Retrospective - Thumbnails and Inline Linking

The Internet has been the vocal point for most important developments regarding copyright since its emergence. Many cases have dealt with all manner of issues, such as ISP liability and over electronic scans of books, and there seems to be no end in sight as the law tries to adapt and mold itself to the electronic sphere. A staple feature of the world wide web is thumbnailing, where a smaller image is given to represent the real picture, often used in both search results and web pages when linking to said pictures, to make their identification and finding easier. The legality of this practice can be questioned, especially since it does, prima facie, create a copy of a work when it might not be sanctioned. However the determination of the aforementioned legal conundrum happened in the early years of the 21st century in the US Court of Appeals.

The case in question is Kelly v Arriba Soft Corporation, decided in 2002 initially, with an amended final decision being published in 2003. This concerned professional photographer Leslie Kelly, who posted some of his work on his website or others which duly licensed Mr. Kelly's works. The defendant, Arriba Soft, were the operators of an internet search engine called Ditto (which has since gone bankrupt), which displayed smaller versions of images as a part of their given search results as opposed to merely a text link to the image. Through this they amassed a database of pictures by copying the images from other websites such as Mr. Kelly's website or others which contained his works. Once Mr. Kelly found out that Arriba Soft had copied his works onto their database, he subsequently sued the corporation for copyright infringement. 

A very different thumbnail

In their judgment the Court of Appeals had to assess whether Arriba Soft's use of the images would fall under US fair use in section 107, as the reproduction of copyright protected images is only available to those who own the copyright or use the works under fair use. In their judgment the Court saw that the use of the works was both commercial and transformative, although regarding the former the use's nature was more incidental than purely for commercial gain, as Arriba Soft did not directly benefit from the displaying or selling of the images. Due to the smaller size and lower resolution of the images, their use of said images was clearly transformative from the more aesthetic nature of Mr. Kelly's work when displayed in full. As Justice Nelson stated: "The Copyright Act was intended to promote creativity, thereby benefitting the artist and the public alike... Arriba's use of Kelly's images promotes the goals... The thumbnails do not stifle artistic creativity because they are not used for illustrative or artistic purposes and therefore do not supplant the need for the originals. In addition, they benefit the public by enhancing information-gathering techniques on the internet". 

The nature of Arriba's use of Mr. Kelly's work was very different to their intended use, being more as aesthetically pleasing works of art as said above, which the thumbnails clearly were not. Even though Arriba Soft had copied the entire image into their database the Court saw that this was reasonable for their use and would not be substantially enough to merit infringement. Finally, the Court saw that Arriba Soft's use of the images did not harm Mr. Kelly's intended market, as clearly one can say that the arts market would be wholly different from that of search engines. In addition Justice Nelson stated well that: "By showing the thumbnails on its results page when users entered terms related to Kelly's images, the search engine would guide users to Kelly's web site rather than away from it". Clearly the thumbnails would only increase the potential market share of Mr. Kelly's work, directing traffic to his website all the while giving search engine users a preview of works quickly and potentially increasing their interest. As such the Court decided that Arriba Soft's use fell under fair use.

Thumbnails can be said to be very essential to modern uses of search engines, and create a great avenue from which both parties can benefit. Without them finding images would be exponentially harder. This is clearly demonstrated by the quick modification of the Court of Appeal's initial decision, which would have impeded such functions through its decision that displaying full-sized images would infringe copyright. Search engines are a complex beast, and will continually evolve, challenging the legislature and judiciary to adapt and potentially protect the free operation of the Internet and discovery of its content. 

Where Does Piracy Stem From?

Almost as big of a question as how do you stop copyright infringement, if not bigger, is where does it actually stem from? Why do people pirate content for which they should pay for enabling the content creator or creators to benefit from their hard labor. Although a myriad of answers can be given and argued, a recent unearthing of a letter by Google to the Australian Minister of Communications, Malcolm Turnbull, gives the communication company's view as to the question.

In their letter Google's Head of Public Policy, Iarla Flynn, expressed the company's view on the root causes of piracy: "...we believe there is significant, credible evidence emerging that online piracy is primarily an availability and pricing problem". On the face of it, one can agree with Ms. Flynn's assertion. Although blatant entitlement and sheer greed can be the reason for many when it comes to piracy, more often than not this can be pure availability. The most pirated TV show of 2013 was Game of Thrones, which provides the perfect example of this conundrum for many. As such the popular fantasy show is incredibly hard to access all over the world. It is provided as a part of HBO's GO system, which allows for the instant viewing of the channel's shows on-demand alongside its broadcasting on the actual HBO channel. However, the service is only usable in the United States, and even there the pricing can be steep, access costing over 100 dollars a month, as it is included in cable service bundles, being inaccessible to those without a qualifying package. Due to this many clearly have no other option but to pirate the show if they want to follow it as it progresses, or wait until the season is released on DVD and being severely behind on the newest developments discussed at the water cooler. Money isn't necessarily the only issue here either, with delays in the show's airing times contributing to piracy  rates as well.

