Schemes to skirt copyright law
OUT-LAW Radio, 15/03/2007
We look at two imaginative ways that companies are trying to
give copyright law a body swerve, and talk to the lawyer helping
one German millionaire stand up to Google.
A text transcription follows.
This transcript is for anyone with a hearing impairment or who
for any other reason cannot listen to the MP3 audio file.
The following is the text spoken by OUT-LAW journalist Matthew
Magee.
Hello and welcome to OUT-LAW Radio, the weekly Podcast that
keeps you up to date on all the twists and turns in the world of
technology law. Every week we bring you the latest news and in
depth features that help you to make sense of the ever-changing
laws that govern technology today. My name is Matthew Magee and
coming up on this week’s show we ask: Have a cricketing website and
Newsnight found loopholes in copyright law? And we talk to the
lawyer representing the German millionaire who is standing up to
Google.
But first, the news.
- Viacom sues YouTube in billion dollar copyright case; and
- Banks break the law by binning personal data, says privacy
watchdog.
Viacom has launched a $1 billion lawsuit against YouTube and its
owners, Google over copyright infringing videos hosted by the site.
The case could test the limits of the “safe harbour” protections
for internet service providers and influence other user generated
content sites.
The entertainment giant said that its clips have been viewed
more than 1.5 billion times without its permission and has sued the
search giant and its video sharing subsidiary in a New York court
for ”massive international copyright infringement”. If the case
goes to trial it is likely to test the limits of the Digital
Millennium Copyright Act of 1998. Google claims “safe harbour”
status for YouTube, which is a DMCA protection designed for search
engines, web hosts and ISPs to shield them against liability for
third party copyright infringements. Similar protections exist in
European laws. The Viacom case will test those protections.
High street banks are throwing customer information into bins
outside their premises in breach of the Data Protection Act,
according to privacy watchdog the Information Commissioner.
The Information Commissioner’s office has forced 11 banks and
financial institutions to sign an undertaking to stick to the
principles laid down in the Data Protection Act when it comes to
dealing with customer data. The businesses were found to have
discarded personal information in waste bins and receptacles
outside their premises. The companies involved were Halifax Bank of
Scotland, Alliance & Leicester, Royal Bank of Scotland,
Scarborough Building Society, Clydesdale Bank, Natwest, United
National Bank, Barclays Bank, Co-operative Bank, HFC Bank,
Nationwide Building Society and the Post Office.
In addition to the financial companies, the Immigration Advisory
Service was also found to have disposed of information in a similar
way. The Information Commissioner has said that if the
organisations fail to stick to the undertakings they have signed
they will face further action from him and could face prosecution.
It is a criminal offence to fail to comply with an enforcement
notice of the Information Commissioner’s Office.
That was this week’s Out-Law news.
When is a breach of copyright not a breach of copyright? And how
much do you have to change something in order to get away with
reproducing it? And can you get around the law just by being a bit
smart?
These delicate questions are being raised in recent days by two
incidents in which media companies have made innovative attempts to
skirt copyright law and give their viewers what they want. But did
they get away with it? And can you do the same? Out Law Radio
decided to investigate.
The Cricket World Cup began this week in the West Indies but
without an expensive Sky Sports subscription you will not be seeing
any of the action unless, that is, you log on to cricinfo.com.
Run by the people behind the Wisden Cricketing Almanac, the site
creates animations of matches showing you exactly what is going on,
ball by scintillating ball. It is an ingenious, even crafty, way of
being able to show UK viewers what is going on without paying
millions for the coverage rights. But is it legal? Kim Walker,
media specialist at Pinsent Masons, the law firm behind
Out-Law.
Kim Walker: Well, Sky clearly own the
copyright in the broadcast and that is what they have paid millions
of pounds for and the question really is whether what cricinfo.com
are doing is copying that broadcast – copying that copyright work.
And it seemed to me that if they have technologies, a software
application which literally captures the broadcast and tracks it
and converts it into an animated form then I think it is pretty
hard to argue that is not copying the broadcast and therefore an
infringement of copyright. If on the other hand, what they are
doing is some guy is manually looking at the television screen and
using his own efforts to create a new animated version of what is
going on in the field of play over in the Caribbean, then that may
not be an infringement of copyright because, you know, the
cricinfo.com guy may be creating his own copyright work albeit
based on what he knows is going on - he knows through the broadcast
what is going on on the field of play.
Wisden has plunged head first into the greyest of grey areas,
but it says it is sure of its legal ground. Wisden sent us this
statement.
Wisden Statement: Cricinfo 3D is based on
public domain information gathered by our scorers who record a
number of factors such as where the ball pitched, the type of shot
played and where the ball goes in the field. That data is then fed
as an xml to anyone who has Cricinfo 3D running on their desktops
and the software generates an animation based on this data. The
animation is not live match coverage. It is generated from a
relatively small number of different animations and so the detail
is limited. It is not comparable to television. All of the legal
opinion we consulted prior to the development of 3D confirmed that
the service would not infringe any commercial rights.
