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The Pirate Bay blocked in Portugal

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Authors: Joâo Costa Quinta (ABBC), Margarida Leitâo (ABBC), Gonzalo Santos (DLA Piper)

 

A recent Intellectual Property Court decision in Portugal determined that the main telecommunications operators have until the end of March to block the access of its users to The Pirate Bay domains, either through its main (Swedish) domain name “thepiratebay.se” or other alternative domain names.

The decision was issued in the scope of an injunction filed by Audiogest – Associação para a Gestão e Distribuição de Direitos and by GEDIPE – Associação para a Gestão de Direitos de Autor, Produtores e Editores, both copyright collective management organisations, against the main telecommunications operators in Portugal. The decision was based on intellectual property rights infringements taking into consideration the illegal contents of the websites. Similar decisions were issued around the world. For example, in France the Paris High Court requested the major Internet Services Providers to block The Pirate Bay within two weeks.

Also in Portugal there were similar decisions of blocking the access to websites where football matches were being transmitted without the adequate license. However, in said cases, the decision was addressed to unknown persons and not to the operators, being this, the first decision addressed directly to telecom operators.   

The challenge will be to ensure that these decisions are adequately enforced, since there are alternative ways to access to such websites which are publicly available. As one of the founders of The Pirate Bay recently said in a conference held in Portugal, this measure is most likely to be ineffective as there are always other mechanisms in order to circumvent the access to the websites.

A solution that seems to be more effective is the reinforcement of sanctions for copyright breach. In Spain a number of popular P2P sites have removed in the past months links that led to pirated content because of the introduction of more severe economic penalties through an amendment of the Spanish Intellectual Property Act that came into force on the 1st January.

Furthermore, a recent ruling of the Spanish High Court Audiencia Nacional sentenced the administrators of a webpage that pirated different newspapers and magazines (youkioske.com) to three years in prison for breaching intellectual property rights and another three for operating as a criminal organization. According to the ruling, they will also have to pay a compensation to the rights owners for an amount yet to be determined.


Australia: Dallas Buyers Club LLC obtains customer identities from ISPs in landmark piracy ruling

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By Judith Miller and Matthew Evans

On Tuesday 7 April 2015, a single Federal Court Judge ordered six internet service providers (ISPs) to hand over the names and identities corresponding to approximately 4,700 unique IP addresses, which have allegedly downloaded and shared the Dallas Buyers Club movie without permission over the peer-to-peer sharing network BitTorrent.

The ISPs (iiNet, Dodo, Internode, Amnet Broadband, Adam Internet and Wideband Networks) resisted the application arguing that any claim against a “would be” infringer by the Dallas Buyers Club was too speculative and more evidence was required before discovery should be ordered. They further argued that the Court should use its discretion to not allow discovery because:

  • no prospective claim by the Dallas Buyers Club could make commercial sense i.e. the cost of litigation would heavily outweigh the amount recovered in each case
  • stringent privacy laws protected the disclosure of customers’ personal information and, given the arguably weak case of the Dallas Buyers Club, customers privacy should be protected.

The ISPs requested that if the court found in Dallas Buyers Clubs’ favour, that they be constrained in two ways. Firstly, that they should not be permitted to send what is referred to as a “speculative invoice” to account holders. Secondly, the Court should ensure that the privacy of the account holders is protected.

Speculative invoicing is the practice of sending an aggressive letter to a person asserting that they are liable for a large amount of money, and stating they will be taken to court unless they pay a smaller, but still substantial, sum of money. It has been a common practice of the parent company of Dallas Buyers Club LLC and the owner of the intellectual property rights in the movie, Voltage Pictures.

His Honour, Justice Nye Perram, rejected each of the ISPs’ substantive arguments and ordered discovery of the identities of the ISPs’ customers but agreed with the two constraints. He ordered that the Dallas Buyers Club LLC could only use the account holders’ information for the purposes of recovering compensation for the infringements and secondly that it must submit a draft of any letter it proposed to send to account holders to the Court, in order to prevent speculative invoicing.

The ISPs have 28 days to decide whether they will appeal the decision to the full Federal Court of Australia.

ITALY –“Digital Authorities” Seminar on 22 May, University of Milan

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Follow us on Friday 22 May 2015 at the University of Milan, with the main experts of our Italian “Digital Authorities” – Giuseppe Galasso (Director Communications – AGCM), Benedetta Liberatore (Director Audiovisual Services – AGCOM) and Luigi Montuori (Director Communications and Electronic Networks – Data Protection Authority), together with Marco Cuniberti (UNIMI) and Giangiacomo Olivi (DLA Piper).

We will be discussing the regulatory challenges for digital media, IoT and new technologies. We look forward to seeing you at 2:30 PM, Sala Napoleonica of the University of Milan, via Sant’Antonio 2. The entrance is free, but please register with infomaster.giurisrprudenza@unimi.it. See you soon!

@giangiolivi

JAPAN – Amendments to METI Guidelines on Electronic Commerce and Information Property Trading

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By Ann Cheung and Keitaro Uzawa

The Ministry of Economy, Trade and Industry of Japan (METI) recently revised the Interpretative Guidelines on Electronic Commerce and Information Property Trading (Guidelines), which apply to all online business operations in Japan and clarify how the Civil Code, which governs Japanese commercial contracts, and other relevant laws, such as, the Act on Special Provisions to the Civil Code Concerning Electronic Consumer Contracts and Electronic Acceptance Notices (Act No. 95 of 2001) (Electronic Contract Act) and the Act on Specified Commercial Transactions (Act No. 57 of 1976), are applied to various legal issues relating to electronic commerce (e.g., online shopping) and information property trading (e.g., the broadcasting and the distribution of software and other digital content).

