Sookman LSUC Copyright Presentation 2009 Year in Review

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    Barry B. [email protected]

    Copyright Update (2009)

    14th Annual Law Society Intellectual

    Property Law The Year in Review

    959015

    January 14, 2010

    mailto:[email protected]:[email protected]
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    Canadian Decisions

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    Robinson v. Les Films Cinar Inc,2009 QCCS 3793

    Claim for infringement of copyright and moral rights in TheAdventures of Robinson Curiosity, an educational and children'stelevision series project, by a series called Robinson SUCRO.

    Originality: The Tribunal had no hesitation in concluding thatthe work Curiosity was an original work including drawings,

    synopses, scripts, scenarios, the theme song and characters.Substantial part:The qualitative criterion expresses the ideathat once we reproduce what is the essence, substance or vitalpart of a protected work it is infringement. This can happen evenif it reproduces only few lines of text also important or a single

    character from a comic or a few bars of a musical [work]. TheCourt concludes that defendants have reproduced the essence,substance and vital part of the work Curiosity. (All translationsby Google Translation)

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    Robinson v. Les Films Cinar Inc, 2009QCCS 3793

    Moral right of paternity: the plaintiff could have his name appear in thecredits as creator of the main characters, creator of graphics research and themain characters and creator of the original idea.These arguments aremisleading and do not alter the right of the plaintiff. Either the defendants havecopied or adapted the work of the applicant and, if they were to acquire itsrights, ignore and accept his name entered in the effort to use its rights, thepassage of time n ' removing any moral right to the applicant, or they have not

    plagiarizedThat curiosityhas never been played is not a defense.

    Moral right of integrity: But I think the appreciation of nature prejudicial tothe honor and reputation of an author also requires an objective assessment ofinjury, based on public opinion or expert.There is no evidence as to what honorand reputation of the plaintiff have been affected by changes in the work. TheTribunal can not accept the argument of achieving integrity.

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    Robinson v. Les Films Cinar Inc, 2009QCCS 3793

    Damages: Court awards substantial damages: $400k for violation ofmoral rights; damages of $607k, $1.7 million accounting of profits; $1million punitive damages; costs $1.5 million.

    Damages for infringement of moral rights: The affect ischaracterized by a state of emotional tension important because of themany concerns about the situation of rape and plagiarism of his work

    the affect is also characterized by feeling that he has no future, and itscapacity for creativity is definitely taken hostage by the shock and therape of his creation which he has been subjected. Tribunal finds itreasonable to grant $400,000 as moral damages in the proceeding.

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    Drolet v. Gralsbotschaft, 2009 FC 17

    Stiftung filed a counterclaim alleging that Mr. Drolet infringedcopyright in the French language translation of the spiritual work"Grail Message" done by Mr. Kaufmann.

    Plaintiff argued that Mr. Kaufmann's translations were merely arevision of previous translations and not an original translation of thework of Oskar Ernst Bernhardt.

    I am willing to acknowledge that Mr. Kaufmann's work is not a merecopy of another work, but shows the exercise of skill and judgment,to repeat the expression of the Supreme Court in CCH, supra. Thefact that Mr. Kaufmann may have drawn on previous translations inwriting his own does not detract from the originality of his work. He

    did not simply repeat a previous translation by making only cosmeticchanges, but substantially altered its style to make it more literaryand less literal. That is undoubtedly a sign of creative work.

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    Drolet v. Gralsbotschaft, 2009 FC 17

    I must now determine whether the Stiftung is indeed the ownerof the rights in the translations done by Mr. Kaufmann at itsrequest. In support of its position, the Stiftung first citedsubsection 53(2) of the Copyright Act. This provision states thatthe copyright registration certificate "is evidence that thecopyright subsists and that the person registered is the owner ofthe copyright." This presumption appears to me to be quite weakin the circumstances, however, as the defendants registered theircopyright certificate very late. In fact, as I have already pointedout, the defendants registered this certificate only after beinggranted leave by Justice Pinard to amend their defence and to file

    a counterclaim in copyright infringement. In such a context, thepresumption loses much of its weight. Citing CCH Canadian Ltd.v. Law Society of Upper Canada, [2002] 4 F.C. 213 (Fed. C.A.)

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    Drolet v. Gralsbotschaft, 2009 FC 17

    Mr. Drolet did not deny that this comparison wasaccurate, but he tried to argue that the additions he madeto the Stiftung version must also be taken into account. Healso submitted that the re-arrangement of the essays tobetter reflect the author's original intention made his work

    original. I cannot accept this argument.

    To counter an action in copyright infringement, it is notenough to change the order of the chapters or even to addto the plagiarized text. What must be assessed for thepurposes of such a proceeding is the extent to which the

    original work was reproduced. What may have been addedto it or the order in which its components are reproducedis of little consequence.

