Author: Jennifer C. Duval

When does infringement turn into a crime?

While artists, fans, lawyers, jurists and policy-makers struggle to define the legal bounds of intellectual property rights, at what point do those accused of infringing overstep so egregiously that their actions constitute a crime, with major penalties either in fines or imprisonment? That’s a central focus of Criminal Copyright Enforcement Against Filesharing Services,  an article worth a look from Benton Martin and Jeremiah Newhall, two recent law school graduates and now law clerks in the U.S. Seventh Circuit Court of Appeals. The piece by Martin (Emory Law School ’10) and Newhall (George Washington University Law School ’11) recently was accepted for publication in the North Carolina Journal of Law and Technology. The authors examine the history of criminal copyright enforcement, including the shift of focus to filesharing services, beginning with the Digital Millennium Copyright Act. They also dissect the challenges in prosecuting filesharing-site operators and the effectiveness on deterrence of future copyright infringement. The authors scrutinize the shutdown of Megaupload and PirateBay, or “copyright wars” as they refer to these events, tackling questions such as: “What pushes a legitimate online file-storing business over the edge to criminal enterprise? How might criminal copyright enforcement differ materially from civil enforcement?” Besides the instances these writers cite, of course, lawmakers and judges in France and Spain have taken new steps to crackdown on copyright violation with felony-sized financial penalties in the form of big cash...

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Spain further targets piracy, illicit file sharing

Nosotros tambien, Madrid seems to be saying to Europeans and others around the globe concerned about copyright protections, joining, as previously discussed France. The national discussion on the Iberian peninsula also has turned to imposing fines and a Spanish crackdown on those who wrongly seek to capitalize on others’ intellectual property. In Spain, the regulatory measures are part of the “Lassalle Law,” with its three objectives: to provide “greater transparency” with groups that manage content rights; curtail piracy or “large-scale” downloading of entertainment and cultural content; and to offer a review of the right to make private copies of protected materials, including what constitutes correct or improper file-sharing. The “stick” that comes along with legal “carrots” will include fines of up to 300,000 euros (US $388,400). Spain has a reputation for laxity on intellectual property protections, skirting ever so near to getting on U.S. officials’ trade watch lists. In 2012, Madrid put in place its Sinde law, aiming to step up IP regulation, in part by taking it out time-consuming court cases and into the hands of a national commission. Despite these positives moves, the draft Lassalle Law, advocates say, will move Spain further along, tightening enforcement and closing loopholes in earlier regulation. Both the Sinde and Lassalle laws are eponymous for Spanish ministers who have pressed the respective...

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Taiwan rejects copyright for Japanese porn

The Japanese porn industry has suffered a significant legal setback, as prosecutors in Taiwan have declined to pursue copyright infringement claims against those accused of piracy: Officials in Taipei decided that porn is obscene, and, therefore, unworthy of copyright protection. Adult-movie producers from Japan had sought to halt rampant, unauthorized offshore use of their films and photos, threatening legal action in 2010 if Taiwan did not crack down on commonplace profiting by Taiwanese off the Japanese porn without permission. And, in an ironic twist, the Japanese threatened to pursue complaints that their material was being spread to the detriment of Taiwanese children’s health and welfare if officials in Tapei declined to pursue copyright infringement claims. There is a history between the parties. TorrentFreak reports, noting: “In 1999, Japanese porn producers launched a copyright infringement lawsuit against Taiwanese pirates in the hope of holding them accountable for profiting from their content, but the case proved counter-productive. The Supreme Court decided that since porn movies are obscene they should not be entitled to protection under copyright law. The Prosecutor’s Office saw no reason to challenge that ruling this week.” In their defense, the porn producers sought to liken their work to materials typically enjoying copyright protection, saying,  “…they had hired directors, actors and actresses, make-up artists and other professionals to make the films which express the directors’ ideas and the actors’ uniqueness and so their...

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European court says ‘hejda’ to ‘Pirate’ appeal

The Pirate Bay has been described as “one of the most notorious and unapologetic facilitators of infringement in recent memory.” Operators of the site were convicted of copyright infringement in a Swedish court and when the Swedish Supreme Court refused to hear their appeal, they took their battle to the European Court of Human Rights, arguing their free speech rights were abridged. Their conviction was upheld (online copy of ruling courtesy of CopyHype) as “necessary in a democratic society.” The Pirate Bay provides peer-to-peer file sharing and was founded in Sweden in 2003. In April, 2009, a District Court in Sweden found site administrators guilty of copyright infringement. TorrentFreak reports that: “The court said that the four defendants worked as a team, were aware that copyrighted material was being shared using The Pirate Bay and that they made it easy and assisted the infringements. It categorized the infringements as ‘severe’. The judge said that the users of The Pirate Bay committed the first offense by sharing files and the four assisted this.” The accused received sentences of up to one year in prison as well as fines totaling more than $3 million and allocated among the four defendants. Two defendants, Peter Sunde and Frederick Neij, took their case to a Swedish appellate court, which reduced one of the party’s jail sentence to  four- to ten-months but increased the fines to more than $6...

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Can Spotify stay both legal, profitable in U.S.?

Is Spotify the answer to cyber music-sharing prayers of fans and the entertainment industry alike? Perhaps. The site allows legal music-streaming at different levels of subscriptions, paid and non-paid. In a world of rampant online piracy, however, can a legal site like Spotify fulfill investors’ demands that it be profitable, especially as it moves to renegotiate and surmount the challenges of paying U.S. licensing fees? In a boost to its brand, Spotify also received a stamp of approval from a recording industry trade group, which urged Congress to lift its block on the service on the U.S. House of Representatives’ network. The Recording Industry Association of America called Spotify a “licensed, secure online music streaming...

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