Sotah – Naomi Ragen drinks the bitter waters of plagiarism

January 9, 2012

Naomi Ragen, Israel’s best-selling writer was accused of plagiarism by three separate authors. She was vindicated by the Israel Supreme Court last week regarding her book The Ghost of Hanna Mendes and it’s alleged similarity to The Lion and the Cross. Ragen was, however, found guilty by Judge Yosef Shapira of the Jerusalem District Court concerning the similarity of some dialogue in her novel Sotah, to a book Growing With My Children: A Jewish Mother’s Diary by Sara Shapiro. Plagiarism is not a crime on the statute books. Ragen was found guilty of Copyright Infringement, Unjust Enrichment, Negligence and Theft.

The Case

Shapiro published a non-fiction, largely autobiographical work, called Growing With My Children: A Jewish Mother’s Diary which was published in 1990 by Targum Press. The book was a daily journal from the years 1986 to 1989, focusing on the author’s participation in an ongoing parenting workshop, and the ups and downs she experienced along the way to becoming a more skilled and patient parent.

There is one conversation, between the author and her mentor, Rabbi Simcha, that is closely paralleled by a conversation in Ragen’s  novel Sotah between the central character, Dina, and her husband, Yaakov. Furthermore, Shapiro takes on a secular home-help, Sonia, and Ragen’s protagonist gets exiled from her extreme ultra-orthodox community and sent to America to work as a home-help for a secular woman, Joan.

Ragen has argued that she had indeed read Shapiro’s book, and subconsciously may have used elements as inspiration for her novel. Simply groats for her mill. It is difficult to prove otherwise. The similarities are sufficient to raise questions, but there are differences as well. The dialogue is rewritten. It is not identical.

Ragen’s attorneys pointed out that the conversation attributed to Rabbi Simcha by Shapiro were not her creation and not her copyright. The authoress’ response in the dialogue are less insightful, less memorable and weaken the case of copyright infringement still further.

To find Ragen guilty, Judge Joseph Shapira performed legal gymnastics to have the case admitted at all, since there were strong grounds for dismissing the case altogether under the Statute of Limitations, as seven years had passed since Shapiro became aware of the similarity. He took the position that the ongoing sale of Ragen’s book made copyright infringement an actionable tort on an ongoing basis. Such a position makes some sense if Ragen was selling bootleg copies of Shapiro’s book, but that is not the case here.

Shapira’s opening paragraphs establishing the facts of the case refer to the Ragen as having copied sections of Shapiro’s book, indicating that he had prejudged the issue. He also relates to the Michal Tal case mentioned above, which he also heard. But this should have been inadmissible since it was not the case under trial. That said, since some witnesses were heard simultaneously in both cases, with consent of both parties, it may be considered admissible. That as may be, as noted above, Ragen was subsequently vindicated in the Tal case.

Where there is copyright infringement, there are no grounds to rule on grounds of Unjust Enrichment, which is applicable only where there is no statutory tort, such as in the A.Sh.I.R. case. Thus finding under both counts seems wrong. Finally, what’s theft? Since when is literary theft a separate tort?

Shapiro’s book is a non-fictional, somewhat autobiographical guide to making a marriage work, about adjusting oneself to one’s surroundings. Ragen’s story is about getting out of a situation that’s wrong, about taking control of one’s life. I think that a fair use defense is appropriate. Furthermore, to the extent that Ragen’s work was inspired by Shapiro’s I think that a satire defence is possible –  although difficult under Israel Law. We also note that Shapiro did not create the idea of employing a home- help. These have been employed by countless young mothers under stress. (I believe that my mother employed an au-pair when I was a baby. That wasn’t plagiarism either).

I accept that copyright covers all literary work, regardless of quality.  A couple of pages of dialogue may therefore by covered by copyright law. Nevertheless, the text in question is not memorable in its own right. We are not discussing a witty aphorism but simply a conversation. My main criticism of the ruling is that it places the bar for literary novelty simply too high. It is bad policy to consider copyright infringement in a case where two pages of dialogue in one book bear a similarity to a couple of pages of dialogue in a different book. This is counter-productive to the aim of copyright law which is to enrich by promoting creativity, not to stifle authors. Koheleth son of David (Ecclesiastes) was right on one level that there is nothing new under the sun.  The similarities between Shapiro’s book and Ragen’s novel warrant a footnote in a critical edition of Ragen’s book or an academic paper. Nothing more.

For those interested, the concept in Jewish Law (Halacha) analogous to fair use is “זה נהנה וזה לא חסר ”  lit. “this one benefits but that one does not lose out.” (T. B. Baba Kama 20:1 – 21:1, Shulhan Aruckh, Hoshen Mishpat Chap. 363: 1).

