Random House Loses Copyright Case to Goebbels Estate

July 20, 2015

Goebbels Diaries

The estate of notorious Nazi propaganda minister Joseph Goebbels won a lawsuit against Random House publishing company in Munich last week.

The case was brought against Random House Germany by the estate because royalties were not paid out for the use of Goebbels’ personal diaries in a 2010 biography written by historian Peter Longerich. The biography was originally written in German and was republished in English by Penguin Random House UK and its imprint Bodley Head.

 

The Newsweek Report may be found here. Versions in the Israel press are slightly different.

COMMENT

This is far from the first copyright argument related to Goebbels’ diaries. When they  were first discovered in the early Nineties, different British papers published extracts. I believe the Mirror Group paid royalties but the Sunday Times refused to.

Substantively, Random House showed creativity in suggesting that the royalties be paid to Holocaust Survivors. I can understand why Nazis sympathizers may find the suggestion inappropriate. I suspect that the same considerations that caused Menachem Begin to oppose German reparations to the State of Israel might make more than once survivor feel uncomfortable with the idea as well.

I think that Random House’s arguments that the copyright was removed along with other possessions after the War is an interesting one. Jewish courts can also appropriate private property in the principle known as הפקר בית דין הפקר. That as may be, if the German court did not accept the argument and the State of Barvaria has shown no interest in contesting their rights, the legitimate heirs of Goebbels are entitled to seek retribution. Unlike Goebbels, I believe that IP and other property rights have to be recognized regardless of the political leanings, race and nationality of the owners.

Random House’s arguments regarding scholarly access, etc. have more than a little merit. This is one reason that I am against the present long copyright periods, and think that copyright should be for, say, 10 years, extendable on payment of a fee, for a second ten year period. This is also probably why rather than writing books I write a blog and am happy for anyone to reproduce or quote, so long as they attribute.

 

 


Amad Arabiyah Wins Injunction and Damages from 13 Bootleg Distributors.

June 24, 2015

Arab Music

Amad Arabiyah Music Management and Distribution LTD sued 13 different shops in the Nazareth District Court. The shops had sold Music CDs and had stocks of pirate compact disks and were accused of contributory copyright infringement. Due to the similarity of the cases and the common plaintiff, the cases were combined into one case.

The original production of the albums was by Digital Sound LTD and Aalem en-Fan LTD, both Egyptian companies, who transferred the rights to the plaintiff. The logos and names of the Egyptian production companies appeared all over the compact disks and their packaging. In the original case as filed, the Egyptian production companies appeared as formal complainants, but the judge ruled that their names could be deleted from the statement of case since Amad Arabiyah Music Management and Distribution LTD had an exclusive license to distribute the compact disks and to sue for copyright infringement.

Amad Arabiyah Music Management and Distribution LTD sent a couple of investigators who purchased fraudulent disks in each shop and testified that the shops had stocks of such disks. They claimed 100,000 Shekels in statutory damages against each shop.

Amad Arabiyah Music Management and Distribution LTD considered that the full statutory damages should be awarded as the infringement was widespread knowing commercial infringement over a 35 year period that was profitable for the defendants. The shops considered the charges trivial and unsubstantiated and denied the standing of the plaintiff.

The court found the defendants guilty ruling that the recording company that produces music disks enjoys copyrights independently of the singers and composers. In this instance, the recording company transferred its rights to the plaintiff. The defendants sold copies of these compact disks from a company that was not authorized to distribute them, and so the disks are infringing copies. In the circumstances, the defendants knew or should have known that the disks infringed copyright, or at least should have made inquiries. Consequently an injunction was awarded against the defendants that requires them to destroy and forbids them from selling these compact disks. Each of the thirteen defendants has been fined 10,000 Shekels and has to pay 7500 Shekels in legal fees.

Civil Action 33968-05-11 Amad Arabiyah Music Management and Distribution LTD vs. Ahmed son of Mustafa Anbatawi et al., 13 Judge Atrash, 6 May 2015.             

