Fisher V Brooker

Axtion was brought 28 years later for royalties.

Will 38 years be a bar? It was decided not.

Court looked at things like the statue of limitation.

Acquiesce looked quite shaky as a defence from this point.

IV (III)

A.G. v Guardian Newspapers (No. 2)

Spycatcher case

Wopuld we grant an interim injunction over an abstract of papers that had gone out so far.

Application wasn’t granted.

Equity can’t come into play in the interim injuction aspec.

However, there were arguments about acquity qithin the case generally. Right of equity in relation to copyeight that cold be held by the crown? Wasn’t discussed though. They may have wanted to take the case further that what they brought in/

ZYX Music v King

Original recording by Casey and ther sunshine band.

2 different version of the same song played. XYZ Music brought action against music manager king.

King argued that he though the music could be distributrd in the UK without copyright infringement/ However, there was alrdy discussion by the press in the UK on how the music had already entered n the UK.

Someone had said hat

King shld have been awaret hat earlier work had already been in the UK.He should have known that with this sub recording, there was going to be an infringement.

Equitable principles can play a role in these defences.

Hyde Park v Yelland [2000]

IV (iv) implied livence

You might argue that although this infringement had occurred, you have an implied license to do so.

Case with newspapers. If s1 has an exclusive picture of the event, after a period of 24 hours that picture might be infringed by other newspapers without any infringement proceedings being brought.

Banier v News Group [1997]

Princess caroline of manaco. She didn’t bring the case. This case was about the photographer who brought proceedings against other photogrqaphers over use of his photograph. Others said it was common practice. However, cout said that others were makingmoney out of this implied licence. It wasn’t held.

Fair dealing.

Gabrin v Universal [2003]

Use of photographs in the CD booklet. Can they be used as suxch whe they wrne

T intended to be used as sch Tey wre in advertisements and the LV recording.

Publishing distributer wanted to argue that thre was an implied license for such reasons. Was a precdedent. Court felt that there wasn’t.

Royalties had to be sent back.

IV (v) Exhaustion of rights

Microsoft Corporation v Computer Future Distribution [1998]

Once you sell a product n the EEA, you exhust your rights. If you don’t, you don’ exhaust your rights. Need to have your work distributed first in the EEA.

Exception to idea of exhaustion. You don’t have exhaustion with rehard to rental, lending rigts.

CASE HERE.

IV (vi) Cometition Law

You may have situations when this intersects with copOnce you sell a product n the EEA, you exhust your rights. If you don’t, you don’ exhaust your rights. Need to have your work distributed first in the EEA.

Exception to idea of exhaustion. You don’t have exhaustion with rehard to rental, lending rigts.

CASE HERE.

IV (vi) Cometition Law

You may have situations when this intersects with copright..T-201/04

Commission v MS (OJ 2007 C269/45) (CFI)

MS behaved uncompetitively. Used copyright in an uncompettive fashin. API interfaces. Bits of cod in windows that allow other software to run on it. Reproducingcode.

The idea of essential facilities under competition law. Like, ferry ports etc. You shld allow potential competitors to use ports, airport terminals in same way.

Anything that is in the essential facility has to be used in similar terms to the provider.

Look at copyright misuse in the USA.

Westlaw article, copyright misuse. Firs article. Half of those cases require aniti competitive conduct to bring an action.

Digital rights and management

3 parts to leture.

Digital millennium copyright act and ...

Digital millennium copyright ac

Codified form of US copyright act.

Introduces 2 main provisions into this. S1201, S1202.

We look at US law because it is more developed than ours.

EU copyright directive. EUCD. Inormation society directive. Passed in 2001. Led to amendments to s 296 of CEPA. Introduced sections ZA – ZG. Those provisions have radically changed UK law.

Digital rights management protection is perpetual. It doens’t just last for the same periof of time as copyright.

The protection here is effectively perpeptual. Difference between TPM and DRM. Technological protection measures.

Rights holders refer to Digital RIGHTS MAANGEMENT.

Not intended to refer to copyright. It’s the righr to be able to access content as the uder of a computer

Righrsof users to access certain content as opposed to toher content.

An example of digital rights mamangement: DVDs.

Mpeg file.

N a DVD or bluray, there is a degree of encryption that occurs.

To use this logo, a licence has to be obtained.

With a DVD player, you have a lock in the DVD Player that is in code that, unlocks a licensed DVD.

Somebody in the ISA had hackey the system. Locking key in DVD PLAYER.

Used jexdecimal code. Highligted relevant parts and extracted them. Using some software called DCSS, anybody could decrpty locking mechanism. Shut of DVD using computer drive and access all fles on it.

