30 April, 2015

Pirates Uncovered - Dallas Buyers Club's Landmark Case in Australia

Piracy is considered by many in the entertainment industry to be the plight of the 21st century creative minds and pockets (and the pockets' of many shareholders, one would think). What ever your thoughts on copyright piracy, the topic remains a hot-button issue, and the courts have been, and will undoubtedly continue to, battle with for years to come. With this in mind, the enforcement of rights online has proven difficult, especially when a user, either downloading or sharing said infringing content, is effectively hidden behind a single Internet Protocol (IP) number, which does not accurately identify the given user (as discussed here in some manner relating to the US). The battle between Internet Service Providers (ISPs) and copyright holders has been an active one regarding this, and a recent decision in Australia seems to have opened the door to potentially combating this issue on the copyright holders' end, at least for now.

The case in question was Dallas Buyers Club LLC v iiNet Limited, which dealt with the very successful movie Dallas Buyers Club that was, among other things, nominated for 6 Oscars in its year of release. Due to the movie's immense success, it was promptly shared online, and in an action for preliminary discovery, the movies' rights holder Dallas Buyers Club LLC sought to identify the individuals behind all 4726 unique IP addresses associated with sharing the movie online through the 6 respondent ISPs in the action. The ISPs contested this application on several grounds, but the first instance decision lay with the Federal Court of Australia.

Although the respondents actively contested the ownership of the copyright in the work (decided as being held by Dallas Buyers Club LLC, with very little resistance from the Court), and other matters underpinning the case at hand, the meat of the discussion lay in the possible allowance of discovery in relation to the aforementioned IP addresses.

The secret life of a copyright infriger (Source: Bizarro Comics)
Under the Australian Federal Court Rules 2011 a party can seek for the identification of an unknown party should they have a cause of action against that person under certain requirements: "(a) there may be a right for the prospective applicant to obtain relief against a prospective respondent; and (b) the prospective applicant is unable to ascertain the description of the prospective respondent; and (c) another person (the other person): (i) knows or is likely to know the prospective respondent’s description; or (ii) has, or is likely to have, or has had, or is likely to have had, control of a document that would help ascertain the prospective respondent’s description." Clearly, as the individuals sharing the movie are behind an IP address, and therefore hard to identify without information from the ISP as to who is behind said IP address, Dallas Buyers Club, at least prima facie, had a case to find out who these people are under the Act.

Regardless of the ISPs' rejection of Dallas Buyers Club's assertions under the three requirements of the Act, the Court saw that they had fulfilled the requirements and were therefore entitled to disclosure as to the users' identities. They had a right to seek relief as to a potential breach of their copyright; they could not identify the individuals committing that infringement; and the ISPs knew or were likely to know who they were, or at least would be in possession of their subscriber details based on fixed IP addresses.

Even though Justice Perram allowed the disclosure of the users' information to Dallas Buyers Club, he did however set certain restrictions on it, which will be set by the parties later in the process. Dallas Buyers Club have indicated that they want the details disclosed by May 6th, but the letter that will be sent out will be determined on a later note as well.

Although the case is an important landmark in the fight against piracy, the disclosure of individuals' details in relation to copyright infringement is nothing wholly new. In Canada, under the Federal Court Rules, the disclosure of such information is very similar to the Australian provision; and Voltage LLC, the parent company of Dallas Buyers Club, has successfully used the provision to gain such information in Canada in the case of Voltage Pictures LLC v John Doe. Similarly, in the UK, a Norwich order (the equivalent of the Australian provision's application) was issued for copyright infringement through which subscribers' details were disclosed to the copyright holder in Golden Eye (International) Ltd & Anor v Telefonica UK Ltd. Both cases also discuss the restrictions needed in the event of such disclosure, such as: "[p]utting safeguards in place so that alleged infringers receiving any “demand” letter from a party obtaining an order under Rule 238 or a Norwich Order not be intimidated into making a payment without the benefit of understanding their legal rights and obligations... [s]pecific warnings regarding the obtaining of legal advice or the like should be included in any correspondence to individuals who are identified by the Norwich Order... [l]imiting the information provided by the third party by releasing only the name and residential address but not telephone numbers and e-mail addresses... [and] [r]equiring the party obtaining the order to provide a copy of any proposed “demand” letter to all parties on the motion and to the Court prior to such letter being sent to the alleged infringers". These, among others, will undoubtedly be considered by the Australian courts in their application of such orders in the future, and in this case specifically.

