Intellectual Property Law Internet Law IT Law Computer Law

In Capitol Records v. Jammie Thomas, CIV 07-3417 MJD/JJK (D.Minn. August 26, 2008), PDF file, Judge Michael J. Davis presented two very forcible arguments.

Plaintiffs and their supporters also urge the Court to consider an entirely separate title of the U.S. Code, Title 18, addressing criminal penalties for distribution of child pornography. In that context, the term “distribute” has been interpreted to include placing the material on a shared folder of a peer‐to‐peer network. See, e.g., United States. v. Shaffer, 472 F.3d 1219, 1223‐24 (10th Cir. 2007) (interpreting term “distribute” in 18 U.S.C. § 2252A(a)(2) to include placing child pornography in Kazaa folder and freely allowing others to access and download the files). The criminal statute regarding distribution of child pornography is unrelated to the Copyright Act. The Court does not find the comparison to criminal law persuasive.
(…)
there is no liability for an attempt to infringe under the Copyright Act, there is corresponding liability for attempted distribution in the criminal context. See 18 U.S.C. § 2252A (b)(1)

I can only add that extending the interpretation (interpretatio extensiva) is not even an option in Polish criminal law. This kind of analogy is prohibited in criminal law. Two most important and basic rules include prohibition of criminalizing of human acts by any regulation that isn’t a legal act adopted by the Polish parliament (Latin rule nullum crimen sine lege scripta) and the ban for extending analogy and interpretation to the detriment of the perpetrator (Latin rule nullum crimen sine lege stricta).

However, the Court does note that, while Congress has not added “offer to distribute” to § 106(3) of the Copyright Act.
(…)
The Court’s examination of the use of the term “distribution” in other provisions of the Copyright Act, as well as the evolution of liability for offers to sell in the analogous Patent Act, lead to the conclusion that the plain meaning of the term “distribution” does not including making available and, instead, requires actual dissemination.

In the US the No Electronic Theft Act (Pub. L. No. 105-147, 111 Stat. 2678 (Dec. 16, 1997)) introduced changes into 17 U.S.C § 101. Definitions.

The term “financial gain” includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works.

In Poland, we have judgment of the Appellate Court in Warsaw of 12 December 1995, act signature I ACr 590/95, published in OSA 1997, No 3, pos. 16, p. 32, saying:

Benefits are generally a part of the net profit achieved as a result of copyright infringement. The benefits are also the savings on expenses for copyright fees, if the copyright infringement was based on the use of work without a proper remuneration.

Interesting approaches in two different jurisdictions. The Republic of Poland is not common law country.

Warner Bros, the distributor of “The Dark Knight” movie, deemed as a success the period of 38 hours which lasted from the premiere of the Dark Night’s sequel to appearance of first unauthorized copies of this movie. I guess it is all about The.Dark.Knight.CAM.XviD-TRADINGSTANDARDS, The.Dark.Knight.TS.XVID-PreVail and The.Dark.Knight.PROPER.TS.XViD-mVs releases and all derivatives you may find in p2p networks. More details in the article available at www.webtvwire.com website.

Very interesting and funny situation happened.

“Piracy is BAD” proclaims every copyright dependent industry lobby group. “Downloading is stealing” is another popular one. How about “downloads are a lost sale”? Ubisoft clearly didn’t believe that last one, as they distributed a no-cd patch from the scene group RELOADED as a fix for one of their games.

More details available at www.torrentfreak.com and www.forums.ubi.com websites. I am not sure if such warez release was preed. If someone of my readers has more information please let me know.

When I see such legislative initiatives as reported by the European Digital Rights at www.edri.org website, I start to doubt about European integration if the process of adopting directives looks like that (you do remember how was the Directive of the European Parliament and of the Council on the patentability of computer-implemented inventions adopted and all this controversy with ignoring the voice of one country during the Council meeting right?). I see a lot of advantages of the Community Trade Mark system but lobbying in the European Union makes me annoyed at the bureaucrats and European bureaucracy and you should read this post in such manner. ;)

Update on July 8, 2008.
Philippe Aigrain has written a very detailed post regarding lobby process within the EU in the field of IP law. It is available at www.paigrain.debatpublic.net website.