The plaintiff sued for NIS 1,000,000. Although the judgement finds Ragen guilty of copyright infringement, unjust enrichment negligence and theft, it does not award damages but gives the parties an opportunity to negotiate a settlement. It seems highly unlikely that the conversation in question helped Ragen sell books, or that Ragen’s novel adversely affected Ms Shapiro’s sales. Under the relevant copyright law which is the old 1922 Copyright Ordinance, not the new 2007 Copyright Law, the statutory damages are limited at NIS 10,000.  A fair settlement would seem, therefore to be loose change. Indeed, from a financial perspective it is difficult to see how any award that will stand legal scrutiny can possibly recover legal costs.  but what both sides are looking for seems to be moral vindication rather than damages.

The case: 9430/07 Sarah Shapiro vs. Naomi Ragen, by Judge Yosef Shapira, Jerusalem District Court 11 December 2011

Comments

The ruling is a 92 page whopper, which is why this took me a month to post.

Shapiro’s account in her own words was published in Cross-Currents, an ultra-orthodox discussion group here.

I first covered the Michal Tal case here. See also naomi-ragen-fights-back for details of all three plagiarism suits against Ragen, and Naomi Ragen Accused of Plagiarism – Again for details of a third case filed by Cynthia Rosengarten concerning the Sacrifice of Tamar.

An account of the Supreme Court Ruling concerning dismissal of the case brought by Michal Tal is to be found here: haAretz version and Jerusalem Post version. Ragen’s reporting is here.

For newspaper accounts of the District Court decision against Ragen see haaretz

Additional Comments

In Jephte’s Daughter, another novel by Ragen, the story relates to the daughter of a Rabbi growing up in New York. When I read it, I was reminded of Chaim Potok’s novel The Chosen. There was a scene where the girl and two of her friends experimented with make up in the girl’s bedroom. This reminded me of a scene in the 1980 hit movie Grease. I have no doubt that Ragen has read the Chosen and seen Grease. Whether these influenced her consciously or not, there is no case of copyright infringement or plagiarism.  (Note, I also believe that the Warner Bros character Bugs Bunny was inspired by Groucho Marx, although I’ve never seen any reference to this in print).

It is worth noting that the plagiarism cases against Ragen were filed around the time that Naomi Ragen challenged segregated seating on bus routes serving the ultra-Orthodox community by filing a suit to the Supreme Court on grounds of gender discrimination. A lot of the flack Ragen’s been under for alleged plagiarism seems to be driven by ultra-Orthodox opposition to the position she has taken on this issue which some see as threatening their life-style.  Many of her books are sympathetic to some aspects of the ultra-Orthodox lifestyle and critical of other aspects of the same. Some members of the Ultra-Orthodox do not take kindly to criticism, and may find her novels offensive.

Personally, I see social criticism as positive and believe that Ragen has raised issues that should be addressed. I think that every Jabotinsky was correct in his analysis published in “the War and the Jew”, that every nation needs its Jews; a visible, different looking population to hate. Unfortunately, in Israel, the Ultra Orthodox seem to fill this position for some secular Israelis. (The secular Israelis fulfill a need for the ultra-Orthodox that goyim fulfilled in Eastern Europe, so everyone benefits from the situation, but it keeps the Messiah from coming). However, Ragen has not written the sort of anti-ultra-Orthodox diatribe that the mainstream (secular) papers sometimes publish; where one can substitute the word black, ultra-Orthodox or Hareidi with the word Jew, Kike or Yid, and the piece looks like something that could have been published in Nazi Germany. Rather, Ragen has criticized anti-social behavior exhibited by some members of the ultra-Orthodox camp and cultural norms in some circles that she sees as having negative ramifications. She hasn’t attacked the population. In this regard, she is like Bruria admonishing her husband Rabbi Meir to pray for sin to be removed by sinners repenting, not for sinners to be removed (Talmud Babli Brakhot 11).

In my opinion, as outlined above, this ruling established the facts of the case, but gets the law wrong. I believe it should be reversed on appeal.

The Biblical Sotah from which Ragen plagiarized her title,  is discussed in Numbers 5: 11-31. She is a woman accused by her husband of having been inpregnated by another. In a trial by ordeal, the sotah drinks bitter waters, and, if guilty, swells up, and dies. If innocent, she and her husband are able to put this issue behind them and she is blessed with offspring.  Ragen may have been impregnated by exposure to Shapiro’s book, but her work is an original literary creation, and is admitted as such by Judge Shapiro. I believe that she deserves to be blessed with (literary) fruit for being wrongfully accused.

16 Comments | book review, Copyright, Fair Use, infringement, Intellectual Property, Israel, Israel Copyright, plagiarism, Uncategorized | Permalink
Posted by Dr Michael Factor

Kiss but don’t tell

December 4, 2011

In a case referred to as Plonit vs Ploni and Almonit (from Ruth 4:1), the Jerusalem District Court has issued an injunction to recall a book written by a student “Ploni” (i.e.  John Doe), that documented his relationship with a second student “Plonit”  (i.e.  Jane Doe) that he had previously enjoyed a romantic liaison with.  The relationship was originally kept discreet as Ploni was married and the student was living with her “Significant Other”, but eventually their circle of friends knew about the relationship, and, after Ploni separated from his wife, he was known to be living with the student.

