THE COPYKAT

USPTO brings in the all-important question of whether AI can create or infringe Copyrighted “Works”

Artificial Intelligence is a well discussed and debated topic in the realms of Copyright - since the advent of the concept of “Computer-generated works”, but with the recent advancement in the role of AI in curation of art-based copyrightable works, this debate has gained even more importance and is now the  subject of a number of major academic conferences and seminars, with the question surrounding the most appropriate path to be taken by lawmakers and courts.

The US Patent and Trademark Office has now launched a public consultation in this matter and The USPTO has issued a request for comments on IP protection of AI based innovation, on or before 16^th December. The notice reads: “Artificial Intelligence (AI) technologies are increasingly becoming important across a diverse spectrum of technologies and businesses. AI poses unique challenges in the sphere of intellectual property law. At a January 31, 2019 conference on ‘‘Artificial Intelligence: Intellectual Property Policy Considerations,’’ USPTO explored a number of those challenges. On August 27, 2019, the USPTO published a request for comment regarding AI’s impacts on patent law and policy. As a continuation of this work, the USPTO is also considering the impact of AI on other intellectual property rights.” 

In lieu of the same, 13 specific question have been posed by the USPTO including concerns around a work produced by an AI, without the involvement of a natural person contribution expression, constituting a protectable work of authorship or not, kind of involvement of human which would be regarded as authorial, state of existing law in lieu of evolving AI technology, AI getting authorship as a separate legal entity or not etc. The whole list of questions posed can be found herein. Even in the UK, while evaluating a claim to inventorship, and identifying an inventor, the UK government has herein gone on to specify that “An AI inventor is not acceptable as this does not identify a “person” which is required by law.” Further, and importantly, as reported by the IPKAT, even in China, the Beijing internet Court in its decision in th case of Feilin v. Baidu has gone on to hold that for it to be a copyrightable “work”, it must be created by a natural person, which is a fundamental tenet of Copyright law. The court even held that neither the software developer nor the user and not even the software could be the Author of the work. The court further pointed towards the establishment of a sui generis right system (although indirectly) to protect the investment in the generation of the production. This is a core academic debate, and will be interesting to see how it takes shape in other jurisdictions.

Musicians urge for a similar regime to the EU Copyright Directive in the United States, to protect them against digital exploitation

CISAC recently saluted the EU Copyright system for its reform and fight against digital upload based services and has urged other jurisdictions including the United States to follow its example. With the digital market taking over the means of “communication” of content, the CISAC has urged for fairer norms, in light of a higher contribution of the digital market to these authorial royalties and revenues. The income from digital sources has substantially increased and is EUR 653 million more in 2018 than in 2014. Of course the International Confederation of Societies of Authors and Composers has at its core the aim to protect the rights and promote the interests of creators worldwide and is a known advocate for strong legal protection of copyright and authors' rights.  The EU Copyright Directive offers a stronger negotiating position for authors and composers against these distributing agencies and tech giants which display content and further holds them completely responsible for the content uploaded on their platform, in order to rapidly curb piracy. As reported by CISAC newsroom, Jean-Michel Jarre, CISAC President, said: “Digital is our future and revenues to creators are rising fast, but there is a dark side to digital, and it is caused by a fundamental flaw in the legal environment that continues to devalue creators and their works. That is why the European Copyright Directive is so momentous for creators everywhere. The Directive has sent an amazing, positive signal around the world, building a fairer balance between creators and the tech platforms.” A few highlights of this report as well as the full report released by CISAC can be accessed here. But a number of major tech companies, including Google, Facebook and Twitter are concerned about harmful copyright legislation being created around the world. 

Meanwhile TechDirt reports that tech industry groups are warning that these developments, including the EU Copyright Directive, will harm the interests of US companies, while conflicting with various free trade agreement. The Computer & Communications Industry Association (CCIA) and Internet Association have registered their unhappiness in submissions to the US Trade Representative in response to a call for opinions on foreign trade barriers. According to the CCIA, whose members include Amazon, Facebook, Google, Netflix, Pandora and Samsung, the EU’s directive “poses an immediate threat to Internet services and the obligations set out in the final text depart significantly from global norms”.

