Monkey Business

September 30, 2015

Monkey business

In 2011 British wildlife photographer David Slater was on the island of Sulawesi, following a troop of macaques. He set up his camera and waited. Suddenly, a cheeky monkey grabbed the camera, smiled into the lens and pressed a button. The photographs that followed went on to become internationally known – featuring in a wildlife book by Mr Slater.


Now, animal rights organisation People for the Ethical Treatment of Animals (PETA) has taken legal action in the United States on the monkey’s behalf (naming it Naruto), claiming that the animal owns the copyright in the successful photographs and should therefore reap the benefits financially.  Slater contends that he, in fact, was the brains behind the set of photographs of the monkey he named Ella. “A monkey only pressed a button of a camera set up on a tripod,” he argues. “A tripod I positioned and held throughout …”

Meanwhile PETA’s argument is that it is not the person who owns the camera that owns the rights but the being (in this case, a monkey) who actually took the photograph. The case will be decided by the US federal court in California.

For more details, and their legal analysis, see the IPKAT here.


I don’t think this is a laughing manner.

PETA believes that all animals have feelings and therefore rights. They are not ours to eat, wear, experiment on, use for entertainment or abuse in any other way. The basis for their perspective on animal rights is that animals suffer and have a right to live free from suffering and pain.

I don’t agree with their agenda, but I can understand their logic. I have at least one vegan friend who won’t wear leather shoes. As long as they merely demonstrate and persuade nubile young actresses to show their pubic fur in their campaigns against the fur industry, I have no problem.

However, by claiming IP Rights for macaques, PETA is going from a very radical position to an even more radical one.

This would not be serious except that there have been judges willing to see apes as having rights.

In 2013, an organisation called the Nonhuman Rights Project filed a lawsuit in the New York Supreme Court on behalf of four chimps kept for research by Stony Brook University. The eventual conclusion of Justice Barbara Jaffe on 27 April 2015 was that they were not to be treated as property, but as legal persons. Not as persons with full human rights, but as persons with a right not to be held in captivity and a right not to be owned.

It is not inconceivable that some left-wing judge could recognize animals as having the right not merely not to be owned, but also the right to themselves own property. From here, the jump to allowing ownership of non-physical property, such as intellectual property, is not so large as to be beyond comprehension.

Whilst this sort of thing is happening, and California is a center for this type of thought, I note that Islamic fundamentalists have decided that they can go around executing and raping people. They are rejecting Western values in favour of some highly extreme interpretation of their religion. Let’s not provide them with additional evidence that Western Liberal Democracies have gone completely nutty.

It may also be worth remembering that the selfie is not the highest form of Western expression.

J-Date swipes at J-Swipe

August 11, 2015

There are well-defined groups of Jewish singles looking for partners. In traditional society, the match-maker paired up potential partners, and made his/her living from so-doing. In the wider society, friends and acquaintances suggested that people who seemed compatible should meet. Depending on the perceptiveness of the match-maker, the date could be very successful or very tedious for both parties.
In 1997 J-Date offered a computerized match-making service to Jews. Apparently their questionnaires enable people to provide more details of who they are and what they are looking for. J-Date quickly grew to become a leading service provider.
If 1997 was the beginning of the Internet revolution, nearly 20 years later things have changed. J-Swipe is an application that lets those interested in dating discover the proximity of potentially suitable partners, to find out a little more about them, and to contact those of interest. It is apparently a circumcised ritually immersed version of Tinder, a similar application that is less tribal. Apparently J-Swipe is the #1 Jewish dating app with users in over 70 countries. They also claim 375,000+ JSwipe users from across the world (which compares nicely with the number of times this blog has been accessed, but my statistic includes repeat views, and the blog has been going for longer).
Both J-Date and J-Swipe target the same audience, i.e. single Jews, and offer similar services. So J-Date sued J-Swipe and also connected hosting sites and the like, threatening to sue them.
J-Date claims patent infringement and trademark infringement.
Their patent is US 5,950,200 to Sudai and Blumberg titled ” Method and apparatus for detection of reciprocal interests or feelings and subsequent notification”
The independent method claim is

1. A method that notifies people that they feel reciprocal interest for each other, comprising the steps, performed by a processor of a data processing system having a memory, of:
receiving input from a first user indicating a user ID of a specific person in whom the first user has an interest, the first user already being aware of the existence of the person whose ID they entered;
receiving input from a second user indicating a user ID of a specific person in whom the second user has an interest, the second user already being aware of the existence of the person whose ID they entered;
determining whether the user ID of the person in whom the first user has an interest matches a user ID of the second user;
determining whether the user ID of the person in whom the second user has an interest matches a user ID of the first user; and
if and only if a match occurs in both of the determining steps, notifying the first user and the second user that a match has occurred.