As a possible solution to this problem is the increasing of availability and making pricing both affordable and equitable. A great example of recent successes proving just that are both Netflix and Spotify. Both services provide the consumer with the opportunity to pay a monthly fee for unlimited listening or watching of music and television. Although regional offerings vary in terms of content, both services have showed success in curbing piracy. Are they the answer to piracy fully? Arguably not. Copyright infringement is all too convenient, easy and has become a part of peoples' daily lives, with the stigma associated with it having almost fully dissipated as a result. There will be no time where people will not abuse that which they have the ability to abuse, and the Internet as a vehicle is no exception.

So what would the answer be? This writer for one would not be an advocate for more strict regulation and surveillance to prevent infringement. This would simply result in the increased disapproval of such actions, as can be illustrated by the recent Internet filtration by the United Kingdom, and only hinder access by those who legitimately want to access content. Arguably the ball is in the content providers' court, and the legislature should encourage the market to react rather than demand more regulation. With recent reforms showing a clear intent to expand freedom in relation to copyright, the onus is more on the providers than ever.

Piracy has been, and will remain, a hot button topic in the scheme of copyright, and rightfully so. Discussion should encourage change on both sides, but still remain sensible enough to prevent over regulation on strict surveillance. Although discussion has been scarce in the US especially, one can only remain hopeful and keep the discussion alive.

Intellectual Property Law and Sports

As an avid fan of a number of sports, this writer for one understands the importance which it carries, not only to individuals who enjoy watching and rooting for their favorite teams and players, but for the organizations who benefit from fans engaging in their sport. Even though sports in general enjoys a massive following all over the world, its relation to intellectual property can allude the layman, and just how much teams and players can have invested in their particular organization or brand.

Probably the clearest example of intellectual property and sports teams being intertwined is their ownership of several trademarks, relating undoubtedly to their name, logos and the like, if possible to register. Such an example is the football club Manchester United, who own trademarks in their logo, name and their respective variations. Issues relating to trademarks and football clubs have gone as far as the European Court of Justice in Arsenal v Matthew Reed, only adding to the clear importance these types of marks carry for teams.

Even the equipment which is used in a variety of sports can be patented. Examples of this are old patents for a basket ball from the 1920s, and a patent for the manufacture of a baseball bat from 1902. As one can imagine, incredibly popular sports such as the above, can produce quite the monetary incentive to lock down the production of a certain essential piece of equipment. In addition to the equipment used in games, apparel used can be, and has been, patented. Basketball shoes and football pants have been patented in the early part of the 20th century. Much like the equipment themselves, the sale of apparel can be quite lucrative, with basketball shoes alone yielding over 2,7 billion dollars under Michael Jordan's name. Something which often does not come to mind as a patentable subject matter in relation to sports are the rules of the sports themselves. The rules of American football were patented in the 1980s, and the game ping-pong was patented as early as 1902.

On a more specific level intellectual property can even protect the personalty of athletes. These are what are called 'personality rights', which exist in the majority of common law countries for example. In the US, States have independent laws which protect personality rights, as opposed to a nation-wide federal law, such as in California. These rights protect the image of a celebrity, which includes the image of professional athletes in sports. This protection can extend to protect the person's image being used without authorization for the sale or promotion of goods or services.

A much lesser known, and more recent, instance of where one can see intellectual property law and sports collide, is in relation to tattoos (something which has been discussed more extensively on this blog before). A very minor issue, and something which will not be noticed by many, but goes to show just how nuanced the relationship between law and society can be, even when talking about sports.

As you can very well see, intellectual property has its place even in sports. What has been said above is only a slight overview, with much more to discuss on a more in depth scale, so if this piques your interest, please do read more about the subject.

Australian Copyright and the Future - The Digital Economy

As was discussed on this blog some 8 months ago, the Australian Law Review Commission released its Discussion Paper on the future of copyright in Australia as a precursor to its final report on the topic. Finally, after what seems forever to this writer, the Commission has released its report titled Copyright and the Digital Economy, discussing its recommendations for future legislation in Australia.

