High Court concludes The Pirate Bay infringes UK copyrights

High Court concludes The Pirate Bay infringes UK copyrights:

In unsurprising news, Dramatico Entertainment Ltd v British Sky Broadcasting Ltd [2012] EWHC 268 establishes that The Pirate Bay infringes the claimants’ UK copyrights by (i) authorising acts of copying and communication by its users; and (ii) engaging in a common design with those users to perform those infringing acts.  In a carefully-reasoned judgment, Arnold J sets out the background technology and analyses recent case law concerning the communication right.

Although this was a clear case, the Court was careful not to water down the applicable tests for secondary liability: authorisation, for example, remains “to grant or purport to grant to a third person the right to do the act complained of” — though it leads to a similar conclusion here to the broader “countenance, sanction of approve” test favoured in Australia (see, eg, Village Roadshow v iiNet).  Interestingly, Arnold J characterised the “means” of infringement as the torrent files:

The means used to infringe. The torrent files which are so conveniently indexed, arranged and presented by TPB constitute precisely the means necessary for users to infringe. It is the torrent files which provide the means by which users are able to download the “pieces” of the content files and/or to make them available to others.  Read more »

A third high-profile takedown in as many days: this week looks...



A third high-profile takedown in as many days: this week looks like a losing one for pirates.  Notorious e-book platform Library.nu has been shut down, according to news reports.  The website, in combination with cyber-locker ifile.it, hosted around 400,000 titles — mostly academic textbooks and popular fiction.  Apparently, the operators received around €8m per year from donations, ads and premium accounts, though they claimed that most of this was spent on server costs.

Unsurprisingly, a consortium of publishers (including HarperCollins, Macmillan, Pearson, Oxford University Press and the International Publishers) led the take-down.  For academic publishers, it cannot come too soon: Library.nu was notorious for releasing ‘lossless’ PDF copies of latest edition academic texts weeks before they were even released — presumably leaked from offshore printers and compositors.  Unfortunately for publishers, numerous equivalent platforms continue to supply their copyright works with impunity.

Joining a growing list of takedowns this week, music...



Joining a growing list of takedowns this week, music blog RnBXclusive.com has had its domain name confiscated by the United Kingdom Serious Organised Crime Agency (SOCA). The move is unprecedented because it is the first (publicised) case in which a .com gTLD domain name has been seized by a UK government agency.  It is unclear what wrongs the website operator had committed, though a statement from SOCA suggests that they involve copyright infringement on a commercial scale:

The website in question specialised in RnB and enabled access to music obtained by hacking, including some which had not yet been released. IFPI estimates losses to legitimate businesses and artists caused by the site to be £15m a year. During the week running up to arrest phase the website had 70,000 users daily, mainly males aged 18 to 25 years. (emphasis added)

The concerning phrase here is ‘enabled access’.  If the music was not being hosted on the blog and was not actually procured or obtained by the website operator, it seems at least doubtful whether the website was committing an actionable wrong by linking or otherwise enabling access to the files in question.  At most, this might amount to the civil statutory tort of authorising copyright infringement.

Many have also pointed out that the warning message being displayed by SOCA in place of the site’s original content was highly misleading.  I look forward to hearing the matter determined fully in court.

In an astonishing display of executive power, popular business...



In an astonishing display of executive power, popular business form creation tool JotForm has had its domain name suspended by registrar GoDaddy at the ‘request’ of the US secret service.  It is unclear whether a court order was obtained or whether the request came from a state prosecutor.  Either way, this is a terrible denial of the right to a fair trial: JotForm was not notified of the action, has suffered irreparable damage to its business reputation, and it is unclear of what wrong they are accused.

