or because these works weren’t made outside of Bryant’s employment. And, in order to justify a copyright injunction, Mattel will have to show that the Bratz sculpts are virtually identical to Bryant’s preliminary sculpt, or that the Bratz dolls are substantially similar to Bryant’s sketches disregarding similarities in unprotectable ideas.”

“Because several of the errors we have identified appeared in the jury instructions, it’s likely that a significant portion—if not all—of the jury verdict and damage award should be vacated, and the entire case will need to be retried.”

This has always been an interesting case and it looks like we set for several more years of it. A reading of the judgment gives hope to both sides. The court doesn’t say that Mattel has lost the case, but more that the District Court ignored too many ambiguous aspects of the case, resulting in an overbroad finding against MGA.

Porn publisher Perfect 10 has been back in court again. After failed attempts to get the courts to rule that Google, Amazon, Microsoft and others infringed their copyright by offering thumbnail copies of the images – usually uploaded or stored on other people’s websites, they have now failed in an attempt to get an injunction against German file-hosting service Rapidshare.

Perfect 10 claims by hosting copies of their content on their servers they are directly infringing their copyright, violating their distribution rights, and are additional guilty of contributory infringement.

Users of Rapidshare can upload files to the site and get an url which they can use to share access to that content with friends etc. Rapidshare does not offer a search facility or offer an index of files stored on its servers.

The District Court for Southern District of California found that as Rapidhsare did not make files available and index them in a manner that would make searching for content useful, it is not like Napster or other p2p services and is therefore not making infringing material available in the same way, and the court “declines to hold Rapidshare liable for direct infringement on a theory of deemed distribution.”

The Court did find that Rapidsahre had specific knowledge of direct infringement by some of its users – due to being contacted by Perfect 10, however the court found rapidshare was not contributorily liable because far from the evidence showing that rapidshare was doing nothing to address to presence of this content on its servers but that “[r]ather, the evidence suggests that RapidShare is using information provided by Plaintiff to locate and remove infringing materials, and is also taking independent steps to identify, locate, and remove infringing files.”

The Court did however say that rapidshare could not currently rely on any DCMA safe harbor protection as it yet to give the US copyright office specific information regarding its designated agent as specified in the legislation.

On Perfect 10’s claim that without injunctive relief, it will be forced into bankruptcy - an argument it used in its case against Google too, If I rememer rightly - Judge Huff responded that the evidence before her didn’t back up this claim and actually showed Perfect 10’s “apparent lack of interest in self-help measures and its delay in bringing this action.” Ouch. The motion for preliminary injunction was denied

Photojournalist Daniel Morel was surprised when he saw photos he had taken in Haiti – showing the devastation after the earthquake - appearing in various publications credited to Associated Press (AFP) and Lisandro Suero. He sent cease and desist letters asking the AFP and other to stop using his photographs without his permission. AFP claimed they ceased publication of the images but stated Morel continued to make unreasonable demands that amount to an ‘antagonistic assertion of rights’. AFP responded by filing a declaratory judgment action asserting commercial defamation and seeking a declaration of non-infringement.

What happened?

According to Morel – a well know and award winning photographer, who amusingly previously worked for AFP for 14 years, up until 2004. - he had taken the photos and a friend advised him he coul get them ‘out there’ by uploading some of his photos and sharing them on Twitter using the TwitPic service. Suero, another ‘photographer’ copied the images to his own account and the licenced these to the AFP who in turn licenced them to Getty Images.

AFP – who don’t mention Suero at all in their declaratory judgment complaint - claim that it doesn’t matter if the photos are really Morels as it still had a right to use them as Twitter’s terms of service allow it to do so. It says this despite the fact that the photos were uploaded to Twitpic, which is actually a separate service, with its own terms of services – which state “By uploading your photos to Twitpic you give Twitpic permission to use or distribute your photos on Twitpic.com or affiliated sites All images uploaded are copyright © their respective owners.”- and it is also a separate company to Twitter [Indeed, nowhere in the complaint is Twitpic mentioned at all].

According the them Morel provided a nonexclusive licence to use his photographs when he posted them to the site. They also claim that by contacting AFP customers and asserting his copyright over the photos he has engaged in ‘unscrupulous business practices’.

AFP points out that Twitters terms stated that by posting photos to the service Morel was granting Twitter a ‘worldwide, non-exclusive, royalty-free licence, with the right to sub-licence others, to use, copy publish, display and distribute those photographs’

Indeed Twitters terms do say:
” By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).”