A temporary injunction to recall unsold books and to prevent their circulation and further publication was obtained fairly quickly and upheld by the Judge Gronis of the Supreme Court. This ruling concerns making the temporary restraining order permanent and alleged damages to the plaintiff.

The plaintiff claimed that her private and public world were described in graphic detail, including her body, emotions, weaknesses, conscience, activities and preferences for sexual stimulation. She alleged that the publication damaged her privacy, good name, and cruelly exposed, shamed and insulted her. Furthermore, since extracts of some of Plonit’s letters were published, and her final college project was described, there were charges of copyright infringement in addition to invasion of privacy.

The publisher claimed ignorance of the biographical aspects of the book and that they were under the impression that the work was pure fiction. On the suit being filed, they recalled the unsold books pending judgement. However, nearly one thousand copies were already sold by then.

The defendant led a spirited defense to allow publication, and brought expert opinions of literature professors Ariel Hershfeld, Hanan Hever and Mira Magen to substantiate his claims that the style of the work was that of fiction. He claimed a free speech defense, alleging that allowing the plaintiff to prevent publication of a fictitious work based on alleged similarity would prevent the publication of fiction in general, since the author invariably draws on his/her life experiences.  He further asserted that the public interest was to allow publication, in that the subject matter of broken families and relationships are of clear public interest.

In her ruling, Judge Kanfei-Steinitz found the publishers claim of ignorance convincing and dismissed the charges against them.

Though recognizing the value of free speech, she ruled that free speech is not absolutely protected and a balance needs to be struck between free speech and other rights, including the right to privacy, noting that both are fundamental rights, with right to privacy being protected by the Basic Laws. In addition to the case-law, she quoted from the ruling by Supreme Court Judge Gronis, concerning the appeal to the temporary restriction order in this case, where he pointed out that one of a couple in an intimate relationship is entitled to prevent the other party from publishing details of that relationship as this is fundamental to society.

The plaintiff’s case was strengthened by the defendant’s ex-wife’s attempts to prevent damaging details about her and the children being published and by a recording of a conversation between herself and the author where she asked him how he could publish all the details of their relationship.

Due to the nature of the final year project of the heroine of the book, her place of study, the area where she lived and where her parents lived, her physical description including build, hair and eye colour and tattoos, and the clear identity of the author who wrote in the first person without a pseudonym and was known to have lived with the plaintiff, Judge Kanfei-Steinitz ruled that whether or not the work was categorized as fiction, there was a clear and compelling case that there was an invasion of privacy and that the balance between literary freedom and right of privacy justified preventing the book from being published.

In addition to ordering the books recalled, the court ordered that Ploni pay NIS 700,000 in damages for invasion of privacy according to the abstract (NIS 200,000 according to the end of the ruling – so the actual sum is unclear) and a further NIS 50,000 costs.

T.A. 3213/09 Plonit vs. Ploni and Almonit, Judge Gila Kanfei-Shteinitz, Jerusalem District Court, 11 October 2011.

COMMENT

The copyright issues in this squalid case are actually quite interesting since the author can claim a moral right to his work, in addition to freedom of expression. Nevertheless, I think this judgement was correct to focus on the privacy issues.

One wonders how much the good name of a known adulteress and family breaker is actually worth. then again, I don’t know whether the damages awarded were NIS 200,000 which seems rather low and NIS 700,000 which seems a little high. I concur with the judge that the plaintiff is entitled to prevent her ex-partner from publishing intimate details of their relationship in the guise of fiction. Sadly, I suspect that the nearly a thousand copies sold before the recall and following excerpts published in the weekend papers and described in television interviews, were no doubt largely snapped up by acquaintances of the litigants.

The decision is a good one, and seems very thorough and well-reasoned.

As to the public interest, a distinction should be made between what the public is interested in knowing and what is fairly considered as public interest.

Ayn Rand: “The idea that ‘the public interest‘ supersedes private interests and rights can have but one meaning: that the interests and rights of some individuals take precedence over the interests and rights of others.“

James Wilson: In the long run, the public interest depends on private virtue.

 

2 Comments | book review, Copyright, Israel, Israel Copyright, Israel Court Ruling, Uncategorized | Permalink
Posted by Dr Michael Factor

Israel Judge Refuses Class Action Against Google Books

November 29, 2011

Google Books scans books and stores a searchable electronic copy on Internet accessible servers, making a short extract of 2-3 lines available to searchers, together with name of author, title, publisher and year of publication.

If the authors consent to take part in the project, the can allow a larger extract t be available and in return, a link to online suppliers of the book is provided.

Jonathan Bruner, the author of “What you see from there” filed a Class Action against Google Books, on behalf of Israeli Authors whose copyright was he considers infringed by this.

In her ruling, Judge Tamar Bazak Rappoport refused to allow this to be considered a Class Action. She considers the Law of Class Actions to restrict the procedure to trade related disputes where a supplier or vendor provides a service to a large group of people. In the current instance, this is not the scenario. Google considers the authors who work with them as partners. That as may be, those who do not join the program are not clients or customers.