Existing sections of the Guidelines have been amended to provide detailed guidance on certain issues surrounding electronic publications. The following existing sections of the Guidelines have been amended in line with revisions to the Copyright Act (Act No. 48 of 1970) and recent judicial decisions:

  • Section II-1: Liability of Business Entities Providing Consumer-generated Media (CGM) Service for Mediating Transmission of Illegal Information
  • Section II-2: Legal Matters Involved in Setting up a Link to Another Person’s Website
  • Section III-12-3: Obligation to Redistribute Electronic Publications

Section II-1: Liability of Business Entities Providing CGM Service for Mediating Transmission of Illegal Information

Articles 709 and 719 of the Civil Code (Act No. 89 of 1896) apply to cases where an internet user posts or uploads information that infringes third-party rights. Regardless of whether there is any request for removal, if it is easy to prevent the transmission of such information (for example, by deleting such information from the website), and if the business entity or the website operator providing the CGM services, such as, blogging or video-sharing services, fails to remove such information, such business entity or website operator may be held liable for tort to the person whose right is violated by the illegal transmission of such information.

According to Article 3(1)(i) and (ii) of the Act on the Limitation of Liability for Damages of Specified Telecommunications Service Providers and the Right to Demand Disclosure of Identification Information of the Senders (Act No. 137 of 2001) (Provider Liability Limitation Act), CGM service providers are only liable for not taking steps independently to delete information under certain circumstances, such as, situations where the CGM service providers have actual or constructive knowledge that the distribution of the relevant information is an infringement of third-party rights.

In a judgment of Sapporo District Court dated 4 September 2014, the court considered the situation where a user posted defamatory information about a restaurant. The restaurant requested the website operator to delete the defamatory information, but the website operator took an unreasonably long time to delete the defamatory information. The court held that the website operator was not required to remove the defamatory information because setting up a website for users to contribute word-of-mouth information of restaurants did not infringe the personal rights (jinkaku-ken) of the restaurants and was therefore lawful.

Section II-2: Legal Matters Involved in Setting up a Link to Another Person’s Website

Where a link to a website with copyrighted contents is configured so that a viewer of the linked website and/or copyrighted contents may mistake the linked materials for those belonging to the link, such link may constitute an infringement of the copyright holder’s moral rights and public transmission rights under the Copyright Act.

Moral rights under the Copyright Act include: (i) the right of the author to make his or her work available to the public, (ii) the right of the author to determine whether and how his or her identity as author of the work is presented (for example, whether under his or her real name or under his or her pseudonym), and (iii) the right of the author to maintain the integrity and the title of his or her work (no modification to any work is to be made without the consent of the author of the work).

A judgment of Tokyo District Court dated 17 January 2014 dealt with infringement of copyright by a person setting up a link to another’s content under the Provider Liability Limitation Act. The court held that the act of the person who set up a link to an illegally uploaded comic was equivalent to the act of those who performed the uploading of the electronic file of the comic and that the person who set up the link infringed both copyright and public transmission rights.

Section III-12-3: Obligation to Redistribute Electronic Publications

Prior to the revision of the Copyright Act, publishers (e.g., e-book agents) who had publishing rights but were not the copyright holders (e.g., authors) could not act as an intermediary in public broadcasting of digital content or public transmission of electronic publications to third-party distributors. On 1 January 2015, revisions of the Copyright Act came into force so that electronic publication distributors can now obtain broadcasting and publishing licenses directly from publishers (e.g., e-book agents), who have been granted rights to sub-distribute such materials by the relevant copyright holders (e.g., authors).

Earlier Amendments in Relation to Electronic Commerce

In addition to the 2015 amendments discussed above, please see our previous updates for an overview of the 2014 amendments to the Guidelines.

Please contact Ann Cheung or Keitaro Uzawa for further information.

AUSTRALIA: The end of the Pirate Bay and VPNs in Australia? New censorship laws passed to block piracy websites

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By Matthew Evans

The Australian Government has introduced new laws to block websites at an internet service provider (ISP) level if they have the primary purposes of infringing or facilitating the infringement of copyright. On June 22 the Copyright Amendment (Online Infringement) Bill 2015 was passed in parliament, amending the Copyright Act to introduce the new provisions.

In addition to the obvious targets such as The Pirate Bay and other bittorrent websites, there is a significant concern that the new laws would block Virtual Private Networks (VPN). In Australia, VPN demand has increased alongside the introduction of the recent Netflix service which is partially attributable to Australian customers flaunting geographic restrictions to obtain the same content as their US counterparts. VPNs also have numerous legitimate purposes and are critical to many businesses which transmit sensitive information or wish to preserve privacy.

The Communications Minister Malcolm Turnbull tried to quell the concern earlier in the discussions by making it extra clear that VPN use would not be a problem under the legislation. Despite this, a specific exemption for VPN providers was rejected, leaving scope in the future for VPNs meeting the requisite test under the Act to be blocked.

Many tech-savvy experts remain unconvinced of the efficacy of the legislation citing previous examples of website blocking resulting in dozens of mirror sites popping up that offer the same content. There are also masking services, such as the one The Pirate Bay is currently using, which makes its website impossible to block for the majority of ISPs. Lastly, users can turn to a proxy website which, similarly to VPNs, disguises the location of the user to another part of the world. We will keep you updated on any new developments.