Digital content scrambling system.

Example of a digital rights mechanism to prevent copying.

How effective are they?

Windows Media player uses a system that hasn’t been broken yet.

From XP onwards, there is a system to monitor if there are any files changed. If you use WMP,it will load up and detect changes and report it to MS. MS will send patches to the file and the WMP version you are using won’t be the same as before anymore.

Little bits have been broke, not the core of it.

Online banking. They use similar sorts of mechanisms.

WIPO COPYRIGHT TREATY 1996 ART 11:

The main article which our laws are based.

“Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.”

The United States: The Digital Millennium Copyright Act 1998 [ DMCA ]We do it through the application of S1201, S 1202 of EU directive.

DMCA I – Access - Individual II – Circumvention tools

Access - Individual 17 USC § 1201. Circumvention of copyright protection systems: `(a) VIOLATIONS REGARDING CIRCUMVENTION OF TECHNOLOGICAL MEASURES- (1)(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title.

US law has provisions dealing with access conteol and rights conteol. In this particular situation, ights control refers to copyright. Access contol was originally used to cover things like pay per view.

Courts have considered waht is menat by access control.

Access control can pretty much govern anything that concerns access.

Cellophane over CD controls access? BY OPENING ccELLOPHANE, you could be circumventing access control?

Poepl argue for such a wide reasing of access cotnerol, becaue it will mean you have protection against almost anything as opposed to just copyeight works.

In a statute, we have people stopping us having access control.

You are only allowed to circumvent access controls yourself. Supposed to have knowledge to do that yourself.

1. What is a technoloicl mesure that controls access?

Bollinger, B., “Focusing on Infringement”, 52 Case Western Reserve Law Review 1091 (2002) (fn. 16 refers to a submission in Reimerdes)

Some cases say you need to have a copyright work involved. Some cases say you don’t?

You’re looking for some degree of a key or a lock mechanism.

If what you’ve got behaves in this fashion some how, then it’s something you’re likely to view as an access control.

2. What is the meaning of “effectively”? (the mechanism must effectively control access)

Does it have to be completelyor only slightly effective?

•RealNetworks v Streambox No. C99-2070P, 2000 U.S. Dist. LEXIS 889 (W.D. Wash. Jan 18, 2000, unreported)

Save weblink. Load it into software. System hee completely undermined real networks business model.The mere existienceo f this sofrware doesn’t mean that the measure was not effectively controlling access.

The test the court used was...

The ordinary course of the operation.

Universal City Studios v Reimerdes 111 F.Supp.2d 294 S.D.N.Y., 2000

A DVD. DeCSS Software.If a low level reading . If we hav e to say thatwe have to have a hundred percent effectivnes, the statute would be gutted.

Relationship between access control and righs control.

Some softrware clearly uses access control , but it is ith regard to acces over one part vis a vis another part.

Bootloader to prevnt copying of software. If you get around it, there would be an infringement of an access control.

A hackinbg program that allows you to cheat.

There is no breach of an access control, just potentially a rights control. No attempts to prevent acces to computers content when its in the computers memory already.

MDY Industries v Blizzard Entertainment – 629 F.3d 928 (9th Cir, 2010/2011) Callahan CJ

A later case where protection succeeds. Right holders had time to make changes to the way rights were structured?

Held to be a breach of an access control by courts.

321 Studios v MGM 307

The Fair Use Provision:

“(c) OTHER RIGHTS, ETC., NOT AFFECTED- (1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.”

1201(f) Reverse Engineering – Interoperability

Sega v 1992 2nd circuit court s107

1201(g) Encryption Research 1201(i) Personally identifiable information 1201(j) Security Testing

Narrower definition of fair use needed?

Universal City Studios v Corley 273 F.3d 429 (2nd Cir., 2001) (Newman CJ) Argument that you shouldn;’t have to replicate pieces of code under traditional fair use to be able to do something.

Court, 2nd circuit, ha a narrow reading of this.

The phase provisions in the DMCA should override this? No rights in US code to peproduce certain quality of US work. Fiar use only allows people to make certain reproductions of DVDs using Camvorders for eg. It doesn’t allow people to copy the code, the mpeg files to make videos.

However, there are situations where people will need to access the code.

http://www.youtube.com/watch?v=QwJkE0quuuU http://www.youtube.com/watch?v=Qkspjshu-Oo

Lexmark v Static Control 387 F.3d 522 (6th Cir., 2004) (Sutton CJ)

In the 6th circuit, they said that

If you are dealing with copyright work, traditional fair use proceedings will apply?

For a vast majority of cases, a broader reading of fair use is used.

