Tuesday, 16 January 2018

Sebastian Tomczak and the limitations of YouTube’s $60 million dollar Content ID software

Having had an extended hiatus from blogging after a particularly bruising and fraught masters dissertation process (!), this blogger is absolutely delighted to return to discuss the plight of Sebastian Tomczak, a music technologist whose 10 hour YouTube video of White Noise was plagued by copyright complaints (this story was mentioned on the Copykat last week). After a furore that engulfed the internet over a period of days, Tomczak tweeted on the 08 January that YouTube released the copyright claims on the video.

Tomczak’s approach and his music – does it attract copyright protection?

Tomczak interviewed with Torrent Freak, and discussed his approach to his work:

I teach and work in a music department at a University here in Australia. I’ve got a PhD in chiptune, and my main research interests are various intersections of music / sound / tech e.g. arduino programming and DIY stuff, modular synthesis, digital production, sound design for games, etc,

The white noise video was part of a number of videos I put online at the time. I was interested in listening to continuous sounds of various types, and how our perception of these kinds of sounds and our attention changes over longer periods – e.g. distracted, focus, sleeping, waking, working etc,.

I ‘created’ and uploaded the video in question. The video was created by generating a noise waveform of 10 hours length using the freeware software Audacity and the built-in noise generator. The resulting 10-hour audio file was then imported into ScreenFlow, where the text was added and then rendered as one 10-hour video file.” (I added the red to the font.)

As a very general rule of thumb, for copyright protection there must be (i) a work (ii) that work must be original (iii) the work must be fixated. Great debate can be expounded on all three of these aspects – what a work is, what originality is and what amounts to fixation. However, it is the question of originality that is most pertinent to Tomczak’s case. Within the European jurisdiction, a work is considered to be original when it is ‘the author’s own intellectual creation’ (Infopaq); where she might exert ‘creative freedom’ (FAPL) and where she is able to ‘express her creative abilities in the production of the work by making free and creative choices … so she can stamp the work created with her “personal touch”’ (Painer).

From these legal considerations of originality, it would appear from Tomczak’s description of how the work was generated (in red above) that it would likely not meet the legal originality threshold. It appears that no creative freedom was exercised nor were free and creative choices made. (I must concede, however, that I have based my assumption on the quote provided by Tomczak above. It is possible that he made creative choices during the creation of his piece and just did not explain this to Torrent Freak.)

YouTube’s Content ID Software and the Article 13 question

Tomczak’s case is yet another example that highlights the limitations of Google’s content ID software. It shows that the software is incapable of determining whether or not copyright actually subsists within the video in question. (And this case does not even touch upon fair dealing or fair use issues!)

Readers will be aware of Article 13 of the proposed Directive on Copyright in the Digital Single market. It is supposed to redress the ‘value gap’, which posits that content creators are losing massive profits because of copyright infringement online. Article 13 is specifically directed at platforms that host user-uploaded content and threatens potentially to obligate these platforms either to use content ID software – such as that used by YouTube – or to agree licenses with rightsholders. If platform providers that host user-uploaded content are obligated under the law to use content ID software, the completely absurd set of circumstances that materialised in the Tomczak case – where white noise was subjected to copyright complaints – would arise as a result of the operation of the law
Law is an essential aspect of the social contract and a regulative concept that binds our society together. If we make laws that generate absurd outcomes, surely we must question why we choose to govern ourselves in this way. This writer must argue that laws that intrinsically create preposterous circumstances will probably not serve society positively – they will serve to alienate citizens and inhibit cultural development.

The limitations of YouTube’s $60 million Content ID software are brought into sharp focus in Tomczak’s White Noise case and brings to mind the dangers of making the use of these types of software obligatory under the law. Article 13 is currently with the Legal Affairs committee and has been hotly contested throughout its entire journey through the legislative process. The committee was scheduled to vote on it this month but this will probably be pushed back to March due to the difficulties associated with the Article. This writer is waiting to see the result of the compromises and negotiations currently taking place surrounding Article 13 with bated breath.