AUSTRALIA: Update: Dallas Buyers Club letter revealed – Is it still speculative invoicing?

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By Matthew Evans

In the latest update of the Dallas Buyers Club case the proposed letters to be sent to pirates have now been made public.

It was previously ordered that Voltage (the company owning the rights to Dallas Buyers Club) was required to submit to the Court a draft of the letters and telephone script it proposed to use when contacting customers pursuant his Honour Justice Perram’s ruling on 7 April 2015.

According to his Honour, this was to prevent the practice of “speculative invoicing” that Voltage has previously engaged in. As discussed in our last update speculative invoicing is the practice of sending aggressive letters to potential pirates asserting they are liable for substantial amounts of money and offering to settle for a smaller (but still large) sum.

The letter is now publically available here following Voltage’s unsuccessful attempt to argue for confidentiality before Justice Perram on Thursday 18 June. The letter and telephone script have been subject to a spate of criticism for asking for information such as the recipient’s annual income and how many movie titles the person has illegally downloaded over peer-to-peer file sharing services now and in the past on the basis that it is difficult to justify how these questions are relevant to the damages suffered by Voltage. The arguments have made the point that having a higher annual income does not make the offence of copyright infringement any more serious: any damage suffered by Voltage is the same. Both the letter and script have been criticised as an overreach by Voltage to obtain more information than it is entitled to. As put by Counsel for iiNet, Richard Lancaster SC, “[this is not] a royal commission into end users use of the bittorrent network, this is a case about Dallas Buyers Club the film.” The letter itself is very strongly worded and contains the threat of legal action should the recipient not respond. Both the letter and script are currently under consideration by Justice Perram as to whether it is acceptable or whether it is speculative invoicing.

SPAIN: Tougher prison penalties for IP infringers

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Author: Gonzalo Santos

On 1 July 2015, a major amendment of the Spanish Criminal Code entered into force. Among other measures, said amendment considerably increases the maximum prison sentences which can be imposed for criminal activities against intellectual property. Prior to the amendment, the maximum imprisonment penalties for them were of 2 years (4 years for aggravated cases). Now these have been increased to 4 and 6 years, respectively. Furthermore, manufacturing or making available means mainly aimed at neutralizing security measures put in place to protect intellectual property works can now be punished with imprisonment up to 3 years (previously up to 2 years).

This increase is particularly significant since, according to the Spanish legislation, defendants penalized to less than 2 years in prison may not have actually to go to jail (other sanctions are imposed) as long as they have no previous criminal records. Under the new version of the Criminal Code, convicts for non-aggravated crimes against intellectual property may have to serve prison sentences, even if they have not committed any previous criminal offenses.

Additionally, the Criminal Code now has a specific section on “pirate” websites, which grants right-holders a better protection against infringements committed over the internet. In particular, this new section expressly sets forth the possibility to interrupt the services provided by “pirate” websites and even block them.

The amendment of the Criminal Code also establishes that the same penalties may be imposed on anyone that imports or exports intellectual property works without the right holder’s consent and to anyone who, in order to grant a third party access to protected intellectual property works, disables or helps to disable any technological measures put in place to protect said works. Nonetheless, this conduct can only be punished when the infringer activities seek to obtain a direct or indirect economic gain.

This amendment of the Spanish Criminal Code enters into force after some recent court rulings which have imposed particularly severe sanctions on intellectual property infringers. Said tendency is certainly not likely to change with this amendment.

ITALY – Pisa Internet Festival – the Future of Copyright

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News from the Pisa Internet Festival. Copyright, Data Protection, Internet of Things, ICT and artificial intelligence… are joining together in Pisa this week-end.

Today I have participated to the Festival Opening Panel, during which we discussed the future of copyright in the digital economy, together with Claudio Giua, Mario Bonafé and Patrizio Menchetti.

Here are some takeaways:

– the business paradigm is shifting in all industries, with companies transforming into content providers, and now becoming also data managers. Data is becoming an asset as important as content, with OTT and social media playing a fundamental intermediation role. Content providers face fierce competition. Whilst there are new bundle and itemized offers, a number of content providers (including publishers) are still struggling to find the “right balance” for steady growth (or simply survival);

– within this new scenario, some commentators stated that copyright regulations may no longer be adequate to ensure the “right balance”. However there are no concrete alternatives that would ensure a more effective protection for the authors, thus ensuring a real cultural diversity in the digital era. After all, also the creative commons and open source initiatives are based on copyright principles;

– certain measures would be required to ensure that copyright is in line with the current technology development. Besides a wider harmonization, it may be considered a review of the duration of the protection granted to authors, taking into account the average economic cycles, the reintroduction of an (automated) registration processes that would provide certainty as to which works are protected, the simplification (and clarification) of the fair use regulations and exceptions (particularly for civil law jurisdictions, like Italy), etc. The current review being carried out at an European level is no doubt a great opportunity to further modernize the overall framework.

Contact our team if you want to further discuss these topics!

@giangiolivi  


Spain: Judge orders the blocking of pirate website “Rojadirecta” as an interim measure

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By Gonzalo Santos

In the course of a judicial process started by DTS Distribuidora de Televisión Digital (Canal +), a Spanish court has ordered ISPs to provisionally block access to the famous pirate website, which provides users with links to sporting events around the world. Said blocking shall be made effective if the website does not stop offering access to illicit audiovisual content in seven days.

