Introduction

In June of this year, we sent out an alert about the anticipated new UK copyright infringement exceptions. These exceptions were to be introduced based on the recommendations of the Hargreaves Review. Surprisingly, some of the exceptions had been dramatically pulled from the legislative slate at the last minute. However, the UK government has now upheld its subsequent promise to re-publish the statutory instruments for the infringement exceptions for (1) personal use, (2) parodies and (3) quotations, with new legislation on all three subjects that came into force on October 1, 2014.

Almost in parallel, a European ruling and an Advocate General opinion have helped to prepare for the arrival of the two statutory instruments, with commentary on (i) the scope of parody and (ii) in relation to personal use, the impact of copyright levies.

The New Legislation

Two new regulations have come into force, amending the Copyright, Designs and Patents Act 1988 (the “CDPA”) to include new exceptions for copyright infringement. The first – the Copyright and Rights in Performances (Quotation and Parody) Regulations 2014 (the “Quotation and Parody Regulations”) – extends the provisions for quotations of copyright-protected works (having previously only been available for criticism and review), and creates a new provision for parodies.  The second regulation – the Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 (the “Personal Copies Regulations”) – concerns making copies of copyrighted works for personal use.

Quotation

From October 1, 2014, the free quotation of copyright protected works is no longer limited to reporting current events or to works of criticism or review. The Quotation and Parody Regulations, inserted into the CDPA as section 30(1ZA), now permit quotation for any purpose, provided that:

  • the work quoted has been made publicly available;
  • the use of the quotations constitutes “fair dealing” with the work;
  • the extent of a quotation is no more than is necessary for the purpose; and
  • the quotation is accompanied by sufficient acknowledgment to the copyright owner (unless this is impossible).

The UK Intellectual Property Office has stated that this amendment will help to save costs on copyright clearance, support free expression and align UK law with the rest of Europe. However, as anticipated in our previous alert, the Quotation and Parody Regulations do not provide a definition of “quotation”, or guidance as to how extensive a “quotation” is allowed to be. This may place undue pressure on the meaning of “fair dealing” as UK courts seek to define the scope of the exception.

Parody

The new exception for parodies allows fair dealing with a work for the purposes of caricature, parody or pastiche (section 30A of the CDPA) and provides that fair dealing with a recording or performance  (section 2A to Schedule 2 of the CDPA) for the purposes of parody does not infringe copyright conferred in the performance or recording. This change now means that the permission of the copyright holder will no longer have to be obtained, provided that the use of the original work is fair and proportionate.  This is good news for British comedians and artists, it would seem, unless, of course, it is their work that is being parodied.

However, an EU court ruling on parodies in September 2014 has already placed some restrictions on the new legislation. In Deckmyn v Vandersteen C-201/13, the Court of Justice of the European Union (the “CJEU”) defined a parody as something that evokes an existing work while being noticeably different from it and constituting an expression of humour or mockery. The CJEU also stated that national courts must strike a balance between copyright owners’ interests and mimickers, and that copyright owners have a legitimate interest in disassociating their work from a parody, if the parody involves a discriminatory message.

This creates a whole new checklist for UK courts to consider, alongside the usual fair dealing test. Judges will have to also hold a view on whether the parody (i) strikes a fair balance, (ii) differs noticeably from the original work, and (iii) is sufficiently humorous. In particular, the last of these requirements may worry budding parodists, who could end up having to justify their comedy in front of a very different audience than first intended.

Continue Reading Copyright: Europe Explores Its Boundaries – New UK Infringement Exceptions – The Ones That Came Back Again

  • Disappearing ink. Facebook is testing, for a small group of users, a feature that will permit a user to schedule a post for automatic deletion after a specified period of time. It seems that the period can range from an hour to seven days, according to people who have seen it. It is worth noting, though, that these posts can take up to 90 days to vanish from Facebook’s servers permanently.
  • Feel free to Yelp. If you have a problem with your plumber or your car rental in California, go ahead and complain online. California Gov. Jerry Brown just signed a new bill that prohibits businesses in that state from using contracts that prohibit consumers from writing negative online reviews. Some businesses include these prohibitions, known as non-disparagement clauses, in the sometimes lengthy terms and conditions that they impose on their customers. These clauses will now be illegal in most cases in California.
  • Picture this. Just because a photo appears on a social media site doesn’t mean that it is free to use, as Agence France-Presse and Getty Images found out recently when a federal court upheld a damages award against them for infringing the copyright in photos of the Haitian earthquake that had been posted on Twitter.   The court had previously held that, although the photographer had given Twitter a license to display his photos by uploading them, he didn’t give AFP or Getty the right to use them.  In the recent ruling, the court declined to set aside the jury’s $1.5 million damages award against the defendants.