Thursday, 11 January 2018


Copyright - Where are we now? What is on the Horizon?

At the start of this year this CopyKat looks to bring together various pieces of news that demonstrate; the current challenges facing copyright, a look to how those challenges are being addressed and finally new challenges that could be on the horizon. Here goes!

When people upload original content to YouTube, there should be no problem with getting paid for that content, should it attract enough interest from the public.

Those who upload infringing content get a much less easy ride, with their uploads getting flagged for abuse, potentially putting their accounts at risk.

That’s what’s happened to Australia-based music technologist Sebastian Tomczak, who uploaded a completely non-infringing work to YouTube and now faces five separate copyright complaints.

Following on from the above, we can see further evidence here of how the video reporting tools within YouTube are being abused.

YouTube’s copyright rules are being abused by the Azerbaijan government in an attempt to censor content from the global video-sharing site according to one of the country’s few independent news services.

The Meydan TV network says four of its video reports, which highlighted allegations of official corruption, were removed on the grounds that they infringed YouTube’s copyright rules. And under the Google-owned giant’s terms, this brought the channel close to being taken off the site altogether.

YouTube is one of the few remaining mediums Meydan TV has for reaching audiences in Azerbaijan. The government blocked its website last year, and it has also jailed the network’s journalists.

Though both the RFE and Meydan TV videos have been restored, Milli is concerned that the threat to his network’s content remains. At the moment, he says YouTube is “failing badly” in policing its own rules.

The UK's Intellectual Property Office (IPO) has outlined the impact new EU rules affecting online content services could have on copyright holders in a new consultation paper published ahead of the new rules taking effect.

The IPO's explained (24-page / 4.72MB PDF) that rights holders will lose an element of control over how their material is accessed once they have entered licensing agreements with providers of online content services with paid subscribers.

Under the new rules, which come into force on 1 April this year, online content service providers must ensure that they make their service available to paid subscribers "in the same manner as in the member state of residence" when those subscribers are "present in a member state other than the member state of residence for a limited period of time".

By taking necessary steps, online service providers (OSP) can avoid legal litigation. The U.S. Copyright Office has instituted a new electronic registration system, where online service providers can protect themselves from copyright infringement lawsuits.

Companies that have an online presence can unknowingly be liable for intellectual properties, such as poetry, novels, songs and movies, that are posted on their websites by users or any third party. The Digital Millennium Copyright Act (DMCA) offers a “safe harbor” protection.

“The Digital Millennium Copyright Act provides OSPs an opportunity to remain innocent middlemen in a dispute between copyright holders and any user who posts infringing content, provided the OSP meets certain criteria,” said John Saint Amour, a supervisor at the U.S. Copyright Office.

Starting on January 1st, all OSPs are responsible for users’ posts, whether they post original content or copyright infringing content on their website, unless they electronically register with the U.S. Copyright Office.

When swapping files over the Internet first began downloading of material wasn’t a particularly widespread activity. A reasonable amount of content was available, but it was relatively inaccessible. Then peer-to-peer came along and it sparked a revolution.

From the beginning, copyright holders felt that the law would answer their problems, whether that was by suing Napster, Kazaa, or even end users. Some industry players genuinely believed this strategy was just a few steps away from achieving its goals. Just a little bit more pressure and all would be under control.

Then, when the landmark MGM Studios v. Grokster decision was handed down in the studios’ favor during 2005, the excitement online was palpable. As copyright holders rejoiced in this body blow for the pirating masses, file-sharing communities literally shook under the weight of the ruling. For a day, maybe two: On an almost continual basis rightsholders are calling for tougher anti-piracy measures on top of more restrictive and punitive copyright law. It's undoubtedly a threat to current Internet freedoms as we know them. But really, is anyone truly surprised that entertainment companies still hate their content being shared for free? TorrentFreak has some strong opinions on this!

