Category Archives: copyright

Photography and copyright

Photographers, photography copyright and the Red Bus case

Photography and copyrightPhotography is probably one of the most popular art forms today, with social media platforms such as Instagram, Pinterest and Vine encouraging the professional and the amateur photographer to share their images. Such platforms encourage users to think of themselves as having copyright in their images, so it may come as a surprise that copyright law is not clear-cut when it comes to protecting photographs. Furthermore, when it comes to digitally enhancing or altering photographs, photographers need to be aware of the risks of copying visually significant elements of other images. The ‘Red Bus’ case, decided last year in the English Patents County Court, illustrates the difficulties businesses can face when using ‘photoshopped’ photographic images.

The images in dispute

The Red Bus case concerned images of a London bus crossing Westminster Bridge in front of the iconic Houses of Parliament. Temple Island Collections Limited used one image on souvenirs of London, while New English Teas, used the other image on tea packaging.

Red Bus images

These images had both been digitally altered from original photographs so that the images were black and white with the bus coloured red, although the two images were not identical. The story of how these images were created is more extensively discussed here, here and here, but, in summary, the two parties had a history, having already met in court previously when Temple Island Collections Limited sued New English Teas for copyright infringement concerning images which were much more similar. New English Teas attempted to create an image that did not infringe Temple Island Collection’s copyright, and it was this second image that was the subject of the 2012 litigation.

Temple Island Collections Limited felt that New English Teas had copied their image, while New English Teas felt it was unfair for Temple Island Collections Limited to claim a monopoly over a particular type of digital enhancement of a photograph of a well-known landmark and called into question whether this type of image could attract copyright protection.

Copyright infringement in digitally manipulated photography

Having established that the images were capable of copyright protection, Justice Birss considered whether the second image could infringe the first. Traditionally, copyright infringement has been thought not to occur when two independent photographers take pictures of the same iconic subject, because of the original input from each photographer.

Temple Island Collections alleged that the second image reproduced a ‘substantial’ part of their image, and therefore infringed their copyright. New English Teas disagreed, arguing that this would give Temple Island Collections a monopoly over a particular digital manipulation of a popular iconic image.

Justice Birss compared the two images and considered the parties arguments. The fact that the parties had produced their respective images independently from original photographs was insufficient to avoid copyright infringement. It is not the skill and effort of the author or photographer which is relevant for copyright purposes, but the effect of the final work. In particular, for a photographic image, Justice Birss considered the visual effect of the final image to be the most important element in determining copyright infringement.

The bright red bus against the monochrome background, and the blank sky were of particular importance to the visual effect of the first image. Differences in other compositional aspects like the direction of travel, presence of people and traffic and scale of the composition, were less significant. Justice Birss found that the selection of the visually significant elements of the first image, the monochrome image with the bright red bus, and the blank sky, by New English Teas was deliberate, given the parties history it would have been difficult for New English Teas to deny that they were unaware of the first image. So, although New English Teas had not physically reproduced the same work, Justice Birss found that they had copied the ‘visually significant’ elements of the image used by Temple Island Collections Limited and by using the ‘key combination’ of the important visual elements from the Temple Island Collection image, New English Teas had copied a ‘substantial’ part of the first image. Therefore, New English Teas had infringed the copyright of Temple Island Collection Limited’s original image.

The ‘Red Bus’ case has been quite controversial in legal circles because the rule of thumb for intellectual property is that the law does not protect ideas, but only the specific expression of those ideas. For some, a black and white image with one colour picked out is merely an idea, most famously used in the 1993 film Schindler’s List. After the case, the court was asked to consider a considerably more cropped image of a red London bus in front of Big Ben, reported here, and found again that the visually significant elements of the first image were present.