This decision is in line with the new stance adopted by the Spanish legislator and the judiciary against piracy, which has resulted in the amendment of the Spanish Criminal Code and the Intellectual Property Act to better protect rights-holders, as well as in prison sentences for owners of pirate websites.

China: Michael Jordan finally slam dunks his naming rights claim at the Supreme People’s Court

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This is a very important decision because it sets a strong judicial precedent for foreign companies seeking to protect their intellectual property rights in China.

On 8 December 2016, overturning the lower court decisions against Michael Jordan in a lengthy trademark dispute in China, the Chinese Supreme People’s Court rules that Jordan owns the legal rights to his Chinese surname, “乔丹”, which is the Chinese equivalent of “Jordan”. This Chinese name is shown in pinyin, the official system which is used to transcribe Chinese characters into Latin script, as “Qiaodan”. While Jordan registered trademarks for his English name in China as far back as 1993, he never applied for any registered trademarks for “乔丹” nor for its pinyin representation “Qiaodan”.

Qiaodan Sports, a family-owned business based in the Fujian province, first applied to register the name Qiaodan when it applied to use the name with the logo of a baseball player at bat. It also filed several trademark applications for “乔丹” and “Qiaodan”, which were approved for registration in 1998. Qiaodan Sports has been using its 乔丹 and Qiaodan brands since 2000 and has made significant brand-building efforts over the years. Qiaodan Sports currently owns about 6,000 shops in China which trade under its name.On 21 February 2012, just as Qiaodan Sports was set to debut on the stock market, Michael Jordan cried foul and commenced proceedings against Qiaodan Sports for the unauthorised use of his name at Shanghai No.2 People’s Intermediate Court. He claimed that Qiaodan Sports was illegally using his Chinese surname and his jersey number 23 on their products without his permission. Since Michael Jordan has never registered any trademarks for his Chinese surname, his claim is based on the grounds that Qiaodan Sports’ use of his Chinese surname was in breach of his rights in his Chinese surname. Jordan claimed that Qiaodan Sports was improperly using his publicity rights to build its brand and sell its goods, demanded that Qiaodan Sports stop using his name and the related trademarks, and sought damages. Jordan also claimed that the relevant trademark registrations of Qiaodan Sports misled consumers to believe that there was connection between him and the brand, and he asked for such registrations to be removed from the Trademark Office of the State Administration for Industry and Commerce in China.

Lower courts did not accept Jordan’s argument that Qiaodan Sports’ use of Jordan’s Chinese surname would associate Jordan with the brand and ruled in favour of Qiaodan Sports. For more details, please see our earlier reports: Naming Rights and Trademarks Disputes between Michael Jordan and Qiaodan Sports; and Register Your Trademarks in Chinese Now: Lessons from Michael Jordan’s Defeat in Trademarks Combat against Qiaodan Sports.

Jordan appealed against the rulings of the lower courts and won at the Supreme People’s Court, which revoked the rights of Qiaodan Sports to use “乔丹”. The Supreme People’s Court decided that Jordan’s surname in Chinese characters was well recognised in China, so he should have the legal right to it. Qiaodan Sports will have to give up its trademark registrations of “乔丹”. The court directed the Trademark Review and Adjudication Board of the State Administration for Industry and Commerce in China to revoke Qiaodan Sports’ relevant trademark registrations of “乔丹”, the Chinese characters of Jordan’s surname. However, the same judgement rejects Jordan’s claim for his right to “Qiaodan”, the Chinese pinyin version of his surname, mentioning that the pinyin (romanised) form of Jordan’s Chinese surname is not associated with Jordan by the Chinese public, and that no close connection between Jordan and “Qiaodan” has been proven. Also, judgment of a separate lawsuit is still pending at a Shanghai court, where Jordan is seeking damages for unauthorised uses of his name.

In brief, the present decision invalidates the trademark of a very large Chinese sportswear company and, therefore, will likely deter trademark squatters. International brands and celebrities will also be able to rely on this judgement as precedent if Chinese companies try to use their names in connection with the manufacturing or sale of goods or services.

The issues in this litigation provide an important Chinese copyright lesson for foreign brands and celebrities entering the Chinese market – failing to file trademark applications in China at the earliest possible date is a mistake which many overseas brand owners continue to make, despite the fact that China has clear and well-established rules giving preference to the party who is first to file. A prudent trademark protection strategy should involve devising and filing to protect the Chinese language version of their mark. With respect to the particular situation of a foreign celebrity, they should not assume that their naming rights necessarily extend to Chinese equivalents of their name, such as”乔丹”, or the pinyin representation of their name, such as “Qiaodan”. As well as registering their name in Latin characters, celebrities should, at an early stage, invest time and money in registering the Chinese equivalent of their name in order to avoid third parties in China from registering it before they do.

Filmspeler – Sale of “fully-loaded” IPTV boxes and “unlawful use”

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By Alastair Mackichan, John Cloke and John Wilks

In another welcome decision for content owners and broadcasters, the CJEU has dealt a significant blow to the business models of those individuals looking to profit from the sale of pre-configured media players which provide end-users with hyperlinks to copyright-infringing Internet streams.

In its Filmspeler judgment (available here), the Court followed the opinion of its Advocate General (previously reported here) that the mere sale of media players (such as IPTV/ Kodi boxes) which are pre-configured (or “fully loaded”) to display pirated content itself constitutes a communication to the public, provided certain conditions are met.

Importantly, the court confirmed that reproductions of pirate material created in those players are not covered by the “temporary copying” defence, confirming that infringement can occur via the use of the box by the end user (and so not only by those making available streams).