Admittedly this article does seem to directly contradict the above. However it demonstrates the entirely divided approach that seems to be prevalent when considering the future of copyright and how we manage our creative material.

On January 1, 2019,  books, films, and songs published in 1923 will fall out of copyright protection - something that hasn't happened in 40 years. At least, that's what will happen if Congress doesn't retrospectively change copyright law to prevent it - as Congress has done two previous times.

Until the 1970s, copyright terms only lasted for 56 years. But Congress retroactively extended the term of older works to 75 years in 1976. Then on October 27, 1998—just weeks before works from 1923 were scheduled to fall into the public domain—President Bill Clinton signed legislation retroactively extending the term of older works to 95 years, locking up works published in 1923 or later for another 20 years.

Will Congress do the same thing again this year? To our surprise, there seemed to be universal agreement that another copyright extension was unlikely to be on the agenda this year.

Though this has been an identified issue in the past, recent developments in this field are leading people to think again regarding our approach to copyright and AI.

Self-aware robots, androids or call-them-what-you-will have been part of science fiction almost from its beginnings. Recently in science reality, there’s been early, speculative discussion about “creative” works generated by these types of machines, and how copyright would apply.

It’s easy — and tempting! — to get wrapped around the axle when it comes to the prospects for artificial intelligence (AI) programs and their creation of original works. When works created by self-running software applications become more common, the result is both more possibilities and more challenges to existing copyright law. But let’s take a step back and consider what we know already, and then move on to what may soon be coming.

Finally, where would any 2018 online blog post be without mentioning Blockchain at least once!

Former photo pioneer Kodak is turning to blockchain technology as part of an initiative to help photographers control their image rights.

The firm said the launch of ‘KODAKCoin’, in collaboration UK tech firm WENN Digital would help photographers receive payment for licensing their work immediately in cryptocurrency form.

KODAKCoin will use blockchain technology that settles transactions using computer algorithms, used by bitcoin and other virtual currencies.

Jan Denecke. WENN Digital chief executive , said: “It is critical photographers know their work and their income is handled securely and with trust, which is exactly what we did with KODAKCoin.

CopyKat Fights

To round this CopyKat off, below are three copyright disputes that have made recent headlines. Maybe not the most auspicious start to the year for these individuals….

Lana Del Rey sued by Radiohead over plagiarism claims - Lana Del Rey has confirmed that she is being sued by Radiohead over similarities between the final track on her current album ‘Lust For Life’ – which is called ‘Get Free’ – and the band’s 1992 hit ‘Creep’. There has been a recent update on this story which you can see here - is there actually a lawsuit?

BBC insists "no breach of copyright" over use of Brigadier's grandfather in Doctor Who special - Andy Frankham-Allen, creative director of Brigadier Lethbridge-Stewart creator Mervyn Haisman's estate, has now downplayed any row with the BBC,  and also explained how the Brigadier's daughter Kate Stewart (Jemma Redgrave) was approved for Doctor Who - and the Radio Times reports that any dispute over his grandson (Captain Archibald Hamish Lethbridge-Stewart, played by Mark Gatiss) who was in the recent Doctor Who Christmas special Twice Upon a Time had been settled with a "amicable, and non-financial, solution to the issue".

Ed Sheeran-Penned Song for Tim McGraw Is Target of Copyright Lawsuit - Two  Australians are asserting that Ed's "The Rest of Our Life" is the result of blatant copying and say it's hardly a coincidence that the musician who performed their own work is in a relationship with a Sony executive tasked with marketing the defendants' song. Gosh!!!!

This CopyKat by Matthew Lingard

Ps: As my time as an intern at 1709 comes to an end, I would like to thank the entire 1709 team for their insight and for giving me this opportunity. I would further like to wish the entire team and all of our readers a happy and prosperous 2018.