1. WALL-E records audio from his favorite movie, Hello Dolly, putting in onto his own digital recorder (bypassing the macrovision DRM on the tape). A COPYRIGHT CRIME UNDER C-61

2. WALL-E archives the audio, he doesn’t merely time-shift it. He listens repeatedly! A COPYRIGHT CRIME UNDER C-61

3. WALL-E shares his DRM-broken music with his friend, another robot named EVE. A COPYRIGHT CRIME UNDER C-61

4. WALL-E watches Hello Dolly on multiple evenings, on the screen of an iPod. Hello Dolly is not available through the iTunes store, therefore he broke the videocassette DRM when he platform shifted it. A COPYRIGHT CRIME UNDER C-61

All details of this criminal personality are described in the article available at www.sffaudio.com website.

The judgment of the U.S. Court of Appeals for 10th Circuit in case Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., No. 06-4222 (10th Cir. Jul. 17 2008), made me thinking a lot lately and it would be a cause for a heart attack of one of my good clients (although it is a legal entity) if analogical case was decided in a similar fashion by a Polish court. You may ask what has happened?
Plaintiff - Meshwerks, Inc., was hired by defendant - Grace & Wild, Inc. to create digital models of several cars manufactured by Toyota. Meshwerks obtained copyright registration certificates covering the models. Meshwerks contended that Toyota Motor Sales U.S.A., Inc., Grace & Wild, 3D Recon, L.L.C., and Saatchi & Saatchi North America, Inc. impermissibly used the models that Meshwerks created. Meshwerks also alleged that Grace & Wild failed to fully pay Meshwerks for the digital modeling that it has performed. United States District Court,D. Utah,Central Division simply ruled.

Although a great deal of skill and effort was involved in the creation of Meshwerks’s three-dimensional digital models, those models do not meet the originality requirement established by copyright law. Accordingly, the models are not entitled to copyright protection. As a result, the Toyota Defendants are entitled to summary judgment on Meshwerks’s copyright claims. Further, the court declines to exercise supplemental jurisdiction over Meshwerks’s breach of contract claim and that claim is therefore dismissed.

The U.S. Court of Appeals for 10th Circuit has affirmed above mentioned judgment.

Although we hold that Meshwerks’ digital, wire-frame models are insufficiently original to warrant copyright protection, we do not turn a blind eye to the fact that digital imaging is a relatively new and evolving technology and that Congress extended copyright protection to “original works of authorship fixed in any tangible medium of expression, now known or later developed.” 17 U.S.C. § 102(a) (emphasis added). A Luddite might make the mistake of suggesting that digital modeling, as was once said of photography, allows for nothing more than “mechanical reproduction of the physical features or outlines of some object… and involves no originality of thought or any novelty in the intellectual operation connected with its visible reproduction in [the] shape of a picture.” Burrow-Giles, 111 U.S. at 59. Clearly, this is not so.

Digital modeling can be, surely is being, and no doubt increasingly will be used to create copyrightable expressions. Yet, just as photographs can be, but are not per se, copyrightable, the same holds true for digital models. There’s little question that digital models can be devised of Toyota cars with copyrightable features, whether by virtue of unique shading, lighting, angle, background scene, or other choices. The problem for Meshwerks in this particular case is simply that the uncontested facts reveal that it wasn’t involved in any such process, and indeed contracted to provide completely unadorned digital replicas of Toyota vehicles in a two-dimensional space. For this reason, we do not envision any “chilling effect” on creative expression based on our holding today, and instead see it as applying to digital modeling the same legal principles that have come, in the fullness of time and with an enlightened eye, to apply to photographs and other media.

Originality is the sine qua non of copyright. If the basic design reflected in a work of art does not owe its origin to the putative copyright holder, then that person must add something original to that design, and then only the original addition may be copyrighted. In this case, Meshwerks copied Toyota’s designs in creating digital, wire-frame models of Toyota’s vehicles. But the models reflect, that is, “express,” no more than the depiction of the vehicles as vehicles. The designs of the vehicles, however, owe their origins to Toyota, not to Meshwerks, and so we are unable to reward Meshwerks’ digital wire-frame models, no doubt the product of significant labor, skill, and judgment, with copyright protection. The judgment of the district court is affirmed, and defendants’ request for attorneys’ fees is denied.

As usually, both Bill Patry and Marty Schwimmer provide useful and helpful comments.