COMMENT
I can see the sums awarded being appealed but the fact that there is infringement is clear. Although this particular proceeding relates to Egyptian music sold in Arab shops, I think that similar offenses occur in the Jewish sector, including Hassidic music traded in ultra-Orthodox areas. I am publishing this ruling in the hope that it will encourage others to enforce their rights and that those who do not see this as a kind of stealing because they are not sophisticated enough to understand the concept of rights in the abstract, should think again.


Israel Court Issues Injunction against ISPs and Recognizes Contributory Copyright Infringement

June 1, 2015

ISP

NMV Entertainments LTD (formerly NMC Music LTD) et al. records Israel music and represents some of the larger foreign music canneries. They have sued Bloomberg Inc. and various Internet Service Providers (ISPs) including Bezeq International, Partner, 013 Netvision, 012 Smile Telecom, Hot-Net Internet LTD and Aharon Perfori (then the owner of Unidown, which was subsequently transferred to Bloomberg).

Unidown is a limited company incorporated in the Seychelles. The issue in question is access to the Unidown and Downsong websites as found at http://www.unidown.co.il and http://www.downsong.net which serve as a supermarket of music that enable the public to download songs without any royalties being paid to the rights holders.

The plaintiffs applied for the websites to be closed down, 150,000 Shekels in statutory compensation without proof of damages (the amount limited to minimize the court fees), and legal fees to be carried by the defendant, and most significantly, that the various internet service providers (ISPs) block access to the websites.

The plaintiffs alleged that the primary infringing permitting website was a straw company and that closing it down would not stop the service being provided. For reasons of utility, the ISPs were a legitimate target. In addition to legally constructing cases of indirect infringement, the plaintiffs accused them of Unjust Enrichment.

Bloomberg Inc argued that the website was merely a search engine that operated worldwide in seven languages and that offered four features: (i) searching and direct listening to musical content from YOUTUBE, (ii) Finding relevant information from Wikipedia, (iii) Creating a playlist and (iv) searching for musical content and allowing consumers to locate and download such content from third party websites. Since three of the four features were not under challenge, they felt that the attack on their website was excessive.

Judge Gidon Ginat of the Tel Aviv District Court acknowledged that the infringer who accesses copyright infringing material via a website and downloads it to his computer is the actual infringer, but considered that the website owners are responsible for contributory infringement in that they enable end users creating copies and reproducing copyright material.

In this instance, the copyright owners have pursued the internet service provides arguing that where infringement is being conducted on two separate websites, the Internet Service Provider is responsible for encouraging or at least aiding abetting copyright infringement.

The Court ruled that website UNIDOWN is nothing more than a platform for downloading copyright infringing copies that are discovered by search engines. Unidown converts YOUTUBE playable content into media that can be downloaded and saved as MP3 format files. Whilst it is certainly the case that the downloaders themselves are the primary infringers, the website owners that allow the links are contributory infringers in that they facilitate the downloads.

The Court concentrated on Unidown, also available as .com and with other parallel sites, after the plaintiffs abandoned Downsong after failing to show a link between them and Unidown. Additionally, the court was willing to act against the ISPs where the identity of the site owner was concealed, but with Downsong this wasn’t the case. Consequently Judge Ginat did not rule regarding blocking access to Downsong but did note that this ruling did not affect the plaintiff’s rights to take legal steps against that company.

As to Unidown, Judge Ginat ruled that the site should be taken down and that Bloomberg should pay 100,000 Shekels in statutory compensation.

Judge Ginat relied on UK precedents, including Judge Arnold’s rulings in Paramount Home Entertainment International Ltd & Others v British Sky Broadcasting Ltd & Others [2013] EWHC 3479 (Ch); Twentieth Century Fox and others v British Telecommunications plc [2011] EWHC 1981 (Ch);Dramatico Entertainment Ltd v British Sky Broadcasting Ltd [2012] EWHC 268 (Ch); EMI Records Ltd v British Sky Broadcasting Ltd [2013] EWHC 379 (Ch); Football Association Premier League Ltd v British Sky Broadcasting Ltd [2013] EWHC 2058 (Ch) and Justice Birss’ ruling in Twentieth Century Fox Film Corporation v. Sky UK Ltd [2015] EWHC 1082 (Ch).