The report is very thorough, and clearly focuses on fair use and exceptions to copyright infringement, signaling a well-needed change to the law in light of changes which have taken place in the last 20 years, especially within the scope of copyright. This is illustrated well by the Committee's intention for this review: "The law must be relevant to a complex and changing digital environment, but must also be clear and broadly understood in the community. The law must produce reasonably certain and predictable outcomes, but should be flexible and not inhibit innovation". Due to the report's extensiveness, as usual, this writer will only discuss certain aspects of it. Should you wish to, please read the report in full for a much broader and detailed understanding of the reforms proposed.

Introduction of Fair Use?

A principle which has been well established in the United States, fair use, has been discussed in terms of implementation in a number of common law countries. Fair use can be said to be very flexible, and mouldable, to a variety of technologies and uses in relation to copyrighted works. The ALRC has been discussing the introduction of fair use into Australian copyright legislation, and finally has put forth a recommendation to do so. In their view "...a fair use exception with a non-exhaustive list of four fairness factors to be considered in assessing whether use of another’s copyright material is fair and a non-exhaustive list of eleven illustrative purposes" should be implemented into Australian law.

The importance of introducing fair use can be argued to be sensible, and as the ALRC express: "...fair use differs from most current exceptions to copyright in Australia in that it is a broad standard that incorporates principles, rather than detailed prescriptive rules". Utilizing more broader, less defined principles allows for fair use to apply to newer, more advanced uses of copyright today and in the future. This writer agrees fully with the ALRC and their recommendation, especially in light of changes in the field of copyright in recent years. What copyright, and fair dealing, has been yearning is just that, and would bring copyright into the 21st century.

The proposed provision would be very similar to the aforementioned US provision, taking into account the the purpose and nature of the work's use, while assessing both the availability of the work and the use's effect on the work's market share. The provision would clearly take more direction from US precedent, while still allowing for Australian courts to adapt it in a more Australian context.

New Fair Dealing

Although fair dealing has been used under Australian legislation for a number of years, the provision has fallen behind on what can be deemed to potentially be included within it in modern times. The new proposed additions to the provision would add six new categories included under fair dealing: quotation, non-commercial private use, incidental or technical use, library or archive use, education, and access to people with disabilities. How fair dealing differs from fair use is explained well by the ALRC: "Under fair use, the list of purposes, or types of use, is merely illustrative. The fact that a particular use is not for one of the illustrative purposes does not mean that the use cannot be found to be fair. Fair use essentially asks one question: Is this use fair, considering the fairness factors? The new fair dealing exception, on the other hand, can only apply to a use of copyright material if the use is for one of the prescribed purposes. If a given use does not fall into one of the categories of use, then it cannot be found to be fair". In this writer's opinion the former suggestion would work much more effectively and flexibly in modern copyright, and even though a proposed newer fair dealing provision could fulfill the needs of copyright as uses stand right now, it still does not provide an equal exception in comparison to fair use.

Other Changes

Orphan works have been a thorn in copyright's side for a long time, with provisions only being introduced to mitigate infringement over works where the copyright owner cannot be found. As the ALRC sees that the introduction of such  reforms would "...facilitate the use of orphan works to enable their beneficial uses to be captured in the digital economy, without creating harm to the copyright holder". Arguably this is something that copyright needs, and changes to the laws governing orphan works are necessary.

While the report goes into more specific details in relation to the aforementioned potential changes to both fair use and fair dealing, the report does also provide other changes which it endorses. Due to the report's extensive dealing of these changes, this writer cannot simply fill discussion of all of the rest.

All in all the report is thorough and recommends changes which have been long overdue, and not just in Australia. How and if these recommendations are implemented will be left to the Australian legislature, but the introduction of fair use should merit some haste. The 21st century has been a challenging one for copyright, and not just from a copyright holders' perspective, but as the reform recommendations keep rolling in, it seems the law might finally catch up to what it should have been some time ago.

The Future of Copyright by Lawrence Lessig - Thoughts on His Views

Recently this writer posed a question to Lawrence Lessig, a current lecturer at Harvard and a person of much acclaim in the copyright field, on the website Six Question as to the future of copyright in his mind. More specifically the question posed was: "What do you think is the future of copyright, especially in light of recent developments in other common law countries such as the UK and Australia?" This clearly relates to the avalanche of copyright reviews being conducted in the common law countries such as Australia, the United Kingdom and Ireland. To this writer's pleasant surprise the question was thought to merit an answer, and one was provided by Mr. Lessig a few days ago. Albeit brief, his thoughts do merit some discussion.