There is an independent apparatus claim as well:

28. An apparatus that notifies people that they feel reciprocal interest for each other, comprising:
a first input portion, configured to receive input from a first user indicating a user ID of a specific person in whom the first user has an interest, the first user already being aware of the existence of the person whose ID they entered;
a second input portion, configured to receive input from a second user indicating a user ID of a specific person in whom the second user has an interest, the second user already being aware of the existence of the person whose ID they entered;
a first determining portion, coupled to the first and second input portions, configured to determine whether the user ID of the person in whom the first user has an interest matches a user ID of the second user;
a first determining portion, coupled to the first and second input portions, configured to determine whether the user ID of the person in whom the second user has an interest matches a user ID of the first user; and
a notifying portion, coupled to the first and second determining portions, configured to notify the first user and the second user if and only if the first and second determining portions have detected a match.

There is also a means claim and a software claim.

Back in 1999 such patents issued. Nowadays they don’t.

The trouble is, as VOX put it, JDate claims to own the concept of connecting 2 people based on mutual attraction.

Now, J-Date denies that it against market competition:
“This is not about us discouraging market competition,” Michael Egan, CEO of the company behind JDate, wrote to the New York Observer’s Brady Dale. “Our case against JSwipe is about their theft of our technology.” I am not convinced.
Having an issued patent, there is a rebuttable assumption of validity and they cannot be accused of bad faith in attempting to assert their patent against infringers. However, I doubt that the patent would be upheld in court.

When considering validity, US courts are governed by current case law in their interpretation of concepts such as patentable subject matter, novelty and obviousness. Many patents issued at the turn of the millenium will not stand up in court.

In addition to patents, J-Date also claims trademark infringement. J-Date argues that J-Swipe infringes their mark. Back when I was a student in England, college Jewish Societies were known as J-Socs and presumably still are. The left leaning America-Israel pressure group J-Street uses a J for the same reason. The J indicates Jewish. It seems unlikely that the courts would recognize an individual company having rights in the letter J for dating services.
I doubt that the patent would stand up in court as most of the computerized service patents are voidable in light of recent decisions, and the patent in question doesn’t seem very exciting. I also doubt that the argument of trademark infringement will stand up. The thing is that J-Date have deep pockets and see a threat to their market dominance. They are suing because they can.

Yentl is using behavior more appropriate to a troll. Still all is fair in the business of love.

Matchmaker – Fiddler on the Roof (1971)

Tel Aviv Court Refuses to Endorse Out-of-Court Settlement Between Service Providers and ISPs requiring that the ISPs Block Site Offering Software for Facilitating Downloading of Copyright Protected Material

July 14, 2015

rubber stamp
ZIR”A Organization for Internet Copyright LTD, United King Film Distribution 1990 LTD, DVS Satellite Services 1998 LTD, Hot Telecommunications, Keshet Transmissions, The Noga Net LTD and Noga Telecommunications LTD sued Anonymous, Bezeq International LTD, Partner Telecommunications, 012 Smile Telecommunications LTD, 013 Netvision LTD, Hot Net Internet Services and Internet Rimon LTD.
Broadly speaking, the case is one of content providers suing Internet Service Providers, and the not identified owner of a website allowing downloading of a piece of software that enables accessing and downloading content.

The content providers sued for a temporary injunction against the service providers and for details of the surfers.

Popcorn is software that allows both streaming content for online viewing and downloading content for future viewing. The plaintiffs sought to stop this service and to require ISPs to prevent access to the website allowing downloading of the software. A temporary injunction issued on 19 May 2015. On 3 June 2015 a hearing was held and on 11 June 2015, the plaintiff announced that it had reached an agreement with 013 Netvision LTD, Hot Net Internet Services an Internet Rimon LTD.

Judge Magen Altuvia of the Tel Aviv District Court ruled that there was no place to issue a temporary injunction to block access to Internet sites that allow downloading of software programs that allows viewing of creative works for which copyright protection is alleged. Such an injunction is ineffective and damages the free flow of information, the right of the public to know, freedom of expression and provides power to Internet Service Providers to determine what may or may not flow through the Internet Conduit. Other issues are the fight of anonymity and of privacy on the internet.