As one could imagine, the case has spawned a huge amount of discussion, especially relating to Voltage Pictures' previous strong-arm tactics in their letters to infringers. Nevertheless, the cold application of the law, at least to this writer, seems to be quite accurate, and individuals who engage in such activities need to understand the risks associated with illegal copying of media online. The Dallas Buyers Club case clearly sets the stage for more direct, stronger enforcement of copyright within Australia, and it remains to be seen how the provision will be utilized in the future, and what restrictions the courts ultimately put on the disclosure of subscribers' details and the usage thereof.

Source: Sydney Morning Herald

17 April, 2015

Stifled Words - The DMCA and Censoring Free Speech

Since its enactment at the cusp of the 21st century, the Digital Millennium Copyright Act in the United States has been the subject of discussion within the IP community, practitioners and even the public in general. With its inception being in the early days of the internet, back when our full understanding of the scale and complexity it will achieve later in its life was all but naught, the provisions in the DMCA can be seen as being quite broad and outdated in their application to the Internet as we know it today. The Electronic Frontier Foundation published a white paper some 2 years ago, detailing very thoroughly the potential abuse of the DMCA and its provisions, and this writer can agree that the DMCA has its issues and needs to be addressed by the US legislature. That being said, a lot of laws have their negative applications (some IP related discussion can be found here and here), but could the DMCA be used to stifle free speech, even abroad?

For the uninitiated, under the DMCA a noticed can be issued to a service provider to request the taking down of copyright infringing works on that provider's services, for example, on a website, under 17 USC section 512. After a sufficient amount of information is provided, the content has to be taken down, should the material alleged actually be infringed as described. While the provision purely affects intellectual property rights, there have been instances where the takedown notice has been abused, and more often than not, service providers will comply with the request just to cover their own backs.

Discussions can be odd at times (Source: HiJinks Ensue)
A recent instance, as discussed above, prompted this writer to look into a matter where the DMCA was clearly used for more nefarious purposes, and not to protect legitimate interests in one's intellectual property. The case in question was Automattic Inc and Oliver Hotham v Nick Steiner, for which summary judgment was passed early last month (PDF copy can be downloaded here), regarded a young journalist called Oliver Hotham. Mr. Hotham, in his journalistic endeavors, contacted an organization called Straight Pride UK, one which advocates their notion of current discrimination of heterosexual people in the light of emerging gay rights. In his email communication to Straight Pride UK Mr. Hotham identified himself as a 'freelance journalist' and asked the organization some questions relating to them and their agenda. They promptly answered a week later, attaching a document titled "Press Release", in which they detailed their answers to most of Mr. Hotham's questions. He subsequently cleaned up the answers, rearranged them and published them in his blog article "It's great to be straight... yeah" (quoted in full here), which garnered a great deal of traction. Due to the article painting Straight Pride UK in a less beneficial light, they threatened to, and did, issue a takedown notice under the DMCA if the article wasn't take off Mr. Hotham's blog. Wordpress did, however, take down the article, yet after some voicing out on Mr. Hotham's part as to his ordeal, Wordpress took action and sued Straight Pride UK (through their representative, Nick Steiner) for abuse of the DMCA.

Under section 512(f) a claim can be brought against a false DMCA notice that has been issued through materially misrepresenting that the activity in question infringes their rights, i.e. that you claim someone's post on a website infringes your copyright when it (potentially at least) doesn't. Wordpress asserted that, as Mr. Steiner represented that "[the] [u]ser http://oliverhotham.wordpress.com did not have my permission to reproduce this content, on Wordpress.com or twitter account or tweets, no mention of material being published was made in communications... [and that] [i]t is of good faith belief that use of the material in the manner complained of here is not authorized by me, the copyright holder, or the law". As Mr. Hotham had identified himself as a journalist, and the work sent had been titled as a press release, clearly Mr. Hotham did not infringe copyright in the US, or hypothetically even in the UK had the case been brought forth here. Wordpress firmly contested Mr. Steiner's assertion and the court agreed with their argument, issuing a summary judgment in their favor.

