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

Aereo's Streaming Service Infringes Copyright, Says Supreme Court

Having discussed the Aereo saga quite extensively through its litigation life cycle (speculation on the Supreme Court decision can be found here, discussion on the District Court decision here), this writer for one bated his breath waiting for the US Supreme Court decision on the case. Arguably the outcome of the Justices' deliberation is important, especially as the Internet is slowly overtaking traditional means of media distribution all over the world. Netflix alone has over 30 million subscribers, showcasing how the paradigm is shifting towards a more convenient, on-demand consumption of media. In the end the final word was the Supreme Court's.

For the uninitiated, the American Broadcasting Companies Inc v Aereo Inc case dealt with the web-based service Aereo, which offered, for a subscription fee, the streaming, recording and live watching of TV programming. This was done on an individual basis, and relied on the subscribes' request to watch a given show, live or not. Subsequently several broadcast companies objected to this as the service potentially infringed on their copyright, and took Aereo to court. Initial judgments have gone Aereo's way, and the final word fell on the Supreme Court.

The question for the court boiled down to whether Aereo's service was a public performance of copyrighted works under 17 USC section 106, or in other words a transmission of a performance, and as such, infringed the provision. In the vein of the historical decisions of Fortnightly and Teleprompter, the court equated Aereo's service to those of cable providers, with Justice Breyer (in the majority's opinion) stating that "[t]he subscribers of the Fortnightly and Teleprompter cable systems also selected what programs to display on their receiving sets... The same is true of an Aereo subscriber". Through this likeness the court decided that Aereo was indeed performing for the purposes of the provision, and Congress' intent was to prevent just that with the amendments after the aforementioned cases. The latter part of whether this performance was public remained in the Justices' deliberation.

Justice Breyer's decision assessed whether the performance was a transmission to the public mostly through the court's view on Congress' legislative intent, largely ignoring technological differences of the transmissions. Whether the transmissions are made to individuals makes no difference as "...the members of the public capable of receiving the performance... receive it in the same place or inseparate places and at the same time or at different times", which does not make a difference to whether it is to 'a public'. As long as several people have the potential to watch those programs, the transmission is to a public within the scope of the provision.

Sharon was distraught after the decision

Justice Breyer summarized the judgment well: "...having considered the details of Aereo's practices,we find them highly similar to those of the CATV systems in Fortnightly and Teleprompter. And those are activities that the 1976 amendments sought to bring within thescope of the Copyright Act. Insofar as there are differences, those differences concern not the nature of the service that Aereo provides so much as the technologicalmanner in which it provides the service. We conclude that those differences are not adequate to place Aereo's activities outside the scope of the Act". Aereo therefore infringed the copyright of the TV broadcasts it transmitted, and was held liable.

Justice Scalia in the dissenting opinion saw things differently, and equated the service to more of a library card rather than an on-demand video service, as users access freely available content through a small antenna. The service is not automatic, and wholly relies on the user, furthering Justice Scalia's opinion. He outright rejects the majority's opinion on Aereo's potential performance, stating that "...Aereo does not “perform” for the sole and simple reason that it does not make the choice of content. And because Aereo does not perform, it cannot be held directly liable for infringing the Networks’ public-performance right".

The majority's opinion is an odd one, at least from the stand-point of argumentation. It relies heavily on Congress' intent, rather than the wording of the provisions. As was presented by Mitch Stoltz from SCOTUSBlog: "...the majority’s approach in Aereo transformed interpretation of the transmission clause into a common-law-style exercise in judicial discretion", leaving the provision very open to future application. Mr. Stoltz further argues that "[t]he opinion sets out guidelines that more closely resemble the open-ended fair use analysis, or perhaps the proximate cause analysis in a tort case", which one can wholly agree with. The future of the Transmit Clause remains less certain after the ruling, and its future effects on Internet service like Aereo will remain to be seen. Aereo for one will have to take steps and modify its service to remain usable.

Source: The Verge

The US Supreme Court Faces Aereo and Web Streaming

Ever since its emergence in early 2012 the tech company Aereo has ruffled some feathers within the broadcasting sphere, and rightfully so. As discussed prior on this very blog, the website offers the ability to both stream and watch TV on-demand for a subscription fee, and functions much like a online DVR system as opposed to a licence based service provider such as Netflix. Although initially winning in the District Court of New York, the case has finally come to the US Supreme Court for final judgment, and presents a curious argument which will potentially affect the future of online streaming quite significantly.