In consequence of the above position, the temporary injunction requested by a website and by an Internet Service Provider to prevent the use of the Program Popcorn was denied. It appears that many Internet service providers had come to an understanding with the plaintiffs, but one held out. The one that held out was vindicated. Furthermore, the agreement reached by the plaintiffs with the other ISPs would not be ratified by the court and the temporary injunction was cancelled.

The Court ruled that by law, the court is not able to order a temporary injunction against a third party to reveal the identity of an anonymous surfer that allegedly has committed an offence. It appears that the plaintiffs themselves were tardy in requesting the injunction and this indicates that the temporary injunction is hardly significant to the plaintiffs and there is thus no justification in issuing it.

The balance of interests does not favor the plaintiffs where there is no clear legislation that allows action against Internet Service Providers. Closing down the website will not prevent the downloading and installing of Popcorn and will have no action against those Internet surfers who have already downloaded the program, and there are opposing values of free flow of information, right of the public to know, freedom of expression.

Plaintiff’s Position
On 29 June 2015, the plaintiff requested that an agreement made with Partner Telecommunications, 012 Smile Telecommunications LTD, 013 Netvision LTD, Hot Net Internet Services and Internet Rimon LTD be ratified by the court. Bezeq International held out and the plaintiffs requested a temporary injunction again them.

According to the plaintiffs, United King Film Distribution 1990 LTD, DVS Satellite Services 1998 LTD, Hot Telecommunications, Keshet Transmissions, The Noga Net LTD and Noga Telecommunications LTD held copyright in various programs and none of them had authorized Anonymous or Bezeq International to use the protected content via the Popcorn website or program.

Anonymous is not known to the plaintiffs [the ruling uses both verbs to know, i.e. conaitre and savoir, knowing in the Biblical sense does not seem to be intended]. The name Anonymous relates to the owner of the Popcorn website that allows surfers to choose to watch programs without the plaintiff’s permission, thereby infringing copyright under the Copyright Act 2007, and being guilty of unjust enrichment under the Law of Unjust Enrichment 1979.
The ISR is the bottleneck that has the cheapest and simplest way to stop access to Popcorn’s website from Israel based Internet browsers.

On 14 May 2015, and again on 17 May 2015, the plaintiffs contacted all the internet service providers but these were ignored.

On 28 April 2016, the Chancery Division of England ruled on Popcorn’s website and in that ruling, determined that the Popcorn sites infringed copyright and Internet Service Providers should block access. Twentieth Century Fox Film Corporation and Others vs. Sky UK and others. Case No: HC2014-00229, EWHC 1082 (ch). According to the plaintiffs, Judge Gidon Ginat (also of the Tel Aviv District Court) adopted the UK decision in his ruling of 12 May 2015, T.A. 11-333227-13 NMC United Entertainment LTD. Et. Al. vs. Bloomberg et al. In that instance, the Court found that by allowing conversion from view only format to saveable MP3 format, Mr Parpori had aided and abetted copyright infringement and that Internet service Providers should block access to the site. See here for my analysis of that case.

According to the plaintiffs, both the Fox decision and the Papori decision support their position that access to the Popcorn site should be blocked. Due to the ‘unacceptable ease of infringement and the fatal wounding of their rights’ there is a need to grant the requested injunctions as soon as possible to preventthe daily infringements.

Bezeq International’s Position
Bezeq International claims that the plaintiff’s filed suit following the ruling in the UK against Popcorn, despite the software being available from much earlier. Suit was filed only in May, so this case cannot be considered urgent.
Bezeq International claims that the plaintiffs do not have a single damages claim against them and therefore there is no room to grant an injunction against them. There are a number of Supreme Court precedents that prohibit issuing injunctions against third parties.

Bezeq considers that such a third party injunction would do them damage whilst would not have an effect on Popcorn since they would simply open up further sites allowing content to be downloaded.
In the appeal considering obligations of ISPs 4447/07 Rami Mor vs. Barak ITC (1994) Bezeq international, Judge Rivlin of the Supreme Court related to whether the Court had the authority to force a third-party to reveal the identity of an anonymous surfer who committed an offence.

