Court Is Now In Session For IP Law

In recent news the court system has been receiving their run of industry court lawsuits. Today lets narrow in on a few of these cases, preferably ones dealing with and affecting the entertainment industry. The European Court of Human Rights has supported the conviction on one of the world's largest sharing torrent file websites, Fredrik Neij, and Peter Sunde Kolmisoppi, two of the co-founders of The Pirate Bay. Neij and Kolmisoppi were both charged with Connivance to commit crimes in violation of the Copyright Act. Their sentence was for one years incarceration and a 3.3 million euros (4.3 million US) fine. This sentence was later reduced but the fine was raised to 5 million euros (6.5 million US). Neij and Kolmisoppi then filed an application arguing that under Pirate Bay they received and provided information to Internet users about torrent files, which led them to believe that liability for IP infringement fell on Pirate Bay’s users. They both believed their right to communicate information was protected by Article 10 of the European Convention of Human Rights, which dictates that everyone has the right to freedom of expression. This right also includes the right to embrace opinions, receive and convey information and ideas without restriction by public authority, regardless of borderlines. What Neij and Kolmisoppi didn’t take into account is that the same article also states that this shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. The ruling says, (Eriq Gardner, 2013) "Since the Swedish authorities were under an obligation to protect the plaintiffs’ property rights in accordance with the Copyright Act and the Convention, the Court finds that there were weighty reasons for the restriction of the applicants’ freedom of expression."

Just as Pirate Bay, so does Gary Fung founder of Isohunt, a BiTorrent indexer come under fire for IP infringement. Lets explain why Fung will not be eligible for safe harbor under The Digital Millennium Copyright Act. Sadly for Isohunt, tech services can encourage copyright infringement. Judge Marsha Berzon of the Ninth Circuit said (Eriq Gardner, 2013) "Each time a torrent file is added to IsoHunt, the website automatically modifies the torrent file by adding additional backup trackers to it," Berzon additionally stated that on Isohunts message board Fung had a service, which regularly updated popular movies and TV shows through a list. Fung argued that his service was only just indexing what was on the Internet. However, Fung is still liable for contributory infringement, for encouraging others to infringe on copyrighted material. This is so because unlike other copyright laws such as freedom of expression, Inducement liability is not limited. In fact on top of indexing popular movies and TV shows, Fung also allowed once clicked for a user to upload said movie or television show for others to download and view. With that being said Fung was unable to gain legislative safe harbor from copyright liability, under the Digital Millennium Copyright Act.

Piracy of any IP is a case that needs to be taken seriously. I understand when it comes to my business, as a music composer secret is key. Any material I receive in an effort to support the creation of a score will need to be held dear to me and made confidential. With that said I will be running a tight shift in my studio with IP material only being made available to those Individuals who are currently working on the project.  This may not change much as far as piracy but it will put a damper on those every now and again films like, X-men’s Wolverine making it out of the studio before its initial theatrical release.

On to other news, Veoh wins an important copyright case against Universal Music Group. The case being presented here is that UMG does not believe that Veoh can qualify for safe harbor protection from copyright claims under the Digital Millennium Copyright Act. Veoh’s software does not fall under infringement of copyrights due to its user-submitted storage capabilities. This is so because user-submitted storage is a feature of Veoh’s software offers and through the discretion of the user submitting material is how IP’s are being infringed upon. In addition, Veoh in the case presented proof that they removed countless infringing IP’s after receiving takedown notices from UMG based on the Digital Millennium Copyright Act.  The only way Veoh may have been in the red flag is, (Eriq Gardner, 2013) "If this notification had come from a third party, such as a Veoh user, rather than from a copyright holder, it might meet the red flag test because it specified particular infringing material. As a copyright holder, however, Disney is subject to the notification requirements." UMG persistent on proving that Veoh indeed did not qualify for safe harbor presented the court with their principle on the Digital Millennium Copyright Act. UMG theory is that the Act should be interpreted narrowly to also include web-hosting services. In the end, Veoh’s hosting user-submission content feature and the general understanding that their services could be used to share infringing content was insufficient to constitute a red flag.

A big take away from this proceeding is the understanding of how unintentional circumstances can still affect you and your business. When running a business based on hosting user submitted content, it may be best to place previsions or some sort of security that can weed out what IP users own and ones they do not own. For example if a user wants to upload IP material have them prove they do own such works or at least have a provision pop up whenever a user attempts to upload IP material they do not own. This pop up can be used as a way to notify them of the consequences to uploading material they do not own. I know any future business venture I take too I will make sure to include such previsions to keep from dealing with such legal issues.


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