Implications

Businesses and individuals who regularly engage in altering and enhancing photographic images can take comfort from the decision that these efforts are likely to be intellectual endeavours that attract copyright protection. Intellectual property is a valuable asset for many businesses and assigning or licensing such images can provide a revenue stream. However, the availability and ease of use of photographic software such as Photoshop also presents risks for photographers, because they cannot be sure that simply because they are working with their own photographs they will be safe from copyright infringement. Copying the techniques other photographers have used to manipulate images could infringe copyright. Photographic software which provides templates for digital manipulation is particularly risky, as other photographers will be regularly using the same templates. More than anything, the ‘Red Bus’ case illustrates the need for photographers and design agencies to familiarise themselves with copyright law and keep up to date with developments.

Businesses that use photographic images need to be aware of the risks highlighted by the Red Bus case. Working from original photographs is not enough to avoid copyright infringement. Businesses and individuals need to educate themselves on copyright law and have in place robust risk management procedures to avoid copyright infringement when digitally enhancing and altering photographs.

 

Copyright, emulation and software – is imitation not the sincerest form of flattery?

Software is essential to everyday life, it’s how we carry out research, get our entertainment fix, communicate with each other, manage information, carry out calculations, implement business processes and unleash our creativity.  But what if the software you need is out of reach?  Can you roll your own version of a tool sold by someone else? This is a difficult question to answer, because even the simplest software is a bundle of different elements, each of which might be protected by a variety of intellectual property rights, such as copyright, design protection, or patents.

The concept of writing programs which replicate the functionality of existing software is commonly referred to as emulation.  At a high level you can think of it as making sure that if the same information is input into an emulator, then it produces the same output as the software it emulates.  A recent court case sheds light on the legality of this practice in the UK.

The dispute between the SAS Institute and World Programming dates back to 2009, and arose when WP decided to develop their own version of SAS’ software. While copyright protects the underlying code behind software we use, in this case WP did not have access to the source code, they simply knew what went in and what came out of the software.   The WP version would accept the same instructions as the SAS version, read the same file formats, and give the same outputs, but the source code was not copied.  The question arising in court was whether copyright protects the set of instructions, or language, that a piece of software will accept - it’s functionality and interface with users, rather than its internals.

Why is this important?  Well, consider a situation where your business becomes reliant on a particular system, for example a piece of bookkeeping software.  Over the years your staff will have become familiar with it, and you might have integrated it with other aspects of your business, such as with payroll, invoicing or tax calculation software.  If it becomes unavailable, perhaps because the company that sells it goes out of business, or increases their prices, then you could find yourself with two options: retrain all of your staff to use a replacement, and rewrite your payroll, invoicing and other software to work with it; or create a replacement that can slot in to fill the gap.

Clearly, the best approach depends on how important this particular software is to you.  If it’s only used by one member of staff, and there’s a cheap alternative which is simple to learn then resolution is easy, but if there isn’t an alternative, or if it’s embedded into your processes and procedures, then rolling your own could be a far more attractive option.  However, if copyright were to protect the way you use software, i.e. the set of instructions it accepts, this wouldn’t be an option.

Although there were other questions involved, this is the issue raised in the SAS v WP dispute with the potential to have far reaching implications.  The judge, the Honorable Mr Justice Arnold, answered most succinctly:

  • In short, copyright in a computer program does not protect either the programming language in which it is written or its interfaces (specifically, its data file formats) or its functionality from being copied.

So, at least for the moment, you are likely to be entitled to develop or commission programs which emulate the functionality of other piece of software, provided that you do not actually copy source code or other protected works which make up the original.

Please do leave a comment if you think this is likely to affect you, or if you have any comments on the issue.

Copyright Protection: How to Manage Copyright in an Unregulated Space

‘I have endeavoured in this Ghostly little book, to raise the Ghost of an Idea, which shall not put my readers out of humour with themselves, with each other, with the season, or with me. May it haunt their houses pleasantly, and no one wish to lay it.’ – Charles Dickens

Dickens’ ‘A Christmas Carol’ is a tale of generosity, giving, and a story often attributed to reigniting the Victorian Christmas spirit at a time when it had started to wane. Indeed, it has been attributed as being partly responsible for the way we celebrate Christmas today.