There judge Rivlin ruled:

“My position Is that the Courts should not issues such injunctions without a proper hearing. Until there is specific legislation that that allows the requested injunction in cases of slander, there is no alternative but to inquire into whether there is a general framework that allows such third party injunctions. In other words, anonymous Internet surfing should be treated like anything else, and there has to be either specific legislation or general legislation and there is no justification to invent such a framework by judicial legislation.
In the current instance, there are three parties. There is the plaintiff who claims to have been slandered. There is the anonymous slanderer and there is the third party who may know the identity of the anonymous slanderer. This scenario of three parties is not unique to Internet slander. In other contexts, a party may consider himself damaged by an anonymous damager and may suspect that a third party may know the identity of the culprit. The question in front of us is thus wider than anonymous internet surfing. The question is whether Israel civil law allows forcing a party to identify a damager so that suit may be filed against him.

One possible source for contemplating forcing the revelation of the identity of the third party is Section 75 of the Law Courts Law 1984. Section 75 grants wide posers to the courts one the infringement is proven. It does not provide rights outside of a civil proceedings. The law does not contemplate court rulings in the air, but court rulings against parties being prosecuted.
Where A damages B, B may obtain an injunction against A. However, where A damages B, B cannot obtain an injunction against C who is not connected to A or to B. This would require special authorization. In other words, one cannot pull oneself up by one’s bootlaces and cannot create a civil matter against a third party by legislation designed to provide recourse against actual infringers.
This logic is good for Sections 71-75 of the Civil Tortes Ordinance, also considered as a possible basis for action. These Sections deal with the courts authority to provide retribution for civil damages and to give injunctions to act or to refrain from acting, but are not relevant in this instance. The injunction requested against the Internet Service Provider is not with respect to actions by the Internet provider. There are no charges for damages case against the ISP and no grounds for requesting compensation in these clauses so there is no grounds for revealing his identity.

Judge Rivlin went on to refer to another UK case, Norwich Pharmacal, where the court ruled on the revealing of an anonymous infringer in a separate proceeding:

…it should be emphasized that this principle does not have an anchor in Israel law and does not dovetail with any judicial framework recognized in Israel. The opposite is true. It contravenes the spirit and purpose of the judicial framework established by the primary and secondary legislators for Civil Court procedures. Such a change should come from the primary or secondary legislators. [i.e. the Knesset or the Ministry of Justice].

Judge Rivlin’s position was opposed by Judge Elyakim Rubinstein but was endorsed by Judge A.A. Levy.

Judge Magen Altuvia considers that the principles laid out by Judge Rivlin in the Mohr case are appropriate in this instance where the temporary injunction is identical to the main injunction and the rights of the plaintiff and defendants have not been clarified, and where there is no case against the defendant alleging infringement of the rights of any of the plaintiffs. Furthermore in the Appeal 1622/09 Google Israel vs. Brokertov et al. Judge Rivlin reiterated the position in Mohr and stated that “these differences don’t solve the issue of court authority to sanction a third party who is not guilty of any direct claims.

The Plaintiffs rests their case on the Parpori issue. From the way things developed it appears that the plaintiffs only decided to file suit after the Papori ruling on 12 May 2016. Thus only on 14 May 2015, a couple of days after Judge Ginat’s ruling, the plaintiff wrote to the ISPs (defendants 2-7) and requested that access to the Popcorn site be blocked. The law suit was only filed a week later, on 19 May 2015.

It will be appreciated that Tel Aviv District Court rulings are not binding precedents to the Tel Aviv District Court and the Court can ignore the Parpori ruling, whereas the Mohr case is binding precedent. Furthermore, without expanding, Judge Altuvia considers the Parpori scenario rather different. In this instance, there is a difficulty for the plaintiff to identify Anonymous and to prevent alternative websites being set up, so it is not clear that ordering the ISPs to block the site is efficient. Neither Parpori or the UK ruling are binding on the Tel Aviv Court. Indeed, in Mohr, the Supreme Court reviewed UK and US caselaw that allowed action against third parties such as ISPs and didn’t adopt the approach.
In Parpori, the main culprit had the opportunity to defend himself. This is not the case here as the main culprit isn’t identified.

Temporary injunctions are an exception to general procedure and are only appropriate where there is an urgency, which clearly wasn’t the case here, as the plaintiff was tardy in pressing charges.
The program Popcorn does not itself infringe. It merely aids and abets the downloading and viewing of copyright material. Blocking the site does damage to the ISP’s image and other ISPs can choose not to block access.
Clause 9 of the Statement requires the ISP to block future sites. This requires them to be a policeman and a censor for the plaintiffs. This policeman is not to generally police the net but to take action against a specific entity who has not had the opportunity to defend himself in court.