However, they also state: “You retain your rights to any Content you submit, post or display on or through the Services.” And they further clarify the above rights by adding ” This license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same. But what’s yours is yours – you own your content.”

Now even if you accept the AFP’s position on the photos, the AFP did not licence the content from Twitter, and under their argument the non-exclusive, royalty-free license Morel was agreeing to was with Twitter, and therefore the rights to licence that content is theirs, and no-one elses. Nowhere in their terms does it grant other parties a exclusive, royalty-free license to re-use anything found on Twitter. They say:

“You agree that this license includes the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use. “

Very clear that the content is only shared with companies that partner with Twitter, which as they don’t mention it in their pleadings, one concludes that the AFP obviously aren’t such a partner.

Not just satisfied with that AFP also want a finding of defamation against Morel due to his continued assertions that AFP acted without a licence and infringed his copyrights, which AFP proclaim were false or made “with reckless disregard of whether they were false”

As one might expect Mr Morel sees things a bit differently.

He claims when he posted the first pics on Twitpic he states received several requested for rights to buy/publish the images from the world’s media – including from AFP, who at the same time were in contact with Mr Suero about ‘his’ pictures, which when they couldn’t immediately get hold of Morel went ahead and download the photos from Mr Suero’s account – even though they could not get hold of him either. As Morel attests they did not seem to do anything to verify the authenticity of the imagery or the accuracy of the source.

Shortly after the AFP try to contact Morel again and realising the photos are his, arrange to get the photo credits changed – although evidence provide by Morel show that several of his images were still being distributed and reprinted with either ATP/Getty and or Suero’s name attached two months after ATP had claimed to have done this.

Morel claims AFP knew the images were his, continued to use and licence them for use by others and indeed encourage that use for their own benefit. He is asking the court to send the case to trial to let a jury hear his copyright claims against AFP, Getty and others.

I can’t see this going any other way than AFP et al settling this case out of court. If it goes to trial they’ll get a royal spanking from a jury

Missed this last week. Copyright Tribunal has upheld web news monitoring service Meltware’s right to challenge the Newspaper Licensing Agency’s (NLA) Web Database Licence/Web End User Licence. Meltware is arguing that the costs of the licence as excessive and they would be paying around £10,000 to cover around 3.8% of their news sources, and that also that several terms in the licences are unreasonable – including supplying the NLA with a list of all its customers and notifying their customers that they in turn will need a NLA licence. The NLA had argued that the Tribunal should not hear the case as Meltware has no standing to bring the case as they have not signed up to the licences and that the Tribunal had no jurisdiction. The Tribunal dismissed both these arguments. Both sides can not start submitting evidence and a hearing will be held in February 2011. 

The wrappers came off Viacom’s and YouTube’s motions for summary judgment in their copyright infringement case. The motions made for interesting reading as both sides choose to selectively target the other in their arguments.

Viacom

Viacom told the court that it is only interested in infringement pre-May 2008 (the point at which YouTube deployed digital fingerprinting and filtered for Viacom, when the parties signed a content deal). Viacom is therefore saying that since they signed their deal with YouTube they are happy with YouTube’s current practices, as regards infringing copyright material, and therefore don’t believe it currently induces infringement.

Viacom’s argument is that it is clear that the YouTube founders: Chad Hurley, Steve Chen and Jawed Karim, made a deliberate decision in 2005 to build a business based on piracy. They cite emails exchanges between the founders admitting early on the site is full of copyrighted material but that they needed to keep it up on the site to build traffic. They pointed in particular to exchanges between Hurley, still YouTube’s CEO, and Karim. During discovered Hurley informed the prosecution that he had lost his entire email repository. When then presented with copies of those emails retrieved from Karim, which showed all three were aware that 80% of their hosted content was infringing copyrighted material and that they wanted to “concentrate all our efforts in building up our numbers as aggressively as we can through whatever tactics however evil”, Viacom claims Hurley developed “serial amnesia” about any of those conversations.