Regardless of whether there is a case of Unjust Enrichment or Copyright infringement resulting from Google’s activity, following the Israel Supreme Court Precedent 3126/00 State of Israel vs. E.Sh.T. Project Management and Personnel LTD, 2003, the instances where a Class Action is appropriate is limited to vendor-customer type cases.

She threw out the request for the case to be considered a Class Action and ruled NIS 10,000 to Google.

Class Action Ruling11319-04-11 : Bruner vs. Google Inc., 23 November 2011, Judge Tamar Bazak Rappoport

5 Comments | Class Action, infringement, Intellectual Property, Internet, Israel, Israel Copyright, Israel Court Ruling, Israel IP | Permalink
Posted by Dr Michael Factor

Copyright in Photographs from Old Newspapers Shown in History Programs

October 30, 2011

Shmuel Rachmani is a photographer who was affiliated with the Ma’ariv newspaper. Some of the time he was a freelance photographer and some of the time he was an employee. Rachmani’s contract with Ma’ariv left the copyright in all the photos with him.

In a documentary series called “This week previously,” The Israel News Company Ltd. related to important events that had occurred in the same seven-day period in previous years. Included in their coverage were images from the archives of the Ma’ariv newspaper at Bet Ariela.

Rachmani claimed copyright in 11 such images, of which 10 credited the archives rather than him.

The TV channel claimed the defences of no copyright in images of events,  and that where a newspaper has cropped an image, the copyright is lost. They also claimed defences of fair use, education and newspaper exception and incidental inclusion of the images in the program.

Judge Arnon Darel dismissed the claim of no copyright outright, and also the cropped image argument.

Having established that there was copyright in the image, Judge Darel would have contemplated the various fair use arguments if the identity of the photographer had been acknowledged, thereby preserving his moral right, but ruled that the channel could and should have clarified and acknowledged the identity of the photographer. Since they didn’t he ruled 7 separate counts of copyright infringement, ruling NIS 15,000 a time, as a compromise between the minimum and maximum statutory damages under the old law, and a further NIS 20,000 for moral rights.

The 7 counts were arrived at by dismissing one case where the identity of the photographer was acknowledged and treating two cases where more than one photograph of the same event was shown as being single infringements.

He went on to rule NIS 25,000 legal costs.

The Case: T.A. 7036/09 Rachmani vs. The News Company LTD., Judge Arnon Darel, Jerusalem Magistrate’s Court, 9 October 2011.

Leave a Comment » | Copyright, Intellectual Property, Israel, Israel Copyright, Israel Court Ruling | Permalink
Posted by Dr Michael Factor

Health Club Wars

October 30, 2011

Hadas Guvrin is a former aerobics champion and trainer of physical trainers. Now having reached the age of 40 she runs a couple of fitness clubs called PhysiKal (Kal mean easy in Hebrew) in the Hod Hasharon and Ramat Gan regions. The clubs have some 30,000 members.

A second fitness club called Switch, based in Netanya used her picture to promote their club. The photo was run in 4 or 5 editions of the local paper and one street hoarding.  Guvrin and PhysiKal sent a cease and desist letter and requested that Switch stopped using the picture and pay NIS 590,000 damages.

Switch took the picture down immediately and agreed to pay statutory damages of NIS 20,000 for copyright infringement.

A year later, Guvrin and PhysiKal sued Switch and owners Shermeister and Frankel for copyright infringement, moral rights infringement,  unjust enrichment, passing off, and damage to Guvrin’s privacy. They also requested a public apology from the defendants and an injunction against further usage of the picture.

Judge Amiram Binyamini accepted that there was copyright infringement, but ruled that the advertising campaign should be considered as a single incident and awarded maximum statutory damages of NIS 20,000 under the Old Law (pre 2007). He accepted that the copyright in the picture was indeed owned by the client, i.e. the fitness club, but ruled that the moral rights were owned by photographer who wasn’t a plaintiff, therefore dismissed the moral rights claim.

As to the tort of Passing Off, although damages of up to NIS 100,000 could be awarded, Judge Binyamini ruled that the plaintiff was entitled to damages under either Copyright Infringement or Passing Off, but not both. In view of the short time period that the campaign ran and the different geographical location of the two clubs,  he saw no reason to increase the damages for Passing Off beyond the NIS 20,000 already awarded for Copyright Infringement.

As to Unjust Enrichment, Binyamini ruled that the plaintiffs had failed to show that the defendants had attracted members as a result of the activity. At best, they had saved themselves the cost of a stock photo under terms of non-exclusive use, which was a saving of perhaps tens of dollars, and thus negligible in light of the NIS 20,000 already awarded.

Since Hadas Guvrin had used her picture to promote fitness clubs herself, privacy wasn’t an issue either.

As four years had passed since the infringement, Judge Binyamini declined to order a public apology. He also felt the permanent injunction was unneccessary since the defendants had stopped using the picture immediately, and considered it requested merely to send the case to the District Court, but saw no reason not to issue it.

