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.

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Posted by Dr Michael Factor

Wrangler Takes Crocker to the Cleaners

October 4, 2011

Wrangler Apparel Corp. is one of the leading jeans manufacturers. For the past half century, Wranglers has been using a W-shaped stitched pattern on the back pockets. The W shaped double stitching is a registered trademark.

Wranglers has billions of dollars worth of sales worldwide, and tens of millions of sheckels worth of sales in Israel, and television adverts including the sewn W on jeans are receivable via satellite in Israel. Unfortunately, however, the sewn W symbol is only registered in Israel for overalls, short coats, and shirts having a Western style (see Israel Trademark 50,909). However,

Crocker, an Israeli jeans manufacturer, decorates the back pockets of their jeans with a  sewn decoration that is arguably a W shape.

Noting that Wrangler had filed previous aggressive actions against other jeans manufacturers Lucky and Kenvelo,  and that a similar mark was used in a similar place, counsel for Wrangler claimed trademark infringement, passing off, unjust enrichment and confusing the public.

The plaintiff sued on grounds of:

  • registered trademark infringement
  • well-known mark infringement
  • passing off
  • dilution
  • unjust enrichment

In their defense, Crocker pointed out that their jeans were on sale since 1984 and  that their stitched pocket design is different.  Furthermore, Crocker obtained trademarks (nos. 101,601  and 118,244) for their stitching designs. They argued that Wrangler were estopelled from claiming trademark infringement since they had not taken advantage of their opportunity to oppose the mark.

Wrangler conducted a survey of the jeans wearing public aged 18 to 70 in face to face interviews, and then a control group on the internet. Crocker’s counsel brought Dr Mina Tzemach, a recognized Israel authority on consumer surveys to try to demonstrate that the survey was meaningless since the survey and the control group were conducted differently. Furthermore, the results, though impressive, made no reference to standard deviation. Crocker’s counsel wanted the survey to be given minimal weight.

In ruling, Judge Shaham found:

  • registered trademark infringement
  • well-known mark infringement
  • passing off
  • unjust enrichment

and decided that there was no need to go into the issue of dilution.

He also found the owner of Crocker, a co-defendant called Mr Levy directly and personally responsible since he was intimately involved in the business.

In the ruling, Judge Shaham first recited the basic law, philosophy and case-law of the various torts, then applied his analysis of the specific case and went on to issue an injunction against Crocker using a W symbol, to order Crocker turn over their books for inspection to Wrangler, NIS 250,000 damages and NIS 100,000 legal costs.

The Case: T.A. 1999/05 Wrangler Apparel vs. Crocker 1991 et al. before Judge Ori Shaham, 11 September 2011

COMMENTS

Wrangler’s registered trademark in Israel did not cover trousers in general nor jeans in particular. There was, therefore, no registered trademark infringement.

If a mark is sufficiently well-known to be considered a well-known mark under the Paris convention, it cannot be used in complementary classes and for other goods. The question here, which the judge seems to have missed, is whether Wrangler can have rights to different W signs or only to those confusingly similar to their registered mark.

In his testimony, the main marketer of Wrangler in Europe and the Middle East considered the W used by Crocker would be viewed by the public as an evolution of the mark. This is a problem. Well known, or iconic marks don’t evolve. Think of Nike, Coca Cola, etc.

It is perhaps worth noting that jeans giant Levi Strauss owns several USPTO registered trademarks for its arcuate stitching design, initially used in 1873, over 70 years before Wrangler. Indeed Levi Strauss alleges that their mark is the oldest known clothing trademark in the United States. It seems to me that Wrangler’s design is at least conceptually inspired by Levi’s as, no doubt is Crocker’s. The problem is that conceptual inspiration in fashion is what drives fashion.

In the interest of pure IP research, I’ve done a little surveying of denim pockets tautly stretched accross rear buttocks and find that there are a large number of wavy / curly / pointy stitching designs. I would argue that a pair of jeans requires back pockets with ornamental stitching and rivets at strain points to be considered a pair of jeans. These are established design features with a long history, preceeding Wrangler.

