Safe Harbors and 70s Music

Online services in the United States, such as websites where content is shared, have relied heavily on the protection of the Safe Harbor provisions in the Digital Millennium Act to protect themselves from infringement through their services. The provision itself excludes online service providers from liability should the users of their services do so, on the condition that they are unaware of this activity and should they be notified of any infringements, take immediate action to stop the infringements or remove any infringing material. As one can see, the legislation encourages service providers to take a proactive stance, and limits their liability should their services be misused in a way which they're unaware of. From a provider's stand-point not only does this allow for start-ups to engage in their respective service provision, but it also prevents them from being immediately swamped by law suits and therefore never getting off the starting line. The matter of whether service providers, specifically music streaming services, would be protected from liability for sound recordings made before protection was awarded to them through Statute in 1972 (albeit still existed through common law) was deliberated by the New York State Appeals Court a mere few days ago in the case of UMG Records Inc v Escape Media Group Inc.

The grooviest of all sharks

The case concerned the website Grooveshark, where users could stream content that uploaded by other users,creating playlists or listening to selected artists, with revenue coming through user subscriptions or advertisements during streaming. The claimant, UMG Records argued that the Safe Harbor provisions did not offer escape from liability for service providers, due to the DMCA amending the prior Copyright Act which expressly set out that any sound recordings made before 1972 would not be covered under the Federal legislation. This would in turn mean that the amendments made in the DMCA would not apply to those songs, rendering the Safe Harbor provisions unusable to protect service providers, as liability would still exist through the common law.

In their decision the court stated that the provisions would not apply to songs made before 1972, causing the service provider to potentially be liable under common law. The decision went against a District Court decision a few years before, Capitol Records v MP3tunes, where Judge Pauley saw that there was no indication that the legislation would exclude sound recordings made prior to 1972. The decision in the NY Court is one of strict interpretation, and in this writer's honest opinion, lacks the common knowledge and application to today's needs for service providers. The legislation does not expressly limit its scope, and applying pre-Internet legislation in its interpretation would undermine what the Safe Harbor provisions set out to achieve; to offer protection for service providers in an age where millions have access to services, making their full control and prevention of infringement an arduous and difficult undertaking. The case will be appealed and hopefully rectified in higher courts.

The case itself shows yet again, as has been discussed in this blog several times, the datedness of copyright legislation in the US. Without express and clear provisions dealing with subject matters such as this, bringing copyright legislation to the 21st century, both users and service providers will end up fighting an uphill battle trying to protect their rights and ability to utilize the Internet to its fullest. Whether action will be taken will remain to be seen, but there clearly is a need for reform.

Source: Thomson Reuters

Can human genes be patented? The US Supreme Court starts its deliberation

Patents relating to medicine or medical treatments often don't come without controversy. Should we allow the patenting of essential medicines or treatments, which if provided cheap enough could save countless lives, or ease the suffering of many? What about the monetary interests of parties who've sunk millions into research and development, should we prevent them from recouping that investment? One of the more interesting, and possibly more important decisions in patents was put forth to the US Supreme Court on the 15th of April, when oral arguments for the case were heard.

Not the genes you were thinking of

The case of Association of Molecular Pathology v Myriad Genetics put forward the question of whether human genes could be patented, more specifically, genes relating to the increased risk of both ovarian and breast cancer in women in mutated. Myriad Genetics sought to patent the genes after their discovery, which was subsequently contested. 

This presents an incredible dilemma where monetary interests clash with what is intrinsically a part of you; your own genes. Should the investment of billions of dollars go to waste, or should companies be allowed to patent something which is present in humans without any outside interference? Also would the patentability of genes hinder future cures or therapies related to those genes to prevent ovarian or breast cancer? At the end of the day the act of balancing interests is a tough one. If billions of dollars spent on research and development can be made useless due to gene patents being unpatentable, companies will have less incentive to go about this research, or might even cause serious financial harm to them. On the other side is companies having monopoly rights to something arguably occurring naturally; your genes. Should any legal entity have the exclusive rights to parts of the human genome? There are two ways of looking at this question: as a lawyer, I can say it is very possible that companies could patent genes, but as a human being, I’d want that type of information to be accessible to anyone, not under the supervision of a company.


Experts have stated that such patents have "...faded in importance" and that the law suit "...will be much more ideological than it will be practical". This is probably because there is very little use for an isolated gene or its analysis. The average consumer will never need the genes in question analyzed, and the few researchers that will use them probably will come few and far between. In addition the patents in question will expire in a few years, effectively rendering the nullification of the patents through litigation nothing but a matter of principle for the Association of Molecular Pathology. Precedent will surely prevent the future patenting of human genes, should the Supreme Court decide so, but the real monetary interests of companies lie in medicines, not genetics.