Tuesday, 9 January 2018

French State Ordered to Pay €26,100 to Bouygues Telecom

In a recent decision (4 December 2017), the French Conseil d'Etat (the Supreme Court in respect of administrative and public law cases) ordered the State to pay French Internet Access Provider Bouygues Telecom the sum of €26,100.

The context is that of the so-called graduated response system overseen by HADOPI.  It will be recalled that an Act of 2009 implemented the system under which a series of warnings are issued by HADOPI (an administrative body) to infringers using peer-to-peer networks to unlawfully share protected content.  Upon the "third strike", sanctions may be taken.

In order for the system to work properly, the law mandated that the IAPs collect certain identifying data on their subscribers and turn over same to the public authority (which then issued the warnings).  The Act further provided for the adoption of a decree setting out the regulatory framework under which the IAPs could then seek reimbursement for the specific costs incurred in carrying out such tasks.  

In the absence of the adoption of such a decree, Bouygues Telecom brought proceedings against the State which culminated in a ruling in December 2015 whereby the court ordered the Prime Minister to take the necessary reulatory measures within six months.  The ruling went on to state that the order was subject to an "astreinte" (civil penalty) of 100 euros per day after the deadline.  The relevant decree was signed on 9 March 2017, i.e., 261 days after the expiry of the court-imposed deadline.  Accordingly, Bouygues Telecom sought - and obtained - liquidation of the "astreinte" for this time period in the amount of €26,100  (261 x €100).

Link to ruling here

Monday, 8 January 2018

Introducing our new Interns

Kelsey Farish
The 1709 Blog is delighted to announce that, for the next 6 months, Kelsey Farish and Mateusz Rachubka will join the team as interns.

Kelsey Farish is currently a trainee solicitor in the IP/IT team at Taylor Vinters LLP. 

She studied American law (BA) at Washington State University, and EU law and politics (MSc) at the London School of Economics. 

Kelsey is passionate about the film and entertainment industries, and is particularly interested in digital media platforms, content distribution and licensing. 

You can read more about Kelsey here.

Mateusz Rachubka
Mateusz Rachubka is currently an LL.M. student in Intellectual Property and Information Law at King’s College London. 

He received his bachelor’s degree in Law from Lancaster University, during which he also spent a year on academic exchange at the University of Vienna.

Matt holds a keen interest in current developments in the area of copyright protection, data privacy and new technologies. 

Having watched over 180 Formula 1 races in his life, he is a person to ask any questions you might have. 

You can learn more about Mateusz here and follow him on Twitter here

Welcome Kelsey and Mateusz!

Friday, 5 January 2018

SEMINAR: Fundamental Rights and Copyright Law in the EU

Fundamental Rights and Copyright Law in the EU

Wednesday 7th February 2018, 6pm – 8pm at the CITY LAW SCHOOL

Event Location A110, College Building
City University of London
St John Street, London  EC1V 4PB

Seminar Series: Intellectual Property

In addition to giving copyright holders the right to prohibit reproductions, transmissions and performances of the protected works, European copyright law now regulates issues such as linking to content in the internet, blocking internet sites and providing open WiFi networks, among others. The Court of Justice of the EU (CJEU) has addressed these and other important questions related to copyright and fundamental rights in its recent case law. Professor Mylly will discuss this significant development and how the CJEU has used fundamental rights in its judgments, in particular.

Professor Tuomas Mylly’s research analyses informational and communicative power from the perspective of intellectual property, fundamental rights and competition law. His current research addresses the copyright case law of the CJEU from a fundamental rights perspective. He is the principal investigator in a research project funded by the Academy of Finland, Constitutional Hedges of Intellectual Property. He is currently a Visiting Fellow at Mansfield College. He is attached to the Oxford Intellectual Property Research Centre and Bonavero Institute of Human Rights at Oxford.  More information, links to his publications and research projects can be found from his profile page at the University of Turku.