Communication to the public

The Court found that there was a communication to the public (i.e. a primary act of copyright infringement) by the seller of a media player that is pre-configured to link to pirated content, where the seller is (i) looking to make a profit, and (ii) fully aware that the devices’ pre-installed add-ons link to unauthorised content.

The Court held that, by facilitating end-users’ access to pirated content, a seller of these pre-configured media players enabled a direct link to be established between (i) the websites that are illegally broadcasting copyright-protected content, and (ii) the purchasers of the multimedia devices. Applying the criteria established in GS Media (see our blog post here), the CJEU noted that the profit-making intention subsists because “the multimedia player is supplied with a view to making a profit“.

The ruling extends the range of ‘intermediaries’ (i.e. those who are not initially responsible for making available and/or transmitting the works) that may carry out a communication to the public. Such a conclusion will be welcomed by rights holders and will make it easier for them to take action where the initial infringer is outside of the rights holder’s jurisdiction and/or has taken steps to conceal their identity.

Temporary copying  

The case also raised the issue of whether the streaming of the pirated content in the end user’s device amounted to a copyright-infringing act of reproduction. The CJEU had previously determined that reproduction in the memory of decoders – and on users’ screens – can amount to infringement by reproduction, unless a defence applies.

The Copyright Directive provides a defence against copyright infringement for a person who (in certain circumstances) makes temporary copies of copyright works without authorisation. There are five conditions that need to be met, but critically in this case, one condition is that the reproduction must be pursuant to a “lawful use” of the work.

The Court deemed the objective of the Filmspeler device was not to enable a lawful use of the unlicensed content. As a result, the temporary copies of the copyright works on the player adversely affected the normal exploitation of those works and led to a reduction in lawful transactions relating to them.

This conclusion means that, in the streaming context, copyright infringement is not limited to the communication to the public of a pirated copyright work – it may also occur as a result of the reception by a private viewer of pirated copyright works on viewing devices (whether “fully loaded” or not), or other associated reproductions.

Although in our view this conclusion is obviously correct, a perception has long-persisted among certain sections of the public that merely viewing pirated content online is “not illegal”. This perception has long been exploited by those who market devices, or run pirate websites, but may well now shift as a result of this judgment.

Australia: Dallas Buyers Club LLC obtains customer identities from ISPs in landmark piracy ruling

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By Judith Miller and Matthew Evans

On Tuesday 7 April 2015, a single Federal Court Judge ordered six internet service providers (ISPs) to hand over the names and identities corresponding to approximately 4,700 unique IP addresses, which have allegedly downloaded and shared the Dallas Buyers Club movie without permission over the peer-to-peer sharing network BitTorrent.

The ISPs (iiNet, Dodo, Internode, Amnet Broadband, Adam Internet and Wideband Networks) resisted the application arguing that any claim against a “would be” infringer by the Dallas Buyers Club was too speculative and more evidence was required before discovery should be ordered. They further argued that the Court should use its discretion to not allow discovery because:

  • no prospective claim by the Dallas Buyers Club could make commercial sense i.e. the cost of litigation would heavily outweigh the amount recovered in each case
  • stringent privacy laws protected the disclosure of customers’ personal information and, given the arguably weak case of the Dallas Buyers Club, customers privacy should be protected.

The ISPs requested that if the court found in Dallas Buyers Clubs’ favour, that they be constrained in two ways. Firstly, that they should not be permitted to send what is referred to as a “speculative invoice” to account holders. Secondly, the Court should ensure that the privacy of the account holders is protected.

Speculative invoicing is the practice of sending an aggressive letter to a person asserting that they are liable for a large amount of money, and stating they will be taken to court unless they pay a smaller, but still substantial, sum of money. It has been a common practice of the parent company of Dallas Buyers Club LLC and the owner of the intellectual property rights in the movie, Voltage Pictures.

His Honour, Justice Nye Perram, rejected each of the ISPs’ substantive arguments and ordered discovery of the identities of the ISPs’ customers but agreed with the two constraints. He ordered that the Dallas Buyers Club LLC could only use the account holders’ information for the purposes of recovering compensation for the infringements and secondly that it must submit a draft of any letter it proposed to send to account holders to the Court, in order to prevent speculative invoicing.

The ISPs have 28 days to decide whether they will appeal the decision to the full Federal Court of Australia.

ITALY –“Digital Authorities” Seminar on 22 May, University of Milan

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Follow us on Friday 22 May 2015 at the University of Milan, with the main experts of our Italian “Digital Authorities” – Giuseppe Galasso (Director Communications – AGCM), Benedetta Liberatore (Director Audiovisual Services – AGCOM) and Luigi Montuori (Director Communications and Electronic Networks – Data Protection Authority), together with Marco Cuniberti (UNIMI) and Giangiacomo Olivi (DLA Piper).

We will be discussing the regulatory challenges for digital media, IoT and new technologies. We look forward to seeing you at 2:30 PM, Sala Napoleonica of the University of Milan, via Sant’Antonio 2. The entrance is free, but please register with infomaster.giurisrprudenza@unimi.it. See you soon!

