FROM THE OFFICES OF LESLEY ELLEN HARRIS
Copyright, New Media Law & E-Commerce News
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Vol. 8, No. 3, September 9, 2004
ISSN 1489-954X
Contents:
1. Studies, Legislation and Conventions:
Canada to Implement WIPO Treaties
Italy Legislates Tougher Infringement Penalties
New Copyright Law Principles in China
Congressional Report on Copyright Issues Released
2. Legal Cases:
Two Second Sample May Infringe Copyright
Importation of Copies Confers Jurisdiction
Jail Sentence for Selling Bootlegged Music
Skylink DMCA Appeal Dismissed
Music Sharing Cases Update:
File-Sharing Software Companies Not Liable
ISPs Can Be Ordered to Reveal File-Sharer Identities
More RIAA Suits
Denied Participation in CRIA Appeal
3. Of Interest:
Agreement Permits Limited DVD Copying
Korean Music Industry Disputes MP3 Phone Legality
Music Downloads Offered on eBay
4. Seminars and Speaking Engagements:
New Online Courses: Managing Copyright Issues, U.S. Copyright Law Online
Canadian and International Copyright Law Online
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Copyright, New Media & E-Commerce News is distributed for free by the office of Lesley Ellen Harris. Information contained herein should not be relied upon or considered as legal advice. Copyright 2004 Lesley Ellen Harris. This newsletter may be forwarded, downloaded or reproduced in whole in any print or electronic format for non-commercial purposes provided that its author is acknowledged and that you cc: [email protected].
This newsletter is archived with the National Library of Canada at:
http://collection.nlc-bnc.ca/100/202/300/copyright-a/index.html
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1. STUDIES, LEGISLATION AND CONVENTIONS:
CANADA TO IMPLEMENT WIPO TREATIES - The Canadian government plans to introduce legislation in the Fall of 2004 to implement the WIPO digital copyright treaties. The Canadian Heritage Committee recommended that Canada ratify the Copyright Treaty, and the Performances and Phonograms Treaty. See: http://www.parl.gc.ca/InfocomDoc/Documents/37/3/parlbus/commbus/house/reports/herirp01-e.htm.
ITALY LEGISLATES TOUGHER INFRINGEMENT PENALTIES - Italy has enacted legislation that provides harsher penalties for illegally downloading or uploading copyright-protected material. Penalties range from fines to a jail term of between six months and three year, as well as confiscation of the infringer's computer and national newspaper publication of the details of the offense.
NEW COPYRIGHT LAW PRINCIPLES IN CHINA - China is gradually establishing a new copyright law regime, according to a representative from the National Copyright Administration of China. The regime consists of a set of principles which are designed to meet international standards while also suiting China's own socialist economic development plans.
CONGRESSIONAL REPORT ON COPYRIGHT ISSUES RELEASED - On August 10, 2004, the U.S. Congressional Budget Office („CBO‰) released "Copyright Issues in Digital Media". The report examines three potential approaches for addressing digital media copyright issues: (1) allowing market forces to control the issues; (2) compulsory licensing; and (3) revising copyright law. The CBO concluded that (1) leaving the issues to market forces would enable copyright owners to implement DRM technologies to address the issues, so long as demand for digital works is sufficient to support competition; (2) compulsory licensing on a single, flat rate model could be expensive and unfair to online users who do not download music; and (3) revising copyright law to favor copyright owners may encourage the use of different business models involving DRM technologies but could conflict with fair use or limit innovation, whereas revising copyright law to favor consumers could lead to greater economic inefficiency. The report asks Congress to assess any copyright law revisions in terms of their consequences for efficiency in the markets for creative works. The report is at: http://www.cbo.gov/showdoc.cfm?index=5738&sequence=0.
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2. LEGAL CASES:
TWO SECOND SAMPLE MAY INFRINGE COPYRIGHT - In a reversal of the district court decision, the U.S. 6th Circuit Court of Appeals ruled that copyright may be infringed by a two second sample of a copyright-protected work. The district court had considered the use of the sample in a later song too unrecognizable to constitute infringement. The decision in Bridgeport Music v. Dimension Films, Nos. 02-6521, 03-5738 (6th Cir. Sep. 7, 2004), is at: http://laws.lp.findlaw.com/6th/04a0297p.html.
IMPORTATION OF COPIES CONFERS JURISDICTION - Although a work was created in France, the importation of copies of it into the U.S. is enough to allow the U.S. courts to assert jurisdiction over a case alleging infringement of the copyright in that work. The ruling in Palmer v. Braun, No. 03-13963 (11th Cir. Jul. 13, 2004), is at: http://caselaw.findlaw.com/data2/circs/11th/0313963p.pdf.
