17 July, 2015

Online Blasphemy - YouTube Wins Round Two of Performance Right Kerfuffle

After the decision in Garcia v Google (discussed on this very blog here) last year the question of whether an actor (or actress) has a copyright interest in their respective performance, no matter how short, has been debated hotly. The decision was appealed, and the Court of the Ninth Circuit decided to hear the matter again en banc; a decision that many of us involved in IP have waited for with anticipation. The decision was finally handed down nearly two months ago, and this writer, in shame, only now had time to discuss the case.

For the uninitiated Garcia v Google dealt with a low-budget independent movie called "Desert Warrior", in which Ms. Garcia appeared. Post filming the title and narrative of the movie was drastically changed, finally being called the "Innocence of Muslims"; a movie that arguably was quite blasphemous and offensive towards those of the Islamic faith. Ms. Garcia's appearance was a brief 5 second clip, and her performance was dubbed over in post-production. The movie incited violence and disapproval in the Middle East, with Ms. Garcia also facing several death threats as a result of her appearance in the movie.

The main crux of the case lies in Ms. Garcia's claim in a copyright interest in her performance, allowing for an injunction to be issued against Google for the movie's broadcast on their YouTube platform (and potential other platforms as well). This injunction was issued at first instance.

The Court raised the alarm right from the start, stating that "...Garcia’s theory of copyright law would result in... splintering a movie into many different “works,” even in the absence of an independent fixation", or in other words, every actor or actress in a given movie would have a copyright claim in it. Also, Ms. Garcia's part in the movie would fall under the work-for-hire doctrine, which passes on the copyright interest to the employer, leaving her with no copyright claim in the work. Ms. Garcia did not, as a final barrier to her copyright claim, fix her work in any tangible form; a requisite element under copyright in the United States for an interest in the work to arise. Through the Court's rationale, albeit quite aggressive as such, Ms. Garcia's claim was quickly dissected and dismissed and she was deemed to have no copyright claim in the work.

Free speech online; a precious commodity
Finally, the Court addressed Ms. Garcia's claim under irreparable harm. Her claim does not manifest itself through any tort-based cause of action, but through copyright and her interest in the work as an author. The Court did have sympathy for Ms. Garcia, but her action was rotten at the root, as the Court described: "This relief is not easily achieved under copyright law. Although we do not take lightly threats to life or the emotional turmoil Garcia has endured, her harms are untethered from -and incompatible with - copyright and copyright’s function as the engine of expression". One has to agree with the Court's judgment, as rightfully so copyright protects expression and not human life or its safety. While one has to appreciate that the movie has brought a significant amount of distress to her, and as such those problems should be addressed, but the way to address them is not through copyright. In the end, her claim failed under irreparable harm, as no harm was caused to the work or her claimed interest in the work as an author.

Judge Kozinski, who gave the judgment at first instance, handed down a dissenting judgment, as he saw there indeed was a claim under copyright in Ms. Garcia's small part in the movie. Through his Honor's argument, Ms. Garcia's claim stems from the acting itself, and its fixation on film. Without this, in judge Kozinski's mind "[i]f Garcia’s scene is not a work, then every take of every scene of, say, Lord of the Rings is not a work, and thus not protected by copyright, unless and until the clips become part of the final movie". This writer, in his humble opinion, argues against judge Kozinski here, as the mere recording of an actor or actress does not necessarily create a 'work' unto its own under copyright. Should one follow this logic the movie in question could consist of hundreds, if not thousands of distinguishable works, which would lead to copyright being untenable in the film industry.

Judge Kozinski further argues that Ms. Garcia has an interest as an author, and thus should be protected from irreparable harm. Although, under precedent, an author does not themselves have to affix the work to be considered as such, an actor or actress plays no part in the fixation of a work, but merely act as a part of its fixation for another. This does not create an interest as an author, or a separate author within one work. As she is not an author she cannot face irreparable harm, even if her life is at stake, as his Honor points out at the end of his dissenting judgment.