Judge Ginat noted that in an Appeal to the Israel Supreme Court, (Appeal 447/07 Mor vs. Barak ITTT (1995) and Bezeq Benleumi P.D. 63 (3) 664 (2010)) the Supreme Court refused to fulfill the lacuna in the Law and to grant an injunction but called on the Knesset to legislate. However, since that case related to the rights of anonymity, it was different and wasn’t binding case-law, and since five years had passed without the Knesset addressing the issue, Ginat did not see fit to wait for the legislative to do their job. In addition, Bloomberg should bear legal costs of 50.000 Shekels, and, in an interesting wrinkle, it seems that as Partner argued that it was unjust to award legal costs against the defendants, Judge Ginat ruled that they alone should bear the legal costs of 34,000 Shekels, and the other defendants were not required to bear legal costs. However, should Partner choose to present coherent legal arguments, they would not be penalized for so doing and might even prevail.

Civil Ruling 33227-11-13 NMC United Entertainment LTD et al. vs. Bloomberg et al. Tel Aviv District Court by Judge Ginat, 12 May 2015

 

COMMENT

The responsibility or otherwise of ISPs to police the Internet is a hot issue. However, it seems reasonable to issue injunctions against them on a case specific basis.

Personally, I am in favor of a shorter and more liberal copyright regime, but think that Israel does have an obligation to uphold international standards. I am not sure, however, that Judge Ginat is correct that there is a lacuna for the Israeli legislative to address and their failure to do so authorizes him to judicially create contributory copyright infringement or aiding and abetting copyright infringement. The Israeli legislature passed a brand new copyright law in 2008. Even back then, the issue of ISPs was established and there was US pressure on Israel. See here for example. Israel was not and is not a signatory to the treaties that require forcing ISPs to police the web.  It seems that the Knesset intentionally decided not to include this lacuna in their legislation. Since CBS vs, Amstrad, providing the technology for infringing (back then, it was a tape to tape double cassette deck) has not been considered culpable in the UK.

Is this ruling a case of judicial legislation? It seems to be.  I am against judicial activism preferring that judges leave legislation to the democratically elected parliament. I note that even in the US, recent decisions have overturned the judicial doctrine of incitement to infringe or contributory infringement of patents.


Sony Strikes Again

May 31, 2015

need for speed

After recent successes against an Arab computer dealer,Kabushiki Kaisha Sony Computer Entertainment Inc, the manufacturers of Sony Play Stations are continuing to fight copyright infringement in the form of retailers of computer equipment selling rip off DVDs. Using the services of Gershuni Slymovezh, the partnership that includes former Deputy Patent Commissioner Noah Slymovezh, Sony has sued Einat Anu Rokahn (S.A.R. Electronics).

Sony sent a private investigator to S.A.R. Electronics, who bought four games for Playstation 2 selected from a wall display of disks. The four games cost a total of 50 Shekels, and the investigator was issued with tax invoice number 0898 which listed four Sony 2 games burned onto disks.

For those interested, the disks in question were:

  • Need for Speed Most Wanted
  • World Super Police
  • Stuntman
  • Sagan Om De TVA Tomen

(I can make a wild guess what the first four games are about, and suspect that the name of the fourth game is corrupted. This probably indicates that I am not a gamer).

In addition to accusing the store of contributory copyright infringement (with maximum statutory damages without proof) of 100,000 Shekels, Sony accused the store of infringing their trademarks, and Unjust Enrichment. Despite claiming years of infringement with tens if not hundreds of sales of fake disks, Sony capped their claim at 150,000 Shekels.

The store owner claimed that there was one shelf with maybe 15-20 disks and further claimed he was innocent of all knowledge that the disks weren’t genuine.

The Haifa District Court ruled that computer programs are protected by copyright and that Sony owns the copyright. Although knowledge of the copyright is required, the burden of proof need only establish a legal construct of knowledge and not actual knowledge. The argument that the owner of a commercial retailer does not know what he is selling is unreasonable. The combination of the defendant being a seller of computers and electronics that sells disks at a greatly reduced price and the source of the disks being unclear is indicative that they did not originate from a licensed dealer; the fact that the disks were programmable disks written with the program rather than punched disks, when it was clear that the vendor had seen the disks prior to their sale, leads to the inescapable conclusion that the defendant either knew or at least should have known that the disks were not originals. Consequently, the vendor is guilty of indirect copyright infringement of the copyrights in the Sony Playstation software.