@giangiolivi

Japan – Amendments to METI Guidelines on Electronic Commerce and Information Property Trading

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By Ann Cheung and Keitaro Uzawa

The Ministry of Economy, Trade and Industry of Japan (METI) recently revised the Interpretative Guidelines on Electronic Commerce and Information Property Trading (Guidelines), which apply to all online business operations in Japan and clarify how the Civil Code, which governs Japanese commercial contracts, and other relevant laws, such as, the Act on Special Provisions to the Civil Code Concerning Electronic Consumer Contracts and Electronic Acceptance Notices (Act No. 95 of 2001) (Electronic Contract Act) and the Act on Specified Commercial Transactions (Act No. 57 of 1976), are applied to various legal issues relating to electronic commerce (e.g., online shopping) and information property trading (e.g., the broadcasting and the distribution of software and other digital content).

Existing sections of the Guidelines have been amended to provide detailed guidance on certain issues surrounding electronic publications. The following existing sections of the Guidelines have been amended in line with revisions to the Copyright Act (Act No. 48 of 1970) and recent judicial decisions:

  • Section II-1: Liability of Business Entities Providing Consumer-generated Media (CGM) Service for Mediating Transmission of Illegal Information
  • Section II-2: Legal Matters Involved in Setting up a Link to Another Person’s Website
  • Section III-12-3: Obligation to Redistribute Electronic Publications

Section II-1: Liability of Business Entities Providing CGM Service for Mediating Transmission of Illegal Information

Articles 709 and 719 of the Civil Code (Act No. 89 of 1896) apply to cases where an internet user posts or uploads information that infringes third-party rights. Regardless of whether there is any request for removal, if it is easy to prevent the transmission of such information (for example, by deleting such information from the website), and if the business entity or the website operator providing the CGM services, such as, blogging or video-sharing services, fails to remove such information, such business entity or website operator may be held liable for tort to the person whose right is violated by the illegal transmission of such information.

According to Article 3(1)(i) and (ii) of the Act on the Limitation of Liability for Damages of Specified Telecommunications Service Providers and the Right to Demand Disclosure of Identification Information of the Senders (Act No. 137 of 2001) (Provider Liability Limitation Act), CGM service providers are only liable for not taking steps independently to delete information under certain circumstances, such as, situations where the CGM service providers have actual or constructive knowledge that the distribution of the relevant information is an infringement of third-party rights.

In a judgment of Sapporo District Court dated 4 September 2014, the court considered the situation where a user posted defamatory information about a restaurant. The restaurant requested the website operator to delete the defamatory information, but the website operator took an unreasonably long time to delete the defamatory information. The court held that the website operator was not required to remove the defamatory information because setting up a website for users to contribute word-of-mouth information of restaurants did not infringe the personal rights (jinkaku-ken) of the restaurants and was therefore lawful.

Section II-2: Legal Matters Involved in Setting up a Link to Another Person’s Website

Where a link to a website with copyrighted contents is configured so that a viewer of the linked website and/or copyrighted contents may mistake the linked materials for those belonging to the link, such link may constitute an infringement of the copyright holder’s moral rights and public transmission rights under the Copyright Act.

Moral rights under the Copyright Act include: (i) the right of the author to make his or her work available to the public, (ii) the right of the author to determine whether and how his or her identity as author of the work is presented (for example, whether under his or her real name or under his or her pseudonym), and (iii) the right of the author to maintain the integrity and the title of his or her work (no modification to any work is to be made without the consent of the author of the work).

A judgment of Tokyo District Court dated 17 January 2014 dealt with infringement of copyright by a person setting up a link to another’s content under the Provider Liability Limitation Act. The court held that the act of the person who set up a link to an illegally uploaded comic was equivalent to the act of those who performed the uploading of the electronic file of the comic and that the person who set up the link infringed both copyright and public transmission rights.

Section III-12-3: Obligation to Redistribute Electronic Publications

Prior to the revision of the Copyright Act, publishers (e.g., e-book agents) who had publishing rights but were not the copyright holders (e.g., authors) could not act as an intermediary in public broadcasting of digital content or public transmission of electronic publications to third-party distributors. On 1 January 2015, revisions of the Copyright Act came into force so that electronic publication distributors can now obtain broadcasting and publishing licenses directly from publishers (e.g., e-book agents), who have been granted rights to sub-distribute such materials by the relevant copyright holders (e.g., authors).

Earlier Amendments in Relation to Electronic Commerce

In addition to the 2015 amendments discussed above, please see our previous updates for an overview of the 2014 amendments to the Guidelines.

Please contact Ann Cheung or Keitaro Uzawa for further information.

AUSTRALIA: The end of the Pirate Bay and VPNs in Australia? New censorship laws passed to block piracy websites

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By Matthew Evans

The Australian Government has introduced new laws to block websites at an internet service provider (ISP) level if they have the primary purposes of infringing or facilitating the infringement of copyright. On June 22 the Copyright Amendment (Online Infringement) Bill 2015 was passed in parliament, amending the Copyright Act to introduce the new provisions.

In addition to the obvious targets such as The Pirate Bay and other bittorrent websites, there is a significant concern that the new laws would block Virtual Private Networks (VPN). In Australia, VPN demand has increased alongside the introduction of the recent Netflix service which is partially attributable to Australian customers flaunting geographic restrictions to obtain the same content as their US counterparts. VPNs also have numerous legitimate purposes and are critical to many businesses which transmit sensitive information or wish to preserve privacy.

The Communications Minister Malcolm Turnbull tried to quell the concern earlier in the discussions by making it extra clear that VPN use would not be a problem under the legislation. Despite this, a specific exemption for VPN providers was rejected, leaving scope in the future for VPNs meeting the requisite test under the Act to be blocked.