Important question of Jurisdiction in Copyright Infringement cases, resolved by the US Court of Appeals for the 6^th Circuit

In a lawsuit involving a lack of proximity or territorial nexus of the infringing action to the venue wherein the suit was instituted, the court in the US dismissed a claim of Copyright infringement, This is the case of Parker v. Winwood (6^th Circuit Sept. 17, 2019). The main question is this case was around the taking of a bass line from the plaintiff’s song “(Aint that) A lot of love” in their song “Gimme Some Lovin’” Due to Mervyn Winwood’s residence in the UK and his conduct of the subject matter of the suit (and the alleged infringement) taking place in the UK, the sixth circuit relying on the Supreme Court decision in Walden v Fiore where the forum of the act was given prominence, held that there is no personal jurisdiction to bring in the suit at Tennessee. Further, due to lack of evidence showing distribution of the infringing work in Tennessee, the steam of commerce argument was also rejected.  In the dissenting opinion however, justice Donald stated that “Plaintiffs could not properly assert personal jurisdiction over Mervyn because Plaintiffs did not set forth evidence or affidavits establishing jurisdiction . . . is incorrect, as Plaintiffs have submitted evidence supporting the district court’s ability to exercise personal jurisdiction over Mervyn.” Further, an evidence related to a nationwide distribution agreement was also accounted for, in support of personal jurisdiction, however the majority rejected the same. This judgment seems fallacious in relying on Walden v Fiore as this judgment doesn’t cover situations where the defendant has minimum contacts with the United States and any of the states within itself.  Read more here. The judgment can be accessed here.

Nigeria declares no tolerance policy on issues surrounding acts of Piracy

The West African Country has emphasized, via its Copyright Commission, a will to stamp out Piracy in totality. In a declaration by Vincent Oyefeso, the commision’s director of public affairs, as reported by Music in Africa. the Director said:

"The NCC is not just a compliance agency, it has the power to arrest and prosecute anybody caught pirating other people’s intellectual properties.” and “Copyright owners could institute civil suit against copyright offenders, apart from the criminal suit the commission normally institutes against such offenders.”

Further, there has also been a call to update Nigerian Copyright laws to come in line with the digital era. And to combat piracy, the commission has adopted surveillance, inspections, raids, investigations and diligent prosecutions of alleged and suspected offenders and infringers. This is all the more keeping in mind the agenda to bolster economic growth through the creative industries.

Even in South Africa, there have been concerns around the amendments surrounding authors and performers rights and the impact of the bill on rights of creators. There has been a formulation of a tribunal to address these issues concerning the same. The general consensus as reported by Music in Africa, is that the amendment bill supports users and multinational streaming company by providing them free content and going against the economic concerns of the rightful authors and composers including performers.  There is no punitive clause which provides for a remedy against infringing use. Read more here.

Claim against the Constitutionality of the Copyright Remedy Clarification Act, 1990 (United States), being heard in the Supreme Court

The case of Allen v. Cooper where the US Supreme Court is looking at a modern-day dispute involving the pirate Blackbeard's ship that went down off North Carolina's coast more than 300 years ago discusses the question of whether a limitation on state sovereign immunity in copyright claims via a statute (CRTA,1990) is constitutional. This case highlights the statute which abrogates sovereign immunity in claims of copyright infringement. The Supreme Court, in a similar claim to unconstitutionality concerning Sovereign Immunity being abrogated in Patent and Trademark cases, has already held it to be unconstitutional (Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank), which is generally used as a precedent by the lower courts even in Copyright Cases (concerning CRTA) to hold sovereign immunity applicable. 

The SC has peculiarly started hearing these claims with respect to this particular act since November 5, 2019, as reported by the Disruptive Competition Project. The core issue is whether there can be a distinction drawn from the treatment of this act with respect to the other ones which have already been held to be unconstitutional. In the Florida case, the core reasoning against such immunity being removed was that there needs to be a pattern of cases showing infringement by the State or constitutional violations, which weren’t established. The focus of the plaintiff in this case is on distinguishing the factual scenario and establishing that infringement by states is a growing problem which has also been identified in the study by the Copyright office and in the amicus brief filed by Ralph Oman, ex registrar of Copyrights, in favour of the plaintiff, .North Carolina-based Nautilus Productions who had for nearly two decades documented the ship's salvage. In the process, the company copyrighted photos and videos - which were then published by the state.  Nautilus sued in federal court, but the federal appeals court in Richmond, Virginia, ruled North Carolina could not be sued despite using the materials without permission. 

The plaintiff has also relied upon the dissenting opinions of Justice Ginsburg and Breyer and has firstly argued to overturn the Florida Prepaid case, but later in a second argument has also gone on to establish as to how the Florida prepaid case is not a valid precedent for the CRTA. States generally are protected from lawsuits in federal courts, and the justices in 1999 ruled out federal court cases against states over patent infringements. Patent and copyright protections come from the same constitutional provision that outlines Congress' powers.

As reported by Disruptive Competition Project, Justices Alito and Kagan questioned the adequacy of the evidence of widespread copyright infringement when Congress adopted the CRCA. Florida Prepaid found the eight instances of patent infringement considered by Congress to be insufficient. Here, the Copyright Office study had identified sixteen instances of copyright infringement by state entities. So are sixteen infringements by 50 states enough to constitute a widespread pattern of constitutional harm, while eight are not?  Read more on this case here. 