Even more damning a memorandum personally distributed to YouTube’s entire board of directors by Karim just 6 months before the sale to Google stated: ” As of today episodes and clips of the following well-known shows can still be found: Family Guy, South Park, MTV Cribs, Daily Show, Reno 91 1, Dave Chapelle. This content is an easy target for critics who claim that copyrighted content is entirely responsible for YouTube’s popularity. Although YouTube is not legally required to monitor content (as we have explained in the press) and complies with DMCA takedown requests, we would benefit from preemptivelv removing content that is blatantly illegal and likely to attract criticism. ”

Viacom then turns to Google – who it commends for running a totally legal rival video hosting service, Google Video, before its purchase of YouTube for $1.8 billion in October 2006. It points to internal Google documents where Google identified YouTube as “a rogue enabler of content theft”; “business model is completely sustained by pirated content”, and “it’s a video Grokster”.

It seems Hurley was not the only person to have difficulty finding and remembering what happened in the early days. When asked to produce any relevant documents including emails that dealt with the acquisition of YouTube, Google CEO Eric Scmidt managed to find just 19. He explained this by stating it had “been my practice for 30 years to not retain emails unless asked specifically” – this from a company that launched Gmail in 2004 so people would never have to delete an email again. Viacom also point to the testimony of Larry Page who apparently could not even remember whether he was in favour of Google buying YouTube or not.

Next Viacom point to the fact that YouTube had the ability to deploy fingerprinting and filtering technology – they has a licence for Audible Magic from early 2006 – but either choose not to at all, or only agreed to do so with media organisation who agreed content licences with them. Viacom claims YouTube withheld applying these technologies to their content until May 2008 when the parties signed a content licencing agreement.

It continues to say that YouTube continued to be aware that much of the content on the site was infringing and yet took no action to do anything about it. They argue they could quite easily have removed obviously infringing material.

When it comes to the law, Viacom argues that as in Grokster, YouTube is guilty of inducement and is not entitled to any of the affirmative defences, available under s512(C) of the Digital Millenium Copyright Act (DMCA), to protect it from copyright infringement liability. In particular, it states that service providers will not be liable “for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.” This protection is available only if the service provider satisfies a number of statutory requirements. For example, the service provider must not have actual knowledge that the material or an activity using the material on the relevant system is infringing, must not receive a direct financial benefit from infringing activity, and must expeditiously remove or disable access to material if it is notified that the material is infringing or is the subject of infringing activity.

Viacom contended that YouTube does not qualify for § 512(c) immunity because YouTube had actual knowledge and was aware of infringing activity on their site and did not act to stop it; it had the ability to control infringing activety and remove any content – as they do frequently with adult material - but chose not to; turned a blind eye to acts of infringement for the sake of profit from web traffic and ad revenues; and that it did not store video clips “at the direction of a user.”, as it actively creates “Flash-formatted” copies of video files uploaded by users and allows streaming of those clips, making it a direct infringer of copyright because its copyright infringement is not from web hosting but from broadcasting videos.
This final line of argument seems a little odd, as YouTube still creates version of uploaded conetnt in this way post May 2008 where Viacom apparently has no issues with the site.

Viacom also point to the fact that YouTube has signed licencing deals to distribute their service and the infringing content over third party platforms – such as the iPhone – an action that it clearly not storage, and so is not protected by DCMA.

YouTube

Google/YouTube, perhaps unsurprisingly, choose to ignore the sites beginnings and the initial days of the Google take over and instead concentrate on what the site has become. It argues that whilst it can’t control what its user upload it has taken numerous steps to keep illegal material off the site: it’s T&Cs; copyright tips; 10 minute limit; registered a DCMA agent; removes infringing materials as result of DCMA request; terminates and blocks accounts of users suspects of being repeat infringers; and employs team to help copyright owners remove unauthorised material.

YouTube states the problem with Viacom’s case is that the actual actions of Viacom undermine its own case. Firstly, it points to Viacom’s own failed attempt to buy YouTube in 2006. If Viacom saw it as a video Grokster, why did they want to buy it, and why were they already negotiating a possible content licencing agreement before Google acquired the site? It also states that it was Viacom, not YouTube that scuppered a deal between to two in 2007 by requesting more money than any other content partner– although YouTube are quiet on the allegation of withholding fingerprint technology for only those who signed content licencing deals.

It states that in February 2007 the two companies agreed that Viacom would present a super takedown notice. YouTube says that within 24 hours ‘virtually all’ the videos had been removed. The following month Viacom launch this legal action, demanding one billion dollars.

YouTube produced its own email evidence that from early 2006 onward Viacom employees and its agent BayTSP were actively uploading clips to the site, infact they even had a documented policy to ensure that some content stayed up on the site. In November 2006, just after Google took charge 316 infringing South Park clips were found on the site, and yet Viacom only requested the removal of one.