I don’t think Wrangler deserves a monopoly on all letters W in all fonts and forms. This is not sufficiently distinctive to be indicative of a particular designer.

Wrangler’s mark should be interpreted narrowly. That is what the Israel Trademark Office did when allowing Crocker’s mark.

Crocker do have a question to answer on why they chose a W sign. One answer is that they didn’t. They chose a curved, bumpy stitching design that in retrospect could be considered as being a W.

The control group of the survey that found the Wrangler mark well-known and which the judge (wrongly) used to establish a case of passing off were shown a G design stitched on a rear pocket, not a W. I suggest that comparison to an omega or an M is more appropriate than a G. The W or Wrangler is not as dissimilar to a G as other widely used jean pocket stitch designs, including the older, better known and more iconic Strauss curved V.

Unjust enrichment should not be considered where there are registered trademarks. It is not an issue where there are torts or passing off or trademark infringement. The A.Sh.I.R. decision, widely discussed elsewhere in this blog, recognised unregistered design rights in cases of bad faith, but this was for exact copies not conceptual similarities. Recent case-law also seems to limit application of A.Sh.I.R.

In the tort of passing off, the issue is not one of passing off of a design feature or trademark, nor of passing off pocket stitching, but should relate to attempts to pass off the product as a whole. Crocker labeled their products Crocker which implies that they were not passing off. I therefore consider it highly unlikely that anyone purchasing the jeans thought they were Wranglers.

The issue of third parties seeing the W on the rear pocket of someone elses jeans thinking that the wearer was wearing Wrangler is, as counsel for the plaintiff pointed out, not the traditional understanding of passing off. This may be the basis for an interesting widening of the tort, but the judge ignored this issue.

In the 4 stripe Adidas case, Dr Michal Agmon-Gonen a fellow judge in the Tel Aviv court, ruled that design features inspired by those of others were not infringing. See http://blog.ipfactor.co.il/2011/01/12/west-bank-arab-prevails-against-adidas-four-stripe-cheap-training-shoes-do-not-infringe/. It does seem that there is little consistency in these rulings.

In the exchange of letters between Wrangler and Crocker, it appears that Crocker claims their pocket stitching to be different. Wrangler suggests alternative grounds of passing off; not that the purchaser would be confused, but that the public would at least temporarily confuse the brand.

In my opinion, the most promising grounds for finding Crocker at fault is dilution. Unfortunately the judge did not bother relating to this.

Wrangler requested and were awarded the right to receive details of the sales figures for Crocker’s jeans. In my opinion, this is their business only as long as they are claiming and entitled to damages based on calculation. The judge ruled an arbitrary NIS 250,000 damages so the issue is moot. In my opinion, Wrangler is therefore not entitled to the sales figures.

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Posted by Dr Michael Factor

Shana Tova

September 27, 2011

Thursday and Friday are the Jewish New Year, commemorating the creation of the world, and God’s dominion thereover. It is also a time when, according to Jewish tradition, everyone is judged for the year ahead.

I take this opportunity to wish all readers a year of peace and prosperity, health and happiness. Shana Tova!

Please note, JMB, Factor & Co will be closed over the holiday, as will the Israel Patent Office.

Filing deadlines in Israel will be extended until Sunday 2nd October 2011.

I note with some bemusement that the Chinese Patent Office is closed for a national holiday from 1 October 2011.

Why bemusement, well it seems that patent deadlines are extended until 10 October 2011, but trademark deadlines only until 8 October 2011.

One wonders why the different departments have different lengthed national holidays?

Is it to do with confusion regarding the new moon, or is it something totally different? Anyone able to enlighten?

 

1 Comment | China, Uncategorized | Permalink
Posted by Dr Michael Factor

Car washing – big business

September 22, 2011

The following story is a cautionary tale concerning a car washing business.

The Talpiot industrial area of Jerusalem is an area with several car showrooms, second hand car lots, car maintenance garages, paint shops, vehicle test centers, the Jerusalem area driver test center and vehicle licensing offices.