JAIL SENTENCE FOR SELLING BOOTLEGGED MUSIC - A Michigan, U.S., man received a jail and monetary penalty after pleading guilty to unauthorized trafficking in live musical performance recordings. He was sentenced to 18 months imprisonment and was ordered to pay $120,000US after selling bootlegged recordings of performances by Bob Dylan, Aerosmith, KISS and Bruce Springsteen. See:
SKYLINK DMCA APPEAL DISMISSED - The U.S. Court of Appeals for the Federal Circuit dismissed an appeal from a lower court decision which had refused to find that a garage door opening device violated the DMCA. Skylink's device circumvented technological measures used by Chamberlain's equipment. The appeals court concluded that the device is presumptively legal because it uses only measures permitted by copyright law, and Chamberlain had not proved a connection to any copyright protections that would rebut that presumption of legalities. The decision in Chamberlain Group v. Skylink Technologies, No. 04-1118 (Fed. Cir. Aug. 31, 2004), is at: http://laws.findlaw.com/fed/041118.html.
MUSIC SHARING CASES UPDATE:
U.S. UPDATE:
FILE-SHARING SOFTWARE COMPANIES NOT LIABLE ˆ The U.S. 9th Circuit Court of Appeals ruled that Grokster and other file-sharing software companies are not liable for copyright infringement. The court denied relief to the movie studios and music companies, holding that their position required a renovation of existing copyright law.
ISP CAN BE ORDERED TO REVEAL P2P FILE-SHARER IDENTITIES - In a lawsuit by several record companies against many unidentified defendants for copyright infringement by illegal download and distribution of music over P2P networks, a U.S. District Court refused to quash a subpoena served on the ISP to which the defendants were subscribers. Although download and distribution of the works qualified as speech, First Amendment protection did not prevent disclosure of the identities of persons carrying out these activities. The rights of the record companies to use the judicial process to pursue apparently meritorious copyright infringement claims outweighed the First Amendment protection. See: Sony Music Entertainment, Inc. v. Does, No. 04-473 (DC), (S.D.N.Y.Jul. 26, 2004), at: http://techlawadvisor.com/chin_072604.pdf.
MORE RIAA SUITS - The RIAA filed suits against another 744 persons who download and distribute music using P2P networks including Kazaa, Grokster, eDonkey, and Limewire. Defendants were named in 152 of the suits; the others were against John Does. The RIAA was able to obtain the identities of the named defendants, but settlements were not reached. This brings the tally of RIAA suits to about 4,700 people.
CANADIAN UPDATE:
DENIED PARTICIPATION IN CRIA APPEAL - A Federal Court judge has declined to allow five entertainment and software industry associations to intervene in the CRIA's forthcoming appeal of a decision which refused to order ISPs to identify alleged copyright infringers. The associations had sought to intervene on the basis that copyright issues in the case could also affect their industries.
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3. OF INTEREST:
AGREEMENT PERMITS LIMITED DVD COPYING - Several members of the U.S. movie and technology industries have formed a plan which will allow consumers to make legal copies of DVDs for play on portable devices, currently prevented by content scrambling measures. The plan will involve licensing of new content encryption technologies under development.
MUSIC DOWNLOADS OFFERED ON EBAY -A new service on a six month trial will allow eBay customers to buy and download songs. The longer term goal is to determine whether the service may provide for the legal sale of music and software. The trial allows a few pre-approved sellers to offer music through eBay. Buyers will be directed to sellers' sites to download their purchases.
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4. SEMINARS AND SPEAKING ENGAGEMENTS:
NEW ONLINE COPYRIGHT LAW COURSES
MANAGING COPYRIGHT ISSUES - NEW ONLINE COURSE - This practical course will guide you through the "copyright maze" and provide clarity in managing copyright issues today and into the future. This 16-lesson, 8 week online course is divided into five sections: General Management Issues like centralizing copyright management, understanding copyright principles, digital copyright issues, global copyright, and valuing copyright; Using Copyright Materials like copyright risk management and permissions procedures; Licensing; Protecting Copyrights including performing a copyright audit; and, Advanced Management Issues like developing a written copyright policy, ongoing copyright education and a checklist for managing your copyright issues. The course begins October 4, 2004. Register at: http://www.acteva.com/go/copyright or email: [email protected].
U.S. COPYRIGHT LAW - NEW ONLINE COURSE - This 16-lesson, 8 week online course covers: History of US copyright law; Criteria for copyright protection; What works are protected in the U.S.; How to protect your copyright works (registration and copyright notice requirements); Copyright ownership; Rights granted in the US; Length of protection; Limitations on rights; How may rights be exploited; How is copyright violated; Remedies for the violation of copyright; Using copyright materials; and Digital copyright law. This course begins September 27, 2004. Register at: http://www.acteva.com/go/copyright or email: [email protected].
CANADIAN AND INTERNATIONAL COPYRIGHT ONLINE TO BE OFFERED AGAIN ˆ Copyrightlaws.com is re-offering its popular online course on Canadian and International Copyright Law, beginning September 27, 2004. Learn from your home or office at your own pace! For more information and to register, visit: http://www.acteva.com/go/copyright. (Access Copyright affiliates should register at: http://www.accesscopyright.ca.)
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This newsletter is prepared by Lesley Ellen Harris, a Copyright and New Media Lawyer and Consultant. Lesley is the author of the books Canadian Copyright Law (McGrawHill), Digital Property: Currency of the 21st Century (McGrawHill), and Licensing Digital Content (ALA Editions). Lesley may be reached at: [email protected] and at: http://copyrightlaws.com.
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This LEH-Letter issue was prepared with the help of Kim Nayyer.
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