The reluctance of the court to convert ISPs into policemen outweighs the copyright of the plaintiffs.

In view of the above analysis, it would be wrong to endorse the out-of-court agreement as it is not a simple contractual obligation but has in rem aspects. The desired censorship would have consequences for the public and the Legal Counsel to the Government (Perhaps better translated as the Attorney General, has not addressed the issue, despite being invited to do so.

The temporary injunction granted by the court is voided and the plaintiffs are obliged to compensate Bezeq ben Leumi 40,000 Shekels for costs and legal fees.
Civil Action 37039-05-15 ZIR”A et al. vs. Anonymous, Bezeq Ben Leumi et al. Ruling by Magen Altuvia of Tel Aviv District Court, 1 July 2015.

With all due respect to Judge Gilad Ginat who I consider to be the most competent IP judge in the District Courts and probably in any of Israel’s Courts now that Judge Gronis has retired, I think that Judge Altuvia is correct. In my comments on 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 I criticized the decision as ultra-vires judicial activism. I don’t accept that there is a lacuna that the legislators forgot about, but rather the current state of the Law reflects conscious government policy, not least due to the fact that when the new copyright act being passed, Israel was regularly being criticized in the US 301 Special Report also here for not having ISPs required to police the net.

I think that Judge Altuvia is correct that this is an instance where the Attorney General should present the government’s position. I think that the Attorney General is supposed to attend to such matters. It seems that Attorney Yehuda Weinstein views things differently and believes that his job is to dictate government policy and to keep the government in line with the positions of the Supreme Court.
For example, at present there is a contentious issue to be debated by the Knesset – the Death Penalty for terrorists. I have no problem with the Knesset debating this issue from time to time. I have no problem with lawyers in private practice, clerics, academics and journalists, human rights activists, victim support groups and the lay public expressing strong opinions, whether for and against. However, I find it totally unacceptable that the Israeli press reports that the Minister of Justice is considering supporting the legislation despite the opposing views of the Attorney General. Sure the Attorney General is entitled to have opinions and to express them to the government ministers. He should do so in a discrete manner and the public and press have no business knowing his personal opinions. The government is selected by the ruling coalition that represents a majority of the members of Knesset who are elected democratically. The Attorney General is an appointee. The current proposed legislation is a private member’s bill with some support from government back-benchers. But Weinstein also speaks out on government policy. This case and many others are not legal issues, but moral, ethical, strategic and tactical ones. If Weinstein is unhappy with supporting a government policy, he should either be professional and do his job to the best of his ability, as Barak apparently did as Attorney General, or he should resign. There are a number of cases where the Attorney General seems to have dictated policy or ignored the government. This is, in my opinion, grounds for dismissing him.

I am very critical of judicial activism, which seems to be justified to protect democracy from the people’s representatives. Thankfully Justice Aharon Barak’s term as president of the Supreme Court has ended and some of the damage to fidelity of the Law and to the democratic process has been reversed. I am pleased that Judge Magen Altuvia and Judge Rivlin have seen fit to take a formalistic stance in this instance.

As to judicial legislation for enhancing enforcement of IP infringement, the Supreme Court has accepted contributory infringement and aiding and abetting infringement in schori vs. Regba (Apppeal to Israel Supreme Court 7614/96) and in the Rav Bareach (Appeal to Israel Supreme Court 1636/98) Crook Lock case.  In the US, the CFAC and the Supreme Court have moved away from these judicially created indirect torts. Arguably both cases are legitimate workarounds. We’ve seen the courts moving away from A.Sh.I.R. which provided legal grounds for sanctions for unregistered designs under the amorphous value of Unjust Enrichment. In absence of amendments to the Patent Law, perhaps it is about time that Srori vs. Regba and Rav Bareakh were reversed?

In the last election I did look for a party with a strong IP position. Unfortunately, it was difficult to find a party with a clear stated position on anything, and none seemed to mention intellectual property in their manifestos, bumper stickers TV commercials. The Knesset is, nevertheless, updating its IP laws. I think we should lobby them to do more rather than give the courts legislative powers. Whilst there are ministers without portfolios, maybe there is room to have an IP Minister or Czar, or a Deputy Minister in the Ministry of Justice or that of Trade and Industry with specific IP responsibilities. Other countries, including the US and the UK have such a position.