Mr Menashe Remaze set up a car washing business in 1986 called Rehev Notsetz, literally Sparking Car in Hebrew. In 1997 Remaze rented the business as a going car washing concern to a Mr Avi Tuna. The licensing agreement included a hand-written inventory that listed the address, a three-phase power vacuum cleaner, and an office counter and obligaton to return everything in working order.

Mr Tuna lasted seven months and then a Mr Oz Azo rented the business from Mr Remaze. the inventory additionally included a cash register.

Mr Tuna gave a personal guarantee for Mr Azo.

Mr Azo had little more luck with the business and six months later the concern was rented to a Mr Gilad Binyamin who it transpired during the litigation, was a cousin of Mr Azo.

The same contract was used once again, except that this time, Mr Binyamin was able to sublet the concern.

In 2009, the landlord requested that Mr Binyamin evacuate the premises. The sides agreed to extend the lease until the end of February 2010, and three weeks before the end of the contract, Mr Binyamin moved out and opened a car washing service on the other side of the street, calling it Rehev Notsetz (i.e. Sparkling Car).

The landlord evicted the tenant as he wanted to let his grandson run a car washing business there, and after some renovation, set up a sparkling new car washing business also named Rehev Notsetz.

Remaze requested that Binyamin stop trading under the name Rehev Notsetz, prompting Binyamin to send a Cease and Desist letter to Remaze and then to sue him, requesting an injunction against Remaze from using the name, claiming passing off.

Remaze retaliated by counter-suing on the same grounds, filing additional charges for damages, claiming that Binyamin wrecked the premises when he left, requiring a full renovation.

What was absent from the three contracts was any reference to the name of the concern. There was no disagreement that the tenants were entitled to use the name whilst running a car-washing business at the premises, but there was a disagreement as to whether the name went along with the business which was rented as a going concern, or whether the premises were rented and the various tenants simply continued to use the name.

Unfortunately noone had thought of attempting to register a trademark for the name.

Remaze noted that he’d insisted that his name appear on the receipts and tax invoices as a co-owner during the tenancy period.

Judge Yosef Shapira ruled that the name was not totally generic, but rather lay somewhere on the continuum between descriptive and hinting at its intent. Consequently, despite not being registered as a trademark, the name could require a reputation and use of the name by others was actionable under the tort of passing off.

Actually, by both sides suing each other, they were essentially estopelled from the alternative course of action which was to claim that there was no reputation in the name or that it was not registerable and was in the public domain.

Shapira was convinced that Binyamin had demonstrated some reputation in the name but had not demonstrated having suffered damages from Remaze running a business using the same name, and ruled NIS 20,000 statutory damages for passing off.

On the other hand, in light of the fact that two other tenants had proven unable to make a go of the business in the year after Remaze ceased trading, and the low price he’d asked for the concern, not mentioning the name at all, he rejected Remaze’s counter-claim of passing off, since he did see evidence that Remaze had a reputation in the name 13 years later.

As to the damages to the property, it turned out that Binyamin had fairly recently installed a new pressure washing facility at the facility and ripped up the concrete to remove it. Remaze had rebuilt the office at the facility but had not proven that Binyamin had damaged it and that it had suffered more than reasonable wear and tear. It didn’t help his case that he’d rented the car washing premises to go into construction, a field he’d worked in for the interim period. Shapira dismissed the fairly hefty claims for wrecking the premises.

However, the cash register had disappeared in the interim and Shapira ruled NIS 2506 for its replacement, to be off-set against the passing off damages.

Shapira went on to rule NIS 17,400 in legal costs to Binyamin.

T.A. 13817-03-10 and T.A. 33280-11-10 Gilad Binyamin vs. Menashe Ramaze, before Judge Yaakov Shapira,  14 September 2011

COMMENT

Since Remaze had built up a business and after the premises were rented his name appeared on the receipt, it appears a little tough to rule that he had no claims in the reputation of a business concern that not only kept the name he’d chosen, but his name also appeared on the invoices, keeping at least a minimal connection with the business.