Although the case discussed nothing in terms of substantive arguments relating to section 512(f), it highlights an important issue regarding the potential abuse of DMCA when it comes to freedom of expression, and not only limiting it to the US (as the case was here, and wholly related to two UK entities and a US service provider). Had Mr. Hotham not been a journalist (says the writer, writing his own 'journalistic' blog) the nature of the case could have been very different. The DMCA, or any provisions regarding copyright, should protect legitimate interests, and not merely those aiming to stifle criticism or dissent in the veil of protecting copyright. However, as was stated by Paul Sieminski, Chief Legal Counsel for Automattic: "...[this] DMCA abuse may go unpunished this time. But, we're heartened that our case makes some good new law for future cases. There's very little case law in this area, and previously no case law about what damages were available if a plaintiff were to win". Arguably this is very true, and serves as an important milestone in the protection of free speech under the DMCA.

Source: The Guardian

07 April, 2015

Links Galore - Hyperlinking Faces Its Third Challenge

After the Svensson and BestWater decisions hyperlinking seemed to already be a matter, which has been dealt with extensively and thoroughly. Even so, a third decision loomed in the horizon, hopefully shedding the final bit of light needed into the question of hyperlinking and copyright infringement. After the Svensson decision the questions posed to the Court were reduced to all but one, leaving more significance to that final question and its potential impact on the issue.

The case in question was C More Entertainment AB v Linus Sandberg, which dealt with the broadcasting of ice hockey games, which were supplied by C More for a nominal fee for those wishing to view the games live online as opposed to on TV. Linus Sandberg created links on a website to allow access to two ice hockey games without having to pay C More for the pleasure of doing so, allowing for users to watch paid-for content beyond their paywall protection; however C More quickly put a stop to this, and Mr. Sandberg only was able to post links to two games. He was also taken to court in Sweden over copyright infringement.

As said above only one question was referred to the ECJ: "May the Member States give wider protection to the exclusive right of authors by enabling “communication to the public” to cover a greater range of acts than provided for in Article 3(2) of [Directive 2001/29]?" The question, prima facie at least, clearly requires guidance on whether Member States can extend the coverage of what constitutes a 'communication to the public' beyond what is expressly provided in the Directive, namely the posting on hyperlinks to paid-for content such as hockey games.

In light of the Directive (namely Article 3) and its Preamble, the Court swiftly determined that Member States' rights in extending coverage could potentially cover the posting of hyperlinks to live, paid-for content. This, however, only applies to on-demand services, which the above service is not, as live broadcasts are not watched by individuals at a time that is convenient to them, but rather, at a strict prescribed time. The Court dismissed its applicability to the current situation, at least in light of Article 3, deeming Mr. Sandberg's actions not an infringement of the right of communication to the public via his hyperlinks.

Hyperlinks can be enticing...
With this in mind, the Court did not oust the possibility that Member States could extend the coverage of the provision beyond what has been expressly set out in the Directive. The aim of the Directive is to harmonize copyright within the EU, but does not, as was seen by the Court, "...prevent or remove any differences between the national legislations as regards the extent of the protection which the Member States may grant to the holders of the rights referred to in Article 3[] with regard to certain acts, such as those at issue in the main proceedings, which are not expressly referred to in that provision".

Following their argument the Court saw that under Directive 2006/115 Member States had the ability to give more far-reaching protection in relation to copyright when it comes to broadcasts and communication to the public. Article 8 even includes content, which is restricted by payment, as well as wireless communication of such content, for example via the Internet.

The Court then summarized its judgment on the matter: "It follows that Article 3(2) of Directive 2001/29 must be interpreted as not affecting the option open to the Member States, set out in Article 8(3) of Directive 2006/115, read in conjunction with recital 16 to that directive to grant broadcasting organisations the exclusive right to authorise or prohibit acts of communication to the public of their transmissions provided that such protection does not undermine that of copyright... Having regard to all the foregoing considerations, the answer to the question referred is that Article 3(2) of Directive 2001/29 must be interpreted as not precluding national legislation extending the exclusive right of the broadcasting organisations referred to in Article 3(2)(d) as regards acts of communication to the public which broadcasts of sporting fixtures made live on internet, such as those at issue in the main proceedings, may constitute, provided that such an extension does not undermine the protection of copyright".

While the decision is by no means as influential, at least in this writer's opinion, as Svensson or BestWater, to an extent, it still sets a potentially influential precedent should Member States wish to enact more wider coverage in relation to the communication to the public right. It does still leave the question of hyperlinking in more doubt, as links to newspaper articles have been deemed to infringe copyright, when links to live broadcasts would not. What happens now after the myriad of hyperlinking decisions in Member States remains to be seen; however the law is begging for more correction in terms of national application.

Source: IPKat