He noted that the defendants had offered NIS 20,000 at the outset, and taken down the picture immediately, so there was really no reason for the case to go to court. Furthermore, the defendants had offered to allow the case to be decided under Section 79a of the civil procedures, without evidence being heard, but the plaintiffs had insisted otherwise. Nevertheless, since the defendants had offered some fairly ridiculous defences as to why there was no copyright infringement and had insulted Ms Guvrin in one of the newspapers, he awarded a further NIS 10,000 legal fees.

the case: T. A. 1637/08 Hadas Guvrin and PhysiKal Events LTD. vs. Switch Fitness Club, Roei Shreimester and Israel Frankel before Judge Dr Amiram Binyamini, Tel Aviv District Court, 9 October 2011.

COMMENT

This seems to be a balanced ruling and Judge Binyamini is correct, the case was a waste of the court’s time. With a lot of daily commuters from Netanya to Ramat Gan, I am not convinced that the different geographical locations is important, but the judge is correct, that there was no evidence of actual damage.

Leave a Comment » | Copyright, Intellectual Property, Israel, Israel Copyright, Israel Court Ruling, Israel IP, passing off | Tagged: | Permalink
Posted by Dr Michael Factor

Cheap Versions of Bakugan Game Imported From Far East

October 10, 2011

Spinmaster have a popular game called Bakugan that is apparently not just popular with the kids, but also with importers and judges – see here and here.

The authorized distributors and trademark rights holders have been back in court. This time against a Mr Chai Omra who imported some 40,512 sets of Bakugan from China. The sets were impounded by Customs and the rights owner sued for their destruction and NIS 100,000 for copyright infringement. He also claimed trademark infringement, passing off and unjust enrichment.

Mr Omra claimed that these were legitimate sets and was parallel importing, so there was no copyright infringement or at least that he had a defense of not knowing that these were not authorized sets.

The rights owner noted that the ball was a different size, that there were Chinese instruction cards in the box, which are not provided in original sets intended for the Western market, and the bar codes were wrong, thereby proving that the sets did not originate with an authorized manufacturer.

In his ruling, Judge Zerankin dismissed the ignorance defense, noting that Omra had bee in court before for importing toys manufactured in the Far East, and had previously shipped 15,000 Bakuga sets as well.

The Judge ruled to rule NIS 20,000 for trademark infringement, NIS 40,000 for copyright infringement and NIS 40,000 for passing off. As there was no enrichment from this shipment, he rejected the unjust enrichment claim. In addition, he ruled a further NIS 40,000 legal fees.

The Case:  T.A. 43006-08/10 Spinmaster vs. Hai Omra LTD and Israel Customs Authority,  Judge Adi Zerankin, Haifa District Court, 22 September 2011

COMMENT

The applicant requested statutory damages of NIS 100,000 for copyright infringement. Importing copyright material is indeed copyright infringement. He is entitled to statutory damages for passing off or for copyright infringement, but I don’t believe is entitled to additive statutory damages for both. Once the total damage is NIS 100,000, it hardly matters. Still I would have expected damages of NIS 100,000 for copyright infringement and NIS 100,000 for passing off, then capped at NIS 100,000 as one cannot receive more than NIS 100,000 for a single infringing event.

I am also not sure where the statutory damages for trademark infringement come from.

Leave a Comment » | Copyright, infringement, Intellectual Property, Israel, Israel Copyright, Israel Court Ruling, Israel Trademark, trademarks | Permalink
Posted by Dr Michael Factor

Copyright in photographic images reproduced on websites – fair use

October 6, 2011

Roman Kriman is an accomplished photographer with some 5000 images on the Jerusalem Shot website here.

Newsru is a Russian language news portal that is apparently the most popular Russian news website in Israel. The website is to be found here.

Kriman’s site indicates that his images may be used free of charge, but that the photographer must be acknowledged and a link from the picture is required to lead to the Jerusalem shot website.

Kriman sued Newsru for copyright infringement for failing to comply with the licensing conditions. Kriman requested 200,000 Shekels.

I assume the sum sued for covers both statutory damages for copyright infringement and for moral rights infringement. It is not clear if this is for multiple statutory damages under the old law or for a single offence under the new copyright law, but the ruling does relate to some dozen cases and applies the old copyright law despite apparently being filed in 2010 and relating to recent events.

That as may be, in her ruling Judge Chana Yinon of the Jerusalem Magistrate’s Court applied the old copyright law, accepted that there is copyright in original photographic images but was satisfied that the defendant attempted to comply with the licensing terms by crediting images in a page of credits, and that clicking on an image opened a hyperlink to source information. She considered the licensing terms sufficiently unclear that she found this practice a genuine attempt to comply.

Where images were wrongfully attributed to sources from which Newru had obtained them, but not to the photographer, she found Newsru not at fault. In this regard, during cross-examination, Kriman indicated that in his opinion it was wrong to reproduce an image without knowing and attributing the original source, whereas the judge preferred the defendant’s understanding that third parties can reproduce an unattributed image.

Somewhat confusingly, Judge Yinon cited Civil Appeal 2312/02 Druk vs. Danziger and also Tony Greenman’s work, Copyright in the Digital Age, to indicate that it is not enough to not know who the rights owner is, if the defendant has reason to believe that there is copyright in an image.