YouTube accuses Viacom of using stealth marketing to get fake accounts set up to promote uploaded viral videos from Viacom from the ‘grassroots’. A number of commentators have expressed the view that the FTC might be interested in this evidence.

In relation to the 63,497 clips in this case (which includes one from the FA Premier league of ONE second duration) YouTube stated most were the subject of DCMA notices and taken down in response. However, YouTube claims its discover in the case shows that many of these clips were posted at Viacom’s direction. This is an accusation that seems to have been backed up by Viacom twice having to ask the court to remove clips from the list - 241 clips in October 2009, after realizing that many had actually been uploaded by Viacom employees, and this week a further 6 clips that were mistakenly included back in October in addition to removing another 187 clips ‘ in order to streamline the issues in this case’.

YouTube argues that if Viacom is still only just discovering what was a legitimate authorised copy of its content in the site as opposed to an unauthorised one three years after starting the case how was YouTube supposed to identify this ‘obvious infringing activity’ within hours or days. Whilst the courts had found that service providers must remove material on their own where infringement would be apparent form a brief and casual viewing, YouTube argues that Viacom has shown that even it is incapable of doing this successfully. Additionally, if Viacom deliberately refrained from sending takedown notices for certain clips, how could YouTube be obligated to remove those same videos on sight.

YouTube also points to the recent decisions in cases featuring fellow video sharing site Veoh (v UMG and v Io Group) in which against UMG a request for summary judgment was refused and against lo Group the case was dismissed. In the Veoh case in particular the court agreed that the created on flash videos and associated actions by the site fell within the scope of § 512(c), because all of them are narrowly directed toward providing access to material stored at the direction of users. YouTube argues it does the same, so should be equally protected.

Both motions make compelling reading when read alone. It seems likely however that both motions will be dismissed and the case will head to the courtroom.

Eric Goldman, Associate Professor of Law at Santa Clara University School, asks the interesting question. If Viacom is right that YouTube induced infringement in 2005-06, but doesn’t currently induces infringement (after all, Viacom isn’t contesting post-May 2008 activity) How the courts determine when YouTube flipped the switch from inducing to not? And does flipping the switch cure any of the past infringement, or does it only cut off future claims?

Keep watching this one.

The Conservative party have published their technology manifesto, which they hope will win over those in and with an interest in the technology industries ahead of the upcoming general election. The manifesto includes commitments to:

On the topic de jour - digital piracy - the party are strangely vague merely stating “We recognise the need to tackle digital piracy and make it possible for people to buy and sell digital intellectual property online. However it is vital that any anti-piracy measures promote new business models rather than holding innovation back.”

Nothing really new in the manifesto, but it does pull together a number of promises made in other statements. Public Reading Stage for all legislation is certainly an interesting one though. It sounds like they envisage a kind of wiki clause by clause based system to allow feedback and comments on legislation - which once the abuse is weeded out, might at least be interesting, even if any comments not made by vested and industry interests are ultimately ignored.

�

A number of reports appeared last night – such as this one (since update by the Guardian’s Charles Arthur) claiming that the UK government were back-tracking on the so called ‘three strikes rule’ to deal with persistent alleged illegal p2p filesharers. It came as the government published their response to a petition on the government’s e-petition site.

“We the undersigned petition the Prime Minister to abandon Lord Mandelson’s plans to ban individuals from the internet based on their use of ‘peer to peer’ file sharing.”

The government’s response describes the aims of the Digital Economy Bill, and the hope that warning letters will be enough to “secure our aim of a 70% reduction in illegal peer to peer file sharing. If that proves not to be the case, the Bill provides a reserve power obliging an ISP to apply ‘technical measures’ to a customer’s internet account to restrict or prevent illegal sharing. Technical measures might be a band width restriction, a daily downloading limit or, as a last resort, temporary account suspension. A proper independent appeal would be available against application of technical measures. More widely we also include a reserve power to amend the Copyright Design and Patent Act. This will allow us to tackle quickly any misuse of emerging technologies for copyright infringement and provide an element of future proofing.”

What got the media claiming the government had changed its tune came at the end of the response where it states:

“We will not terminate the accounts of infringers - it is very hard to see how this could be deemed proportionate except in the most extreme – and therefore probably criminal – cases.