Many tech-savvy experts remain unconvinced of the efficacy of the legislation citing previous examples of website blocking resulting in dozens of mirror sites popping up that offer the same content. There are also masking services, such as the one The Pirate Bay is currently using, which makes its website impossible to block for the majority of ISPs. Lastly, users can turn to a proxy website which, similarly to VPNs, disguises the location of the user to another part of the world. We will keep you updated on any new developments.

Our unique Media, Sport & Entertainment HUB considers legal and commercial issues affecting the industries of sport, film, networked media, publishing, music and gaming across the world. Click here to sign up to this free service!


AUSTRALIA: Update: Dallas Buyers Club letter revealed – Is it still speculative invoicing?

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By Matthew Evans

In the latest update of the Dallas Buyers Club case the proposed letters to be sent to pirates have now been made public.

It was previously ordered that Voltage (the company owning the rights to Dallas Buyers Club) was required to submit to the Court a draft of the letters and telephone script it proposed to use when contacting customers pursuant his Honour Justice Perram’s ruling on 7 April 2015.

According to his Honour, this was to prevent the practice of “speculative invoicing” that Voltage has previously engaged in. As discussed in our last update speculative invoicing is the practice of sending aggressive letters to potential pirates asserting they are liable for substantial amounts of money and offering to settle for a smaller (but still large) sum.

The letter is now publically available here following Voltage’s unsuccessful attempt to argue for confidentiality before Justice Perram on Thursday 18 June. The letter and telephone script have been subject to a spate of criticism for asking for information such as the recipient’s annual income and how many movie titles the person has illegally downloaded over peer-to-peer file sharing services now and in the past on the basis that it is difficult to justify how these questions are relevant to the damages suffered by Voltage. The arguments have made the point that having a higher annual income does not make the offence of copyright infringement any more serious: any damage suffered by Voltage is the same. Both the letter and script have been criticised as an overreach by Voltage to obtain more information than it is entitled to. As put by Counsel for iiNet, Richard Lancaster SC, “[this is not] a royal commission into end users use of the bittorrent network, this is a case about Dallas Buyers Club the film.” The letter itself is very strongly worded and contains the threat of legal action should the recipient not respond. Both the letter and script are currently under consideration by Justice Perram as to whether it is acceptable or whether it is speculative invoicing.

Our unique Media, Sport & Entertainment HUB considers legal and commercial issues affecting the industries of sport, film, networked media, publishing, music and gaming across the world. Click here to sign up to this free service!

SPAIN: Tougher prison penalties for IP infringers

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Author: Gonzalo Santos

On 1 July 2015, a major amendment of the Spanish Criminal Code entered into force. Among other measures, said amendment considerably increases the maximum prison sentences which can be imposed for criminal activities against intellectual property. Prior to the amendment, the maximum imprisonment penalties for them were of 2 years (4 years for aggravated cases). Now these have been increased to 4 and 6 years, respectively. Furthermore, manufacturing or making available means mainly aimed at neutralizing security measures put in place to protect intellectual property works can now be punished with imprisonment up to 3 years (previously up to 2 years).

This increase is particularly significant since, according to the Spanish legislation, defendants penalized to less than 2 years in prison may not have actually to go to jail (other sanctions are imposed) as long as they have no previous criminal records. Under the new version of the Criminal Code, convicts for non-aggravated crimes against intellectual property may have to serve prison sentences, even if they have not committed any previous criminal offenses.

Additionally, the Criminal Code now has a specific section on “pirate” websites, which grants right-holders a better protection against infringements committed over the internet. In particular, this new section expressly sets forth the possibility to interrupt the services provided by “pirate” websites and even block them.

The amendment of the Criminal Code also establishes that the same penalties may be imposed on anyone that imports or exports intellectual property works without the right holder’s consent and to anyone who, in order to grant a third party access to protected intellectual property works, disables or helps to disable any technological measures put in place to protect said works. Nonetheless, this conduct can only be punished when the infringer activities seek to obtain a direct or indirect economic gain.

This amendment of the Spanish Criminal Code enters into force after some recent court rulings which have imposed particularly severe sanctions on intellectual property infringers. Said tendency is certainly not likely to change with this amendment.

Our unique Media, Sport & Entertainment HUB considers legal and commercial issues affecting the industries of sport, film, networked media, publishing, music and gaming across the world. Click here to sign up to this free service!

ITALY – Pisa Internet Festival – the Future of Copyright

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News from the Pisa Internet Festival. Copyright, Data Protection, Internet of Things, ICT and artificial intelligence… are joining together in Pisa this week-end.

Today I have participated to the Festival Opening Panel, during which we discussed the future of copyright in the digital economy, together with Claudio Giua, Mario Bonafé and Patrizio Menchetti.

Here are some takeaways:

– the business paradigm is shifting in all industries, with companies transforming into content providers, and now becoming also data managers. Data is becoming an asset as important as content, with OTT and social media playing a fundamental intermediation role. Content providers face fierce competition. Whilst there are new bundle and itemized offers, a number of content providers (including publishers) are still struggling to find the “right balance” for steady growth (or simply survival);

– within this new scenario, some commentators stated that copyright regulations may no longer be adequate to ensure the “right balance”. However there are no concrete alternatives that would ensure a more effective protection for the authors, thus ensuring a real cultural diversity in the digital era. After all, also the creative commons and open source initiatives are based on copyright principles;

– certain measures would be required to ensure that copyright is in line with the current technology development. Besides a wider harmonization, it may be considered a review of the duration of the protection granted to authors, taking into account the average economic cycles, the reintroduction of an (automated) registration processes that would provide certainty as to which works are protected, the simplification (and clarification) of the fair use regulations and exceptions (particularly for civil law jurisdictions, like Italy), etc. The current review being carried out at an European level is no doubt a great opportunity to further modernize the overall framework.