Deciding that there was no damage, the case was dismissed.

T.A. 10587-01-10 Roman Kriman vs. Newsru LTD. before Judge Chana Yinon, 12 September 2011

COMMENTS

I think Newsru’s behavior appears to be within the ambit of fair use. There is a problem though. Any photographic image of an identifiable person or scene or that shows clothes or cars or other items that clearly date the picture within the past 50 years, or indeed any colour photographic image is copyright protected unless the photographer actively puts it in the public domain. However, in such circumstances it is impossible to identify the rights owner. Internet sites, particularly non-commercial ones should be able to use images for illustrative purposes, acknowledging the rights owner if they know it, and certainly should not remove copyright notices. Where an image is not protected with a watermark or similar, one often cannot tell who owns the copyright and the image is therefore effectively in the public domain. I don’t think it is reasonable to prevent reproduction under such circumstances.

It seems to me that correct policy is to allow non-commercial websites to reproduce such content but to require them to take down the images if requested to do so. giving statutory damages without proof of damage seems unreasonable.

Nevertheless, the judge cites case-law and an Israel authority to the effect that one may have grounds to assume that an image is copyright protected even where the owner is not identified. It seems to me that any colour photo must be copyright protected since the law does not require a copyright notice. But this is not in the public interest. It does not serve the photographer or the wider public.  The boundaries of fair use are not clear.

I’ve discussed my use of images on this blog with world leading IP experts who concur that it is fair use. Is someone with a claim to copyright in an image requests that I remove a photograph or other image, I will do so immediately. Eventually technology may result in images being readily traceable so permission from the rights holder can be requested. We are not there yet. Copyright Law does seem to need an overhaul.

Leave a Comment » | Copyright, Intellectual Property, Internet, Israel, Israel Copyright, Israel Court Ruling, Israel IP, Uncategorized | Permalink
Posted by Dr Michael Factor

Contributory Copyright Infringment Can Be Passive

September 14, 2011

As reported in http://blog.ipfactor.co.il/2011/07/04/contributory-copyright-infringement-in-israel/, Israel’s Supreme Court has upheld a judicial tort of contributory copyright infringement, finding Israel’s Labour Party guilty for activities performed to attract students to affiliated student associations. However, the Supreme Court did not find the Hebrew University responsible for infringing copies of textbooks sold by student societies.  Shocken, the publisher, appealed this decision and requested a Further Hearing.

The President of the Supreme Court, Beinish, rejected the request for a further hearing. Contrary to Shocken’s understanding she considers that the ruling does not rule out claiming damages for contributory infringement by failing to act, but that in the circumstances, the Hebrew University’s failure to police copyright on campus did not amount to copyright infringement.

D.N.A. 5004/11 Shocken House Book Publishers vs. The Hebrew University, The Israel Labour Party and Yaakov Cohen

COMMENT

I am a little scared by the concept of contributory copyright infringement by failing to act to prevent infringement. No doubt time will teach when this is to be applied. I do think it is a good thing that universities are not expected to actively police photocopying machines, and to review what is sold in all clubs and societies on campus.

1 Comment | Academia, Copyright, infringement, Intellectual Property, Israel, Israel Copyright, Israel Court Ruling | Permalink
Posted by Dr Michael Factor

Hot off the press…

September 14, 2011

There are two Israel cable TV service providers, Hot and Yes.

AGICOA is an international copyright enforcement organization that was founded in 1981 and collects and distributes royalties that lie beyond the reach of individual rights holders, specifically from rebroadcasting.

Any rebroadcasting that is more than one minute long is considered by AGICOA to be fair game for collection of royalties.

In 2000, Agicoa sued Hot for copyright infringement resulting from the bundling of a number of TV channels from outside Israel by local cable TV providers since bought out by Hot. The cable TV providers accessed the channels by tracking the telecommunication satellites and receiving broadcast signals, and they then piped the channels down the cables to the end users.

The channels bundled were SAT1, SAT3, FRANCE 2, TV5, CANALE 5, METVG (subsequently dropped) and various channels originating in Turkey, Hong Kong and Russia.

It wasn’t the TV channels that sued. Rather, it was the “majors”, a group of seven major content providers, including FOX, Warner, Bueno Vista, MGM, UNIVERSAL, SONY, PARAMOUNT

They alleged some 35,000 programs were infringed since they were broadcast in Israel without paying royalties.

The sum sued for was between NIS 10,000 and NIS 20,000 compulsory damages per infringement, i.e. per program, with the court fee paid allowing a maximum of NIS 20,000,000

This case was filed in 2000 in the overloaded Tel Aviv district court, and was transferred to the new Central District Court in 2007 when it was set up.