(Source)

What the court has to decide is whether an isolated gene would be patentable as an isolated item, being sufficiently different from the genes found in your individual cells, or that they are purely a product of nature. The New York Times indicated that a fifth of the 20,000 genes found in the human body are patented, clearly showing that this has been an accepted practice for a while in the US. The US Government presented the courts with a statement expressing their opinion that human genes should not be patentable, showing support for the idea that they are indeed a natural occurrence, or the very least a subject matter that should not be covered under patents.

Indeed this case will present the Justices an interesting subject matter to tackle, and I for one will be waiting for their judgment with excitement. What seems to be the more probable outcome is the allowance of the patents, as decisions in both the UK and Australia (subject to further appeal) have been decided to favor the patenting of genes. What the US Supreme Court decides will undoubtedly influence later decisions in other jurisdictions, giving the case still the clout it deserves. 

The First Sale Doctrine takes a hit - you can't resell digital music

The anticipation of whether the Kirtsaeng v John Wiley and Sons would change the way in which we're allowed to resell our legally purchased goods (discussed on this very blog here) was huge, both in the legal world, and in the minds of consumers just aching to sell off that CD collection bought in Europe. Well, it looks like we've taken the first step towards the limitations of the First Sale doctrine.

A US Federal Court handed down its judgment in the case of Capitol Records v ReDigi Inc at the end of last month. The case concerned the resale of digital music bought on iTunes or other digital marketplaces through the service offered by ReDigi, where users could sell their legally acquired smash hits to others who are looking for said music - much like a digital flea market if you will. The company was then sued by Capitol Records for copyright infringement.

The case in itself presents and interesting view of whether the First Sale doctrine could be applied in a digital world. Kirtsaeng dealt with the resale of physical goods, i.e. books, whereas the resale of digital goods would require the transfer of a new copy from the original music file through ReDigi's service. This is the reason which felled ReDigi's argument in the eyes of the court. The US Copyright Act  mentions a 'specific' phonographic record (a fancy way of saying a music recording), and making a copy from the original would not be within the remit of the doctrine. In ReDigi's defense they did argue that "technological change has rendered its literal terms ambiguous...", which in this writer's mind would be a valid point. If the copy could be traced to a legitimate copy, that should surely allow for it to be sold regardless of it being in a physical medium or not. Alas ReDigi's argument was rejected, and from a lawyer's perspective that holds to be true. The Court further noted a provision in the Digital Millenium Act which effectively prevents the redistribution of digital works. The Judiciary is not in the place to change laws, but to merely interpret them, and the approach taken by the Federal Court seems to be right in this case.

Spending all that money on vinyl finally paid off!

Here the law perfectly illustrates its dated approach to copyright law, having been enacted well before a time where such transfers of music or any other digital medium were even possible. Discussion in most common law countries over needed changes to the law, as noted on this blog as well, has been very active in the last few years, and cases such as this do highlight this fact very well. Should we be able to sell the goods we legally buy regardless of their tangible or intangible nature? Of course, especially when more and more music is being sold digitally than ever before. As it has been said before the gauntlet has been thrown to the legislatures of most common law countries to modernize their approach to copyright in current times. Whether they will act on this call to action remains to be seen, but as more and more commercial interests shift to the digital arena, the pressure for them to act will grow and change should come.

Raising the Bar

Legislation not endorsed by the TV show

Tomorrow, on the 15th of April, a new piece of legislation will come into force here in Australia regarding patents, trade marks and designs, although the main emphasis is on the former two. The Intellectual Property Laws Amendment (Raising the Bar) Act 2012 will make some changes into existing laws, mainly amending the Patents Act 1990, the Trade Marks Act 1995 and the Designs Act 2003. 

As explained by IP Australia, the legislation makes some key changes, including:

- Raising the quality of granted patents by implementing changes to the key tests for patentability and more closely aligning these with international standards.

- Reducing delays in the resolution of opposition proceedings concerning patents and trade marks.

- Implementing changes to the regulation of patent and trade marks attorney professions and the increasing the ways in which they can operate.

- Implementing procedures for dealing with imports suspected of infringing IP rights and making it harder for importers of counterfeit goods to evade an IP right holder.

- Providing access to a simplified and more effective IP system.

The Act seems to amend some practical aspects, as well as attempt to speed up some of the processes, which no doubt are all welcome changes to all patent practitioners. However, as I lack the direct knowledge of patents in practice, whether these changes will actually impact the field will be left for someone to clarify for me.

A more comprehensive guide to the IP Reforms is provided for all to read, and gives more insight into the changes brought in via the Act.