"All that would be very persuasive if we didn't have the patent decision" Justice Ruth Bader Ginsburg said during the legal arguments.  Ginsburg dissented in the patent case.

This CopyKat from Akshat Agrawal 

THE COPYKAT

Two influential committees in the European Parliament have now voted on their respective responses to the draft European Copyright Directive, and in particular the position the EU will take on 'safe harbour' in the future, and the music industry has generally welcomed those responses. The Consumer Rights Committee had already responded, and now both the Culture (Committee on Culture and Education - CULT) and Industry (Industry, Research and Energy - ITRE) Committees have now had their say, and with regard to safe harbour, both committees resisted calls to abandon or weaken article thirteen, instead seeking to reinforce and further clarify the draft article and the new obligations of safe harbour dwelling services of the YouTube variety. They also responded to a proposal, put forward by the Consumer Rights Committee, which would provide an exception for user-generated content - and which many in the music industry have now said could have a profound impact on the creative community with rights holders having to initiate expensive legal proceedings to establish the actual boundaries of such an exception". In relation to that proposal, yesterday's committees voted (a) against the idea entirely, or (b) to leave such matters to national law within the EU, rejecting the idea that European law-makers should make such an exception compulsory for member states. Helen Smith from the independent label's IMPALA organisation said: "It makes complete sense to narrow the value gap and the parliament has sent a strong message this morning. That's very good news - recalibrating the digital market in this way is necessary to stop creators, start-ups and citizens being dominated by abusive practices of big platforms who don't pay fair or play fair". The important Legal Committee will lead the final round of responding after the summer break. The EFF have a very different take on this. 

Freelance photographer David Slater, who facilitated the now famous 'monkey selfie' taken by black macaque Naruto is now in a dire financial situation as the appellate proceedings regarding the now famous “monkey selfie” photos continue in the United States courts. Slater had to settle for watching a live stream of the proceedings from his United Kingdom home because he can’t afford the flight to the USA, and is also not able to pay for the lawyer representing him, according to The Guardian. In a slightly more surreal intervention, the Chepstow based photographer now says that PETA (People for the Ethical Treatment of Animals - the animal rights organisation) is representing the wrong monkey in court with Slater saying “They definitely have the wrong monkey, and I can guarantee that. My lawyers can confirm it too" adding “The American court system doesn’t seem to care about that, which is baffling.”

A new study carried out by PRS for Music and the Intellectual Property Office (IPO), has found that stream-ripping is now the most prevalent and fastest growing form of music piracy in the UK, with nearly 70% of music-specific infringement dominated by the illegal online activity. Research revealed that the use of stream-ripping websites, which allow users to illegally create permanent offline copies of audio or video streams from sites such as YouTube, increased by 141.3% between 2014 and 2016, overwhelmingly overshadowing all other illegal music services.

There has been a big 'fair use' ('fair dealing)' case in Canada which pitted content owners against Canadian Universities, with the latter's copying Guidelines under the microscope. And in Access Copyright v. York University, the Honourable Michael L. Phelan of the Federal Court of Canada came down on the side of Access Copyright, which exists to collect royalties on behalf of creators and publishers. Access had suffered a catastrophic decline in revenues after the Guidelines were adopted by York and other educational institutions, and sued York. York’s copying was for a permitted purpose, namely education, but Justice Phelan found that York’s dealing was unfair, or grossly unfair, on several of the six factors used to assess fair dealing (purpose of the dealing; the character of the dealing; the amount of the dealing (amount of copying); the available alternatives to the dealing; the nature of the work; and the effect of the dealing on the work. The court also found York’s guidelines to be unfair, poorly conceived and arbitrary, and that York made no effort to see that they were followed. There is more on the Financial Post here.

AND FINALLY, BUT IMPORTANTLY!

The MPA (Motion Picture Association) EMEA policy team is offering a full-time internship at its offices in Brussels for 6 months. The intern will receive financial compensation. The selected candidate will work closely with the MPA EMEA Policy Department and will primarily focus on supporting the team in implementing the EMEA Policy Strategy. More here. 

THE COPYKAT

Extradition to US for alleged torrenter Artem Vaulin

Artem Vaulin – the alleged owner of the torrenting site KickAss Torrents (“KAT”) and Ukranian national – is facing extradition to the United States. In July 2016 he was arrested in Poland and charged by criminal complaint, filed in U.S. District Court in Chicago, with one count of conspiracy to commit criminal copyright infringement, one count of conspiracy to commit money laundering and two counts of criminal copyright infringement. Vaulin has been held in custody since his arrest, having been denied bail.

The US is alleging that Vaulin, who is 30 years old, is responsible for the unlawful distribution of $1 billion of copyrighted materials.