The facts were not in dispute. However, counsel for HOT raised some interesting defenses:

  1. Hot was not the correct defendant as it was companies that they had bought that had infringed, if there was infringement
  2. The copyright collection society had no standing to sue without including the producers
  3. The producers weren’t producers at all but distributors and didn’t own the copyright since programs and films were created by smaller companies and only distributed by the bigger players
  4. Since in some cases the producers reserved the right to sue if copyright infringement company was unsuccessful the copyright company was not acting on their behalf
  5. The deal between the producers and the channels included rebroadcasting rights
  6. Having authorized the channel to transmit, the rights in the broadcast films were exhausted
  7.  Agicoa was double dipping since the channels had already paid once
  8. There was an implied license for rebroadcasting
  9. The number of infringing acts was the number of channels not the number of programs
  10. The organization was a cartel and therefore illegal
  11. Royalties claimed were more than those claimed for in other countries
  12. HOT was sued but YES wasn’t.
Judge Esther Shtemer’s position was that the Supreme Court Decision in Tele-Event (sports streaming) provided support that retransmission was copyright infringement, dismissed all arguments and essentially ruled that even though some points had been raised, there was still sufficient infringements to reach when applying the bottom end of the scale, and giving NIS 10,000 per infringement.
Having ruled NIS 20,000,000, she then halved this but slapped on a whopping NIS 500,000 in legal fees. Because of the interest and inflation since 2000 when the case was filed, the actual sum awarded in today’s money is NIS 19,00o,oo0.
The Case: T.A. 4757-08-07 AGICOA – Association for the International Collective Management of Audiovisual works vs. Hot Telecommunication Systems, 4 September 2011 by Esther Shtemer.
Comment
Whilst accepting that some of the legal arguments brought by the defendants were spurious, for example plaintiffs were within their rights to discriminate against HOT and not pursue YES, I think that some of their arguments did deserve serious consideration.
Sometimes, Shtemer does dismiss arguments based on fact. For example, she does point out that the Agicoa style of cartel has been considered by the Israel courts in the past, and, was, for example, allowed for AKUM and other copyright collection societies, due to the costs of collection and general efficiency.
It seems clear that the Judge had decided that there was infringement and was not going to allow any legal technicalities to stop Agicoa from collecting. She was not convinced or swayed by arguments, but there is little substantive analysis in many cases to show why the arguments were invalid.
Where the requirement under the old law with regards to whether or not the so-called rights holders, i.e. the majors needed to be enjoined as co-plaintiffs, to prevent them suing again separately, Shtemer acknowledged that the new law required this, and that US, UK and other foreign laws required it, and that another judge had ruled this in an earlier case, but she considered this as open to interpretation under the old law. She considered that declarations and contracts with the majors achieved this without formal enjoining of them as plaintiffs and she pointed out that she could disagree with her peers and was not bound by foreign law or the 2007 law. Maybe. However arguably the new law should be used to interpret the old law where its correct interpretation is not clear.  What seems certain is that Shtemer was not going to allow Hot to get out on a technicality. She had made her mind up regarding guilt and wasn’t to be swayed by legal arguments.
Judge Shtemer kept pointing out that the defendants had not proven their arguments. Maybe. Nevertheless, I respectfully submit that Israel should follow the common law and Jewish law traditions (Baba Kama 46:2), where the plaintiff is supposed to prove his case, not that the defendant should have to prove his innocence. the assumption that there is copyright and that actions are infringing goes against this.
We note, the defendant suggested that the number of acts would be the number of channels, and the judge dismissed this as being unreasonable. “Why not number of producers? i.e. 7????” But the damages are statutory. Who says they should be reasonable?
That said, since HOT negotiated broadcasting rights of 8 million in 2000, it seems that 20 million for seven years of infringement is reasonable.
It is not clear what the plaintiff’s lawyers did to warrant half a million in legal fees. defendant’s lawyers did put up impressive arguments.
We note that this ruling stands in sharp contrast to  Judge Dr Michal Agmon-Gonen’s position in the Premier League case. See http://blog.ipfactor.co.il/2008/07/17/moving-copyright-goalposts/. Agmon-Gonen went on to explain that her motivation in ruling that streaming technologies were not copying was that free access to films, sport events and the like, was a fundamental human right(!)  Despite acknowledging that viewers rights had no basis in the Law, she felt that they could, nevertheless, be read into the Law.  See http://blog.ipfactor.co.il/2011/02/22/israel-ministry-of-trade-and-industry-hosts-wto-trips-conference/
It seems that there is little consistency in decisions by different judges.

Leave a Comment » | Copyright, infringement, Intellectual Property, Israel, Israel Copyright, Israel Court Ruling, Uncategorized | Permalink
Posted by Dr Michael Factor

Generic Body Warmers

September 4, 2011

S.P.B. Equipment LTD and T.T.L.M. Systems (Israel) LTD, both owned by Shai Popper supplied chemical body warmer packages to the Israel Defense Forces (IDF) and to private customers through survival and camping stores.

The packages have a specific shape, are coloured yellow and show instructions for use and various warnings in Hebrew and English. They also include a Use By Date.

The packages are manufactured in by Tianjin Comfort in China where they are sold as Body Warmers. Popper, however, sells these devices as High Quality Body Warmers.