One final point, Internet Rimon advertises itself as a religious ISP that blocks pornography, gambling and other websites deemed immoral, objectable under Jewish law and values and damaging. I believe such a pious company should take copyright infringement seriously and block sites such as Popcorn as well, or at least provide the option to parents to elect to block copyright infringing sites.

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.             

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.

Justice in the Eye of the Beholder

June 2, 2015

multifocals   Optika Halperin

This decision relates to parallel importing, to slander and to inequitable behavior.

Luxvision is the licensed importer of Zeiss lenses. Optika Halperin, a national chain of opticians in Israel (founded by a Rabbi who was a boxer, a world freestyle wrestling champion and bodybuilder, and then a Karate expert who introduced and promoted the sport to Israel) advertised multi-focal lenses that they sold as being Zeiss lenses.

Luxvision ran a vicious campaign of letters and advertisements from 2010-2011 arguing that Optika Halperin’s lenses were not original Zeiss lenses. Optika Halperin sued Luxvision, its CEO Erez Avner, and Ami Lapidot, who is the director of the Lapidot Group which owns Luxvision, claiming that this campaign caused then damages of 10 million shekels including cancellation of contracts with ELAL (Israel’s national airline) and with HaMashbir (Israeli department store), and had unjustly enriched the defendants. Luxvision counter-sued for 200,000 in 2011, as maximum statutory fine for willful slander without proof of damage, concerning four advertisements by Halperin, which they alleged were slanderous, defaming and insulting.

The relevant details are as follows:

On 22 December 2010, Avner sent an email to ELAL, and without revealing that he was an employee of Luxvision, informed them that the advertisement of a discount between Optica Halperin and ELAL infringed intellectual property since the guarantee was not recognized by Zeiss. On 13 April 2011 the defendants contacted HaMashbir in writing and informed them that Zeiss International had canceled the manufacturing and distribution rights of the Indian company from where Halperin had purchased the Zeiss lenses mentioned in the discount, and that the lenses were not merely imported without a license, but that there was a question regarding the origin of the lenses. Luxvision also contacted Halperin’s employees with a letter titled “Notice of Cancellation of Agreements” ordering them to cease and desist from selling or purchasing Zeiss lenses. Luxvision further published misleading notices in newspapers and on Internet websites regarding the origin of Halperin’s lenses that stated “Zeiss importers: Optika Halperin together with ELAL sell lenses from India. The [Halperin] chain: they are original”, and in an article in the financial supplement of Idiot Achronot, 2 February 2011, “Zeiss Germany does not stand behind the special offer and the Guarantee is not authorized.” In the business paper the Marker on 13 April 2011 the defendants  allegedly planted an article titled “Optical Illusion, the German Company Zeiss: Optika Halperin sells Zeiss lenses that are not originals.”

In their defense, Luxvision denied any responsibility for articles published by newspapers and the alternative defense that the facts discussed in the articles were true. Luxvision further denied that they caused damage to Halperin and claimed that the damage was self-inflicted since they published false information regarding the source of their lenses, and this was self-risk or contributory damage to the extent that they were not entitled to any compensation or legal recourse. This was also the basis of their counter charges of 200,000 Shekels in compulsory compensation without proof of damage.

Both sides brought evidence regarding the relationship between Luxvision and Zeiss India, from which it seems that Luxvision had themselves purchased and sold Zeiss lenses from India. The relationship between Zeiss Germany and the Zeiss Middle East had apparently been broken however there was an agreement between them. Judge Ginat ruled that these details were not necessary to rule on the case in question.

The Ruling

Optika Halperin as an independent and private company that imports and sells optical equipment and eye-wear imported Zeiss lenses with the Zeiss logo from the Indian manufacturer, which is a factory established by Carl Zeiss Vision International Gmbh, the German mother company.

On 27 February 2008, Zeiss Germany set up a joint venture with GKB HI-Tech Lenses Private LTD, an Indian company set up to sell Zeiss lenses to the Middle East. Under the agreement, with GKB HI-Tech Lenses Private LTD would be allowed to sell lenses with the Zeiss label in the Middle East, including Israel. The Companies had their differences and went to court in India, after which the business relationship ceased as of October 2011. However, Zeiss continued to allow their name to be used on lenses from India that were sold in the Middle East.

