BitTorrent under attack – an EU Court decision

thepiratebay

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.

 

Streaming devices – an EU Court decision

streammingThe European court ruled in case C‑527/15, Stichting Brein v Jack Frederik Wullems. This case concerns the following subject matter:

Stichting Brein is a Netherlands foundation for the protection of the interests of copyright holders.

Mr Wullems sells, on a number of internet sites, including his own site http://www.filmspeler.nl, various models of a multimedia player. That player, sold under the name ‘filmspeler’, is a device which acts as a medium between, on the one hand, a source of visual and/or sound data and, on the other hand, a television screen.

On that player, Mr Wullems installed an open source software, which makes it possible to play files through a user-friendly interface via structured menus, and integrated into it, without alteration, add-ons available on the internet, created by third parties, some of which specifically link to websites on which protected works are made available to internet users without the consent of the copyright holders.

Those add-ons contain links which, when they are activated by the remote control of the multimedia player, connect to streaming websites operated by third parties, some of which give access to digital content with the authorisation of the copyright holders, whilst others give access to such content without their consent. In particular, the add-ons’ function is to retrieve the desired content from streaming websites and make it start playing, with a simple click, on the multimedia player sold by Mr Wullems connected to a television screen.

As is clear from the order for reference, Mr Wullems advertised the ‘filmspeler’ multimedia player, stating that it made it possible, in particular, to watch on a television screen, freely and easily, audiovisual material available on the internet without the consent of the copyright holders.

On 22 May 2014 Stichting Brein asked Mr Wullems to stop selling the multimedia player. On 1 July 2014, it brought an action against Mr Wullems before the referring court seeking an order that, in essence, he stop selling multimedia players such as ‘filmspeler’ and offering hyperlinks that give users illegal access to protected works.

Before the referring court, Stichting Brein submitted that, by marketing the ‘filmspeler’ multimedia player, Mr Wullems made a ‘communication to the public’, in breach of Articles 1 and 12 of the Law on copyright and Articles 2, 6, 7a and 8 of the Law on neighbouring rights. Those provisions must, it submitted, be interpreted in the light of Article 3 of Directive 2001/29, which they transpose into the Netherlands law. The referring court considers, in that regard, that the case-law of the Court does not make it possible to answer with certainty the question of whether there is a communication to the public in circumstances such as those at issue in the main proceedings.

In addition, before the referring court, Mr Wullems submitted that streaming broadcasts of works protected by copyright from an illegal source was covered by the exception listed in Article 13a of the Law on copyright, which must be interpreted in the light of Article 5(1) of Directive 2001/29, which it transposes into Netherlands law. According to the referring court, the Court has not yet given a ruling on the meaning of the requirement of a ‘lawful use’ within the meaning of Article 5(1)(b) of Directive 2001/29.

In those circumstances, the Rechtbank Midden-Nederland (District Court, Midden-Nederland, Netherlands) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

(1) Must Article 3(1) of Directive 2001/29 be interpreted as meaning that there is “a communication to the public” within the meaning of that provision, when someone sells a product (multimedia player) in which he has installed add-ons containing hyperlinks to websites on which copyright-protected works, such as films, series and live broadcasts are made directly accessible, without the authorisation of the right holders?

(2) Does it make any difference

– whether the copyright-protected works as a whole have not previously been published on the internet or have only been published through subscriptions with the authorisation of the right holder?

– whether the add-ons containing hyperlinks to websites on which copyright-protected works are made directly accessible without the authorisation of the right holders are freely available and can also be installed in the multimedia player by the users themselves?

– whether the websites and thus the copyright-protected works made accessible thereon — without the authorisation of the right holders — can also be accessed by the public without the multimedia player?

(3) Should Article 5 of Directive 2001/29 be interpreted as meaning that there is no “lawful use” within the meaning of Article 5(1)(b) of that directive if a temporary reproduction is made by an end user during the streaming of a copyright-protected work from a third-party website where that copyright-protected work is offered without the authorisation of the right holder(s)?

(4) If the answer to the third question is in the negative, is the making of a temporary reproduction by an end user during the streaming of a copyright-protected work from a website where that copyright-protected work is offered without the authorisation of the right holder(s) then contrary to the “three-step test” referred to in Article 5(5) of Directive 2001/29?’

The Court’s decision:

1.      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 the sale of a multimedia player, such as that at issue in the main proceedings, on which there are pre-installed add-ons, available on the internet, containing hyperlinks to websites — that are freely accessible to the public — on which copyright-protected works have been made available to the public without the consent of the right holders.

2.      Article 5(1) and (5) of Directive 2001/29 must be interpreted as meaning that acts of temporary reproduction, on a multimedia player, such as that at issue in the main proceedings, of a copyright-protected work obtained by streaming from a website belonging to a third party offering that work without the consent of the copyright holder does not satisfy the conditions set out in those provisions.

 

Brief IP news

briefs_1131. Opposition by an owner of a non-registered sign. For more information here.

2. Copyright: architect’s drawings. For more information here.

3. Are My Customer Lists a Trade Secret? For more information here.

Information from Intellectual Property Center at the UNWE. More information can be found here

Copyright over design for clothes in US

cheerleader-uniforms.png

The US Supreme Court ruled in the case STAR ATHLETICA, L.L.C. v. VARSITY BRANDS, INC., which in brief concerns clarification whether clothes design is copyright protectable.

As it is well-known there is no copyright over the so-called “useful article” objects having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. Examples are clothing, furniture, machinery, dinnerware, and lighting fixtures.

According to the court, even in this case copyright protection can be invoked but under some requirements:

  • the element can be perceived as a work of art separate from the useful article;
  • and the element would qualify as a protectable pictorial, graphic or sculptural work if imagined separately from the article of clothing (or other useful article).

In the particular case, the court considers that copyright over designs fixed on the clothes exist because the same designs could be transferred to another medium such as canvas in which respect it could be perceived as a separate piece of art.

More information here.

Brief IP news

briefs_1131. ASCAP press release: ASCAP Delivers Record-High 2016 Financial Results. For more information here.

2. Would Humanity Be Better Off Without Intellectual Property? For more information here.

3. IP and BREXIT: The facts. For more information here.

Information from Intellectual Property Center at the UNWE. More information can be found here