The “selfie” is now so ubiquitous that the word is in the Oxford English Dictionary, you can use it in Scrabble and it has spawned a whole new lexicon. Selfies are no longer the preserve of teens and reality stars; you now have politicians, royalty and companies getting in on the act. Selfies can mean big business—indeed, it was recently announced that Kim Kardashian, the reality star and “queen of the selfie,” will publish a book of 352 of her favorite snaps next year at $19.95 a pop.

But unfortunately for our simian friends, it seems that selfies are simply not monkey business.

Monkey Selfie

In 2011, British wildlife photographer David J. Slater was in Indonesia taking photos of macaque monkeys. Some of the monkeys began playing with his digital camera and a female monkey managed to take a particularly excellent self-portrait, reproduced below.

The photo was published in various magazines and on websites around the world. It eventually was added to Wikimedia Commons, a collection of images that are free for public use.

Slater asked Wikimedia to remove the image or pay for its use; Wikimedia did neither. Last week it came to light that Wikimedia had denied a notice-and-takedown request regarding the photograph on the basis that there was no copyright in the monkey’s photo.

Continue Reading Monkey in the Middle of Selfie Copyright Dispute

“Web scraping” or “web harvesting”—the practice of extracting large amounts of data from publicly available websites using automated “bots” or “spiders”—accounted for 18% of site visitors and 23% of all Internet traffic in 2013. Websites targeted by scrapers may incur damages resulting from, among other things, increased bandwidth usage, network crashes, the need to employ anti-spam and filtering technology, user complaints, reputational damage and costs of mitigation that may be incurred when scrapers spam users, or worse, steal their personal data.

Though sometimes difficult to combat, scraping is quite easy to perform. A simple online search will return a large number of scraping programs, both proprietary and open source, as well as D.I.Y. tutorials. Of course, scraping can be beneficial in some cases. Companies with limited resources may use scraping to access large amounts of data, spurring innovation and allowing such companies to identify and fill areas of consumer demand. For example, Mint.com reportedly used screen scraping to aggregate information from bank websites, which allowed users to track their spending and finances. Unfortunately, not all scrapers use their powers for good. In one case on which we previously reported, the operators of the website Jerk.com allegedly scraped personal information from Facebook to create profiles labeling people “Jerk” or “not a Jerk.” According to the Federal Trade Commission (FTC), over 73 million victims, including children, were falsely told they could revise their profiles by paying $30 to the website.

Website operators have asserted various claims against scrapers, including copyright claims, trespass to chattels claims and contract claims based on allegations that scrapers violated the websites’ terms of use. This article, however, focuses on another tool that website operators have used to combat scraping: the federal Computer Fraud and Abuse Act (CFAA).

Continue Reading Data for the Taking: Using the Computer Fraud and Abuse Act to Combat Web Scraping

On 5 June 2014 the European Court of Justice (CJEU) published its decision in the “Meltwater” Case C-360/13, (Public Relations Consultations Association Ltd (PRCA) v Newspaper Licensing Agency Ltd (NLA) and Others). In a ruling that some have hailed as a victory for common sense, the CJEU declared that browsing freely accessible copyrighted material on the Internet does not constitute a copyright infringement, and on-screen and cached copies will constitute temporary copies for the purposes of Article 5(1) of the InfoSoc Directive ( EC Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society (“InfoSoc Directive”) was introduced in 2001 to meet the challenge of the Internet, e-commerce, and digital technology).

Background

The case concerns the PRCA, which is an association of public relations professionals, and the NLA, which is a body set up by UK newspaper publishers for the purpose of collective licensing of newspaper content. The PRCA’s members use a media monitoring service offered by Meltwater which involves Meltwater sending emails to users containing headlines of articles which are then linked to the rights holder’s website. Users can also access search results on Meltwater’s website. (It should be noted that if a website has a paywall, the user will have to pay for access to the material on the same terms as everyone else – the link does not enable the user to avoid the paywall.)

The NLA argued that Meltwater’s customers needed various licences to access the rights holder’s material, including: (i) a licence to use the temporary on-screen and cached copies of search results created when the user viewed search results on Meltwater’s website and (ii) a licence to use the temporary on-screen and cached copies of an article created when the user clicked on a link and viewed an article on the rights holder’s website. The PRCA claimed that these temporary copies fell within the copyright exemption detailed in Article 5(1) (as transposed into UK law by Section 28A of the Copyright, Designs and Patents Act 1988).