In Mr. Lessig's mind "...the future of copyright is up for grabs"; and this can be said to be very true. Where copyright will be taken, and how evolving technologies will both impact and potentially necessitate the possible change, is wholly up for grabs. A certain desire for change can be felt in the public mindset, and rightfully so, as how we consume media has changed radically since the enactment of most copyright laws in the past 30 years. Much like was noted in the preliminary thoughts over the UK copyright modernization, it aims to "...align the law with behaviour most people consider to be reasonable", at least in the context of evolving media. This matches well with Mr. Lessig's thoughts as well: "...[the US] regime needs to be radically updated to the 21st century to digital technologies".

But the future of copyright is not without its uncertainty according to Mr. Lessig: "The biggest problem we have now is that nobody in government, at least in America, is interested in having that conversation [about copyright reform]". What this can be argued to relate to is a reluctance to expand or extend fair use. The current wave of reform clearly is focusing on a change for much more free and flexible approach to the consumption of copyrighted media. Extending those rights could diminish the profits of copyright holders, or at least extinguish secondary avenues of revenue through the restriction of fair use. Corporate lobbyists have fought over the current change in Canada, which quite heavily is beginning to endorse fair use, showcasing a possible rationale for the restriction over the discussion about copyright reform in the US.

Finally, Mr. Lessig notes that "...the battles here are really as much battles about how to open up a conversation about what the right answer is". How would one initiate such a conversation? Quite frankly, there is no clear answer as to how this could be done. The change a lot of common law countries are facing, and the discussion around the reform, will undoubtedly put pressure on the review of US copyright legislation, at least on an international setting. The more people use media as they see as "proper", the more it also merits discussion on the fact. What can be said as a counter-acting interest is one which Mr. Lessig also points out: "...[the legislature] see[s] copyright as an opportunity to produce incredible wealth for campaigns". The acquisition of campaign funds is highly important in the US system, and clearly inhibits the proper function of the legislature as the protector of its peoples' interests, rather than those who fund their campaigns.

The future of copyright is uncertain, but in that uncertainty one can have hope and optimism. With the change that is occurring all over the copyright world, US change seems all but inevitable. Where that change will take copyright within our American friends' regime is very unclear, and the competing interests on both sides seem to have their position firmly entrenched. This writer, much like Mr. Lessig, is optimistic as to the future.

I would like to thank Lawrence for taking the time to answer my question, and hope this can inspire some more discussion around copyright in the near future.

Retrospective - Interpretation of Patent Claims

Patents can be, and more often than not, are incredibly complex and technical. In such complexity accuracy is paramount, especially to guarantee proper protection for the rights you wish to protect. When a patent is applied for the person or entity registering the patent has to specify the claims relating to the patent, or in other words, what the person or entity endeavors to protect with their patent. The wording used when writing claims will create the remit in which protection is awarded for that patent. As such the claims of patents are hugely important, and should things get to litigation, what the wording used protects can be equally, or even more important than what is thought it protects. How these claims are interpreted therefore needs to be expanded on, and the United Kingdom House of Lords did so in the 1980s.

A modern use of angles

The decision in question is Catnic Components Ltd v Hill & Smith Ltd. The case concerned the production of steel lintels, which the plaintiff owned the patent for and manufactured. The lintels had a very specific rear support member, which under one of their claims was described as a "...second rigid support member extending vertically from or from near the rear edge of the first horizontal plate or part adjacent its rear edge". The defendant in question made a similar lintel, but one where the rear support member had an inclination between 6 to 8 degrees; something which deviated only that much from the plaintiff's vertical rear support member. This affected the load-bearing capabilities of the lintels, making the defendant's lintels approximately 0,6 to 1,2 percent weaker than the plaintiff's lintels. The plaintiff sued the defendant for patent infringement, ultimately ending up in the House of Lords.