Contact our team if you want to further discuss these topics!

@giangiolivi  

Spain: Judge orders the blocking of pirate website “Rojadirecta” as an interim measure

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By Gonzalo Santos

In the course of a judicial process started by DTS Distribuidora de Televisión Digital (Canal +), a Spanish court has ordered ISPs to provisionally block access to the famous pirate website, which provides users with links to sporting events around the world. Said blocking shall be made effective if the website does not stop offering access to illicit audiovisual content in seven days.

This decision is in line with the new stance adopted by the Spanish legislator and the judiciary against piracy, which has resulted in the amendment of the Spanish Criminal Code and the Intellectual Property Act to better protect rights-holders, as well as in prison sentences for owners of pirate websites.

China: Michael Jordan finally slam dunks his naming rights claim at the Supreme People’s Court

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This is a very important decision because it sets a strong judicial precedent for foreign companies seeking to protect their intellectual property rights in China.

On 8 December 2016, overturning the lower court decisions against Michael Jordan in a lengthy trademark dispute in China, the Chinese Supreme People’s Court rules that Jordan owns the legal rights to his Chinese surname, “乔丹”, which is the Chinese equivalent of “Jordan”. This Chinese name is shown in pinyin, the official system which is used to transcribe Chinese characters into Latin script, as “Qiaodan”. While Jordan registered trademarks for his English name in China as far back as 1993, he never applied for any registered trademarks for “乔丹” nor for its pinyin representation “Qiaodan”.

Qiaodan Sports, a family-owned business based in the Fujian province, first applied to register the name Qiaodan when it applied to use the name with the logo of a baseball player at bat. It also filed several trademark applications for “乔丹” and “Qiaodan”, which were approved for registration in 1998. Qiaodan Sports has been using its 乔丹 and Qiaodan brands since 2000 and has made significant brand-building efforts over the years. Qiaodan Sports currently owns about 6,000 shops in China which trade under its name.On 21 February 2012, just as Qiaodan Sports was set to debut on the stock market, Michael Jordan cried foul and commenced proceedings against Qiaodan Sports for the unauthorised use of his name at Shanghai No.2 People’s Intermediate Court. He claimed that Qiaodan Sports was illegally using his Chinese surname and his jersey number 23 on their products without his permission. Since Michael Jordan has never registered any trademarks for his Chinese surname, his claim is based on the grounds that Qiaodan Sports’ use of his Chinese surname was in breach of his rights in his Chinese surname. Jordan claimed that Qiaodan Sports was improperly using his publicity rights to build its brand and sell its goods, demanded that Qiaodan Sports stop using his name and the related trademarks, and sought damages. Jordan also claimed that the relevant trademark registrations of Qiaodan Sports misled consumers to believe that there was connection between him and the brand, and he asked for such registrations to be removed from the Trademark Office of the State Administration for Industry and Commerce in China.

Lower courts did not accept Jordan’s argument that Qiaodan Sports’ use of Jordan’s Chinese surname would associate Jordan with the brand and ruled in favour of Qiaodan Sports. For more details, please see our earlier reports: Naming Rights and Trademarks Disputes between Michael Jordan and Qiaodan Sports; and Register Your Trademarks in Chinese Now: Lessons from Michael Jordan’s Defeat in Trademarks Combat against Qiaodan Sports.

Jordan appealed against the rulings of the lower courts and won at the Supreme People’s Court, which revoked the rights of Qiaodan Sports to use “乔丹”. The Supreme People’s Court decided that Jordan’s surname in Chinese characters was well recognised in China, so he should have the legal right to it. Qiaodan Sports will have to give up its trademark registrations of “乔丹”. The court directed the Trademark Review and Adjudication Board of the State Administration for Industry and Commerce in China to revoke Qiaodan Sports’ relevant trademark registrations of “乔丹”, the Chinese characters of Jordan’s surname. However, the same judgement rejects Jordan’s claim for his right to “Qiaodan”, the Chinese pinyin version of his surname, mentioning that the pinyin (romanised) form of Jordan’s Chinese surname is not associated with Jordan by the Chinese public, and that no close connection between Jordan and “Qiaodan” has been proven. Also, judgment of a separate lawsuit is still pending at a Shanghai court, where Jordan is seeking damages for unauthorised uses of his name.

In brief, the present decision invalidates the trademark of a very large Chinese sportswear company and, therefore, will likely deter trademark squatters. International brands and celebrities will also be able to rely on this judgement as precedent if Chinese companies try to use their names in connection with the manufacturing or sale of goods or services.

The issues in this litigation provide an important Chinese copyright lesson for foreign brands and celebrities entering the Chinese market – failing to file trademark applications in China at the earliest possible date is a mistake which many overseas brand owners continue to make, despite the fact that China has clear and well-established rules giving preference to the party who is first to file. A prudent trademark protection strategy should involve devising and filing to protect the Chinese language version of their mark. With respect to the particular situation of a foreign celebrity, they should not assume that their naming rights necessarily extend to Chinese equivalents of their name, such as”乔丹”, or the pinyin representation of their name, such as “Qiaodan”. As well as registering their name in Latin characters, celebrities should, at an early stage, invest time and money in registering the Chinese equivalent of their name in order to avoid third parties in China from registering it before they do.

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