Article 5(1) provides an exemption from copyright infringement based on the following cumulative conditions where:

  • Copying is temporary.
  • Copying is transient or incidental.
  • Copying is an integral and essential part of a technological process (i.e., (1) the acts of reproduction are carried out entirely in the context of the implementation of a technological process and (2) the completion of those acts of reproduction is necessary, in that the technological process could not function correctly and efficiently without those acts).
  • The sole purpose of copying is to enable a transmission in a network between third parties by an intermediary or a lawful use of a work.
  • Copying has no independent economic significance.

Both the UK High Court and UK Court of Appeal agreed that PRCA members needed a licence from the NLA in order to receive the Meltwater service. The PRCA appealed to the UK Supreme Court.

Continue Reading Copyright: Europe Explores its Boundaries Part 3: “Meltwater” – EU rules that browsing does not need a licence – a victory for common sense (or for pirates)?

In a closely watched case, the U.S. Supreme Court ruled today in a 6-3 decision that Aereo’s Internet streaming service engages in unauthorized public performances of broadcast television programs in violation of the Copyright Act, reversing the Second Circuit’s decision in American Broadcasting Companies, Inc. v. Aereo, Inc. (No. 13-461).

In ruling against Aereo, the Court sought to limit its decision to Aereo’s service—which the Court considered to be “equivalent” to that of a traditional cable company—and noted that it was not addressing the legality of cloud storage lockers, remote-storage DVRs and other emerging technologies.  But the Court’s interpretation of the public performance right in the context of Aereo’s technology will nevertheless influence future decisions on whether the transmission of content using other technology constitutes copyright infringement.

Background

Aereo provides broadcast television streaming and recording services to its subscribers, who can watch selected programing on various Internet-connected devices, including smart televisions, computers, mobile phones and tablets.  Aereo provides its service through individual, “dime-sized” antennas that pick up local television broadcast signals and transmit those signals to an Aereo server where individual copies of programs embedded in such signals are created and saved to the directories of those subscribers who want to view such programs.  A subscriber can then watch the selected program nearly live (subject to a brief time delay from the recording) or later from the recording.  No two users share the same antenna at the same time, nor do any users share access to the same stored copy of a program.

In 2012, various broadcasting companies sued Aereo for copyright infringement in the Southern District of New York, claiming, among other things, that Aereo’s transmission of the plaintiffs’ copyrighted content to Aereo’s subscribers violated the copyright owners’ exclusive right to publicly perform those works.  That public performance right, codified in the 1976 Copyright Act, includes (1) any performance at a place open to the public or any gathering with a substantial number of people outside the “normal circle of family and social acquaintances,” and (2) the transmission of a performance to the public, whether or not those members of the public receive it in the same location and at the same time.  This latter provision, commonly referred to as the “Transmit Clause,” was added to the Copyright Act by Congress in part to overturn earlier Supreme Court decisions that had allowed cable companies to retransmit broadcast television signals without compensating copyright owners.

The district court denied the broadcast companies’ preliminary injunction requests, finding that, based on Second Circuit precedent, Aereo’s transmissions were unlikely to constitute public performances.  The Second Circuit affirmed the decision, relying on that court’s earlier decision in Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) (“Cablevision”), which found that a cable company’s remote-storage DVR system did not run afoul of the public performance right because each transmission emanated from a unique copy of a program that was sent only to an individual user.  The Second Circuit held that Aereo does not engage in public performances because, as in Cablevision, Aereo’s system makes unique copies of every recording, and each transmission of a program to a customer is generated from that customer’s unique copy.   Continue Reading Supreme Court Stifles Aereo, but Tries to Keep the Cloud Away

  • In the top news story of the day, the U.S. Supreme Court ruled against Aereo in a closely watched copyright dispute with broadcasters; the Court found that Aereo engages in unauthorized public performances in violation of U.S. copyright law. Will cloud storage models survive this decision? What remains, if anything, of the Second Circuit’s landmark Cablevision ruling? Stay tuned for an upcoming blog post on this subject .
  • If 140 characters seems too long, an Israeli entrepreneur has launched Yo, a social network that simply permits users to communicate the word “Yo” to others. It is not a joke, and he has received investment offers from venture capitalists and hopes to launch soon.
  • Facebook says the use of video by its users has doubled in the past six months and that it will now deliver more video to people who have demonstrated interest in viewing that type of content and will downplay video for users who have not shown an interest in it.
  • A Utah family law attorney wants to use his personal YouTube channel to broadcast divorce court proceedings. Court administrators and judges, however, are skeptical and have questioned his motivations for wanting to do so.