Chamberlain v Skylink Technologies 381 F.3d 1178 (US Court of Appeals, Federal Circuit, 2004)

Skylink, interopable parts. Camberlink wanted to stop them from doing so and undermining their garage door opener parts sales.

Garage door openers. Copyright involved in the sense that you need some copyright code to operate doors.

Bearing in mind the Lexmark case, the court said that youhave to have copyright work involved for an action by the DMCA.

Chamberlain case. You need to have a copyright work involved. Using the broader fair use porvisions for the defences.

Brought in wider fair useprovisions.

MDY Industries v Blizzard Entertainment – 629 F.3d 928 (9th Cir) Callahan CJ

Another WoW case.

Misread chamberlain case. On Tthe basis of that, was held that chamberlain is too narrow. Now, you an have access controls, for anyting. No need for copyright to be involed. It has become free standing agfain.

She ead access controls widely, therefore you apply th narrow defences.

You can have specific actins for access controls that don’t involve copyright works. Will ignore all the fair use defences.

If you forget everything about rights controls and bring action on access controls, you know that the person you are suing can’t rely on the broader fair use provisions.

MDY is a very narrow restrictive approach done by a very idiotic lady.

The European Union Copyright Directive

We don’t have enough cases.

Our system gives more rights protection that he US one because...

1201

s.296 Circumvention of technical devices applied to computer programs (1) This section applies where– (a) a technical device has been applied to a computer program; and (b) a person (A) knowing or having reason to believe that it will be used to make infringing copies– (i) manufactures for sale or hire, imports, distributes, sells or lets for hire, offers or exposes for sale or hire, advertises for sale or hire or has in his possession for commercial purposes any means the sole

intended purpose of which is to facilitate the unauthorised removal or circumvention of the technical device; or (ii) publishes information intended to enable or assist persons to remove or circumvent the technical device.

We already have a s 296, but itwas determined insufifient, which is why, the other ones were ntroduced.

s. 296ZA Circumvention of technological measures (1) This section applies where– (a) effective technological measures have been applied to a copyright work other than a computer program; and (b) a person (B) does anything which circumvents those measures knowing, or with

reasonable grounds to know, that he is pursuing that objective.

Sony v Owen [2002] EMLR 34

Refers to s296 as it was before EU directive.

Sony v Ball [2004] EWHC 1738 (Ch) Insertion of chips in the play station to get around regional coding.ZB referred to in case. ZA refers to knowledge. ZB requires it. ZD has no reference to knock at all?

You couldn’t bring in the contention that the man had knowledge of it at all.

Zd DOESN’T require knowledge.

Outlined in:

Nintendo Company Ltd v Playables Ltd [2010] FSR 36

Soneone selling catridges that get arounf mechanism. IT applied ZD.

[ Ruling mechanisms to allow circumvention in certain limited circumstances ]Us VERSION works a bit beter tha UK onw.

In the US, the library of congress recommends that thre are certain permissible acts that can occur, and that ths rulings will allow you to commit certain acts without an infringement being made agiant you.

S1201(A) (1) (C)

The equivalent EUCD provision

First of all, contac the right holder, if you can’t agree, contact the government.

In the UK we use s296Ze.

“As yet, no-one has filed a complete notice of complaint, yet both the Consumer Project on Technology (CPT), an IP research body, and the RNIB told the APIG committee that this process is “slow and cumbersome”. Gowers Review (2006) at p.73

[ Copyright Management Information ]§1202 DMCA

File Sharing svc. Close in 2005. Tried to reopen in 2007.

Was sued again as it might potential release unauthorised copies of files. Court held that digitiall fingerprinting coul be tnroduced to monitor what has been passed through its network.

You can’t print banknotes through photocopy.

Digimark by Adobe. Allows you to trace something online.Google. You can find who is using your content online.

Much more than just naming author.

Kelly v Arriba Soft Corp., 77 F.Supp.2d 1116 (C.D. Calif. 1999)

Website had thumbnail images that didn’t acknowledge authors.

They said that information about author and picture itelf considered to be same thing.

In Ward v National Geographic Society 63 U.S.P.Q.2d 1803 it was said that the NGS, which republished a photo which was not a work for hire, did not have the required knowledge requirement.

Also see Gordon v Nextel Corporation 68 U.S.P.Q.2d 1369 [cf. this situation to knowledge under s.296, and s.296 revisions]

Telephone messaging case.

OTH CASES FELL ecause they couldn’t rpove knowledge That the offenders intended to remove information about author.

If you were uploading file o internet, stripping it of its watermark, you migh get around he knowledge requirement.

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