Canada Supreme Court holds ISPs exempt from local content rules

In Alliance of Canadian Cinema, Television and Radio Artists Bell Aliant Regional Communications LP [2012] SCC 4, the Supreme Court of Canada upheld a finding that Bell, Rogers and other Canadian ISPs are not broadcasting undertakings” within the meaning of the Broadcasting Act 1991 (CA), which means they are exempt from the obligation to contribute to local content.  The Court held:  Read more »

Canada Supreme Court holds ISPs exempt from local content rules

In Alliance of Canadian Cinema, Television and Radio Artists Bell Aliant Regional Communications LP [2012] SCC 4, the Supreme Court of Canada upheld a finding that Bell, Rogers and other Canadian ISPs are not broadcasting undertakings” within the meaning of the Broadcasting Act 1991 (CA), which means they are exempt from the obligation to contribute to local content.  The Court held:  Read more »

Eolas jury holds embedded hypertext patent invalid

Eolas, a company which many describe as a “patent troll”, has suffered a serious set-back in litigation against, Google, Amazon and others.  As has been widely reported, a Texas jury found that the patent was invalid for want of novelty.  So, what was the patent?  According to the specification:

A system allowing a user of a browser program on a computer connected to an open distributed hypermedia system to access and execute an embedded program object. The program object is embedded into a hypermedia document much like data objects.

Relevantly, claim 1 claimed:

A method for running an application program in a computer network environment, comprising:

  1. providing at least one client workstation and one network server …
  2. a browser application … to display, on said client workstation, at least a portion of a first hypermedia document received over said network from said server … and wherein said embed text format is parsed by said browser to automatically … display [it] and enable interactive processing …

In other words, the plaintiff claimed something akin to the <embed> tag, utilised in a web browser.  After expert evidence from Tim Berners-Lee and Dave Ragett, the jury found that the claimed invention was not new as at 17 October 1994.  Read more »

Eolas jury holds embedded hypertext patent invalid

Eolas, a company which many describe as a “patent troll”, has suffered a serious set-back in litigation against, Google, Amazon and others.  As has been widely reported, a Texas jury found that the patent was invalid for want of novelty.  So, what was the patent?  According to the specification:

A system allowing a user of a browser program on a computer connected to an open distributed hypermedia system to access and execute an embedded program object. The program object is embedded into a hypermedia document much like data objects.

Relevantly, claim 1 claimed:

A method for running an application program in a computer network environment, comprising:

  1. providing at least one client workstation and one network server …
  2. a browser application … to display, on said client workstation, at least a portion of a first hypermedia document received over said network from said server … and wherein said embed text format is parsed by said browser to automatically … display [it] and enable interactive processing …

In other words, the plaintiff claimed something akin to the tag, utilised in a web browser.  After expert evidence from Tim Berners-Lee and Dave Ragett, the jury found that the claimed invention was not new as at 17 October 1994.  Read more »

"Either way, when international accords, like ACTA, are conceived and constructed under a cloak of..."

““Either way, when international accords, like ACTA, are conceived and constructed under a cloak of secrecy,” [Senator Ron] Wyden [D-OR] said, “it is hard to argue that they represent the broad interests of the general public. The controversy over ACTA should surprise no one.””

- ACTA ‘leaves to the discretion of each country the definition of what constitutes a “commercial” level of piracy, so some countries might choose to search travelers’ laptop computers and digital music players in search of illegal downloads. ACTA supporters reject the criticism and say action is essential when legitimate owners of intellectual property are losing tens of billions of dollars annually to counterfeiting and illegal sharing. They accuse some opponents of deliberately exaggerating ACTA’s provisions to fan fears.’

Liability for defamatory statements in Twitter hashtag feeds

Brett Debritz asks an interesting question:

what if somebody were to tweet an extremely defamatory or racially offensive remark using the Nova-nominated hashtag and it ended up on the company’s website for a sustained period of time? What if somebody sued? Who would be responsible: the author (if they could be identified) or the publisher?

Different jurisdictions will answer this question differently.  In England (and probably Australia), the question is likely to turn on two factors: (1) whether the website operator is regarded as the “publisher” of the relevant statement; and (2) whether the operator had actual knowledge of the statement.  By analogy with Bunt v Tilley and DesignTechnica v Metropolitan Schools & Google, there is a strong argument that the “publisher” is the person who authored the defamatory statement and caused it to be posted to Twitter.

Although Byrne v Deane suggests that someone who controls a facility (in that case, a bulletin board in a club house) to which defamatory material has been posted can be liable for its dissemination, there is little that a website operator can do to control the flow of comments in a Twitter hashtag feed: short of removing the feed widget entirely, tweets cannot be deleted and what shows up there is entirely within the purview of tweet authors and Twitter.  Whether Twitter faces liability is a more complicated question, and is likely to start implicating questions of safe-harbours under the E-Commerce Directive.  Read more »