Dickens and ‘Piracy’

When it was published the book was an immediate success, selling six thousand copies on the first few days of sales. However, despite the book’s success, Dickens did not make much money out of it in part because his work suffered at the hand of ‘pirates’.

Unlike today, copyright laws in the Victorian times did not give protection in countries outside of where a work was first produced and created. Therefore after ‘A Christmas Carol’ was published, copies started popping up abroad in America, produced by publishing houses very cheaply.  They gave Dickens absolutely no financial benefit.

Berne Convention

As the world continues to change, laws, and in this instance copyright laws, sometimes take a while to adapt to the new problems these changes present. It was not until 1893, 50 years after the publication of ‘A Christmas Carol’, that the Berne Convention was created to give authors copyright protection over their work abroad as well as in the country in which the work was created

Copyright in the Internet Age

However, even though nowadays owners of copyrighted work no longer have to worry about the lack of control over work being produced abroad, there is a new challenge that has not yet been solved by current copyright laws: the Internet.

Your company might not be looking to create the next ‘A Christmas Carol’, but content your company produces may still be extremely valuable for the business – yet the Internet can make it difficult to ensure that people don’t misuse your copyrighted content.

Sometimes when the laws have not caught up with advances in technology, it is an unfortunate reality that there is little you can do in practice to tackle infringement, beyond prevention.

You can campaign for changes in the law (as Dickens tried to do in the Victorian times), or hope that there will be a way for the law to better protect your work or content.  However, sometimes the best that you can do is to understand how to benefit from the work you produce in the unregulated world of the Internet, despite the fact that some people may take advantage of your work and infringe your copyright.

The ‘Freemium’ Business Model

An important factor in building success online is attracting customers to your website. And in this Internet age one of the main things people are looking for is information, meaning that freely available and useful online content can be vital in achieving online success.

Giving information away for free can actually prove financially beneficial in unexpected ways. For Dickens, despite the fact he did not make money in the US from selling copies of his book, when he went over there to visit he discovered that he had a large fan base, and managed to make a good amount of money from giving readings of his works.

This just goes to show that just because the law might not adequately protect your copyrighted content from pirates; it does not always mean your company will suffer. Some successful bands have also profited from giving material away for free.  For example, Radiohead decided to allow customers to decide how much they paid for their album ‘In Rainbows’. And The Grateful Dead managed to create a devoted following and generate $60 million a year through their unorthodox approach to protecting their intellectual property, such as by allowing audiences to tape their concerts.

Managing Your Copyright Online

However, if you are concerned about keeping your copyright protected, here are some tips that might help:

  • Before publishing content online, evaluate what the consequences might be for your business if someone copied your content
  • Consider using measures like backlink, Google Alerts or copyscape.com to help you track down people who copy your site’s content.
  • If you know the Internet Protocol (IP) address of a copyright infringer, you can ban them from using your website (although they could still get round this by changing their IP address).

If you want to learn more about how to protect copyright or other IP online, buy a copy of Legally Branded. You can download free chapter of the book here.

This post was co-authored by Chloe Smith

Don’t Be Alarmed By Fake Facebook Copyright Notice

Have you seen this message circulating around on Facebook recently?

Facebook has consistently been plagued by privacy and copyright concerns and this is not the first message of its kind to have gone viral in this way. However, just like those before it, this notice is a hoax and not something to be alarmed about. Although it claims to provide those who post it with greater control of material they post on Facebook, this message will do nothing of the sort.

These notices started proliferating online shortly after Facebook adjusted its privacy guidelines, to remove users’ voting rights on Facebook policies, instead just allowing users to comment on any changes.

The post also claims that Facebook’s new status as an ‘open capital entity’ should be an extra incentive for users to circulate the message.  However, neither of these recent changes made any tangible difference to Facebook’s copyright and privacy policies, and even if they had, simply posting this message on your Facebook wall will do nothing in the way of protecting your copyright.