I wonder to what extent are people faithful to car washing businesses and to what extent they will continue to use a business at the same address?  Did Binyamin miss out on an opportunity not to run two businesses in the same street himself years earlier, since there seems to be enough cars for both of them to wash? I suspect that the big money is with car rentals and garages offering overhauls with a free clean. Those types of customers are probably less fickle than drivers like me that when I bother taking the car to be cleaned (before Pesach usually), I am about as faithful to individual car wash businesses as I am to petrol stations.

 

 

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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

Easy to Wed – a less than romantic clash between service providers

September 6, 2011

Easy-to-Wed, a one-stop shop internet portal offering the services of wedding dress designers, caterers, video cameramen, photographers, florists, caterers and invitation services by way of referral. By agreeement between the sides, Easy-to-Wed offered the services of Sharon Livni Golan who provided a wedding invitation service under the name EZprint, which was also protected by a registered trademark.

The two companies fell out and Easy-to-Wed were asked to drop references to EZprint who were subsequently sued for copyright infringement for displaying an EZprint invitiation and for trademark infringement, passing off, unjust enrichment, etc. One of the arguments were rights in Easy or EZ.  In total, Easy to Wed was sued for statutory damages of NIS 396,000.

Judge Sharon Geller threw out most of the charges but ruled copyright infringement by Easy-to-Wed displaying a puzzle type wedding invitation designed by the complainant on their website after being asked to remove it and after the sides parted company. She went on to award damages of NIS 15,000. In view of the massive discrepancy between the requested and what she considered fair statutory damages, no costs were awarded.

EZprint’s products are shown on their website: http://www.ezprint.co.il/

 

Easy-to-wed’s website is here: http://www.easywed.co.il/

The Case: T.A. 59011-07 Livni vs. Easy to Wed LTD. et al. 15 August 2011 by Judge Sharon Geller

ת”א 59011-07 לבני נ’ איזי-טו ווד בע”מ 

COMMENTS AND MUSINGS

Getting wedded has always been easy. The difficulty is making the state of matrimony work. As the Late Rev Hardman used to say, “Marriages are made in Heaven. Their maintenance is an earthly task”.

Business arrangements are not so easy to get right either.

Easy to Wed is a 1946 American musical comedy film directed by Edward Buzelle. The film stars Lucille Ball in a part that developed into the hit series I Love Lucy.

This decision may be most noteworthy for having issued on the 15th day of the Hebrew month of Ab, otherwise known as Tu b’Av, the traditional Jewish festival of love that commemorates when after the tribe was almost wiped out following a civil war, men from the tribe of Benjamin could chose brides from any tribe. See (see judges chapter 21:12-23, and Babylonian Talmud, tractate Ta’anit 30b-31a.

I don’t think this is coincidental. I suspect that the judge was being cute.

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Posted by Dr Michael Factor

Beanbag baby bath supporter design narrowly construed

August 31, 2011

Michal Ferst, a graduate of the Bezalel School of Art and Design created a baby supporter for aiding bathing a baby.

The device is an oval-shaped beanbag filled with polystyrene beans and covered with a stretch fabric.

A second company, Reem, Import and Marketing LTD., imported a competing product called Softeeze that is manufactured by Jagabon, a British Company.

Ferst sued Reem, claiming that her registered design was being infringed, and that they were passing off and guilty of unjust enrichment.

Noting that there were visual differences between the two designs and that the similarities that there were, could fairly be attributed to the purpose, and the fairly standard size and shapes of bathtubs and babies, Judge Varda Meroz dismissed all charges.

T.A. 41704-112-09 Ferst vs. Roem Import and Marketing LTD. before Judge Varda Meroz, Tel Aviv Central District Court.

COMMENTS

It is fairly rare for design infringement cases to be decided by the Israeli courts. In this instance, the ruling is a correct one. If the product is conceptually inventive, it should be protectable as a patent. The designs are sufficiently dissimilar that there is no registered design infringement or passing off.