We added account suspension to the list of possible technical measures which might be considered if our measures to tackle unlawful file-sharing through notifications and legal action are not as successful as we hope. This is but one of a number of possible options on which we would seek advice from Ofcom – and others – if we decided to consider a third obligation on technical measures. However what is clear is that we would need a rapid and robust route of appeal available to all consumers if we decided technical measures were needed.”

The problem with this is that nowhere in the bill does it actually say the government will terminate the accounts/cut off infringers, in the first place. The government and a media obsessed with talking about ‘3 strikes’ (which again, is not stated anywhere in the bill even though the government has indicated that something of the sort could operate – although a strike could mean 50 or 100 or any other number of ‘alleged’ infringements). Even the relevant section heading in the bill is ‘Obligations to limit internet access’ . According to the Bill’s current text the technical measures employed :

(a) limits the speed or other capacity of the service provided to a subscriber;

(b) prevents a subscriber from using the service to gain access to particular material, or limits such use;

(c) suspends the service provided to a subscriber; or

(d) limits the service provided to a subscriber in another way

I agree with the Open Rights Group who say this ‘backtrack’ is a red herring.

‘Temporary account suspensions’ sound like the government would to suspend accounts for a few hours, or at most a day, to fit most people’s idea of ‘temporary’ and ‘suspension’. We doubt ‘suspensions’ would be so brief. We can assume what the government means to you and me is ‘disconnection’.

Indeed one of the problems with this bill is that it contains a worrying lack of actual detail that is being hived off into ‘Codes’ and Statutory Instruments. Parliament is being asked to sign off on a bill and trust the government to fill in the blanks later. Gordon Brown’s favourite Judge, Simon Cowell , along with the likes of Sir Terry Pratchett (disappointed in you Terry) who have written to the government urging them to stand firm and push this bill through would have been in a panic this am with some of the headlines but can rest assured that the government is still doing their industry’s bidding.

The UK parliament’s joint committee on human rights have published a report criticising the government’s attempts , through the Digital Economy Bill, to tackle illegal file-sharing. They say the bill – as currently drafted - may create over-broad powers, and that some provisions in the Bill are not specified in enough detail to ensure that they will operate in a way which does not risk a breach of individual rights.

The committee looked at the bill and the Explanatory Notes and Human Rights Memoranda. The Committee points out that The Explanatory Notes to the Bill provide a basic explanation of the Government’s view that the Bill is compatible with the European Convention of Human Rights (ECHR) and that the supplementary Human Rights Memorandum accurately identifies a number of relevant human rights issues. However they found that the substance of the analysis in the memorandum adopts practices they had previously criticised – namely relying on Section 6 of the Human Rights Act 1998 to justify their view that broad discretionary powers in a Bill or in secondary legislation will operate in a way which is compatible with human rights. “On the issue of online copyright infringement: the Memorandum does not contain much detail in its analysis of a number of rights; inaccurately identifies the proportionality exercise required; and fails to consider the arguments for justification in any detail. In addition, it relies on the Section 6 HRA 1998 duty on both the Secretary of State and OFCOM to argue that certain delegated powers are appropriate and will not be exercised in a manner which breaches Convention rights.”

Copyright infringement reports

The Committee find it unlikely that the issuing of such report by ISPs will result in a significant risk of a breach of individual internet users’ pivacy rights although they still call on the Government to provide a further explanation of why they consider their proposals are proportionate in the light of the fact that the copyright infringement report and any subsequent list may form the basis for the imposition of technical measures which will have a more significant impact. Here they were referring in particular to the lack of detail about the process provided on the face of the Bill re: a legal limit on the circumstances in which an ISP will be required to disclose a copyright infringement list – how many ‘alleged’ infringements and over what timescale.

Technical measures

The Committee correctly identify that meat on the bones in these proposals in missing from the bill and state that they do “not believe that such a skeletal approach to powers which engage human rights is Appropriate” They find there is potential for these powers to be applied in a disproportionate manner which could lead to a breach of internet users’ rights to respect for correspondence and freedom of expression.

The Committee point out that the entire technical measures mechanism will be created by a combination of secondary legislation and the “technical obligations code”. This means that a number of key features are undefined or extremely broad. They say it is all very well for the Government to say that individual copyright holders will provide evidence and will only seek sanctions against “serious infringers”, but neither of these things is outlined in the text of the Bill and that the standard of evidence expected or the standard of proof to apply has also not been clearly explained.