After taking into account the various legal and subjective considerations, Judge Orit Weinstein of the Haifa District Court ruled that the defendant knew or at least should have known that the DVDs with Playstation games thereon were not originals and that their sale was copyright infringement. Consequently, the defendants have to compensate Sony 16,000 Shekels in statutory damages, plus 1000 Shekels in legal expenses and 4000 Shekels in lawyers’ fees.  Furthermore, an injunction was issued against Einat Anu Rokahn (S.A.R. Electronics) to refrain from selling fraudulent CDs.

Civil Case Number 14-11-23739-28 Kabushiki Kaisha Sony Computer Entertainment Inc vs. Enat Abu Rokan, S.A.R. Electronics) Haifa District Court, Orit Weinstein, 26 April 2015


Madonna’s Apples

April 28, 2015

Madonna's apples

CNN broke a story over the weekend about a woman who has  had to copyright her breasts in response to revenge porn.

It seems that she enjoyed a long distance relationship and sent her significant other ‘selfies’ that would perhaps be best described as compromising. When the relationship petered out, she was aghast to discover that her significant other had uploaded the pictures to the Internet and they had gone viral.

Apparently, the constitutional right of ‘Freedom of Speech’ under the US Constitution may over-ride rights to privacy. The legal advice she got was to copyright the images.

Now, as the photographer of the selfies, she has rights in the image. If her boyfriend had photographed her, she would not have these rights. Copyright is automatic under International treaty, but to enforce in the US, registration is required. She dutifully, uploaded a hundred or so images to the Library of Congress, where apparently, the images are catalogued but restricted, so only one filing clerk there has seen the images.

Here is the problem. Let’s assume that Ms ‘Hozer B’Tzniyut’ discovers a compromising image on a website. She get’s a lawyer to send a Cease & Desist letter. The site owner may request proof, and will then be sent the full book of pictures. Now, whereas the individual image may come down, the others may be posted elsewhere. Very difficult to work out who has uploaded and to where. Oh, and there are video clips as well.

Madonna, who has an interest in Kabbala, has published a retelling of a story by the Hassidic Master, the Baal Shem Tov, comparing retracting libel and slander with ripping open a pillow on a hill top on  a blustery day, and then trying to collect all the feathers. If Esther Madonna ever decides to try to remove compromising pictures of herself from the Internet, she will discover that the problems are similar.

There is probably a moral in this story somewhere….

Talking of modesty, I was somewhat appalled to hear the opening item on the Mid Day News on Israel National Remembrance Day that a headmaster of a Convent School  Ulpana had invited ex-students now serving in the army to attend the school’s remembrance ceremony, and since they turned up in uniform, wearing trousers, that he asked them not to attend. This story was worrying for a number of reasons. The fact that it got on the news means that the headmaster was set up, and should have known better. The girl soldiers could, however, have worn a skirt uniform. That said, the impressionable school girls are presumably aware both of the school’s policy and of the fact that after leaving school, some girls young women may, nevertheless, wear slacks.

Travelling home for the Independence Day Celebrations, just after hearing this storm in a tea-cup, I picked up a hitch-hiker by Eli. the hitch-hiker teaches in the religious, pre-army program in Eli. He felt that the headmaster was right and and that there was an issue of modesty. I countered that it was an issue of fashion. He noted that one can see the shape a woman’s lower anatomy if she is wearing slacks. I was tempted to point out that he was wearing trousers and one could see the shape of his lower anatomy as well.  He could, of course, wear the dishdash (also referred to as dish-dasha or even gandoora, gandurah or even tawb or taub), the long white robe favoured by our Moslem cousins in the villages around Eli, or Begged Ivri, the style of dress of 2000 years ago, worn by actors playing Jews in films about Masada and the Crucifixion, like Ben Hur, Life of Brian, etc. In other words, clothing is far more about fashion than modesty.

Proverbs 30: 18-19:  “There are three things which are too wonderful for me, Four which I do not understand: The way of an eagle in the sky, The way of a serpent on a rock, The way of a ship in the middle of the sea, And the way of a man with a maid“.