Retrospective - Stop your downloading! The liability of ISPs in Australia

The advent of fast Internet connections and the abundance of copyrighted material on offer through various channels and consumer's taking full advantage of both in getting their media fix. Content is available through legitimate means, for example iTunes or other online distributors, or through streaming services such as Netflix. However the flip-side of the coin is thought to be darker; downloading of music illegally, the streaming of movies and TV, all presenting an issue in themselves. The question often raised by both rights holders and the legislature is; "who is responsible for all of this?!" At the core of it, the choice to illegally download material is one which the consumer (yes, you) makes, and supervision is purely on the legislature to ensure it stays on top of the alleged infringements. But what if responsibility is passed on, not to the person infringing, but the entity providing them the service? To understand the relationship between an infringer and an ISP (Internet Service Provider) when it comes to copyright, let me give you an analogy. Should the entity providing the roads where we drive on be responsible for the misuses of those roads (owned by a company in this example)? The roads would presumable be intended for all who follow the laws and rules related to driving on the road, yet there still are people who drive over the speed limit or under the influence of substances. Should the company providing the roads be liable for the drivers’ potential infringement of those rules? The issue of responsibility came up in the High Court of Australia in the Roadshow Films Pty Ltd & Others v iiNet Ltd case back in 2012.

"Can't see any infringements here, Dave"

Under the Copyright Act 1968 in Australia, section 101 sets out that an entity 'authorizing' an infringement of copyright would be liable in their own right, depending on a number of variables. The degree of control they have over the user in preventing their act; the nature of their relationship; and whether they took any action to stop or avoid the infringement by the user. Purely looking at the legislation you could imagine ISPs being in hot water. Due to ISPs controlling an individual's access to the Internet, you could imagine shutting down their illegal use of that service would be simple? Not so much. The sheer amount of subscribers makes monitoring the network usage a massive endeavor, and from the get-go, should ISPs even control what we do on the Internet? After all, that could be an infringement of their freedom of speech. No laws state any liability for ISPs currently, making their responsibility for our actions farfetched at best. Also with a lack of any guidelines adopted by all ISPs, the user could simply switch to another provider without any ramifications, avoiding his ban on his illegal use.

The High Court quickly dismissed iiNet's liability, due to the nature of their relationship with their subscribers. An ISP hardly can control the decisions its subscribers make, nor can they change or control the software which they use to attain or upload any infringing material. The Court also agreed with my earlier notion of the amount of subscribers, as overseeing thousands of users on a daily basis would be near impossible. One judge however did not see it the way the majority did (Justice Jagot) and stated in her opinion that iiNet's effectively approved the infringements of their users through their indifference. I for one cannot understand how her Honor could equate the relationship between an ISP and a single user of its network from thousands to effectively that of a parent ignoring its child's bad behavior. The High Court subsequently dismissed Roadshow Films' appeal.

Post-iiNet reaction from a network administrator

When wondering how the dynamic of an ISP and a user would have changed, if the High Court would have seen things much like Justice Jagot, the nature of the Internet could have been completely changed in Australia. Presuming ISPs would need to monitor and control all of their users’ traffic and web activities would have turned the Internet from a bastion of freedom of sharing, expression and connectivity, to an ultra-controlled authoritarian network, much like that in China where information is filtered and fully controlled. The freedom of the Internet is built on the ability to utilize it as one sees fit, and pay for any consequences that might come from their use. There have been talks about imposing further liability, yet with the European Union stepping back from such legislation, the Internet should remain the same, at least for now.

Grumpy Cat frowns at a possible trademark

Paris Fashion Week anyone?

As it has been said on this blog many times, the Internet has shaped the sphere where people can reproduce material easily as they see fit, regardless of its legality or not. There are websites dedicated to printing images onto t-shirts, coffee cups, plates and pretty much anything you can think of that just "needs" an image of something to make it worth your honest dollar. Merchandising often is a huge part of a brand's profits, after all, who doesn't find a Winnie the Pooh onesie an essential part of their wardrobe? Trademarks more often than not prevent people from profiting from the misuse of their trademarked image in the making and selling of products such as the above. But where does the line of what can be trademarked end?

Trademarks can be awarded to a potentially any image, and the latest and the greatest seeking one is the Internet's favorite upset kitty, Grumpy Cat. For the less informed, the cat oddly named Tardar Sauce, rose to fame over a year ago due to its constant look of disappointment at anything it might be in contact with. Its owners, rightfully so, launched a website dedicated to their aggravated feline companion, selling a number of items adorning its famous face. Without a trademark, others could potentially use the cat's image, create their own merchandise to sell, and thus benefit from the rise to fame that the cat has so thoroughly "enjoyed".