I am in two minds concerning these type of devices. They may help support a baby and prevent drowning, but then again, may result in leaving the baby unattended. When our eldest was born we invested in a baby bath and a plastic support thingy for the baby. Never used it.

Reminds me of the grim old music hall song…

The mother turned round for a minute,
to get the soap from the rack…
She only turned round for a minute,
 but o-oh when she turned back..

her baby had gone
 and in anguish she cried
Oh where is my babe?
and the angels replied

Your baby has gone down the plughole
 Gone down the hole for the plug
 she was far too small
to be bathed at all,
 and should have been washed in a jug…

your baby is perfectly happy
he won’t need a bath any more
he’s floating away down the drainpipe
 not lost but gone before

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Posted by Dr Michael Factor

Can ISPs be Held Guilty of Contributory Copyright Infringement for Linking to Bootleg Movies?

August 22, 2011

Recently, in a case relating to copied textbooks supplied by a student society, the Israel Supreme Court recognized, i.e. legislated by case-law, the doctrine of contributory copyright infringement. In my posting on that decision, See http://blog.ipfactor.co.il/2011/07/04/contributory-copyright-infringement-in-israel/ I predicted that the ruling would have ramifications for Internet service providers, and the predicted ruling has not been long coming.

The Association for Protecting Cinematographic Creations (1993) which represents 20th Century Fox, Disney, Warner, Paramount, Dream Works et al. sued Rotternet Ltd. claiming that forums on Rotter.net provided links to movies that were copyright protected, thereby aiding and abetting their downloading.

Rotternet argued that “everyone does it” and that they removed any link or infringing copy if specifically asked to by the rights owner, but were under no obligation to police their sites.

The complainants argued that the removal on request provision was only effective against innocent acts of infringement but totally ineffective against wholesale intentional actions.

Judge Ofer Grosskopf noted that although there had been some Knesset bills relating to the culpability or otherwise of ISPs, these were never passed by the legislature and thus the issue remains open to judicial ruling, and he has a duty to rule on it. In a well-reasoned argument, he has dismissed the charges and ruled that supporting and displaying lists of links to movies was not in and of itself a culpable act of infringement and that so long as the internet service provider (ISP) had a ‘remove if requested to’ policy, they were not culpable for acts of infringement resulting from such links, so long as the sites were not dedicated to making pirate films available.

Movies are copyright protected for 70 years. Making movies available for downloading without the rights holder’s permission is copyright infringement. The movie must be hosted before it can be linked to. However, since films can be uploaded and stored anywhere, it is the internet service providers (ISPs) which link to the pirate films that provide a more effective target to sue to prevent such linking and thereby to minimize downloading. Despite enabling infringement by facilitating downloading, the linking to pirate films is not infringement per se. and the ISP is not responsible.

The wounded parties can request individual links to be removed and can attack the sites hosting the films. They can also take action against those uploading pirate videos. The service providers are, however, not legally responsible.

The decision relates to the relevant Israeli case-law and the big cases abroad, such as Perfect 10 vs. Google, etc.

Notably, at the beginning of the ruling there seems to be an implication that the act of downloading pirate movies is infringing. Towards the end of the reading it appears that Judge Grosskopf’s position on this issue has changed and downloading without making a copy, i.e. streaming and watching directly is not infringing.

Grosskopf congratulated Rotternet on providing a spirited defense in this matter, which involves other internet service providers and is an important matter of principle and awarded them NIS 50,000 in costs.

T.A. 567-08-09 A. L. I. S. – the Association for Protecting Cinematographic Creations (1993) vs. Rotter.net Ltd. by Judge Ofer Grosskopf, 8 August 2011.

COMMENTS

An interesting defense that is clearly not a legal defence but nevertheless cannot be rejected out of hand, is that “everybody else does it”. There are also some other statements in the ruling that appear correct, if largely irrelevant to the issue. For example, creating a link is not creating a work of literature that is copyright protectable.

This ruling may have international ramifications as the US is demanding that Israel does make ISPs culpable. This, together with Israel’s position on patent term extensions are the main reasons for Israel appearing in the Watch List of the Special 301 Report.

