Hot off the press…

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 https://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 https://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.


Categories: Copyright, infringement, Intellectual Property, Israel, Israel Copyright, Israel Court Ruling, Uncategorized

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