Cultural industries in Europe on cultural industries in Europe, (A6-0063/2008). Report: Guy Bono (PES, FR). Report adopted by 586 votes in favour to 36 against, with amendments.

Calls on the Commission and the Member States to recognise that the Internet is a vast platform for cultural expression, access to knowledge, and democratic participation in European creativity, bringing generations together through the information society; calls on the Commission and the Member States, therefore, to avoid adopting measures conflicting with civil liberties and human rights and with the principles of proportionality, effectiveness and dissuasiveness, such as the interruption of Internet access.

More details in a post available at www.openrightsgroup.org website. As for some additionals thoughts I’d like to recommend you www.europarl.europa.eu website.

Almost 15,000 lobbyists in Brussels may face new working practices after the Parliament’s Constitutional Affairs Committee backed a report which calls on them to disclose their fees and have their names on a mandatory public list. The author of the report - Finnish MEP Alexander Stubb (EPP-ED) - praised lobbyists saying “policy making would be very poor without their contribution”. The full parliament will vote on the report on 8 May. This focus looks at the issues raised by the Stubb report.

Your flashy publicity stunts do not convince me. Your “clever” unusual viral marketing doesn’t interest me. No matter how oddball or innovative your marketing methods may be, they’re still just that – marketing. And we, as people, can see through that crap.

Szczegóły we artykule na stronie www.doubleviking.com.

There are recent and important changes at www.ebay.com. The site has changed its rules regarding auctions of digital goods. More detailas available at www.ebaychatter.com website.

On 8th March 2008, the Archives of Audio-Visual Records, founded 1955, have been transformed into the National Digital Archives (NDA). The conversion, requested by the Head Director of State Archives of Poland, has been approved by the Ministry of Culture and National Heritage. The founder of the NDA, Nikodem Bończa Tomaszewski has been assigned to run the institution.
The NDA is the central state archive. Its aim is to provide digital files as a response to the development of recording, storing and access technologies.

It is available at www.nac.gov.pl website. The National Digital Archives (NDA) is the first public office in Poland to develop and maintain applications in open source systems.

The team behind the social BitTorrent client Tribler is responsible for the core P2P technology for the project, dubbed P2P-Next. The project received $22 million (15 million Euro) from the European Union and another $6 million (4 million Euro) is brought in by some of the partners.

More details in the article available at www.torrentfreak.com website. So it looks like after couple of years of different attempts to penalize the technology as they tried in the US, finally we see more business approaches. Quite interesting.

I did not read his books but …

Paulo Coelho, the best-selling author of “The Alchemist”, is using BitTorrent and other filesharing networks as a way to promote his books. His publishers weren’t too keen on giving away free copies of his books, so he’s taken matters into his own hands.

More details about this issue in the article available at www.torrentfreak.com website.

Pirates are innovators, they signal market problems and lead the way to new business models. Nevertheless, they are tagged as thieves by many. We invited Matt Mason, author of the book “The Pirate’s Dilemma: How Youth Culture Is Reinventing Capitalism”, to write an article on the “pirate’s dilemma” for TorrentFreak.

This article is available at www.torrentfreak.com webiste. I like the conclusion.

Matt’s book: “The Pirate’s Dilemma: How Youth Culture Is Reinventing Capitalism” is out now through Free Press, and probably soon on a BitTorrent tracker near you ;).

A lot of websites posted news about a suit in the case Eros, LLC v. Doe, No. 8:07CV01158 (M.D Fla. Jul. 03, 2007), which basically concerns copyright and trademark infringement of virtual goods (sex toys). I will not write too much about that. Just check the article at www.reuters.com website. You’ll find there attached documents of the suit and more comments. But, did anyone of you know about a vritual product that became sold as real? Quafe is both the name of a popular drink in EVE (which is MMOG - Massively Multiplayer Online Game) and the name of the corporation which produces it. On October 22, 2004, Crowd Control Productions, the owner of EVE, launched the virtual drink for sale in the real world. CCP sold the drink from their website - www.ccpgames.com, for $1.50 (USD) for a single bottle, or $15.10 for a multi-pack, but sadly to say, sales of this drink have since ceased. Quafe has a distinct lemon-lime taste.

As usually, if you are looking for more legal materials about mentioned issue, please refer to www.ssrn.com.