Vaulin’s American defence council has asked the Illinois District Court to dismiss the case, arguing that torrent files are not copyright protected. Vaulin’s defence team argued that “Torrent files are not content files. The reproduction and distribution of torrent files are not a crime.” The defence council continued; “If a third party uses torrent files to infringe it is after they leave the KAT site behind and such conduct is too random, inconsistent, and attenuated to impose criminal liability on Mr. Vaulin. The government cannot use the civil judge-made law in Grokster as a theory in a criminal case.”

The Warsaw District Court has ruled in a preliminary ruling that Vaulin can be extradited. The extradition process does, however, have another hearing until the decision is final, as the process is decided in two stages. If the lower court fully grants the extradition request, Vaulin will have recourse to the Polish Supreme Court. If extradition is granted, he will be facing a criminal trial in the US.

And more extradition! it's off to the US for alleged torrenter Kim Dotcom

Kim Dotcom has been at the centre of an extradition saga since 2012. He is the founder of Megaupload, another BitTorrent site. Dotcom, a German national with permanent residency rights in New Zealand, was arrested at the behest of the US on criminal copyright violation and racketeering charges.

In a recently released decision, it has been ruled that Kim Dotcom cannot be extradited to the US on copyright infringement charges. Dotcom’s legal team had argued that there are no equivalent criminal sanctions for copyright infringement in New Zealand that would activate the extradition treaty with the US.

Instead, it was ruled that Dotcom can be extradited on grounds of conspiracy to commit fraud, which is an extraditable offence under section 24 of the Extradition Act 1999. Dotcom and his legal team immediately criticized the decision, stating that “The U.S. Supreme Court has ruled that copyright charges can't be fraud charges. Let's just ignore that minor detail over here in New Zealand.”  Image portal gda https://creativecommons.org/licenses/by-nc-sa/2.0/

The saga is not at its end, and further updates should be available in the upcoming months.

Piracy filters for ISPs – web blocking

The contentious issue of the blocking of pirating sites by ISPs has been reported on this blog previously here, here and here.

The Recording Industry Association of American (“RIAA”), along with 14 other groups of rightsholders have now expressed its dissatisfaction with the current DMCA takedown regime and is advocating for ISPs to directly filter out pirated content in comments filed with the US Copyright Office. It argues, inter alia, that “the notice and takedown system as currently configured results in an endless game of whack-a-mole, with infringing content that is removed from a site one moment reposted to the same site and other sites moments later, to be repeated ad infinitem.”

Google responded to the RIAA’s comments, principally pointing out the 99% of links it was asked to remove in January of this year “were not in our search index in the first place.”

These comments to the US Copyright Office are being made within the context of a review of US Copyright laws which is taking place at the moment.

Search engines potentially to be forced to delist piracy sites in Russia

A new copyright law has been proposed in Russia which would force search engines to delist piracy websites.

Sites that would potentially be blocked under the new law would be those that have been subject to a web-block injunction in the Russian courts, as well as piracy sites that have failed to respond to takedown requests by rightsholders.

Students to pay to play whilst learning music?

Conflict is brewing in Japan between The Japanese Society for Rights of Authors, Composers and Publishers (“JASRAC”) and The Association to Protect Music Education.

The domestic Copyright Law grants an exclusive “right of performance” to composers and lyricists to perform their copyrighted music. JASRAC is planning to introduce a policy charging copyright fees for performances of copyrighted music at music schools in January 2018. This policy would be to charge music schools 2.5% of the income generated from tuition fees for a fixed rate licence to perform copyrighted music.

JASRAC argues that it is unfair that music schools are not covered under this right. In contrast, The Association to Protect Music Education argues that performing music for instruction is not for the purpose of having people listen to it, and that copyright fees are already paid through payment for scores and other materials.

The Association to Protect Music Education is ready to take legal action in order to verify that no such financial obligation flows from the domestic Copyright Act.

This CopyKat by Tibbie McIntyre

The CopyKat - appealing to copyright fans far and wide!

The Shaghai Daily tells us that China's copyright regulator has strengthened its law enforcement policy against alleged piracy in cloud-storage services, which, despite a previous crackdown, "had long provided Internet users a covert channel to download movies and TV series." As part of the 'Sword Net' initiative, cloud-storage services have been ordered to prevent users from uploading, storing or sharing files that may infringe copyright, pursuant to a regulation from the National Copyright Administration (NCA) dated October 14th 2015. The new move was published after a meeting Tuesday attended by leading online data hosting services such as Baidu, Qihoo360, Tencent and Huawei. The new regulation means that cloud service providers must deal wuth those copyright offenders by putting them on blacklist, or suspending or terminating their services. Service providers should also notify copyright holders how to lodge complaints, and commit to handling complaints in a timely manner.