When you sign up to Facebook you agree to their terms and conditions, and unless you renegotiate them, or delete your account, you will still be bound by this agreement regardless of any messages you may post.

For those concerned about Facebook’s policy, you can find it here.

The main thing to remember, is that if you post any content covered by IP rights on Facebook, you grant it a ‘non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook’.

This basically means that you give Facebook the permission to use, and share with 3rd parties any IP content without the need for a license or to pay fees.  Crucially, this license is subject to your Facebook privacy and application settings – so in fact, you are more in control of your content than you might realise.  Beyond simply deciding not to share content through Facebook, you can finely tune your privacy settings to choose who can see the things you post

It is also important to appreciate that you don’t need a special notice to control copyright in your posts.  The message itself references the ‘Berner Convention’, which is presumably meant to say Berne Convention, according to which the original creator of a work is automatically the copyright holder. So even if you grant Facebook the right to use things you post, these rights are by no means exclusive and will have no bearing on how you display or distribute it by your own means.

You can now hear it straight from the horse’s mouth, as Facebook have posted an official, concise response to the notice on their website here:

Copyright Meme Spreading on Facebook

There is a rumor circulating that Facebook is making a change related to ownership of users’ information or the content they post to the site. This is false. Anyone who uses Facebook owns and controls the content and information they post, as stated in our terms. They control how that content and information is shared. That is our policy, and it always has been.

3D printing- the next challenge for IP?

3D printing is a technological advance that has been getting a lot of press recently due to the sense of excitement about the possibilities it might hold. The implications of this advance are being speculated as huge, with the BBC asking if it will spark a ‘new industrial revolution’, The Economist announcing the benefits for third world countries, and others hoping that it might soon have promising implications for the medical industry.

Although 3D printing has been accessible to engineers and designers for a number of years, it has recently become much more affordable to the general public due to a decrease in the cost of technology.

What exactly is 3D printing?

3D printing works much like 2D printing, but in this case it enables solid objects, which otherwise are limited to mass production, to be printed and produced on an individual basis through the use of computer-aided design. These printers work by building an object layer by very thin layer, and in this way building an entire object through stacking these multiple layers of material.

3D printers are designed to enable inventors to make ideas, which would otherwise never go beyond anything more than a concept, into something substantial. The labs could mean that the power of production is no longer limited to the big businesses, but rather could be passed into the hands of the consumers themselves.

Although currently 3D printing can only print objects using one type of material at a time and can only use certain types of material, such as plastic, the future of 3D printing is looking at being able to recreate electronical devices through printing multi-material components.

What will 3D printing mean for the law?

However, alongside any technological advance, a host of legal difficulties generally also tends to arise. So, with production made more easily accessible, what implications will this have on the law? And specifically how can intellectual property be protected?

Although the idea behind 3D printing is to enable people to make their own ideas into an actuality, if 3D printing does become the way of the future, designs produced by other companies and manufacturers can be used to print certain items, and there is also the fear that in some cases they might be illegally replicated. Michael Weinberg, a senior staff attorney with Public Knowledge, warns that ‘printing in 3D is a disruptive technology that raises a lot of intellectual property issues’

The potential for piracy

The fear is that anything in the world will be able to replicated and reproduced without license- from iPhones and computer parts to chairs, shoes and much more. The question is- could the manufacturing industry go the same way as the music and film industry? Will they have to start worrying about BitTorrent sites leaking copies of design files for people to print cheaply and easily in the convenience of their own homes?

The backlash could lead to manufacturing companies seeking more restrictive protections on their products to prevent illegal copying. Weinberg warns that the implications could mean that ‘useful objects could be protected for decades after creation. Mechanical and functional innovation could be frozen by fears of massive copyright infringement lawsuits. Furthermore, articles that the public is free to recreate and improve upon today (such as a simple mug of bookend) would become subject to inaccessible and restrictive licensing agreements’

So could an invention that is designed to produce innovation really lead to the stifling and diminishing of just the very thing it seeks to promote?