What these verses mean, is that there are things that don’t leave a trace.

In the picture of Madonna above, with her sheitel like haircut and long sleeves, she looks more like a balabusta than like a Sem girl Like a Virgin.

Whilst watching the Ceremony distributing the Israel Prize to notable worthies the following day, I noted that the one female honoree, and also the President of the Supreme Court, Miriam Naor, in her official capacity, representing the Israel Legal System, both chose to wear slacks. This is fairly conclusive proof that slacks for women are an issue of fashion and not modesty.

Then again, bugger it! As the Honorable Miriam Naor walked away from the camera, I remembered, Mr Bumble’s famous saying, “the Law is an Ass.”


So Israel took his journey with all that he had, and came to Beersheba (Genesis 46)

April 14, 2015

park Carusso

Yesterday I enjoyed a pleasant trip down South to attend the WIPO Roving Seminar in Beer Sheva. The drive was pleasant. Negev is very verdant and the ornithology was good, with a lot of storks and black kites and the odd short-toed eagle in evidence. The event started at 9:30, and, with considerably less congestion getting into Beer Sheva than into Tel Aviv, I arrived at 9:15 am at the Carusso Science Park.

Moshe Lemberg, the Senior Program Officer at WIPO who organized the event introduced himself to me and hoped that I would blog about the refreshments. I thought this was a little surprising as the rogelach and burekas were fairly standard fayre but did make a welcome breakfast. Unfortunately however, the 3 litre hot water urn was inadequate to the task and I was unable to make myself a coffee. That had an adverse affect on my concentration during the first part of the program, and I noted that after Dr Daniel Ben Oliel presented the prize for Excelling Academic thesis in various fields of IP [sic] there were three or four competitors who presented brief talks on their papers for the Israel Patent Office Competition, but have no idea what they talked about. The chairs were too comfortable, I’d left home at 7 am and I was too far away from the screen. My neighbor kept nudging me. I suspect I was snoring a little. I went to the bathroom, washed my face and had a coffee (botz, using water from the now refilled urn), and went back in sitting closer to the front. This was a great improvement and I found the sessions interesting, stimulating and enjoyable.

Those wanting a review of the early sessions are respectfully referred to the IPKAT where the Doyen of IP Bloggers, Professor Jeremy Phillips has some insightful and relevant comments. See here.  For inciteful and irrelevant ones, read on!

Professor Phillips notes that there were 98 registrants. He was sitting in the back corner and was better situated to count heads than I was. I do try to keep tally on these events however, and did a head count on three occasions throughout the day. I noted 60 in the audience. With 5 rovers from WIPO and a large contingent from the patent office, this was less than impressive. I hope that the Haifa event on Tuesday is better attended, and as the program is largely the same, can highly recommend it.

PCT

PC Tea

PC Tea

Mr Matthew Bryan, the director of the PCT Legal Division gave a brief review of the PCT system and recent developments, and the amicable and helpful Dr Michael Bart who heads up the Israel Receiving Office spke about recent changes there. The local Beer Sheva (actually Omer – but who’se counting?) Mukhtar Patent Attorney, Dr Kfir Luzzatto joined Matthew and Michael, and gave some thoughts on the PCT, how Israel joining the system had affected the profession, and how he views International Search Reports from the Israel Patent Office.

Trademarks and Designs

Ms Debbie Roenning, Director of the Legal Division Madrid Register, Brands and Designs Section (BDS) spoke on Madrid system for trademark registration and then on the Hague system for Design Registration.  As well as showing which countries had signed up, she showed which countries were in the process of signing up which was useful. She also had some tips regarding tailoring goods for different jurisdictions, translating the list of goods into Hebrew, adding countries to an existing application and varying classes per country that were very informative.

Ms Anat Levi Sofer spoke briefly about trademarks and Madrid from the perspective of the Israel Patent Office and considered Israel joining Madrid a great success. Ms Ronit Bazik Sofer, head of trademarks at Reinhold Cohn represented the private sector and noted that she had been apprehensive of Israel joining Madrid and indeed, there had been a drop off in work since Israel joined, but with increased prosecution, things had evened out.