Apparently, over a 10 year period, during which Popper had a significant market share if not an absolute monopoly, Popper sold some 5,000,000 units.

EliKal LTD. was created by a Mr Eli Even-Chen in 2005 after Even-Chen served as Head of Logistics and Equipment of the IDF over the years 2002 to 2004.

After several failed attempts, EliKal succeeded in winning the army tender.

EliKal’s body warmers were also sold as High Quality Body Warmers, had the same shape, were coloured yellow and had very similar texts printed on them. Furthermore, EliKal used a similar website with similar content to that of Popper’s companies, to advertise his products.

Popper sued, claiming passing off, unjust enrichment, famous mark infringement and copyright infringement, claiming statutory damages of NIS 100,000 and absolute damages of a similar sum.

In analyzing the two cases, Judge Avraham Yaakov noted that the general issue of to what extent suppliers had rights in markets they were dominant and where fair competition allows others to compete. Essentially the issue was one of where lied the public interest. He went on to point out that one could ask for statutory damages or actual damages, but not both in tandem.

Somewhat confusingly, Yaakov rigorously applied the triple test, and related to the sounds of the two names, as well as to the appearance of the products. Ruling that High Quality Body Warmer was simply a laudatory version of Body Warmer, who rejected the complainants allegations that he had somehow acquired rights in the product name through good will and reputation. However, the bottom line was that the term High Quality Body Warmer was simply a laudatory version of Body Warmer, and the shape of the article was not unique to the complainant, since the product was available from Chinese suppliers as an off-the-shelf product.

Since the IDF knew exactly who they purchased goods from, at least as far as the army was concerned, there was no case of passing off to answer for. Regarding the private market, the complainant stated having some 1,000 regular clients, but did not substantiate this claim, so the charges of passing off were also rejected.

Judge Yaakov went on to rule that despite the close similarity in instructions and warnings printed on the two packages, the Hebrew text was largely dictated by the army mil. spec. and the English language version was largely supplied by the manufacturer. For such products, the scope for creativity in instructions and warnings was limited. Consequently, Popper did not have copyright in the instructions.

Judge Yaakov also accepted the argument that the colour yellow was considered a warm colour and was widely used in packaging for products such as matches, lighter fluid and the like.

Having rejected all claims regarding the product itself, Judge Yaakov then considered the websites and, since the defendants site was clearly based on that of the complainant, with similar text, including some creative uses of the packages such as keeping animals warm in transit, he ruled copyright infringement and awarded NIS 70,000 out of the maximum discretionary NIS 100,000 statutory damages and a further NIS 20,000 in costs.

T.A. 15307-11-09 SPB Equipment et al. vs. Elikal LTD. before Judge Abraham Yaakov, 26 August 2011.

COMMENT

When analyzing the different elements like colour, text, name, etc. individually, one comes to the conclusion that Judge Yaakov is correct. However, we note that following the A.Sh.I.R. ruling by the Supreme Court, it is clear that in lieu of other grounds provided by IP legislation, Israel case-law provides the possibility of seeking redress on grounds of Unjust Enrichment, at least where a product design is copied. What is required is some additional element indicating bad faith. Regular readers will no doubt be aware that I am not a great fan of this doctrine, but it is, nevertheless, good case-law which is supposed to be binding on lower courts.

In this instance, the defendant copied the trade dress, including colour, shape and the name of the product. The copying of the website is further indicative that the defendant was copying Popper’s product.

Although the body warmer is a product made in China, it is not generic in the sense that potatoes or plain tee-shirts are generic. There is a peculiarity in Israel’s outdated design law (Patent and Design Ordinance 1925) which requires absolute local novelty to register a design in Israel. It is therefore possible that the product design could have been registered by Popper.  I therefore wonder if the clear indications of EliKal targeting Popper’s market with an identical product in identical packaging shouldn’t be considered unjust enrichment? Even-Chen’s winning the army tender deserves a second look as well. In principle, as a tax-payer, I am in favour of the army purchasing identical products from the cheapest supplier. Did this happen here? I suspect that Even-Chen had extremely good contacts with the decision makers…

Presumably, once damages are awarded for copyright in this specific case,  the point is moot. Nevertheless, it seems to me that the courts are moving away from A.Sh.I.R. and favour free market competition which I see is a good thing.

This decision does illustrate the importance of distinctive names and packaging schemes to develop a reputation for a product. It also indicates that there is no protection for market share or importer’s rights. None of this should be surprising, but we constantly meet clients who want to patent a device they’ve seen abroad that they want to import into Israel, and descriptive and laudatory names are only too common.

The decision relates to a temporary injunction regarding the identical coloured product that was apparently infringed, and this case was firstly wrongly filed in the Magistrate’s Court.

We note that body warmers have been required by Israel’s generals since time immemorial. See Kings I 1:1-3.

Leave a Comment » | Copyright, design, Fair Use, famous marks, infringement, Intellectual Property, Internet, Israel Copyright, Israel Court Ruling, israel design ruling, Israel IP, trademarks | Permalink
Posted by Dr Michael Factor

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