A Possible Solution

However, there have been some moves to help fight against piracy on manufactured goods which should avoid a decrease in innovation and restrictive protections. The BBC announced last month that a patent has now been developed that would act much like DRM did on games and music. It will embed copy controls on 3D design files to ensure that they can only be printed by those with the correct authorization.

Whilst this may provide some solution, DRM for music and games by no means eliminated piracy, and proved hugely unpopular.

How do you protect a physical object?

Aside from an anxiety about piracy- another complication is that there is no set intellectual property protection that completely protects physical objects. Whilst there are some steps that can be taken to protect a physical object, none of these will actually protect the mold and shape of a physical object.

Trademarks protect names and therefore any logos on an object, designs protect the look of the object, patents protect how things work, and copyright might protect artistic patterns, but does not cover the actual physical object or the idea it expresses.

Another problems is that 3D printing also does not just allow objects to be replicated, but also allows for them to be altered making it much more unclear how and when a product’s intellectual property has been infringed.

What Next?

For now 3D printing has yet to become mainstream and it will probably be a while before every household owns a 3D printer alongside their 2D one- but these are some implications to bear in mind. This looks to be yet another area where the law will have to adapt to catch up to the ever changing world of technology.

Protecting Your Intellectual Property- What is the value?

What do people actually understand about Intellectual Property? Most people’s knowledge of IP law often comes from high profile cases featuring disputes between household names.

You might have read about Dyson’s dispute with Hoover over bagless vacuum cleaners, Apple’s dispute with Proview over the ‘iPad’ name, or the court case where Dan Brown’s Da Vinci Code was accused of copyright infringement.

Just for the big brands?

These cases are all aimed to achieve one thing- to protect innovations, and creations so that creators can benefit from what they produce. Often small businesses believe that IP protection is for the big brands- they have the money to take people to court, which small businesses just don’t have. For many SMEs the legal aspect of branding is therefore seen as an unnecessary expenditure, something to only turn to when the business takes off and can afford to litigate to defend its rights.

However, protecting your IP is not just for the big brands.  Often cases involving copyright, trademark or patent do not need to be fought out in the courtroom and having IP rights can actually help businesses to avoid the need to go to court. And even in those times when court is unavoidable, small claims courts have now been created which makes it much cheaper and easier for small businesses to defend their intellectual property.

Additionally, the way IP works means that you need to pay attention to it early on in the creative process.  It may be too late to wait till you have something worth protecting.

What should be taken from these high profile reported lawsuits is that Intellectual Property rights are valuable enough to be worth fighting over, so you need to pay attention to yours early on.

Some might view the cases involving the big brands as an example of bullying; as a company’s way to stifle competition, but really there must be some reason why they are spending such vast amounts of money to ensure that someone else does not misuse their brand name, or copy one of their patents and so on.

The Value of IP

Through the use of the law these big brands ensure they protect the distinctive brand elements they have created and that everyone else wants.  That’s how they ensure they keep the exclusive elements to themselves. Dyson’s disappearing parts ad is a prime example of this, where it stated ‘some other machines may look similar but their performance is very different. If you want a Dyson, you need to buy a Dyson- our technology is patented and can’t be copied’.

It was because of Dyon’s understanding of IP and how to protect its inventions that Dyson was able to promote itself as being one of a kind- something truly unique. James Dyson learnt the hard way after his first invention the ‘Ball barrow’ was copied by his sales manager, and now fully appreciates the need to  fully protect what he creates.

Understanding IP (Intellectual Property) adds far more value than a well-designed logo or website.  What is the point of having a logo if you can’t use it because the name clashes with someone else’s trade mark?

The need to brand

In order to succeed it is important to create a brand- some way to distinguish yourself from the overcrowded marketplace of businesses vying customer attention. By using intellectual property law principles to make sure your name, the content you produce, and your products belong to you in a way which prevents competitors copying your best ideas you can ensure that you create a brand that draws people in, and continues to remain distinctive.