Knowing the official figures regarding trademarks filed directly into Israel and via Madrid, and Madrid marks originating in Israel, I think that both Ms Anat Levi Sofer and Ms Ronit Bazik Sofer were being less than objective. (Reinhold Cohn has too large a market segment for their practice not to follow the official statistics). Israel is very good at creating technology, but is less successful at launching international brands. Madrid has not been widely used by Israeli companies. It is possible that with additional prosecution resulting from more trademark applications designating Israel, workers in the trademark office and in private practice feel that they are busy. However, without the lucrative filing and with renewals handled centrally or by bucket shops, the revenues generated are lower that revenues once were. This is true of both patent office revenue and income to IP firms.

There was an opportunity to ask questions. In her first slide, Ms Roenning had shown various recent Israel trademarks filed by Israelis. The slide also included WIPO’s logo. It was tempting to ask why they had chosen what look’s like a roll of toilet paper, but I decided that it would unnecessarily cheapen the event.

Wipe-o

WIPE-O !

WIPO’s Arbitration and Mediation Center

Mr Matthew Bryan gave a presentation regarding WIPO’s arbitration and mediation services.  It was certainly worthwhile reminding those present that there are alternative methods of dispute resolution, and that going to court is not the only option.

Databases

Mr. Yoshiyuki Takagi spoke about WIPO’s databases such as WIPO Green and WIPO Re:Search. This brought some useful online tools to the attention of participants.

Lunch

ravioli

We were pleasantly surprised that WIPO / Patent Office had laid on a sumptuous buffet of ravioli, pizza, macaroni, cheese rolls, garlic bread, quiches, cheeses and salads. Had this been a couple of days after Shavuot (Pentacost) this may have seemed more of the same, but after a week of Pesach, noone passed over the opportunity to dine on hametz.

Copyright 

real life

Mr. Paolo Lanteri, the Legal Officer, Copyright Law Division, Culture and Creative Industries Sector, WIPO spoke about the gaming industry. It seems that I was far from the only participant who wasn’t a gamer. I put this down to a combination of the audience being middle aged nerds.

It was fascinating to learn that the gaming industry is more significant financially than feature films and music combined. Happily people still read.

It seems that protecting IP in games is a complicated issue. The talk was very informative.

Questions were solicited and I made a case for moving over to registration of copyright and shorter periods of protection since I consider the system as broken. Jeremy Phillips took issue with my position and argued that most people in practice can do most of what they want and that the system does give redress for abuses. We continued arguing in the car back to Jerusalem.

Closing session

men in suits

The WIPO representatives and the Commissioner got on stage together as a panel. It was reassuring with INTA coming up, to note that my charcoal suit is apparently in fashion for IP events.

Dr Luzzatto took the opportunity to ask about Arab countries boycotting Israel, giving the example of Jordan that, despite a peace agreement, in practice the legal profession there won’t represent Israelis.

Mr Matthew Bryan first dodged the question by noting that Jordan was not a signatory to the PCT. As Kfir would not let things go at that, he rather sensibly pointed out that WIPO strongly condemns Arab countries discriminating against Israel, and writes strongly worded letters noting that such countries are not living up to their international obligations. He did, however, point out WIPO does not have enforcement police and their influence is very limited.

The Commissioner noted that Israel could theoretically refuse to allow applications originating from countries that don’t accept Israeli trademark or patent applications, but that the Israel Patent Office decided not to adopt this policy.

Retired US patent attorney Bruce Lilling noted that Taiwan, an important industrial nation was kicked out of the PCT mechanism at China’s request.

Recommendation

For those who missed the Beer Sheva event yesterday, I recommend trying to attend the largely parallel but slightly shorter program in Haifa tomorrow. See here.

Gratuitous Political Rambling Digression (its my blog so I can do what I like)

I note that Ms Debbie Roenning (who also wore a trouser suit, but not a tie) is the head of the Brands and Designs Section which shares the unfortunate acronym of BDS, the ‘Boycott, Divestment and Sanctions’ Movement, the allegedly pro Palestinian, but actually notoriously hypocritical and anti-Semitic international movement.