Sky Television also sent us a statement in which they seemed
largely undisturbed by the competition.
Sky Statement: We are confident in the
strength of the service we will be offering our customers during
this year’s World Cup. A cartoon animation is no substitute for
live, ball by ball expert commentary.
The BBC though may have come off less well in its dalliance with
copyright law in recent days. Conservative party leader David
Cameron featured in every national newspaper recently posing with a
posh Oxford University dining club in his student days. Showing him
kitted out in custom made coat tails, the image punctured the
carefully constructed myth of Cameron as an ordinary bloke. But
permission to reproduce the photo quickly evaporated as the photo
agency which took it - an old fashioned firm with deep roots in
Oxford University - refused to give permission for its copyrighted
picture to be reproduced.
BBC current affairs show Newsnight went ahead anyway and showed
the picture. The image they showed, though, was an oil painting of
the photo that they had commissioned. Would that really get around
a copyright restriction? Walker does not think so.
Walker: I don’t think it would, no. I
still think that is copying a copyright work albeit, you know, in a
different medium. A photograph of a photograph is still an
infringement of copyright in the original photograph and if you
make an oil painting you are still copying the photograph. You
might be adapting it from one medium to another but that is still
an infringement of copyright. There is an exemption from copyright
infringement [of] fair dealing with the copyright work for the
purpose of reporting current events. But the problem with that is
that it does not apply to photographs.
Copyright law is notoriously tricky, filled with grey areas
requiring interpretation and nuance. The message for this week is:
if you want to get around a copyright law, you are going to have to
try just a bit harder than Newsnight and maybe even harder than
Wisden.
Google has long ago shaken off the image as the beneficent,
naïve force for good that it cultivated in its early Silicon Valley
days. It is so awesomely powerful now that it seems unstoppable,
and it now uses its muscle in the same way as any other massive
corporation: to get what it wants.
But one man is standing up to Google. He is Daniel Giersch, a
German businessman behind a G-mail service that long predated
Google’s free web-based e-mail. He established a postal business in
Germany with an e-mail component which he named G-mail after his
surname. Then, Google came calling. We talked to Sebastian Eble of
Preu Bohlig & Partners, the trade mark specialist law firm
representing Giersch.
Sebastian Eble: He applied for this trade
mark in the year 2000 and the trade mark seeks protection for
postal service on the one hand but also e-mail services,
telecommunication, etc and then started using his trademark G-mail
for e-mail services and telecommunications in the year 2003. I
think in November 2004 that he heard that Google was starting
e-mail service a beta test phase named G-mail in the United States
so his lawyers contacted Google, I think, in November or December
2005 but Google had at that time not shown any interest to talking
to Daniel.
Giersch met Google head on in the courts, and has so far won his
cases. He has ongoing fights in Norway, Monaco and Switzerland, but
Germany has been the primary battleground.
Sebastian Eble: We have a primary
injunction which is still valid so Google had to change its name
from Gmail to googlemail. Parallel to the primary injunction we
started the main litigation which was necessary because the
injunction is only a provisional procedure and we have a first
decision from the court in May 2006 which was also appealed by
Google, so now we are in the appeal procedure in front of the court
of appeal in Hamburg.
Giersch has even resisted Google’s attempts to buy him out,
turning down a quarter of a million dollars and apparently being
prepared to turn down millions. Of course it does help that Giersch
is very, very rich.
Sebastian Eble: So the German lawyers of
Google contacted me and respectively Daniel in order to ask what
was his aim and if he was ready to sell his trade mark for
US$250,000. But Daniel made it from the beginning clear that he had
never had the goal to sell his trade mark. Daniel is a millionaire
so you know, €250,000 is for Daniel not a big amount of money and
on your other hand his aim or his goal is to do big business with
this G-mail trademark. G mail is a little bit like Daniel’s baby so
it was never a question for him to sell his trade mark. Even if
they would, I do not know, offer him millions I do not think that
Daniel would sell it because it is like his little baby, like
Giersch-mail, so it is named G-mail so he plans to do and is doing
business under this trade mark.
His cases are ongoing but for now it looks like somebody has got
the upper hand on Google.
That is all we have time for this week, thanks for
listening.
Why not get in touch with Out-Law Radio? Do you have a legal
problem you would like us to discuss on air? Do you know of a
technology law story? We would love to hear from you on radio@out-law.com.
Make sure you tune in next week; for now, goodbye.
OUT-LAW Radio was produced and presented by Matthew
Magee for International Law Firm Pinsent Masons. Statements were
read by Luisa Deas.