An Illinois couple who own several recording companies specializing in doo-wop, jazz, and rhythm and blues have filed law suit against the major satellite and Internet radio companies in the US over their playing of pre-1972 songs. Following on from the actions from Flo & Eddie of the Turtles and and RIAA, it's the third lawsuit that seeks to obtain payment for use of sound recordings under state copyright laws. Arthur and Barbara Sheridan filed two lawsuits in New Jersey federal court: one against Pandora and Sirius XM (PDF) and another against iHeartMedia (PDF), the parent company of online music service iHeartRadio. Their lawsuits seek class action status, looking to represent owners of pre-1972 songs. The action says that the companies have derived "significant benefits," including "millions of dollars in annual revenue," by playing those songs without permission, the suit alleges. In an action brought by ABS Entertainment, which owns the recordings of Al Green, among others, terrestrial radio broadcaster CBS has argued that not only does state law not apply to their use - a matter the recorded music industry had until recently accepted this interpretation of the law - CBS also says that as it only plays re-mastered versions of pre-1972 sound recordings, these actually have a post 1972 copyright copyright saying "In fact, every song CBS has played in the last four years has been a post-1972 digital sound recording that has been re-issued or re-mastered".  Meanwhile Pandora has confirmed that it has reached a settlement with the major labels over its use of pre-1972 sound recordings. The streaming platform follows the lead of US satellite radio service Sirius which, back in June, agreed to pay $210 million to the three majors - Universal, Sony and Warner - and ABKCO Music, which is best known for controlling the early Rolling Stones catalogue, with Pandora paying the labels $90 million for past and future usage of pre-1972 repertoire More on ArtsTechnica here and the Hollywood Reporter here.

Adolf Hitler's ‘Mein Kampf”  falls out of copyright next year when the term of the copyright, owned by the State of BAvaria, expires. is almost certainly going to re-published and it seems annotated German and French reprints are being prepared. Last week a Paris publisher, Fayard, confirmed in a statement it was going ahead with an annotated French print, after pondering on it for the past four years. A German-language reprint will be handled by the government-funded Institute of Contemporary History in Munich, which emphasizes the book’s historical importance. It too, will be annotatated. More on the Times of Israel here.

The Supreme Court of India has held that no copyright exists on the "title" of a literary work, reversing the decision of the Bombay High Court: "No copyright subsists in the title of a literary work and a plaintiff or a complainant is not entitled to relief on such basis except in an action for passing off or in respect of a registered trademark comprising such titles. The Times of India has more.

The 'Dancing Baby' case is not over - with BOTH sides aiming for a rehearing: Whilst at the time of the appelate court's judgement, the EFF called it “an important win for fair use,” but now both the EFF (which is representing the plaintiff, Stephanie Lenz, who filmed her then toddler dancing to Prince's "Let's Go Crazy" ) and Universal Music Corp. have requested an en banc rehearing from the Ninth Circuit. It seems the EFF are looking to strengthe the case for 'fair use' by breathing new life in section 512(f), which allows the targets of illegitimate takedowns to sue the people who sent the invalid notices - potentially arguing that on the facts of this case, Universal could not possibly have acted in 'good faith' when issuing a DMCA takedown' notice  The Universal petition claims that Lenz had no standing for an appeal in the first place because she was not injured by the takedown. UMG will also ask the court to clarify some of the language in the opinion.

Jay Z at Glastonbury 2008 (Nick Cordes)

US district judge Christina Snyder has abruptly dismissed the lawsuit against Jay Z and his producer Timbaland before it went to a jury at a federal court in Los Angeles, ruling that Osama Ahmed Fahmy, the heir of an Egyptian composer Baligh Hamdy, lacked the right to pursue a copyright infringement claim against Jay Z's Big Pimpin in a case that looked at copyrights, moral rights and chain of title. After hearing from experts in Egyptian law, The judge ruled that Egyptian law did not apply and that the case should not go to a jury. “Fahmy lacked standing to pursue his claim. In light of that decision, it will not be necessary to submit to the jury whether Big Pimpin’ infringed Khosara Khosara,” she said. The plaintiffs have said they will file an appeal

The CopyKat - keeping bang up to date with the technoKats

Facebook has responded to criticism from top web video creators who have accused the social networking giant for failing to prevent Facebok users  from posting their videos without permission.  Facebook already has a technology partner, Audible Magic, that helps it identify unauthorized video content through audio fingerprinting and Now the company is introducing a video matching technology product designed to quickly identify videos uploaded by people that are duplicates of videos already uploaded directly by the creators. As it stands, the new technology will not be fully automated. Creators will have access to a Web-based dashboard that will allow them to identify videos they’d like to monitor. If the system finds a matching video, the creators then have the option to report the clips to Facebook. More here.

