It's Just a Part of the Process - The Disclosure of Copyright Protected Materials Is Not Communication to the Public

Any litigator will be very familiar with the process of disclosure (or discovery for our American friends), where you exchange a wealth of documents with each other as parties to litigation in order to better assess the case you have and what materials support it. Often the breadth of disclosure can be immense and encompass a huge variety of documents of all sorts, from emails, internal notes to photos, depending on the case at hand. Unsurprisingly many of these documents will be protected by copyright, and it's unclear, at least on its face, whether the sharing of those documents as a part of disclosure would infringe copyright (or could be prevented using copyright to do so). Luckily enough the CJEU was tasked to answer this question in a recent case and handed down their judgment in late October. 

The case of BY v CX concerned litigation between the parties in the Swedish civil courts, where during the disclosure process CX sent the court a seized copy of a page of text containing a photograph as evidence in the proceedings via email, which was taken from BY's website. BY requested that CX pay damages for copyright infringement for the sharing of the photographs with the court. At first instance the Swedish courts dismissed BY's claim, as, although the photographs were protected by copyright, no harm was suffered since they were shared as a part of litigation. BY subsequently appealed the decision, which ultimately ended up with the CJEU. 

The Court considered the four questions submitted to it together, which asked "...whether Article 3(1) of Directive 2001/29 must be interpreted as meaning that the concept of ‘communication to the public’, referred to in that provision, covers the transmission by electronic means to a court, as evidence in judicial proceedings between individuals, of a protected work".

To kick things off the Court went through the requirements for what amounts to a 'communication to the public', namely: (i) an act of communication of a work and (ii) the communication of that work to a public.

The Court first noted that 'an act of communication' includes any act by which a user gives access to protected works, with full knowledge of the consequences of that action, is liable to constitute an act of communication, This would be the case, prima facie, where a protected work is transmitted by electronic means to a court as evidence in judicial proceedings between individuals.

Secondly, the work has to be communicated to a 'public', which refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons, which does not simply mean private groups but could be the general public. 

In the current case the Court determined that the public in this instance would be a clearly defined and closed group of persons holding public service functions within a court, and not to an indeterminate number of potential recipients. The communication has not therefore been made generally, but to a specific set of professionals in the court system. In the light of this the Court saw that it would not amount to a 'communication to the public'. 

Further, even if national legislation allows for the public inspection of documents in court proceedings does not change this fact. In these instances access is granted by the courts, and not the person that sent the documents to the courts, which is often under an obligation to provide access to court documents. Article 9 specifically allows for this, as it permits the transmission of copyright protected materials for the purpose of access to public documents. 

The CJEU therefore decided that: "Article 3(1)… must be interpreted as meaning that the concept of ‘communication to the public’, referred to in that provision, does not cover the transmission by electronic means of a protected work to a court, as evidence in judicial proceedings between individuals".

The decision is in no way surprising, since access to litigation related documents is paramount in many jurisdictions, and preventing access to them would hinder the availability of important documentation. The argument was indeed a very novel one, but one that was set to fail from the beginning. This writer wonders whether it was simply an attempt to hinder the disclosure process, but that is merely conjecture.

Plain and Simple - Australia Wins Plain Packaging Challenge in Asia

Plain Packaging, the initiative to effectively remove all identifying markings (one could say the only distinctive features in tobacco), is a debate that has been raging on for years, with both sides voicing very valid concerns. Australia has been on the forefront of plain packaging, passing the Tobacco Plain Packaging Act 2011 over 5 years ago, and the Act has not been without its challenges. Currently there still are suspended proceedings at the WTO, initiated by Ukraine, over the legality of the Act (discussed, prior to the suspension, here); however, this has not been the only battleground the Act has been fought over in.

In a recent action in the Permanent Court of Arbitration, Philip Morris Asia Limited (Hong Kong) challenged the legislation under the 1993 Agreement between the Government of Australia and the Government of Hong Kong for the Promotion and Protection of Investments, which sets certain rules for both countries in relation to foreign investments from those countries. These are, inter alia, that "[e]ach Contracting Party shall encourage and create favourable conditions for investors of the other Contracting Party to make investments in its area" and that "[i]nvestors of either Contracting Party shall not be deprived of their investments nor subjected to measures having effect equivalent to such deprivation in the area of the other Contracting Party except under due process of law". The latter of the two is the more important argument, as Philip Morris argued that Australia infringed this Article (Article 6) through its plain packaging law. Additionally Philip Morris argued that the law did not treat their investment fairly and equally (as mandated by Article 2(2)).