The initial article on this blog discussed the Aereo case in the District Court of New York where the plaintiffs failed to demonstrate they would prevail on the merits of their infringement case, after which the case was subsequently appealed and went to the US Court of Appeals. It is worth discussing the issues again in light of this decision, facing final consideration in the US Supreme Court.

Under US copyright a copyright holder has an exclusive right to publicly perform their copyrighted works such as TV shows. Through this the Court was faced with determining whether Aereo's broadcasting of TV shows to its subscribers, whether live or on-demand, would amount to an infringement of this right as no licence was sought or paid for from the copyright holders of their respective contents broadcast over Aereo's systems.

"There has to be a better way!", thought Terry

The case largely hinges on the Transmit Clause within the US Copyright Act 1976, under which a public performance of a copyrighted work includes its transmission via cables, such as cable TV programming. The Clause's interpretation in the case of Cartoon Network v CSC Holdings, or more commonly known as the Cablevision case, is highly important in relation to Aereo and their potential infringement of the aforementioned public performance right. Under the Cablevision interpretation of the Transmit Clause, the Court of Appeals had to first consider the potential size of the audience of the transmission. A smaller amount of viewers, or a restricted ability to view the content, such as individual copies, would clearly weigh against the finding of a public performance of the copyrighted work. Secondly the court would have to avoid aggregating private transmissions of the works, making it irrelevant for the court to consider a large number of individual transmissions as opposed to a single, viewable by all transmission. This is important when assessing the first point, as a restricted and isolated transmission of a work would not be a public performance, clearly then not infringing that right. Thirdly the court would have to aggregate any transmissions made from a single copy of the work, i.e. if a single DVD is played in a player and distributed to several TVs. That transmission would clearly be a public performance of the work, at least more so than individual transmissions from individual copies. Finally, the court would have to take into account the factors which limit the potential size of the public who would view the transmission (emphasis the court's) in applying the Transmit Clause.

The Cablevision decision hinged on the very fact that all copies of the TV shows which were recorded through their DVR system were individual copies, and not merely a copy which was available to all. This limited both the actual and the potential amount of viewers for the copied transmission, clearly not making the performance a public one. Aereo's service functions much like Cablevision's DVR system, only creating a single copy viewable by that particular user upon their request to record it. As such Aereo's copies would, arguably at least, not be public performances, and not infringe the plaintiffs' rights in that content. Aereo's lack of licence is irrelevant as one is only required for public performances; something which Aereo's services are not doing. The Court of Appeals also reject the aggregation of Aereo's transmissions, as Cablevision's DVR functioned in a very similar way, and aggregating Aereo's transmissions would mean that Cablevision's transmissions would also have to be aggregated, clearly going against the precedent set by the case. The Court of Appeals rejected the plaintiffs' appeal, which is now being taken to the highest court in the US for final consideration.

The decision would have quite wide-ranging implications for both cable broadcasters and services much like Aereo. As the company pays no licencing fees to copyright holders, should they be allowed to operate and be deemed not to infringe copyright, similar services would undoubtedly spring up and cause significant losses to cable providers. On the other hand should the Supreme Court decide that Aereo infringes copyright, it could potentially restrict the future of the Cloud and cloud computing, further restricting the freedom of use over copyrighted content, at least on a commercial level. What ever the result will be, this writer for one is very interested in the decision and its potential impact on either side of the field.

Streams of Infringers - Germans Face Infringement Allegations over Adult Material

People's Internet browsing habits can be incredibly personal, especially when it relates to certain materials of an adult nature. As such pornographic materials have been used to coerce people into paying for alleged cases of copyright infringement, mostly because of the potentially embarrassing effect a publicly accessible litigation process would have on those individuals. Recent instances have been noted in Australia and more prominently in the US by Prenda Law (something which will be discussed on this blog very soon in more depth). Although seemingly a much rarer vehicle for short-term profits for some entities, recent times have shown an increase in behavior deemed as "copyright trolling"; much akin to patent trolling discussed on this blog prior.

The Germans are the current recipient of such claims, with thousands of Germans being targeted as alleged copyright infringers after visiting the streaming website RedTube (no affiliation with the more known YouTube I'm sure). With numbers having been reported as high as 30,000 Germans as recipients of these letters, the potential value sought by the firm U+C would be over 7,5 million euros.