Due to the slight deviation of the defendant's lintels' construction, the House of Lords had to decide whether this would still infringe the patent owned by the plaintiff. In more simple terms: whether the claim described above could be interpreted as such to include a slight deviation, or whether its express term of verticality would prevent the defendant from infringing the patent. This would have to be assessed based on the 'pith and marrow' of the claim; something which the Lords would have to consider in their judgment. What this encompasses was expressed well by Lord Diplock: "...a patent specification is a unilateral statement by the patentee, in words of his own choosing, addressed to those likely to have a practical interest in the subject matter of his invention (i.e. "skilled in the art"), by which he informs them what he claims to be the essential features of the new product or process for which the letters patent grant him a monopoly". How one would interpret claims based on their 'pith and marrow' was finally expressed by his Lordship:

"A patent specification should be given a purposive construction rather than a purely literal one derived from applying to it the kind of meticulous verbal analysis in which lawyers are too often tempted by their training to indulge. The question in each case is: whether persons with practical knowledge and experience of the kind of work in which the invention was intended to be used, would understand that strict compliance with a particular descriptive word or phrase appearing in a claim was intended by the patentee to be an essential requirement of the invention so that any variant would fall outside the monopoly claimed, even though it could have no material effect upon the way the invention worked."

This would indicate that patent claims should not purely be interpreted literally, but given a more of a purpose based assessment. Under this one could easily include slight deviations in the use of patented inventions, should the deviation still be within the purpose of the patent. A much larger change could clearly not fall under a claim, even under a purpose based assessment.

Under their Lordships' deliberation, the defendant had infringed the plaintiff's patent. Even though their construction was different, the claim was thought to have included these small variants. Clearly their Lordships intended to not limit the scope in which patent claims would be interpreted as being all too literal, and allowed for potential differences to still be included. Should strict compliance be an essential part of the patent, for more technical or functional reasons, one would have to interpret the claim more literally.

Even though the case pertained to the old Patents Act 1949, it is still accepted to apply to the current Patents Act 1977 equally. Lord Diplock's reasoning has also been utilized in several other common law countries; making the decision an important one even in today's patent litigation.

Domain Registrar Faces Infringement Liability in Germany

Internet Service Providers have, for a long time, been the favorite target of copyright holders simply because they are often the conduit between the infringer and the material which is being illegally copied, although their liability as secondary infringers has been rejected since. The Internet provides a web of connectivity between a multitude of actors, such as ISPs, computer manufacturers and others, who in some ways, do enable the infringement of copyright, albeit not as their primary function. As with the former Betamax recorders, the simple function of potentially enabling infringement does not incur liability, arguably at least in most instances, however a new challenge was set against web domain registrars in Germany.

In a recent decision (which can be found here, unfortunately only in German), the German Regional Court of Saarbrücken had to decide on the liability of domain registrars, and whether they could be held liable as secondary infringers should the domain owners facilitate the aforementioned infringement. The case concerned the website h33t.com, which acts as a torrent tracker site, much like the more notorious Pirate Bay. The copyright holders of Robin Thicke's song "Blurred Lines", Universal Music, took on the domain registrar Key-Systems, who registered h33t's domain.

Ed was confused about domains

In their decision the Court saw that domain registrars could face liability if the domains they have registered facilitate the infringement of copyright. If they are notified of the potential infringement of copyright, and choose to do nothing about the infringements, they could face liability. The Court imposed a duty to investigate onto domain registrars; a duty which can be argued to be quite onerous, especially for bigger registrars which manage vast numbers of domains. Key-System's general council, Volker Greimann, commented on the decision: "The courts’ definition of what is obviously violating is however extremely broad and the duty to act is expanded to deactivation of the entire domain even if only one file or link is infringing... If left unchallenged, this decision would constitute an undue expansion of the legal obligations of each registrar based in Germany, endangering the entire business model of registering domain names or performing DNS addressing for third parties". One can agree with Mr. Greimann as to the onerous nature of the new duty imposed on registrars, especially when considering the vagueness of the duty and the potential numbers of websites which might infringe copyright in one way or another.

The Court did mention that the infringements in relation to h33t were "...obvious and easy to identify", potentially presenting registrars with protection in cases where infringements are not obvious or are a result of negligence or ignorance. The Court in this instance ordered Key-Systems to prevent the infringement; however what those measures are remains unclear to this writer. Even though the domain is shut down by Key-Systems, its transition to another service outside of Germany can be said to be quick and painless - making the duty to investigate and take action both onerous, and arguably frivolous, as infringers will merely change service providers if their activities can be said to be illegal. Through this Mr. Greimann's argument of it hurting German domain registrars could be said to carry some merit.

Secondary liability has been a hot question since peer-to-peer services have made infringement much easier, and websites which provide users with, for example, torrent links, have become abundant. Whether liability should be extended to all middle actors can be argued to be potentially damaging to the Internet and its function. This writer does not have much insight into German law specifically, and people who might want to hear Universal Music's general council, Mirko Brüß's, arguments can refer to his opinion post here (again in German only).

Source: Bloomberg