So for whatever business, big or small you need to be aware of not only the potential value of what you create, but also how to retain that value- so as to make your brand something strong and bullet proof.

If you want to learn more about how to effectively manage your valuable intellectual property buy Legally Branded, a bestselling book on Amazon which has already received a number of 5 star reviews. You can download a free chapter here.

First Sale Doctrine being called into Question

You buy a book, finish it, sell it second hand via Amazon marketplace- for many this approach to buying goods has become fairly common practice. Especially with sites such as Ebay, Preloved and Gumtree, it has become easier and more frequently practiced for people to re-sell their old goods. After-all once you have bought something its yours to do with what you like, right? Well, it might not be any more…Currently in the U.S. this style of ownership is being put into jeopardy due to a number of court cases that have called into question people’s rights to re-sell their goods.

First Sale Rights

The first sale doctrine, allows the purchaser of a copyrighted work to re-sell it, lend it, rent it, or destroy it, without having to seek explicit copyright permission. This law means that copyright only applies to a product being sold for the first time. Without it free-markets allowing for the distribution of CDs, DVDs, used phones etc. would be deemed illegal, as would rental places such as Blockbuster, Love-film or Libraries unless they had specific authorization from the copyright holders. Fundamentally, the law allows people to do with their goods, pretty much everything we are accustomed to do, even down to lending a CD to a friend.

So what is the problem?

The first sale doctrine applies to any copyrighted good ‘lawfully made under the [Copyright Act]’. However, what has currently become the subject for debate is what exactly constitutes a product made lawfully under the Copyright Act?  Although it has been established that this covers any product manufactured in the U.S. what is now being questioned is whether it applies to those goods manufactured outside the U.S as well?

Omega vs. Costco

The issue was first raised in 2010, in a case involving Omega and Costco. Omega was selling watches only for distribution in South America, yet Costco was managing to sell Omega’s watches in the United States for a cheaper price than the suggested re-sale price there. Costco defended its distribution right using the first sale doctrine. The federal district court ruled in Costco’s favour, but the Ninth Circuit Court ruled in Omega’s favour declaring that the Doctrine did not apply to goods manufactured outside the U.S. The case was then moved to the Supreme Court, which remained in a 4-4 deadlock and the issue was never fully resolved and therefore can provide no precedent.

John Wiley & Sons, Inc. v. Kirtsaeng

The case that currently is being addressed by the Supreme Court involves an international student from Thailand reselling textbooks that were manufactured in both the United States and Thailand. Textbooks were also sold in both places; however the ones being sold in Thailand were made in lower quality materials, and therefore were cheaper than their American equivalents. In order to finance his way through University, the student, Supap Kirtsaeng, decided to buy these cheaper textbooks in Thailand and then sell them to his fellow students at a cheaper price than they would otherwise have had to pay when buying the more expensive American editions. On learning about this, the publisher Wiley, sued for copyright infringement. The trial court ruled in favour of the publisher, awarding them $600,000 in damages, with the Second Circuit Appeal court upholding the ruling, declaring Copyrighted works manufactured abroad were not works lawfully made under’ Copyright Act… and thus are not subject to  first sale doctrine’

So what now?

The case is now being moved to the hands of the U.S. Supreme who will be charged with the ultimate decision. If they do rule in favour of the Second Circuit, then it looks like the flexibility of distributing products will be severely altered.  This means that any products manufactured abroad, even if they might have been designed in the U.S, will no longer be able to be re-sold freely without fear of infringing copyright. This very concept would mean that people would no longer truly own what they buy, where products are leased rather than sold to you, which as Techdirt points out, would be a ‘massive encroachment on individual’s property rights’

On top of this, some fear that this will encourage companies to manufacture their goods abroad in order for them to have greater control over the distribution of their products, and have sustained copyright over the products. With many companies, such as Apple, already manufacturing their products abroad in places like China, what will this mean for people who, say, want to resell their old iPhone?

Feeling the Pressure?