One issue of interest is that Rotternet provides internet forums for the ‘religious’, i.e. halakhically observant community. If linking to movies is not copyright infringement but nevertheless enables the free dissemination of movies without compensating the rights holders and is thus morally reprehensible, shouldn’t the self-described religious strive for higher than minimum standards?   Perhaps rotter is a good name…

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

Mobileye Obtains injunction for AWACS

August 21, 2011

Awacs Safety Systems, General partnership is an Israel company that was set up by Morgan (Capital) Israel Ltd. and L .D. Israel Auto Equipment investments Ltd. that distributes systems for installation in automobiles, to provide warning of nearby vehicles, pedestrians, deviations from traffic lanes and the like.

Awacs Safety Systems has a trademark for Awacs.

Mobileye Technology Ltd. is a developer of automobile mounted systems and Awacs had an exclusive licensing arrangement to distribute systems manufactured by Mobileye in Israel.  Over time, there were a number of disagreements between Mobileye and Awacs Safety Systems and Mobileye gave Awacs Safety Systems notice that they would no longer give them exclusive distribution rights in March 2007, and in January of this year, they terminated the relationship completely.

Just before a trade fair in Israel where Awacs Safety Systems launched a system manufactured by Safe Drive Systems that was to have been sold under the name Awacs Radar 140 RD, Mobileye filed and obtained a temporary injunction against Awacs Safety System selling Safe Drive System‘s equipment under the name Awacs.

The grounds for the injunction were passing off. The judge justified this since the name Awacs was chosen for marketing Mobileye’s system and had only ever been used for marketing Mobileye’s products. In his opinion, sales under the name Awacs could adversely affect Mobileye, but since Awacs Safety Systems had not sold the new products under this name and could still distribute under another name, Awacs Safety Systems would hardly be harmed by the interim ruling. Mobileye were also required to post NIS 100,000 to cover Awacs Safety Systems legal fees and loss of income in the event that they would lose the main case.

COMMENTS

By way of full and candid disclosure:  Although not handling their trademark issues and not involved in this case, JMB, Factor & Co. does handle Mobileye‘s patent portfolio so I am declining to comment substantively on this development.

We note that the court issue here may be at least partly in the contractual relationship between the parties and these were not published in the interim decision.

We note that AWACS is an acronym for Airborne Warning and Control System, and may refer to:

  • E-3 Sentry, the aircraft developed under the USAF’s “Airborne Warning and Control System” program
  • Airborne Early Warning and Control (AEW&C), a more modern term for the general type of aircraft used in this role
We also note that Israel Defence Forces are deploying the phalcon AWACs system, see http://www.ocnus.net/cgi-bin/exec/view.cgi?archive=102&num=26121,
It appears that the choice of name is somewhat misleading, whether deliberate or otherwise, and implies a connection with a vastly more sophisticated system used in national defense systems.
We await developments with interest.
The Case: T. A. 44802-03-11 Mobileye Technology Ltd. vs. L. D. Israel Auto Equipment Investments Ltd. et al., interim judgement given on 28 March 2011.

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

Nurit Maoz, Head of Trademark Department at Israel Patent Authority, Found Dead

August 14, 2011

Nurit Maoz, 60, and her husband Noah Maoz, 64, were apparently murdered in their Jerusalem apartment on Shabbat. Their bodies were found by their son who alerted emergency services.

There is a gag order on the case.  Funeral details have not yet been announced.

Nurit was the head of the trademark division of the Israel Patent Authority. She was a consummate professional who, in recent years,  was responsible for many changes including the computerization of the trademark database thereby enabling searches based on graphical elements, the conversion of the department to a paperless environment and implementation of the Madrid Protocol.

She will be sorely missed by the Israel IP Community who are shocked by this development. Our condolences are extended to her family, friends and colleagues.

Leave a Comment » | Intellectual Property, Israel, Israel Patent Office, Israel Related, Israel Trademark, trademarks, Uncategorized | Permalink
Posted by Dr Michael Factor

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