In their view the government still needed to address the following:

a) the precise intended impact of these proposals on individual accounts, including (i) whether technical measures may include indefinite suspension of an account and whether any service limitations imposed will be for a specified time-frame and/or renewable; and (ii) any potential impact the imposition of technical measures may have on the ability of a user to secure an alternative service;

b) the minimum criteria which would be required to be satisfied before the imposition of technical measures. The Government has indicated that technical measures will follow the issue of copyright infringement notices. It would be helpful if the Government could clarify whether (i) the imposition of technical measures will be subject only to the initial assessment of the copyright holder that it appeared that the individual service user had breached his or her copyright; and (ii) if so, would the same standard of evidence and proof be required for the imposition of technical measures as would be required for the issue of copyright infringement reports?

The Committee recommended that “the Bill be amended to make it clear that technical measures may only be introduced after an assessment by OFCOM of the necessity and proportionality of these new measures, taking into account the impact of the initial obligations code. In so far as it is possible, we recommend that the Bill should be amended to provide additional details on the minimum criteria for the imposition of technical measures, including the standard of proof which must be applied; the “trigger” for the imposition of such measures; and any relevant defences for service users who have taken all reasonable measures to protect their service from unauthorised use and who have not knowingly facilitated the use of their service for the purposes of infringing copyright.” Interestingly the government has already rejected proposed Lords’ amendments that covered just these things.

Right to a fair hearing

The Bill provides for provisions for appeals in codes, however the committee identifies there is little detail about the right to appeal in the case of copyright infringement reports or decisions about the inclusion of certain individuals’ information on copyright infringement lists. The committee recommends “that at a minimum, the Government must be required to confirm that the First Tier Tribunal will be able to consider whether an infringement of copyright has occurred and any defence that no infringement of a copyright holders’ rights has been committed or knowingly permitted by the account holder.”

Clause 17

The Committee has particular concerns about the new power in Clause 17 that allows for the Secretary of State to amend the Copyright, Designs and Patents Act 1988 by secondary legislation. This provision that has been the subject of much criticism, and lead to government amending the text of the clauseto limit the power and to use the special ’super-affirmative’ procedure to ensure that any proposed changes would be better scrutinised by Parliament.

The Committee remained concerned that, despite this (then promised) move that Clause 17 remains overly broad and that parliamentary scrutiny may remain inadequate, and the government should explain why parliamentary scrutiny of any relevant human rights issues will be adequate without any power for Members of either House to propose amendments to the draft order.

In essence the Committee are not yet convinced that these parts of the bill do stand up to the government’s assertion that the bill is in full complaince with the ECHR. They also highlight a fact mentioned by many of the Lords’ in recent proposed amendments - that the detail of the bill is being sidelined to codes and SI’s instead of guarantees being made in the primary legislation: a trick this government has excelled in - see the Regulation of Investigatory Powers Act for a fine example of this.

Will the government listen? Probably not. They may, at some point, sacrafice clause 17 if it looks like doing so will guarantee the bill getting on the staute books before the election. Indeed a true cynic might argue that its place in the bill in the first place is designed purely to be a bargaining chip to ensure other measures get through mostly unscathed. We shall see.

The always insightful Eric Goldman comments on jurisdiction in a case between Daniel Miller, the creator of online flash game ‘Boomshine’ and Facebook. Miller – a Facebook user – has gone after Facebook - in addition to Yao Wei Yeo who he accuses of producing a game / Facebook app ChainRxn, that violates his “look and feel” copyright in Boomshine - for its role in providing access to the app.

Miller wanted the case heard in Georgia, the Court instead agreed to Facebook’s request that it be heard in California, as asserted under the terms and conditions of the Facebook user agreement.
As Goldman points out, what makes this interesting is that the Judge decided that Miller’s complaint about another app – which is nothing to do with his use of the service - is covered by Facebook’s general forum selection clause, which purports to govern “any dispute about or involving the Web site and/or the Service.” As Goldman says, “Read literally, this court seems to be saying that all 350M Facebook users are required to sue Facebook in Facebook’s home court for any claim they may have that relates to Facebook.com.”

Ofcom is consulting on a request by the BBC to amend to its digital multiplex licence (Multiplex B), to allow the BBC to restrict the availability of programme listing information for HDTV services only to digital receivers (digi-boxes) that implement content management technology.

The BBC first punted this idea back in September 2009 and was sent packing by Ofcom who told it – following a lot on negative response from a first consultation – that it needed more information about why this would be good for consumers if it were to stand any chance of approval.

