BitTorrent under attack – an EU Court decision

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The European Court ruled in Case C‑610/15, Stichting Brein Ziggo BV, XS4ALL Internet BV. This case concerns the following:

Stichting Brein is a Netherlands foundation which safeguards the interests of copyright holders.

Ziggo and XS4ALL are internet access providers. A significant number of their subscribers use the online sharing platform TPB, an indexer of BitTorrent files. BitTorrent is a protocol through which users (known as ‘peers’) can share files. The essential characteristic of BitTorrent is that it divides files for sharing into segments, thus removing the need to rely on a central server to store those files, which lessens the burden on individual servers during the sharing process. In order to be able to share files, users must first download specific software called ‘BitTorrent Client’, which is not provided by the online sharing platform TPB. ‘BitTorrent Client’ is software which allows the creation of torrent files.

Users (called ‘seeders’) who wish to make a file on their computer available to other users (called ‘leechers’) have to create a torrent file through their BitTorrent Client. Torrent files refer to a central server (called a ‘tracker’) which identifies the users available to share a particular torrent file as well as the underlying media file. These torrent files are uploaded by the seeders to an online sharing platform, such as TPB, which then proceeds to index them so that they can be found by the users of the online sharing platform and the works to which those torrent files refer can be downloaded onto the users’ computers in several segments through their BitTorrent Client.

‘Magnet links’ are often used in place of torrent files. These links identify the content of a torrent file and refer to it through a digital fingerprint.

The torrent files offered on the online sharing platform TPB relate mainly to copyright-protected works, without the rightholders having given their consent to the operators or users of that platform to carry out the sharing acts in question.

In the context of the main proceedings, Stichting Brein’s principal request is that Ziggo and XS4ALL be ordered to block the domain names and IP addresses of the online sharing platform TPB in order to prevent the services of those internet access providers from being used to infringe the copyright and related rights of the rightholders, whose interests Stichting Brein protects.

The court of first instance upheld Stichting Brein’s requests. However, these were rejected on appeal.

The Hoge Raad der Nederlanden (Supreme Court of the Netherlands) notes that, in the present case, it has been established that the actions of the online sharing platform TPB make protected works available to the public without the rightholders’ consent. It has also been established that subscribers to Ziggo and XS4ALL, through this platform, make protected works available without the rightholders’ consent and thus infringe the copyright and related rights of those rightholders.

The Hoge Raad der Nederlanden (Supreme Court of the Netherlands) notes, however, that the Court’s case-law does not allow it to reply with any certainty to the question as to whether the online sharing platform TPB also communicates works to the public within the meaning of Article 3(1) of Directive 2001/29, in particular:

–  by creating and maintaining a system in which internet users connect with each other in order to be able to share, in segments, works present on their own computers;

–  by operating a website from which users can download torrent files which refer to segments of those works; and

–  by indexing the torrent files placed online on this website and by categorising them in such a way that the segments of those underlying works can be located and the users can download those works (as a whole) onto their computers.

Under those circumstances, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) decided to stay the proceedings before it and to refer the following questions to the Court for a preliminary ruling:

‘1. Is there a communication to the public within the meaning of Article 3(1) of Directive 2001/29 by the operator of a website, if no protected works are available on that website, but a system exists … by means of which metadata on protected works which are present on the users’ computers are indexed and categorised for users, so that the users can trace and upload and download the protected works on the basis thereof?

2. If Question 1 is answered in the negative:

Do Article 8(3) of Directive 2001/29 and Article 11 of Directive 2004/48 offer any scope for obtaining an injunction against an intermediary as referred to in those provisions, if that intermediary facilitates the infringing acts of third parties in the way referred to in Question 1?’

The Court’s decision:

The concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, must be interpreted as covering, in circumstances such as those at issue in the main proceedings, the making available and management, on the internet, of a sharing platform which, by means of indexation of metadata relating to protected works and the provision of a search engine, allows users of that platform to locate those works and to share them in the context of a peer-to-peer network.

A copyright lawsuit against The Beverly Hills Hotel

MainWebPhoto_w_720Ireland-based Iconic Images has initiated a lawsuit against The Beverly Hills Hotel in Los Angeles for copyright infringement. Iconic is a company that manages copyrights over photographs.

In the case at hand, Iconic alleges that the hotel was using without a license an image by photographer Terence O’Neill, which rights are managed by the company.

The photo known as “The Morning After”, which was captured in the same hotel in 1977, represents the American actress Faye Dunaway after the night when she received an Oscar.

Iconic points out that although there were some negotiations with the hotel no result followed. What’s more the hotel expanded the use of this image in different advertisements without permission to do that.

This is an example of the fact that even in the case of older works the relevant copyrights have to be properly negotiated and gained. The reason for this is the fact that such copyrights have a duration the life of the author and 70 years after that.

Source: WIPR.

 

Cristiano Ronaldo with tax problems in Spain

Shahter-Reak_M_2015_(18)The Spanish Tax Office has started an investigation against Cristiano Ronaldo for tax evasion regarding  €14.7 million in revenue received by the footballer between 2011 and 2014.

According to the allegation, Ronaldo used an offshore company to “create a screen in order to hide his total income from Spain’s tax office”.

In the case at hand, this income was from different merchandising and advertisement campaigns which were using the image and reputation of the footballer. The licensing of such rights can be really profitable. The practice shows that some sportsmen earn more money based on such activities than from their professional career.

Source: WIPR.

Michelle Lee won’t stay as USPTO Director

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The USPTO announced the fact that its Director Michelle Lee will step down. This comes as a slight surprise taking into account the rumors in the last months which suggested an opposite outcome.

 Wilbur Ross, the US secretary of commerce commented: “As the first woman in our country’s history to serve as director of the USPTO, Michelle has worked tirelessly to serve our stakeholders and the American public. We wish her well in her next endeavor”

Source WIPR.

Alcolock and breathalyser devices – a General Court decision

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The General Court of the EU ruled in Case T 638/15 Alcohol Countermeasure Systems (International) Inc. v EUIPO. The case concerns an invalidation procedure against an EU trademark ALCOLOCK, which was based on an earlier UK trademark ALCOLOCK, in light of  Article 53(1)(a) in conjunction with Article 8(1)(a) and (b) EUTMR.

The Board of Appeal decided that the applicant proved a genuine use of its mark on the territory of the UK. The reasons behind this conclusion were that the owner of the earlier mark submitted sufficient pieces of evidence. One of them was the fact that applicant acted as a licensee using a similar mark for identical goods. In addition to that, the applicant showed a selection of invoices, accompanied by purchase orders and email requests, a selection of press articles and advertisements, together with invoices for placing them.

Although the invoices revealed sells for only 350 breathalyser devices during the relevant periods, according to the Board this was sufficient taking into account the nature of these products.

The General Court upheld this decision.