Overall the case has been a very interesting one, and whether it goes on further remains to be seen; however, this author does not see a need for it to go beyond its current route. Whether Ms. Garcia has a copyright interest in the work is, at least arguably, an equivocal no, and her case, although very serious in nature, would create an overreaching right in copyright beyond its intended purpose.

Source: BBC News

07 July, 2015

Coffee Shop Conundrum - ECJ Set to Decide on Free WiFi and Third Party Liability

In a time when the internet is nearly always with us, be it in a smartphone, a laptop or other smart devices, you often taken things for granted such as free WiFi. For many travelers it has saved their behinds from being lost, out of money, or in some unfortunate cases, even potential harm, and many of us in bigger cities like London can easily overlook the need for WiFi. But, as Uncle Ben framed it so eloquently: with great power (i.e. Internet connectivity) comes great responsibility. People can be inconsiderate, and at times outright indifferent, to potential liability issues in using other peoples' or organizations' free WiFi, which begs the question: can a third-party be liable for possible infringement on their wireless network?

The answer to the question possible lies in the forthcoming decision of McFadden, faced by the European Court of Justice later this year (this writer hopes). The case, refereed to the ECJ from the Regional Court of Munich (decision in German can be found here), concerned a store owner, Toby McFadden, in Germany who's store specialized in light and acoustic engineering services. To further promote the store and its offerings the owner allowed potential customers to freely access a WiFi connection, with no password protection included. An unknown user used this free network to upload and share an infringing song on an online file-sharing platform, and Mr. McFadden was subsequently sued by Sony Music who argued he is liable for the infringement (among other things) that occurred on his unprotected network.

The case does bring forth several questions concerning Article 12 of Directive 2000/31/EC, more commonly known as the E-Commerce Directive. Although each of the questions merits an assessment in their own right, for the sake of brevity this writer shall endeavor to answer the question above, at least in the light of Article 12.

Wifi can cause some degree of envy
What Article 12 seeks to protect are service providers, or in other words 'mere conduits', who provide a service such as free WiFi, should they remain largely hands-off of the provision of that network (i.e. don't cherry-pick the users accessing the network, don't initiate the transmission of information or alter what is received in some way). This, however, cannot be a service for which the provider is remunerated, per Recital 18 of the Directive, and aims to facilitate the better sharing and access of information within the European Community.

This writer will freely admit his lack of knowledge in German law, but proposes to give a perspective from the UK side of things. Pinsent Masons in their Out-Law blog have set out that, per German law, individuals have to secure their internet connections through reasonable means, such as a password, to avoid liability should a third-party use their connection for nefarious purposes; however, this standard does not extend to commercial entities, which the case aims to settle.

Under the Copyright, Designs and Patents Act 1988 the High Court has the capability to issue an injunction against a service provider, provided that the "...service provider has actual knowledge of another person using their service to infringe copyright". What this has been interpreted in Twentieth Century Fox Film Corp & Ors v British Telecommunications Plc to encompass is true knowledge of one or more infringers using the provided network to do so, and the more detail of knowledge or facts given to the service provider (notices etc.) the less protection the provision offers to them. One could argue that a lack of password protection would not in itself give rise to an actual knowledge of possible infringement, as users, even if filtered through via password protection, could still abuse the network without the knowledge of its provider.

Whether Mr. McFadden was brazenly aware of the infringing acts being committed on his network is unknown to this writer, and he awaits the decision of the ECJ with some interest. Voices have been raised in the protection of open networks and access thereto by entities such as the Electronic Frontier Foundation, and one must agree with them to a certain extent. The 'locking down' of networks does provide a more cumbersome regime through which information and the Internet can be accessed, but one still does have to keep in mind the protection of legitimate rights within that space. What the ECJ decides will undoubtedly have ramifications on our WiFi networks, but one can imagine they'll only remain a login away.

Source: JDSupra