On the way to the conference, I noted Sodastream’s new factory in Beer Sheva. They moved from the Industrial Area by Maale Adumim (a satellite town of Jerusalem on the road towards Jericho) in response to vicious propaganda abroad. In the Maale Adumim factory, Sodastream provided jobs to West Bank Arabs and was a model of co-existence. Forced to relocate, the primary sufferers are the West Bank Arabs.
WIPO is one of the least anti-Israel organs of the UN. I think it might have been very worthwhile for them to have invited Jordanian, Palestinian and Egyptian IP professionals, both government and private, to the event. I am on good terms with professional colleagues in all these jurisdictions, and with others in Lebanon, Saudi Arabia and elsewhere, who read this blog, and chat amicably with me at INTA, AIPPI and other international conferences. Peace is made by trade.

Of course, Israel is not the only country to have been boycotted. To advance U.S. foreign policy and national security objectives, the U.S. maintains laws and regulations that impose economic sanctions against certain countries, individuals, and entities (the “U.S. Sanctions Program”).  31 C.F.R. § 501 et seq.  The Office of Foreign Asset Control (“OFAC”) at the Department of the Treasury manages the U.S. Sanctions Program.  The U.S. Sanctions Program prohibits U.S. nationals and U.S. companies from doing business in embargoed or sanctioned countries and from doing business with individuals or entities subject to U.S. sanctions laws and regulations.  At various times, the US has forbidden their nationals to register trademarks in Cuba and has also failed to uphold Cuban trademarks. Whether or not human rights are more mistreated by Castro’s regime in Cuba or by the US in the Guantanamo Bay prison camp is not clear.


Sony Clamps Down on Pirate Computer Games

March 26, 2015

Pirate
Sony Entertainment sued Azam Gever claiming copyright infringement and unjust enrichment, alleging that Gever’s computer shop “McKan Computers” on the main road through Osefiya sold fake disks with games for the Sony Playstation console.
In his defense, Gever claimed to be ignorant of the fact that the disks he was selling were not originals. If Gever could successfully convince that he was unwittingly distributing fake disks, he would not be held responsible. If, however, this defense collapsed, he would be held responsible for damages.
Sony claimed to have copyright in the Playstation and Playstation 2, and in software for the Playstation. They also claimed to own trademarks 95025 and 95026 for Playstation. Sony Entertainment Europe was responsible for distributing in Europe, the Middle East, Africa and the Pacific Rim and franchised distribution rights for the software within those territories, including Israel.
Playstation programs can only be played using the Playstation interface due to special encryption. Any copying, burning to disk of a Playstation game will, inter alia, include copying of the encryption which is copyright infringement of Sony’s copyright. Sony claimed that they are in a perpetual war to prevent their software from being pirated, and that they have spent enormous sums in advertising and promoting the console, They have copyright notices on the disks, on the packages, and appearing on screen.
The defendant did not deny selling pirate CDs but denied knowing that they were pirate copies. Sony sent a private investigator to the shop to see what was being sold. The private investigator and his son testified that they were both independently told that the programs were copies, and that the owner had shown a box of bundles of 50 disks, containing 3 or 4 copies of each game. The private investigator testified that he bought five different games at 10 shekels ($2.50) each, paid 50 Shekels and received a tax invoice for 50 Shekels that indicated thatit was for Sony II disks. The private investigator filmed the visit and submitted the footage as an exhibit. The games purchased included Beyond Good and Evil, Dragon’s Quest, God’s hand, Spy Hunter, and Fifa 2013.
The Plaintiff alleged that inspection of the disks showed clearly that they were fakes that infringed Sony’s Copyright since they were not in cardboard packages with shrink-wrapped cellophane or new DVD boxes and did not include instruction booklets. Unlike the originals, the disks did not have pictures on them and were not stamped with Sony’s logo and copyright notice. Sony sent a Cease & Desist letter and asked for the pirated disks to be handed over and for accounts to be produced for calculating profits and infringement revenue. The parties were, however, unable to come to an amicable settlement and so this case was filed. In the statement of case, Gever was accused of copying or creating fraudulent copies, selling or offering to sell these in the course of his business, offering to sell and holding fake copies thereby infringing the copyright, without permission of Sony and without compensating Sony.
In addition to the copyright charges, Sony alleged unjust enrichment under the law of Unjust Enrichment 1979 and various trade related torts for damaging Sony’s reputation.
Sony sued for compulsory damages of 100,000 Shekels per infringement under Section 56a of the Copyright Law 2007. Claiming years of fraud, Sony requested increased damages of 150,000 Shekels and also applied for an injunction against Gever to prevent him from selling fake disks directly or indirectly.
Gever laconically acknowledged ownership of the shop and that he’d sold programs against the tax invoice, but denied selling or trading in fake software. Gever further alleged that he’d bring expert witness that the software was genuine.
In the preliminary hearing, Gever repeated that the disks were genuine and that he was unaware of “the material”. In a second preliminary hearing he again requested to examine the disks. After the parties held a brief discussion, the attorney for the plaintiff stated that the defendant claims that he sells computers, disks is a mere sideline that produces at most, 1% of income and that if it should transpire that the disks are indeed fake, he was unaware of this. In Gever’s own statement under cross-examination, he complained that he wasn’t warned, that he only sells a handful of disks each month and never claimed that they were originals. His lawyer clarified that the intention was to state that his client was unaware that the disks were not real. Meanwhile, the private investigator testified that there were a number of disks with the name of the program marked in permanent ink and that when discussing Playstation 3, the vendor had stated that copying it was problematic. Gever claimed that there weren’t more than 30 disks and that this wasn’t a commercial number. He admitted selling computers for 13 years and that he had sold Playstations for at least a decade, but claimed to sell very little software.
Under cross-examination, Gever claimed to obtain and sell original software on a request basis and to sell a handful of fakes each month. Some his brother supplied, some a friend, not sure from where, some he’d copied himself. He denied selling 60 a year, or 600 over the decade. He considered this non-commercial as he had a limited range of maybe 20 games.
The plaintiff requested to correct the statement of case to request 250,000 Shekels damages, alleging that even at the rate of 5 disks a month, this adds up to hundreds of disks over a decade. (I feel a lawyer joke coming on. It seems that neither the judge, not the attorneys were able to do the calculation).
The defendant objected to the sum being corrected. He also alleged that for sales prior to the new copyright law coming into effect in 2008, the maximum statutory damage is 10,000 Shekels (or 20,000 Shekels for willful infringement.