The safe harbor provisions in § 512(c) of the Digital Millennium Copyright Act (DMCA) provide a mechanism that insulates online service providers from monetary damages for infringing materials posted or stored by their users.  To receive this protection, service providers must designate an agent to receive notice of claims of infringement with the Copyright Office and publicly post the agent’s contact information on the website.  A recent case in the Northern District of California, Oppenheimer v. Allvoices, Inc., examined whether service providers can avail themselves of the § 512(c) safe harbor for infringing acts that precede designation of such an agent.

Allvoices is an online service provider that maintains a community-driven platform for the exchange of ideas as well as graphical, written, and audio content.  Allvoices provides users with financial incentives to upload content to the site, and treats such users as “citizen journalists” and independent contractors.  While it began providing access to contributor content in 2008, Allvoices did not designate its DMCA agent until March 2011.

The plaintiff, David Oppenheimer, is a professional photographer whose photographs were posted on Allvoices’s website by contributors in January 2011.  Oppenheimer learned that his photographs had been posted on the Allvoices website in February 2011, prior to Allvoices’s DMCA agent designation.  Oppenheimer sent a cease and desist letter to Allvoices in August 2011, several months after Allvoices designated its DMCA agent.  While Allvoices eventually removed the photographs, Oppenheimer alleged that Allvoices failed to reply to his cease and desist letter and failed to terminate the accounts of repeat infringers, as required by the DMCA.

 Allvoices argued that it was entitled to the protection of the § 512(c) safe harbor for all alleged infringements, not just infringement occurring after it had designated its DMCA agent.  Allvoices did not cite any authority for this position, but maintained that, because the DMCA does not expressly carve out or preserve liability for pre-designation infringement, Congress had intended for the safe harbor to apply to such infringement.

The court rejected Allvoices’s argument and held that, under the plain language of the DMCA, an online service provider may invoke the § 512(c) safe harbor only if it has registered a DMCA agent with the Copyright Office.  According to the court, designation of an agent is a “predicate, express condition” for application of the safe harbors, so Allvoices could not avail itself of the safe harbors with respect to infringement that occurred prior to designation.  The court cited two previous Northern District of California cases that came to similar conclusions, Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc. and Nat’l Photo Group, LLC v. Allvoices, Inc. (note that Allvoices was also a defendant in the latter case).  On the merits, the court held that Oppenheimer sufficiently alleged claims of direct, contributory, and vicarious infringement to overcome Allvoices’s motion to dismiss those claims.

A question remains regarding the period of time during which Allvoices may be liable for infringement of Oppenheimer’s photographs.  Specifically, the court did not address whether Allvoices’s potential liability is limited to the period during which the photographs were posted on Allvoices’s website prior to the date that Allvoices designated its DMCA agent with the Copyright Office.  Regardless, the message is clear: online service providers should designate a DMCA agent with the Copyright Office as early as possible in order to obtain the protection of the applicable DMCA safe harbors.

The doctrine of laches cannot be invoked as a bar to a plaintiff’s claim for damages brought within the Copyright Act’s three-year statute of limitations period, according to the United States Supreme Court’s decision in Petrella v. Metro-Goldwyn-Mayer, Inc. The Court, in a 6-3 decision, held that Congress prescribed a specified period in which a copyright holder can recover damages for infringement and, “[t]o the extent that an infringement suit seeks relief solely for conduct occurring within the limitations period . . . courts are not at liberty to jettison Congress’ judgment on the timeliness of suit.” A laches defense is still viable, however, to bar equitable relief “in extraordinary circumstances” and as a factor at the remedial stage. As a result of this decision, copyright holders who previously refrained from pursuing an infringement action could be invigorated to bring suit, and businesses should be mindful that relying on a copyright holder’s prior inaction will not bar a future copyright infringement suit, regardless of how much time or money was invested into the allegedly infringing activity. In addition, the Court’s decision raises questions regarding the applicability of a laches defense to other laws with statutory limitations periods—including patent law. Continue Reading Supreme Court Finds Laches Does Not Bar Copyright Infringement Claim: Petrella v. Metro-Goldwyn-Mayer, Inc.

The latest issue of our Socially Aware newsletter is now available here.

In this issue of Socially Aware, our Burton Award-winning guide to the law and business of social media, we analyze a groundbreaking FTC complaint alleging deceptive practices online that could turn website Terms of Use into federal law; we summarize a U.S. Supreme Court copyright case that could impact existing technologies and future technological innovation; we discuss a ruling from Europe’s highest court that will aid copyright owners in the fight against illegal streaming sites; we report on new SEC guidance on social media use by investment advisers as it relates to testimonials; we take a look at the development of the Internet of Things and the many regulatory, privacy and security issues that go along with it; and we highlight a recent class action decision that potentially impacts any company that hosts videos on its website.

All this—plus a collection of thought-provoking statistics about digital music…