Having recently 'upgraded' to Windows 10 operating system  I can't say that I am that impressed with Microsoft at the moment. The new software is counter intuitive - clunky - and all the bad things that Microsft should probably avoid developing when faced with the growing dominance of all things Apple. What I didn't notice was that Microsoft had recently announced further steps to protect Windows 10. Luckily Ian Dowling at Reddie & Grose did and in a very good article on digital piracy, Ian notes that according to an updated End User License Agreement from Microsoft, "Windows 10 will allow Microsoft to download software updates or configuration changes, including those that prevent access to services, playing counterfeit games, or using unauthorised hardware peripheral devices. Presumably in an attempt to roll out such countermeasures against all users, Microsoft has been offering free upgrades to Windows 10 to all users of Windows 7 or 8.1, including those running non-genuine versions of the operating system, seemingly an attempt to lure copyright infringers into its anti-piracy net." 

The DRM protection on Netflix's ultra-high definition content has been broken for the first time, allowing pirates to upload a 4K episode of Breaking Bad to a private torrent site - a mighty 18GB of high quality piracy. TorrentFreak reports that iON uploaded the episode to a private torrent tracker. It has already been downloaded a few times and is expected to make it to public providers eventually.  Leaked drafts of the 4K copy protection agreement between Sony and Netflix reveals that the streams are generally well-protected. They also include a watermark so that leaks can be traced back to the source.

And so it comes to this: ABS Entertainment, which owns a catalogue of golden oldie recordings, including tracks by Al Green, has filed lawsuits in both California and New York against US radio giants CBS, iHeartMedia and Cumulus, claiming the broadcasters are infringing its copyrights by playing pre-1972 repertoire without licence. The radio firms are expected to argue against any suggestion that they need licences to play pre-1972 sound recordings, with CBS Radio already saying it will "vigorously defend" the lawsuits. You can read more on this whole topic, and the current claims brought by Flo & Eddie of the Turtles , the claims brought by the record labels and much much more on pre-1972 copyright legal shenanigans on CMU here. 

Thanks to a recent contract with Sony Music, Russia's Zvooq has become the country's only fully licensed and independent music service. The platform was already licensed by Warner Music and Universal. Currently, Zvooq uses a freemium model - incorporating both ad-sponsored and subscription tiers -- and is planning to introduce a new subscription model for the market, in which a specific advertising brand will pay for subscriptions of selected users.

And what of those MegaUpload servers - locked away and unused ever since the anti-piracy investigations into Kim Dotcom and his team? Well, the US government doesnt need them and doesn't want them and doesn't want to pay for them .... United States Attorney Dana Boente has now said: "The government has already completed its acquisition of data from the Carpathia servers authorised by the warrant, which the defendants will be entitled to during discovery. As such, there is no basis for the court to order the government to assume possession of the Carpathia servers or reimburse Carpathia for 'allocated costs' related to their continued maintenance". TorrentFreak says that Boente told the court "The United States continues to request that the court deny any effort to impose unprecedented financial or supervisory obligations on the United States related to the Carpathia Servers".

The online system used to register initial copyright claims at the U.S. Library of Congress has failed after scheduled maintainence on August 29th - with no solution to the problems with eCO on the horizon. sight. This means users will have to revert to 'snail mail' and post in paper copies of registration forms for the time being. The eCO website informs users that there is no "estimated time for service resumption." A spokesperson told FCW that the CIO team is "working to restore the system as quickly as possible."

A Canadian firm which had been releasing low cost CDs of public domain recordings by the Beatles, the Beach Boys  and the Rolling Stones, amongst others, is accusing two major record labels of using their clout and their combination of both recording and music copyrights to circumvent provisions of Canadian copyright law that had put some recordings by the Fab Four and others into the public domain. The term of copyright protection for sound recordings for Canada was extended from 50 years to 70 years this year. The extension was not applied retrospectively, so gives the extended term of protection to recordings from 1965 onwards. Now record label Stargrove has filed a 408 page complaint with the Canadian Competition Tribunal claiming market interference by the vertically integrated music giants, Universal and Sony, who have blocked releases of public domain sound recordings: It is alleged their publishing arms (for Sony this is Sony/ATV) instructed the local music collection society Canadian Musical Reproduction Rights Agency (CMRRA) to refuse mechanical licences for the compositions included in the recordings. The complaint says the refusal of licences means that rights holders are denying Stargrove mechanical licences on the usual trade terms (contra to Section 75(1) of the Competition Act), and that the moves are a violation of the illegal price maintenance provisions (Section 76 of the Competition Act) designed to keep Stargrove out of the market and maintain market share and higher pricing, and a further violation of Section 77 of the Competition Act. Stargrove has asked the Competition Tribunal to order a stop to the violations and to enter into an agreement on standard trade terms. More here.