It seems to have worked.

Ofcom states that it is now minded to approve the request finding that content management is a justified objective and that the ability to restrict the availability of EPG data to receivers which implement content management, represents the most appropriate means for securing the benefits of a wider range of HD content for citizens and consumers. The proposals also call licence holders for Multiplexes C and D, which carry a similar requirement to Multiplex B to provide EPG data in an open format, be also granted a similar licence amendment to allow EPG data to be broadcast in a closed format.

Before allowing the BBC to broadcast EPG data in a closed format under a licence amendment, Ofcom would require that the BBC implements: commitments to establishing an “appeals” process whereby viewers who believe their lawful usage is being impinged by the BBC’s use of content management can raise their concerns to the BBC; to work with the other public service broadcasters to create a ‘user friendly’ consumer guide to content management; to facilitate discussions between broadcasters, manufacturers, relevant industry bodies and consumer groups to develop and implement a good practice framework for the use of content management on the HD Freeview platform; and to give an undertaking that it will respect current usage protections under copyright law and any future extension of these protections, such as those recommended by the Gower’s Review of Intellectual Property – such as format shifting.

So what would this mean in practice?

Under the BBC’s proposals, broadcasters would be allowed to allocate one of three content management states to individual HD programmes:

Unrestricted copy: the digital receiver output is unencrypted and unrestricted copies of HD content can be made onto any digital device. There are no restrictions imposed on internet distribution.

Multiple copy: the digital receiver output is encrypted and unrestricted copies of the content can be made onto digital devices that are compatible with the copy management technology. Internet distribution is not permitted.

Managed copy: the digital receiver output is encrypted and only one copy of the content can be made onto a DVR and one external digital device which is compatible with the copy management technology. Internet distribution is not permitted

In all three content management states:

Ofcom’s current intention is also to make a requirement of the BBC being able to broadcast EPG data in a closed format under a licence amendment, that the free to air HD broadcasters on Multiplex B must only apply the minimum level of content management needed to secure content from rights holders.

This sounds good , but if the minimum level of content management that all broadcaster demand is ‘Managed Copy’ then that will be the minimum level of content management needed to secure content from rights holders – so, this is a fairly worthless statement.

Ofcom is clear that that content management cannot be applied to Standard Definition (SD) content, or HD content that has been converted down to SD, and that no restrictions are placed on the recording of HD content onto an DVR which is integrated with a receiver.

For digi-box/receiver manufactures what this means it that they would have to sign licensing deals with the BBC to gain access to Huffman Code look-up tables, to be able to ’see’ the HD content. This will be licensed on a royalty-free basis and on fair, reasonable and non-discriminatory (FRND) terms to any party who undertakes to comply with the content management standards agreed and specified by the Digital TV Group (DTG), and the BBC will be only be able to require content management technologies in receivers that form part of the DTG specification

Why the whole idea should be binned.

It’s all about piracy, right? Just as it was when DRM was stuck on CDs - and that worked SO well. Rights holders don’t want their HD content appearing online (unless they put it there of course) hence why ‘Internet distribution is not permitted.’ In the only option above that rights holder would choose. Very nice. The reality is that if someone want to put your content online on a bit-torrent site they will, and it only takes one person to do it. What this proposal does is wastes time and money for no net benefit to the consumer – nor in reality the rights holder – all for the sake of what exactly?

Also, when you look at, for example the Multiple Copy and Managed Copy options what is are “digital devices that are compatible with the copy management technology” ? Is a blank DVD covered by this? Is an iPod? Or are we, as I suspect, just going to do things that piss off the consumer?

The Rights Holders may say, look most people just want to record something and maybe watch in on a mobile digital device or burn a copy to disc – we’re not going to stop them doing that (although I’m sure they want to stop you doing either of these things), but if they say this – which could fit the description of ‘Managed Copy’ – the questions would be, well, they can already do that now. If that’s what the average person is going to do, then you don’t need any of this DRM in place at all. If instead you’re after the few who will burn off and sell or upload to the internet and share, then they’re going to do that whether or not your output is encrypted or not.

DRM applied in this way is, as it has been every time it has been applied, is a means of saying ‘we are going to treat you all like you’re potential criminals. …because that’s how we like to think of your our valued customers.’ This proposal is merely the latest example of it.

Sadly it is now a done deal. Once Ofcom is ‘minded’ it means it has ‘decided’.