Without discussing the merits of Philip Morris' case, Australia argued a lack of proper jurisdiction for the Court of Arbitration, as, among other factors, Philip Morris Asia had only acquired the full shareholding of their Australian counterpart after the introduction of the legislation, leaving them fully aware and accepting of the potential negative influence on their investment by the law's passing.

The Tribunal decided on this late last year (with the decision not having been published as of yet, due to confidentiality reasons, which this writer was waiting for) that it did not have jurisdiction to hear the case, and dismissed Philip Morris Asia's case.

The decision, albeit very low in substance of the intellectual property laws that underpin plain packaging, is an interesting one, and a worthwhile illustration of the power of international trade agreements. The Transatlantic Trade and Investment Partnership (TTIP) and the controversy surrounding it only makes this more pronounced, which could, potentially, afford similar routes for corporations to challenges laws that make like difficult for them. In any event, this writer found the case interesting, although underwhelming in its substance, and would have liked to see things debated in more length as to the actual law and its possible infringement of the Agreement.

Source: Sydney Morning Herald

Copyright and Social Media - Viacom takes on YouTube

As people use various social media outlets more and more, their relation to copyright and possible issues they present become ever more prevalent. Could social media websites such as YouTube and Facebook be infringing copyright through their users' submitted content? With YouTube receiving over 100 hours of video every minute, some of which clearly being copyrighted material, it was only a matter of time before the courts had to address this issue. Media giant Viacom took it upon themselves to bring this matter forth, suing the video hosting service for copyright infringement.

The lengthy legal battle began back in 2010, when the matter was taken to the New York District Court in the case of Viacom v YouTube. The defendant argued, in their application for summary judgment, that they were protected from being held liable under the safe harbor provisions in the Digital Millennium Copyright Act. Should YouTube have lacked actual knowledge of any infringing material or acts being conducted in their service; would not be aware of any facts or circumstances making such activity apparent; and have acted promptly on any knowledge of such acts or materials being published by removing them, they would be exempt from liability. In Viacom's argument, for partial summary judgment, YouTube had actual knowledge and were aware of facts and circumstances which made such acts apparent, but did not act upon that knowledge to stop it; they received financial benefit from this infringing activity and could control it; and did not result solely from providing storage and direction of a user in their facilitation of that content as specified in the section. In the court's conclusion YouTube did not infringe copyright and were safe under the provisions as a service provider. Even though the site did contain infringing material, YouTube's prompt removal of that content when notified of it prevented it from being liable. Should they have not acted upon the knowledge of the material, they could have been liable.

In taking things further, Viacom appealed, and their case was heard in late 2012 in the New York Court of Appeals. In the decision the court saw that the judge at first instance had not considered the issues of YouTube's awareness of the material or had actual knowledge of any specific infringements; whether they had 'willfully blinded' themselves, in other words ignored, the infringements; whether they had the right and ability to control that activity; and whether the content was syndicated, in other words controlled, by a third party (the user), only using the service as a means of storage and direction. In that light the case was sent back to the District Court for final summary judgment.

A plethora of possibilities

In its final decision the District Court saw that YouTube was indeed safe under the DMCA safe harbor provisions. The service had not willfully blinded itself to the infringing content, which was found through evidence in the form of internal emails between executives. Even though the exchanges did identify specific content that was infringing and discussed their removal, in themselves they were not enough to showcase any level of ignorance through choice. The site also did not have the right and ability to control users activities, as this would have meant an ability to do something beyond the mere typical control of a website. Finally their potential financial gain was not seen as an issue, as they did not encourage the uploading of infringing material, nor did they have active control over the content which was uploaded (pre-screening the videos etc.) In its judgment the court threw out Viacom's case and found in favor of the defendant.