On the basis of evidence filed, including affidavits, Zeiss never showed any reservation that lenses from the Indian company were being marketed as Zeiss lenses in Israel and elsewhere. Zeiss never complained to Halperin nor did they file suit in an Israel court. They are not a party in this dispute. Indeed, Zeiss India had initiated an action against Zeiss Germany and not the opposite. Judge Ginat therefore ruled that the evidence leads to the conclusion that the imported Indian lenses may be considered as ‘parallel imports’ and not as imports of the authorized Israel dealer. As with the Hilfiger case, this is perfectly legal.

Cancellation of the ELAL contract 

In 2009 and 2010, ELAL and Yaakov Halperin signed various agreements under which Business and First Class passengers on ELAL flights would receive vouchers for purchasing Zeiss lenses at Optika Halperin.  Luxvision wrote to ELAL claiming misrepresentation and the eventual upshot was that ELAL did not renew their contract with Optika Halperin who claimed damages of 2,515,000 Shekels in loss of contract and loss of future business.

Although eventually ELAL wrote to Luxvision that they were not renewing the contract with Optika Halperin so the charges were moot, Luxvision argued that this letter was not an indication that they canceled an agreement, nor was it an indication that the decision was the result of Luxvision’s campaigning.

What was clear was that Luxvision embarked on a media smear campaign against Optika Halperin, and the articles are available on line and still cause damage. Furthermore, they contacted third parties having contractual relations with Optika Halperin so Luxvision did do serious damage to Optika Halperin’s reputation.  The articles were unequivocal and there is a basis for bringing charges of Slander under Sections 1 and 2 of the Slander Act.

However, it will be appreciated that Section 14 of the Slander Act provides the defense that the allegations are true. This requires that the publication is true and is of public interest. The truthfulness defense is objective. It is important as it strikes a balance between Freedom of Speech and the right to one’s good name. The public interest consideration is subjective, and the court has to rule on each case according to its merits. Regarding the truthfulness of Luxvision’s allegations, the onus is on them, as defendant to establish that their allegations are indeed true.  However, Luxvision were within their rights to indicate that the lenses were not guaranteed by them and with multi-focals, there is a real likelihood of lenses being unsuitable and rejected as such.

Judge Ginat was impressed that Zeiss Germany would have gotten involved if there was any truth that the Indian lenses were substandard. Zeiss themselves and not the importer owns the rights in their name. Furthermore, Luxvision contacted ELAL before contacting Zeiss Germany. Judge Ginat concluded that this case is not one where the lenses are not originals or are fakes, but is a case of parallel importing, and, as established in Dyson and in the Tommy Hilfiger  case, parallel importing is legal in Israel. Consequently, the defense that Luxvision told the truth is not a totally accurate reflection of reality and the defense is not available to them.

Contacting the media and Optika Halperin stores around the country does not seem to be a reasonable act that can be considered as equitable behavior as the publications were inaccurate and Luxvision was aware that the Indian company was authorized by the German company to produce Zeiss lenses, even if the relationship between the Germans and Indians was somewhat rocky. Consequently, Judge Ginat rejected the defense that the slander was unintentional.

Nevertheless, the estimate of 10,000,000 Shekels of damages was less than substantiated and consequently Luxvision was ordered to pay the maximum statutory damages of 50,000 Shekels for slander. The allegation of unjust enrichment was also not substantiated and was rejected.

Charges against Lapidot were rejected as any actions he conducted through the company were considered as the responsibility of the company and not personal responsibility.

Luxvision’s counter-claims of slander for Optika Halperin’s media campaign stating that ‘only companies that want to profit likes pigs sell expensively’, was rejected as Luxvision had started the smear campaign and the description seemed somewhat apt. Furthermore, there was nothing wrong with Optika Halperin showing the difference in price between themselves and competitors. In general, Optika Halperin’s campaign was considered acceptable. Luxvision, was, however, also ordered to pay 33,999 Shekels for causing the ELAL contract to be breached and they were also ordered to pay the court’s expenses including the cost of the court recorder, and 38,000 Shekels in legal fees incurred by Halperin.

28167-04-11 Optica Halperin vs. Luxvision LTD, by Gidon Ginat of Tel Aviv District Court, 29 April 2015

Israel Court Issues Injunction against ISPs and Recognizes Contributory Copyright Infringement

June 1, 2015


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 and 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



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


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