And finally - here's a novel way to have a go at those who might, and might not, be illegally streaming or downloading movies. U.S. attorney Carl Crowell has taken the unusual step of using Oregon's"going equipped" state laws against them on behalf of movie company clients - in effect trying to argue that mere possession of Popcorn Time software (a service that has been called the "Netflix for Torrenting") is a criminal act under Oregon state law ORS 164.235 which bars the possession of "burglary tools" and which says that a person commits the crime of possession of a burglary tool or theft device if the person possesses a burglary tool or theft device and the person (a) Intends to use the tool or device to commit or facilitate … a theft by a physical taking; or (b) Knows that another person intends to use the tool or device to commit or facilitate a … theft by a physical taking. In the UK ISPs have been ordered by the High Court to block access to websites hosting Popcorn Time software. More on TechDirt here.

The CopyKat - how will broadcasters fight back against the app?

Focussing on the latest trends and the latest technologies means that it is easy to be totally ignorant of what's going on in other parts of the world. So the CopyKat was brought out of orbit by an article in the Financial Express of Bangladesh that says "The mushroom growth of compact disc (CD) shops in cities and rural markets reflects, on the positive side, how dearly the Bangladeshis love music. But it does also indicate, on the other side, the extent of acts of 'piracy'. That provides some good reasons for growing worries over the pirated CDs. In a situation where most songs in CDs are pirated ones, both the government and original composers (of such songs) are deprived of a significant amount of revenue and rightful honoraria, respectively [and] could be raised significantly by implementing the copyright law."

Home to an estimated 144 million people, Russia is the world’s ninth biggest country in terms of population. With a recently booming economy, it should be of major importance to the global music business.Yet according to IFPI data, Russia contributed – in total – just US $72.8m to the recorded music industry last year, across digital, physical and public performance (the UK with less than half that population generated $1.33 billion). Whats worse - the market has declined - it was worth $191 million in 2007. Why - well blame it on piracy, corruption, past government inaction and consumers used to 'free' music. In the era of CDs in the 1990s and 2000s physical piracy was "up to 95% of the market.” And now with digital its worse.  Now a recent flurry of government activity has given some hope to the beleaguered music industry and there have been some recent successes in the courts.  In 2011 it seemed that enforcement of already existing infringement laws (including criminal sanctions) would be stepped up, not least to enhance Russia's position at World Trade Organization negotiations. In 2012 Russia's appellate court held that the massive social networking Vkontakte was liable for copyright infringement, upholding the earlier ruling by the commercial (“Arbitrazh”) Court of Saint Petersburg: in November 2014 Russia’s State Duma, the parliament’s lower house, approved a package of amendments to anti-piracy law, covering video, books, music and software, but not photos and among the amendments there was an initiative under which a Web site owner must delete within 24 hours any illegal content, rather than limit access to it, upon an electronic request from a rights’ owner. Now the Russian High Court has been given the power to order ISPs and website hosting companies to permanently block websites that repeatedly infringe copyright. Alongside the launch of services such as iTunes & Google Play and local music services such as Yandex, Torrent sites have  been sent a final notification from the Russian Government telling them that “the systematic violation of intellectual property rights will result in sites providing access to stolen content being blocked forever” and giving a 1st May deadline.

Pink Floyd's Roger Waters has taken a swipe at Silicon Valley in an interview in the Times (02.05.15) saying that he 'grateful' to have gown up in an age when an artist's hard work and talent were rewarded financially and before the music business suffered a 'takeover by Silicon Valley' saying "when this gallery of rogues and thieves had not yet interjected themselves between the people who aspire to be creative and their potential audience and then steal every f**king cent anybody every mad and put it in their pockets to buy f**king huge mega-yachts and Gulfstream Fives. These ..... thieves! It's just stealing. And that they are allowed to get away with it is just incredible". In 2010 Pink Floyd famously sued their record label, EMI, to withdraw their catalogue from iTunes after Apple's platform refused to sell 'Dark Side of the Moon' and other Floyd albums in their entirety - the band did not want individual tracks sold. Waters also takes a pop at consumers, saying he also blames "a whole generation that's grown up who believe that music should be free". Interestingly record labels don't seem to be in Water's line of fire -despite licensing and often being shareholders in many of the digital services Waters berates and paying royalty rates more appropriate for physical product than digital products.  That said, the tech companies have been clever in spotting just how important music is - and monetising that. One of the most interesting set of financial figures I have ever seen is the growth of Apple after it entered the music market. For a over a decade niche 'geeky' computer manufacturer with near static turnover, almost immediately after the launch of iTunes Apple grew to be the biggest corporation in the world dominating in computers ales, notebooks and mobile phones - with music sales just an ancillary - but an ancillary that undoubtedly made Apple ever such a cool brand. From 1992 to 2004 Apple's turnover grew from $7 billion to $8 billion: The iPlayer launched in 2001 and iTunes in 2003 and 2004. By 2005 Apple's turnover was $14 billion, 2006 19 billion, 2007 $24 billion, 2008 $35 billion, 2009 $42 billion and 2010 $65 billion. Now that is growth!