What the cat's owners are seeking is protection for both the name "Grumpy Cat" and its likeness for use in a very wide array of things, even kitchen utensils (why anyone would want to see the look of disappointment when eating their goulash, I don't know). The application is still pending, having been lodged in late January, we will have to wait and see whether the trademark is awarded. In this writer's opinion this will be an interesting result. Would the face of a cat be distinct enough for it to be trademarked? Surely cats' fur color and other details are fairly 'random', albeit controlled by genetics - however in this case the cat's facial features are incredibly uncommon (this writer has never seen a cat much like this one in his life), and might because of that be trademarkable. Come what may, Tardar Sauce will surely be unhappy with the outcome.

Grumpy Cat didn't approve of this blog post

The application in itself is not very important, but goes to show just how widely trademarks can be, and are, used in today's marketable world. Does it have worth in merchandising or otherwise? It might just be worth trademarking.

The Register’s Call for Updates to US Copyright Law

Not to be confused with a copyrighted seal

Being one of the biggest producers of copyrighted material in the World, the United States and its laws have clout all over, regardless of jurisdictions, through either free-trade agreements, or sheer market power. In a society where more material is accessed outside of the domestic market of a nation than ever, legislatures in all countries have to try and keep up with the constant change that we experience in the consumption of said material. In a call for copyright law reform, as reported by the Creative Commons blog, Maria Pallante of the US Register of Copyrights seeks to close the rift that exists between the consumer and the copyright holder's rights in the United States today.

In her statement Ms. Pallante says that:

"The law is showing the strain of its age... authors do not have effective protections, good faith businesses do not have clear roadmaps, courts do not have sufficient direction, and consumers and other private citizens are increasingly frustrated."

This can be applied, not only in the US, but in Europe as well. With a clear lack of proper guidelines and laws to govern both personal use by consumers, be it copying or sharing, and the courts stretch existing laws to cover areas which they were not meant to cover. Copyright laws in most common law jurisdictions are lagging behind, and there seem to be no efforts in trying to pull them towards a new era. Even in the United Kingdom there have been calls for reform, yet they seem to have fallen on deaf ears.

Orphaned works are a perfect example of the law failing to accommodate the needs and wishes of today's public. Orphaned works are effectively works which are still under copyright, where the author(s) or other copyright holders cannot be located or contacted. Google started the mass digitization of orphaned works, and faced litigation because of this, showcasing the clash of the interests of those holding the rights to the works and not utilizing them, going against the greater good through free access to these works. Should copyright prevent access to information not being used, or move towards an avenue more akin to that of trade marks, where the rights holder should actively use the work being protected? The current legal framework does not address this issue.

Ms. Pallante further expands that:

"...it is time for Congress to think about the next great copyright act, which will need
to be more forward thinking and flexible than before... A central equation for Congress to consider is what does and does not belong under a copyright owner’s control in the digital age. I do not believe that the control of copyright owners should be absolute, but it needs to be meaningful."

Flexibility is what the modern age requires. When technology moves at such a pace that it does these days, the new law would have to be flexible and maneuverable, both to protect the interests of copyright holders, and to help consumers use the content they have legally acquired. The path modern laws have taken in a variety of nations has been increasingly draconian, and in this writer's opinion, this trend needs to end.

The new law needs to be worded in anticipation of the ever more digital world, with the old laws concentrating on the physical mediums of copyright, the new law has to look forward to the intangible. The wording has to be open enough for the judiciary to easily apply it in a variety of situations, while being specific enough to protect the interests of rights holders. I will admit this will be a challenge for any legislature, but one where consultation needs to be sought from both sides, not merely from the ones with a clear monetary interest.

Ms. Pallante also brought up the main question that needs addressing in the new law:

"If Congress considers copyright revision, a primary challenge will be keeping the public interest at the forefront, including how to define the public interest and who may speak for it... Congress should look to the equities of the statute as a whole, and strive for balance in the overall framework. It is both possible and necessary to have a copyright law that combines safeguards for free expression, guarantees of due process, mechanisms for access, and respect for intellectual property."

Rounding up her argument, Ms. Pallante points out that:

"The issues of authors are intertwined with the interests of the public. As the first beneficiaries of the copyright law, they are not a counterweight to the public interest but instead are at the very center of the equation."

The Harlem Shake, an example of "proper" free use of copyrighted material

This writer fully agrees with Ms. Pallante in her call for reform - not just in the US, but all over the common law. The interests of the public, and rights holders, are of equal standing, and the shift towards a more common and level playing field for both parties needs to be taken. The consumer has to have rights in using the material they have rightfully acquired, yet still keeping them from freely copying and sharing that content to provide an illegal way for others to get that material. Whether this call for reform will result in any changes remains to be seen, but this writer will remain hopeful.