So after years of litigation, what can we say about the relationship between copyright and social media? The relationship does still remain a complex one, and the nuances of each service provide different aspects that need to be assessed. What can be taken away from the Viacom litigation is the potential issue of "willful blindness", as websites cannot simply abuse the DMCA provision in the guise of not knowing that infringing acts are occurring. In short, ignorance is no defense if it's through choice. Websites don't have to take an active role necessarily in screening everything that is posted, but do have to act once informed of any misuses. As social media grows and evolves, it will provide newer challenges and potential issues going forward, but as it stands, the Viacom case gives us a great illustration of how social media and copyright interact.

Retrospective - IP Addresses and Identification of Copyright Infringers

One of the more controversial aspects of the Internet is often thought of being the anonymity it offers to users. With nothing to particularly identify you as an individual, unless you provide specific information pertaining to who you are, the Internet often brings out both the good and bad in people; "Surely I can download this album or tell this person off, seeing as no one will know I did it?" There are methods of identifying someone, but as they stand today they are ineffective in pin-pointing exactly who did what, only giving an indication as to who might have been the infringer. The more predominant of those is the use of Internet Protocol addresses, or as they're more commonly known as; IP addresses.

"No Dale, you don't need to wear a balaclava on the Internet"

An IP address when put into simple terms is an indicator of a network and a device connected to that network. This is represented in a numerical fashion, such as 123.456.78.9. The numbers themselves represent the host network used and the location of that network. This information can be used to locate a person who has for example infringed copyright or done other things online which are deemed illegal. The problem with this method of identification is that it does not exactly tell us who has committed the infringement, but merely the location of the act. This essentially means that if Child A downloads music using his home Internet connection, shared by his Parents and Child B, the authorities will not be necessarily able to tell who in that household has committed that offense. This rough information can potentially be used in more questionable litigation processes, but has been used successfully in the prosecution and identification of individual in such proceedings.

"Sshh, I'm hunting infringers"

A case which dealt with the usability of IP addresses as a method of identification happened in early 2012 in the United States. K-Beech v John Does dealt with anonymous users (80 in total) who downloaded several videos of a not-so-family-friendly variety using BitTorrent technology, a work which was owned by K-Beech Ltd. In their application K-Beech alleged that the John Does had infringed their copyright by making an illegal copy of the work. These users were only identified through their IP addresses, and the court in its judgment deliberated whether it could be an accepted form of identification in such cases. Judge Brown made an interesting analogy in the matter: "An IP address provides only the location at which one of any number of computer devices may be deployed, much like a telephone number can be used for any number of telephones... it is no more likely that the subscriber to an IP address carried out a particular computer function – here the purported illegal downloading of a single pornographic film – than to say an individual who pays the telephone bill made a specific telephone call." This brings to light the point made above as to the ambiguity to who committed the given infringement in an Internet network. Judge Brown further expanded that with the ever-growing popularity of wireless connections the accuracy is fading even more, due to the even wider access to any given network by a larger number of individuals. In evidence to this the court drew on a previous judgment where it was noted that in 30% of cases the names which were given as the identified users were incorrect as to the infringing person.

What is important in the final observations of the case is the acceptance by the judiciary that an IP address can no longer effectively identify a user committing an infringement. Along with this proxy servers (a method where all network use is routed through a third-party server somewhere else, even on the other side of the globe) have even further blurred the line of actual user and who can be identified based on IP addresses alone. Judge Brown perfectly summarized this point in his conclusion relating to this point:

"In sum, although the complaints state that IP addresses are assigned to “devices” and thus by discovering the individual associated with that IP address will reveal “defendants’ true identity,” this is unlikely to be the case. Most, if not all, of the IP addresses will actually reflect a wireless router or other networking device, meaning that while the ISPs will provide the name of its subscriber, the alleged infringer could be the subscriber, a member of his or her family, an employee, invitee, neighbor or interloper."

Since the case there have been other instances where the courts have further affirmed this point and can be seen as to have closed this avenue of identification for good, at least in the US. What can be said is that this is a positive development, since the ambiguity of the true user can lead to problems for people who have absolutely nothing to do with the matter. Of course one has to emphasize individual responsibility and the need for measures to prevent such uses, but with evidentiary standards being much higher in criminal proceedings for example, it would seem odd that such an inaccurate method of identification could have been accepted.