Next week at The Great Escape in Brighton an illustrious panel featuring our friend and IP specialist Amanda Harcourt and Andy Edwards (Board Director at Music Managers Forum), Horace Trubridge (Assistant General Secretary at Musicians’ Union), Jane Dyball (CEO at MCPS/IMPEL), Rob Collins (Label Director at Cooking Vinyl) and Vicky Bain (CEO of the British Academy Of Songwriters, Composers & Authors) who are going to debate THE DIGITAL PIE putting the spotlight on one of the biggest music industry debates of the moment: the division of streaming revenues between each of the stakeholders in music. How are the monies divided between labels, publishers, artists and songwriters, and asking - is the current system fair and sustainable? More on The Great Escape,  Europe's leading festival for new music here - this panel is on Thursday May 14th part of three days of conference panels, debates, workshops and new bands on show which will also ask 'what's the point of record labels anyway', explain music licensing and  'How to sell out gracefully' and investigate whether 'Music marketing is broken'. 

Daniel Voelker, the lawyer representing the 'Prenda Law' trio of attorneys, Paul Hansmeier, John Steele and Paul Duffy and their associated companies before the 9th Circuit Court of Appeals in the hearing into the earlier ruling of US District Court Judge Otis Wright which led to bruising sanctions and a referral to criminal investigators, is having something of a torrid time: ArtsTechnica has an excellent review but here's a little bit  flavour: "The entire proceeding was tainted," Voelker said. "Mark Lutz, the CEO of Ingenuity 13, was not allowed to testify. As soon as they asserted their 5th amendment rights, the judge stopped the proceeding. He can't use that against them." The appellate court disagreed: "Sure he can," responded US Circuit Judge Richard Tallman. "He can draw adverse inferences. The district court was trying to gather facts. Your clients didn't appear for the first hearing." And "Explain to me in simple English how this operation worked—from the beginning," said US Circuit Judge Harry Pregerson. "How did they make their money? Who ran this operation?" "I don't know," Voelker said. "You don't know anything, do you?" Pregerson said before Voelker persisted in arguing that the proceeding was tainted and that the sanctions should be thrown out entirely and Judge Pregerson said "Let's say you're right," said . "Do you want us to send this back and have this turn into a criminal contempt proceeding?" ..... "With a potential penalty of life in prison for criminal contempt?" asked Judge Tallman. "They're prepared to run that gauntlet?" Well, despite the judges' warnings, it seems the Prenda trio want their day in court. 

With a reported 100,000 people accessing illegal streams of the 'fight of the century' between Floyd Mayweather and Manny Pacquiqao using the new Periscope app, despite an injunction (Temporary Restraining Order) banning two other online services from offering free live streams, the CopyKat is wondering if the tweet from Dick Costolo, the CEO of Twitter, owner of Periscope saying "and the winner is ... Periscope" might come back to haunt him. With 'paid for' access to the fight costing anything from £24.95 here in the UK to upwards of $100 elsewhere, the cost of illegal streams via the likes of Periscope and Meerkat is potentially in the tens of millions of dollars, something that likes of HBO, Showtime and Sky TV, who licensed the exclusive rights to the boxing match, will no doubt be most concerned about. Periscope, which is an app (yes, another complexity!) allows a user to broadcast from where he or she is - for example by pointing his iPhone at a TV screen - has been downloaded over 1 million times and was blamed by HBO for facilitating mass copyright infringement after four episodes of the new series of Game of Thrones were leaked and widely shared using the service. The pay-TV offering reportedly generated over $400 million for official broadcasters. Apart from copyright infringement conundrums, the app and the 'social share' concept raises a host of other issues, privacy being at the forefront as the whole world becomes a broadcaster. Hmmmmmmmmm. Much to muse upon! 

The Shark is back: Techtimes tells us that Grooveshark.com may be no more, but a limited version of the website has reappeared  at Grooveshark.io, providing access to most of the same streaming music as the original Grooveshark, but lacking the playlists and other features. It seems a team of users began backing up all the music on the Grooveshark servers before the streaming service was shuttered last week. The group's leader, who calls himself "Shark," claims he has moved 90 percent of Grooveshark's music to the new site and is working on getting the remaining 10 percent.

And finally - a new book: A Newcomer's Guide to the Music Business is "A quick and simple guide to the music business for those on the verge of taking their first steps into the industry". Written by law graduate and music producer Tito Adesanya, who grew up on a notorious NW London council estate, "the book assists newbies in avoiding the basic mistakes the majority make when entering the music business, while also familiarizing prospective newcomers with industry customs, practices, and the type of working environment they can expect to encounter." And its just £4.99!