Ebay is clearly feeling the threat that this impending case poses, and has given its support for the Citizens for Ownership Rights to help collect signatures for a petition urging the Obama administration to support ‘the rights of Americans to purchase legitimate goods, resell these goods, give them away, or use them in any legal manner as they see fit’

Library Associations have also stepped in to defend their rights to lend books printed abroad, feeling that they do not have the legal budgets to risk continuing lending in case they were sued, nor have the time or money to track down all individual rights holders. They claim that U.S libraries have over 200 million books with foreign publishers; not counting those printed abroad, meaning that the implications for libraries would be massive. Therefore, the LCA (Library Copyright Alliance) have asked the court to alter the Second Circuit’s definition as ‘lawfully made under this title’ meaning made ‘in the United States’, to ‘copies manufactured with the lawful authorization of the holder of a work’s U.S reproduction and distribution rights’

A Step Backwards

In the Internet age, at a time when it seems likely that we might soon even be able to resell digital music, a decision ruling against first sale doctrine being applied to goods manufactured abroad, seems like a major step backwards.  With the whole definition of first sale doctrine being placed under scrutiny in this case, there seems to be a lot more riding on the Supreme Court’s decision than purely the redistribution of textbooks.

Are copyright owners winning the war against copyright infringement? Pirate Bay Blocking Order.

Tools enabling peer-to-peer (P2P) distribution of music, video, software and other copyright material are continuing to evolve in a way that presents an increasing challenge for the law, and hence for copyright owners who want to enforce their rights. From early bulletin board systems (BBS) to Usenet, P2P networks like Napster, less centralized services like Kazaa, and onion routing ‘darknets’ like Tor, it can be very difficult to track down online infringement and identify theft perpetrators. One of the most popular protocols for file sharing, both legitimate and infringing, is BitTorrent.

To share through BitTorrent, users generally distribute a .torrent file through a tracker (though there are ways to use BitTorrent without using a central tracker).  This tells other users what is available to download and how to access it. A number of websites index these torrent files, allowing visitors to search a library of thousands for the content they are looking for.  One of the most popular torrent search engines is the Pirate Bay. These search engines don’t store the content themselves, simply the torrent files that point to it. However, this is not enough to escape liability when services are used to share copyright material, as was made clear by the UK High Court in April, when it found that the Pirate Bay “sanctioned, approved and countenanced copyright infringement by its users”. As a result of these findings, major ISPs in the UK were ordered to block access to the website, just as they were ordered to block Newzbin last year.

To some extent these decisions broke new ground, as the blocked sites didn’t actually host copyright material themselves, just information about where to find it. They did however go somewhat further than this, and were held to have encouraged infringement by their users. This doesn’t mean you can sleep easy if you avoid actively promoting copyright infringement. If visitors share information through your site it’s important to be aware that you, rather than your users, may find yourself the first target of legal action relating to any infringement.

These are just two incidents highlighting what might happen when copyright owners enforce their rights online. Rights holders have also been active in campaigning for more effective legal protection, contributing to support for legislation such as the Digital Economy Act (DEA), which we have written about on a number of occasions. Interestingly, the success of copyright owners in cases like those mentioned above suggests legal protection is already at the right level, with the government deciding that existing legislation offers enough scope for blocking infringing websites, and declining for now to implement additional mechanisms envisaged by the DEA.

Does that mean copyright owners are winning the war? Probably not. James Ball at the Guardian argues that the Pirate Bay copyright crackdown is unsustainable. Ball suggests that compliance with the blocking order would be a “near impossible task” for ISPs, and this seems correct. To effectively prevent all access to a website from the UK means (at the very least) either taking that website offline (which can be very difficult depending on where it is hosted); or inspecting each and every ‘packet’ of information going in and out of the country. If those packets of information are sent through a network like Tor or otherwise encrypted the problem is compounded even further, and ‘impossible’ is not a stretch. However, it is important to appreciate that while a 100% effective block might be impossible, these steps will certainly make it more difficult to access infringing content.