As such web streaming has been deemed to not infringe copyright in many jurisdictions due to no copy being created in the process of streaming; however U+C argue that "...watching videos on sites such as Redtube can qualify as a proliferation of copyrighted material as a small copy of the file is created in the memory of the viewer’s computer", thus making a copy of the work and potentially infringing copyright. Commenting on behalf of RedTube Alex Taylor, their Vice-President. stated that "RedTube stands by its firm opinion that these letters are completely unfounded and that they violate the rights of those who received it in a very serious manner".

Many are unsure of how to pay the pizza delivery man, if some videos are any indication

Alongside the potential precedent that could be set by the case should it be taken further, potentially causing web streaming to be deemed to infringe copyright, the issue of whether this does infringe the privacy of German citizens can be raised. As stated by Christian Solmecke for the Guardian "...there was not only no legal basis for the fines, but that it was possible that the law firm behind the letters may have broken the law...[and] [i]t is hard to imagine how the IP addresses of the users could have been obtained on a legal basis". More notably this could be an infringement of the right to a private and family life under the European Convention on Human Rights, in addition to any specific German legislation.

The issue of the temporary copies has been argued by Tim Worstall as being potentially correct, stating that "If the original streaming site hasn’t been paying the right royalties it is possible that the viewers owe them. for that idea of a copy existing in the browser would not be, in at least some jurisdictions, be rejected out of hand". This writer for one can see the potential argument as being valid given the right line of argument or set of facts; however due to the current precedent surrounding web streaming it would be unlikely for it to be deemed a form of infringement.

As it stands the matter has not been taken to court, but due to the sheer visibility of the matter it seems unlikely it would avoid litigation entirely, assuming U+C have belief in their argument and are not simply trying to use peoples' embarrassment as a way to make a quick buck. Whether this will go further will remain to be seen, but this writer for one would love for U+C's argument to be tested in court.

Source: The Guardian

Streaming TV Does Not Violate Copyright

In a time when services like Netflix and Hulu are showing the cable companies what's what through convenience, choice and pricing, one would imagine there would be no need for people to stream content outside of a wide array of services enabling you to watch almost what ever you want, when ever you want. This however, is a reality, and access to content is still tough for some either due to monetary or because of regional restrictions.

A website, Aereo, operates by receiving TV signals and then converting them into a different format, allowing subscribers to watch TV shows on-demand through their service via the Internet for a subscription fee. In this manner, the service is much alike Netflix; however allowing you to watch recently aired shows as opposed to entire seasons once on offer via Netflix. Aereo does allow you to watch live TV as well as programs which have been recorded once they have aired. Two media companies, Hearst Stations and WCVB-TV, objected to this and sued Aereo for copyright infringement.

In a recent ruling, the District Court of Massachusetts had to decide whether Aereo's activities would indeed infringe copyright under section 106; more specifically the ability to perform (i.e. transmit) the copyrighted content publicly. The Court in its assessment had to determine whether the service would be a remote recording service, much akin to a DVR in a home, drawing from the case of Cartoon Network v CSC Holdings (Cablevision), where a remote DVR service was seen to not infringe copyright as the recorded programs was not deemed a 'public performance'.

Some love streaming TV a 'bit' too much

Clearly one can draw also from the US view of fair use, more specifically time shifting, where a viewer can record a show to view on a later date and that act would not infringe copyright. Much like the case of Sony Corporation of America v Universal City Studios, the user selects which programs it would like to record on Aereo, therefore arguably time shifting the content they wish to view. The case at hand however did not touch upon this fact. Hearst was also unable to show irreparable harm resulting from Aereo's service, only citing the possibility of harm through the possible loss of cable subscribers and their bargaining position when dealing with cable companies; an argument which was rejected by Justice Gordon, stating that it would "...take several years to materialize".

The Court did consider other factors, but these remain the most relevant. In concluding the Court saw that Aereo did not infringe copyright through their service, although different courts in the US have seen this to be different. The plaintiffs have since sought the right of appeal from the US Supreme Court, attempting to have them finally decide this issue, due to other services like Aereo having been shut down in New York and California. The Supreme Court, should they choose to take the case on, would have to decide "...whether the performance of their copyrighted programming via Aereo is "public" and therefore prohibited by the copyright law, or if Aereo is engaged in tens of thousands of "private" performances to paying strangers".

Source: Gigaom