Wednesday, September 2, 2009

relevant cases to copyright infringement.

As on the previous post we have discussed the issue of ISP's liability under copyright, hence for this time, we have highlighted a few cases that touches on the issue of copyright infringement. Hope that through these cases below, it gives you all a clearer view on how an ISP may be held liable under copyright infringement.
happy reading people!

In the case of Playboy Enterprises v Frena, a Bulletin Board Service (BBS) operator whose bulletin board contained copyrighted photographs owned by Playboy was found liable of violating the right to display and publish the photograph although the BBS operator did not make the copies himself, and in fact was never proven to have knowledge of their existence. In effect, this case held the BBS operator liable merely for providing a means by which copies (made by others) could be distributed to the public. This case is crucial in distinguishing the liability of an Internet service Provider and also a Bulletin Board Service.

A case that can be distinguished from the above case is the case of Religious Technology Centre v Netcom On-Line Communication Services Inc. In this case, the judge refused to follow the case of Playboy Enterprises v Frena in delivering its judgement. The representatives of the Church of Scientology in this case has brought an infringement action against Netcom, which is an Internet Service Provider(ISP) whose customer had posted infringing copies of the works of L Ron Hubbard to a newsgroup. The judge rejected the allegation that the ISP had in fact infringed directly as Netcom itself did not cause the infringing copies to be made. The decision made by this judge has also been followed by several cases including the case of ALS Scan, Inc v Remarq Communities and also the case of Harlan Ellison v AOL. The court further stated in this case that if Netcom had knowledge that infringing material was passing through its servers and failed to take action to prevent the dissemination of such, then only would they be liable of the infringement.

Other than that, in Gershwin Publishing Corp v Columbia Artists Management Inc, the court laid down the factors to be taken into consideration for a defendant to be liable of contributory infringement. Firstly, the defendant must have knowledge of the infringement and secondly, the defendant must have induced, caused or materially contributed to the third party’s infringing conduct.

In the case of Kazaa BV v Vereniging Buma & Stichting Sterma Amsterdam Court of Appeal, the court held that the KaZaa system could be used to exchange legitimate files and also infringing files which did not require further involvement by KaZaa itself. Therefore, KaZaa cannot be liable unless it is guilty of authorizing users of its software to infringe copyright which could not happen as the software can also be used to exchange legitimate files.

Another interesting case is the case of Viacom International Inc v
. YouTube Inc By early 2007, Viacom had noticed that lots of fans of SpongeBob had been uploading clips and episodes to YouTube. As the fans of SpongeBob were a numerous and evasive bunch, Viacom thought it might be prudent to also engage in negotiations to license SpongeBob to YouTube. Such a license would bring revenue to Viacom, while obviating the unpleasant task of tracking down and prosecuting its base of loyal customers. However, the negotiations broke down, and on March, Viacom filed a $1B lawsuit against YouTube for copyright infringement. These are among Viacom's complaints:
Viacom claims that YouTube itself publicly performs the SpongeBob videos on the YouTube site and other websites.
Viacom claims that YouTube causes SpongeBob to be publicly displayed by showing individual images of infringing video clips in response to searches for videos on YouTube. It appears that YouTube takes a frame from videos that are uploaded to the website, and transforms that still image into a thumbnail image that is used as a hyperlink. As a result, a user searching for a video will be able to peruse a series of images and more easily locate the video that satisfies his search.
Viacom claims that YouTube is making and otherwise authorizing copies of SpongeBob into its video database. The main argument that Viacom seems to make here is that, even though the files are uploaded by users, by inserting itself into the process by converting the uploaded file from its native format into Flash, YouTube is now copying the uploaded files.

In the English Premier League's case, the
US Judge holds that foreign companies are required to register their copyrights in order to safeguard their rights to claim statutory damages under US law. The plaintiffs in this case alleged infringement of copyright before the US Courts against YouTube in respect of unauthorised football content appearing on YouTube.

YouTube (now owned by Google) argued that because the Premier League had failed to register its copyrights, then this prevented the Premier League from claiming statutory damages for copyright infringement.

The Premier League argued that requiring foreign copyright owners to register their copyrights would violate the Berne Convention. The Berne Convention is an international copyright treaty, to which the US has signed up. The Berne Convention states that the enjoyment and exercise of copyright “shall not be subject to any formality“, i.e. such as registration. In the UK, copyright subsists automatically upon creation, subject to certain qualifying criteria.

The US Judge disagreed, stating that the US considered that the requirement, that foreign copyrights must be registered, was compatible with the US’s obligations under the Berne Convention. The Judge went on to state that that non-US companies must register all works with the US Copyright Office, within three months of first publication of such works, if they ever wish to claim statutory damages for any subsequent infringement of these works.

Ultimately, the Premier League’s case for copyright infringement against YouTube in this respect wasn’t fatally damaged as it appears that they were able to rely on a different legal provision to retain their right to claim statutory damages.

However, this case serves as a reminder for copyright owners to consider registering their copyrights in the US, if they want to protect their ability to recover statutory damages before a US court.

source: stricklandtrademarklawyer

In most cases, it can be seen that copyright law is moving toward the position whereby internet intermediaries would not be strictly liable for making copies of information that passes through their servers. A liability would most likely be imposed if
  1. the intermediary actively encourages users to transport infringing material via its facilities and also;
  2. where the intermediary has actual knowledge of the infringement and fails to take reasonable steps to prevent such infringement.
that's all for this post ppl! have a nice day ahead.

prepared by,


cyberlaw class 20092010 said...

Those cases are good references for this topic. We did not have much time to delve into all the cases, this blog may assist in knowing the relevant cases.

cyberlaw class 20092010 said...

There are other cases like Cubby v Compuserve, the latest You Tube's case (Vicom) that are worth to be mentioned and discuss here.

Dr. Nazura.

NurFarahiyah Othman said...
This comment has been removed by the author.
NurFarahiyah Othman said...

thank you very much Dr..
we appreciate it. InsyaAllah, we will paste up the 'lop hole'.. :)

Anonymous said...

Thank you Dr for the comment .
we will try to post the Cubby's case later ~ :)