RULING
Despite Regulation 92 of the Civil Court Procedures 1984 allowing extensive corrections to the statement of case to enable the point of contention to be clarified, correcting the sum after the hearing and before ruling is not allowed as it does nothing to clarify the legal issues and will merely protract the proceedings. The plaintiffs alleged that Gever had sold tens if not hundreds of fakes over a period of years and nothing had changed, so the maximum sum claimed remains 150,000 Shekels.
Judge Weinstein ruled that merely selling fake disks was insufficient to be responsible, but the seller had to be aware that they were fakes. In this instance, some he’d scanned himself, others were supplied from an unknown source so it seems clear that he was aware. Furthermore, a computer seller would be expected to be able to differentiate between originals and fakes. The price of 10 Shekels a game was also a fair indication that they were fake.
The private investigator’s footage showed boxes of 50 or more games, and this was a commercial number. The private investigator’s testimony was sufficient to indicate that the vendor was aware that the goods were fake. However, the issue is moot as during cross-examination he admitted copying some of the programs himself.
The problem, was, as always, the burden of proof required. After humming and hawing about the need to warn others not to copy, the admitted sales of small amounts over time and the evidence of 5 separate games, Ms Weinstein ruled damages of 50,000 Shekels and costs of 10,000 Shekels.
52260-01-14 Sony vs. Gever, Ruling Judge Weinstein 16 March 2015

COMMENT
The disks were sold in Osefiya by Shfaram. In the past, a DVD copying factory was discovered in Kiryat Ata.
Personally, I am inclined to believe that Gever sold very little software. Why should anyone not picky about purchasing originals pay 10 shekels if blank DVDs cost half a shekel and everyone has a disk burner?
Not allowing the sum claimed to be increased is one thing, but I think that on the burden of evidence and not requiring actual damages, but statutory damages, Ms Weinstein had sufficient evidence to rule the 150,000 Shekels damages. Not unreasonable for a sideline operating 10 years.


Follow

Get every new post delivered to your Inbox.

Join 585 other followers