SIGN UP for this event here

Music Modernization Act launched in the US

COPYRIGHT: Two US Congressmen have launched a proposed new statute that has the support of both music owners and music users in an effort to overhaul of the mechanical royalties system in the US. Doug Collins and Hakeem Jeffries say that the Music Modernization Act would "bring music licensing its first meaningful update in almost 20 years".

With no collecting society offering a blanket licence covering the so called 'mechanical rights' in songs, music users must identify the owners of every song they copy, and make sure those owners receive the licensing paperwork and fixed royalty rate set out in American copyright law. Its not easy - the streaming platforms, which concurrently exploit both the performing right and mechanical right elements of the song copyright. Last May, Spotify came to a proposed $43 million settlement to resolve a class action from songwriters led by David Lowery and Melissa Ferrick. The plaintiffs in that case had alleged that Spotify hasn't adequately paid mechanical licenses for song compositions. In July, Spotify was hit with two lawsuits, including one from Bob Gaudio, a songwriter and founding member of the group Frankie Valli and the Four Seasons. Now Spotify has been hit with a $1.6 Billion copyright lawsuit from Wixen Music, publisher of songs by Tom Petty and Neil Young amongst others, which amongst other claims argues that the Lowery/Ferrick settlement was far too low. Apple Music has faced similar claims

The proposed legislation will be an overhaul of the compulsory licence system that governs mechanicals in the US, with Collins and Jeffries saying: "Under the Music Modernization Act, the digital services would fund a Mechanical Licensing Collective, and, in turn, be granted blanket mechanical licenses for interactive streaming or digital downloads of musical works". Although paid for by the digital services, the new collecting society would be run by music publishers and (self-published) songwriters. The law would also: change the way the statutory boards and courts that regulate US collective licensing are organised; the way judges are selected to consider the royalty rates would be changed; and the criteria employed when setting rates would be altered to reflect market realities.

With Wixen's claim against Spotify alleging that Spotify outsourced its work to a third party, licensing and royalty services provider the Harry Fox Agency, which was "ill-equipped to obtain all the necessary mechanical licenses", surely this proposed legislation is much needed? Some say yes, some say maybe!

The Digital Media Association (which includes Apple, Spotify, YouTube, Pandora, Amazon, Napster and Microsoft as members) is backing the proposals, as are the US music publishing and songwriter community. David Israelite for the National Music Publishers Association said "The Music Modernization Act brings the laws that govern songwriters into the modern age. This legislation will lead to improved rates for songwriters and will streamline digital music companies' ability to license music. While there is still more to do to free songwriters from oppressive government regulation, this is a major step forward". The NMPA also put its name to a joint statement alongside collecting societies BMI and ASCAP, plus Songwriters Of North America and Nashville Songwriters Association International. Together they declared that the Music Modernization Act represents "months of collaboration and compromise between the songwriting and tech industries". However the National Association of Broadcasters (NAB) said it has serious concerns about unrelated provisions in the bill that may unjustifiably increase costs for many music licensees, including local radio and TV broadcasters, who otherwise receive no benefit from the legislation” the organisation said in its statement adding “NAB looks forward to working with the bill sponsors and impacted parties to resolve our outstanding concerns” and  the Songwriters Guild of America said that while the proposed legislation has many good points, it also has a “number of serious problems” that will need to be addressed before SGA and thousands of its members can support the bill. 

Other proposed music sector focussed legislation in the US includes moves to ensure AM/FM radio stations to pay royalties to artists and labels as well as songwriters and publishers (the Fair Play Fair Pay Act), and moves to sort out the pre-1972 'quirk' in US copyright law (the CLASSICS Act), and the Transparency In Music Licensing & Ownership Act proposed by Congressman Jim Sensenbrenner earlier this year. That proposal also seeks to overcome some of the issues around digital licensing and the problems caused by the lack of a workable publicly accessible database detailing accessible music rights ownership information.