Another very valid concern raised in Ball’s article is that efforts to curb infringement online risk suppressing legitimate activity. Not all torrents point to infringing material, and many websites (for example: Legit Torrents; Clearbits; and LinuxTracker) allow visitors to search for legitimate video content, creative commons-licensed work, and open source software. Sites like the Pirate Bay also hosted links to legitimate content, and a blanket block of the service means removing access to this along with infringing material. There are also a range of commercial risks when tackling infringement online.  One is the potential damage that can be wrought to your reputation by false accusations.  Some of the techniques used to identify copyright infringers online have led to controversy, and while lawyers have borne much of the brunt of the backlash to widespread legal threats, being overzealous when indentifying infringers can lead to consumer resentment. Tracking online copyright infringement can lead to false positives, and sending warnings to innocent users is not likely to go unnoticed.

There is no panacea here. As the law catches up, technology streaks further ahead. As soon as parts of the web are blocked out by court orders, others spring up in their place, and increasingly sophisticated techniques for hiding activity online mean there could be far more sharing taking place on the ‘darknets’, invisible to copyright owners. For online businesses, and those that want to enforce their copyright, the risks are many and varied. However, so are the opportunities. Just as the law develops to keep pace with evolving technology, I am always interested to see new business models emerging to meet the needs of both users, who want quick and easy access to content, and rights owners, who want to keep control of their creative output.

Pinterest and Copyright

Pinterest, a new social media site that allows users to ‘pin’ digital pictures on virtual pin boards, has recently faced a number of concerns regarding potential copyright infringement.

An American lawyer Kirsten Kowalski blogged about the social media site’s Picture-sharing boards as infringing copyright, announcing that she had deleted her Pinterest account when she realised that her use of the photo-sharing site could potentially make her break the law.  The blog post sparked a lot of attention, and spread fears about these potential legal issues.

The main problem was to do with the terms and conditions of the site, as they explicitly say that should there be any copyright infringement for reposting a copyrighted picture, it would be the user and not the site that would be culpable. The way the law works is that even if users are unaware they may be infringing copyright, this does not absolve them from legal action.

Despite their terms, which clearly state that users who ‘pin’ images they do not hold the rights to may be liable, the site itself seems to actively encourage sharing images. As Kowalski puts it ‘their lawyers say you can pin anything that you don’t own… but the site is saying that you can’. The site makes it very simple to repost (or rather pin) pictures from other sites around the web, which has irritated some photographers.

However, the question still remains, why is Pinterest facing these problems when other social media sites have not? As Technollama points out, Pinterest’s terms and conditions are similar to those of other social media sites such as Twitter and Facebook. However, the primary difference between these sites, as discussed here, is that Pinterest’s whole business model surrounds the sharing of images. Although Facebook and Twitter do allow people to post images, this is not the main feature of either site.

Jonathan Klein, the CEO of Ghetty images, emphasizes this point. As TechCrunch noted, Klein is ‘not concerned about people playing with Getting photos, teenagers using them for school projects, and folks putting them up on their personal blog’.  However, despite this he has highlighted the fundamental problem with Pinterest: ‘We’re comfortable with people using our images to built traffic. The point in time when they have a business model, they have to have some sort of license.’ It is the very fact that Pinterest’s business model heavily encourages not only for people to upload their own images to the site, but to share others images that has become cause for concern. So far Pinterest is not making any money, however as Techcrunch noted, as soon as they do they will be liable to have to either pay or remove copyrighted images.

Pinterest’s approach to these concerns has been similar to sites such as YouTube. The company believes that it is protected by the Digital Millennium Copyright Act, and says that it will respond quickly to any copyright issues that might arise. Pinterest has been keen to listen to feedback from its users and has addressed any issues by updating its terms of service, details of which can be seen here.  On top of this Pinterest has also made it easier for people to notify the site about any copyright or trade mark infringements.

This means if you object to an image you own being pinned on the site, it should not be too difficult to persuade the site to take it down, assuming you have proof that it is your copyright.