An interesting take on how this may have influenced Wixen Music's recent filing of it's $1.6 billion lawsuit against Spotify (and how this might impact on Spotify's planned IPO) here
https://www.npr.org/sections/therecord/2018/01/03/575368674/sweeping-new-music-law-expedites-a-1-6-billion-lawsuit-against-spotify and here  https://musicindustryblog.wordpress.com/tag/spotify-law-suit/





Thursday, 4 January 2018

Law Professors Amicus Brief Filed in Support of Take-Two Interactive

Professor Eugene Volokh and his Scott & Cyan Banister First Amendment Clinic at UCLA School of Law recently filed an amicus brief on behalf of several law professors in the Lindsay Lohan v. Take-Two Interactive case currently pending at the New York Court of Appeals.

Lindsay Lohan sued in 2014 Take-Two Interactive, the maker of the “Grand Theft Auto V” video game, claiming that it had used her image when creating the character Lacey Jonas, see here and here, and thus violated her right to privacy under New York Civil Rights Law § 51 by misappropriating her likeness.

Reality show star Karen Gravano filed a similar suit, claiming that the character Andrea Bottino was modeled after her.

Both of these actions failed, as Take-Two did not use Plaintiffs’ names, portraits or pictures. The game did not refer to Plaintiffs by name, did not use their actual names in the video game, did not use them as actors, and did not use their photographs either, see here. Plaintiffs have appealed.

Characters are protected by the First Amendment

The brief concentrates on the free speech issue, arguing that video games are expressive works and thus protected by the First Amendment.

The authors of the brief argue that “[c]elebrities like Gravano and Lohan are significant parts of that “popular culture,and Take-Two must be free to use even their literal names

and likenesses (as was done in Forrest Gump, for example) to capture the essence of that culture.”

The brief cites  the Comedy III Productions, Inc. v Gary Saderup, Inc., where the California Court of Appeals found that the right of publicity “has the potential of censoring significant expression by suppressing alternative versions of celebrity images that are iconoclastic, irreverent, or otherwise attempt to redefine the celebrity’s meaning.

New York law only protects against unauthorized use of likeness in trade

Authors of the brief also argued that the New York right of privacy is generally limited to commercial advertising, and does not extend to creative works.  Indeed, New York state does not recognize a common law right of privacy, only a statutory right of publicity, and New York right of publicity statute only forbids the use without consent of a person’s name, portrait, picture or voice “for advertising purposes or for the purposes of trade.

The New York courts have consistently interpreted the law narrowly and the Appellate Division held in September 2016 that the Grand Theft Auto V video game, “does not fall under the statutory definitions of ‘advertising’ or ‘trade.’”

The authors of the brief also argue that only explicit use of a person’s name or likeness is protected by New York right of publicity statute. A mere suggestion is not enough.

A recent attempt to expand the scope of New York right of publicity law

The New York Legislature is trying to expand the scope of New York right of privacy by enacting Assembly Bill A08155. The bill would make the likeness of an individual a personal property, freely transferable.

It defines the “likeness” of an individual as “an image, digital replica, photograph, painting, sketching, model, diagram, or other recognizable representation of an individual's face or body, and includes a characteristic.” A “characteristic” is defined as “a distinctive appearance, gesture or mannerism recognized as an identifying attribute of an individual.”

Is a video game protected by the First Amendment?

The bill has not been enacted. Plaintiffs’ claims may prosper under this law, or may not, as it provides a First Amendment defense. The main issue would then no longer be whether the creators of the game indeed used Plaintiffs’ likenesses, but whether a video game is worthy of the protection of the First Amendment.

Plaintiff Gravano seems to have anticipated this hypothesis, as she argues that “a video game that is primarily a commercial product [is] not afforded absolute protection as a creative work.”

However, authors of the brief cite the Supreme Court City of Lakewood v Plain Dealer Publ’g Co where the court explained that “the degree of First Amendment protection” of speech “is not diminished merely because the . . . speech is sold rather than given away.

Stay tuned…

Image courtesy of Flickr user Fred Miller under a CC BY-SA 2.0 license.