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    Drolet v. Gralsbotschaft, 2009 FC 17

    What of the defence of fair dealing? The plaintiff tried torely on section 29 of the Act by claiming that his soleaim was to do justice to the author by reproducing histrue work...

    Unfortunately, good faith is not a relevant test for

    determining whether the fair dealing exception applies.As the Supreme Court stated in CCH Canadian Ltd. v.Law Society of Upper Canada...the person claiming thebenefit of this exception must prove (1) that the dealingwas for the purpose of either research or private study

    and (2) that it was fair.

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    Drolet v. Gralsbotschaft, 2009 FC 17

    What remains is the defence based on limitation. Subsection41(1) of the Act provides for a limitation period of threeyears after the infringement occurred where the plaintiffknew, or could reasonably have been expected to know, ofthe infringement at the time it occurred.

    I am quite willing to acknowledge that detecting a copyrightinfringement in a work of several hundred pages is a morelaborious task than identifying an illegal use of trade-marks.However, I find it difficult to believe that more than six yearswere necessary for the Stiftung to spot an infringement of

    their copyright....

    Accordingly, the defendants' counterclaim based oninfringement of their copyright is time-barred and must bedismissed.

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    Atomic Energy of Canada Limited v.Areva NP Canada Ltd., 2009 FC 1119

    In order to succeed in an action for copyright infringement, AECL must prove,on a balance of probabilities: (i) that the work in which it claims copyright isoriginal (and pre-dates the alleged infringement); (ii) that there has been acopying from that work without its consent; and (iii) that the copying resultedin a substantial portion of the work being reproduced.

    In order for there to be a copying, there must be a causal connection betweenthe original and the allegedly copied work. The plaintiff must lead evidence ofactual copying or of the defendants access to the work which, in combinationwith substantial similarity, can lead to the inference of copying...AECL has ledno evidence of actual copying.

    AREVAs A Design Mark was created in 2001 by a design firm inFrance... AREVA produced a letter...confirming that he created the A design forAREVA in 2001, with no knowledge of the AECL A design. AECL has offered noevidence to the contrary. Therefore, even if the AREVA A Design Mark could besaid to come so near to AECLs Flying A Design Mark as to give every personseeing it the idea created by the original, AREVA has provided uncontradictedevidence that there was no copying, thus overcoming any inference to thecontrary.

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    Beach v. Toronto Real Estate Board,2009 CanLII 68183 (ON S.C.)

    Canadian copyright law generally protects derivative worksin their own right as long as the originality required bythe Copyright Act, R.S.C. 1985, c. 10, as amended,ispresent. A derivative work is viewed as one which issubstantially derived from pre-existing material: Fox onCanadian Law of Copyright and Industrial Designs, FourthEdition, page 4-9. Under section 7(c) of the AUA anauthorized user was prohibited from creating derivativeworks of the MLS Database I have found that all of thelisting information contained on BNVs website was takenfrom the MLS Database. Accordingly, since the content of

    BNVs website was substantially derived from pre-existingmaterial - the Content of the MLS Database - BNV breachedsection 7(c) of the AUA by creating a derivative work of theMLS Database.

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    Neugebauer v. Labieniec, 2009 FC 666Levy v. Rutley(1871) 6 L.R. 976 (CP) 1870-71 523...continues to be cited

    as the leading authority on the constituent elements of joint authorshipunder English and Canadian law. For example, Normand Tamaro...citesthis judgment as establishing the following three important elementsconcerning work of joint authorship:

    First, the existence of a work of joint authorship is established by the factsand by the law, and is not based on the parties intentions...

    Second, the contributions of each of the parties need not be equal, thougheach must be substantial...

    Third, even if one contribution may be qualitatively and quantitativelyinferior to the other, there must be a joint labour in carrying out acommon design.

    Court refuses to follow Neudorf v. Nettwerk Productions Ltd. (1999), 3C.P.R. (4th) 129 (B.C.S.C.) which had required that a joint author make acontribution pursuant to a common design (or, in other words, some formof shared intent).

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    Canwest Mediaworks PublicationsInc. v. Murray, 2009 BCSC 391

    Murray published a mock edition of a Canwest newspaperduplicating the masthead. Murray claimed that anyinfringement of copyright was saved by Charter rightswhich protected freedom of expression.

    Mr. Murray has also pleaded that if the Trade-marks

    Actand Copyright Act,...operate to prohibit him frompublishing the mock newspaper, then they are invalid,because they constitute an infringement of his freedom ofexpression. He argues that the truth of the statements inthe mock newspaper with respect to Canwest's editorial

    policies is relevant in determining that issue. For thesame reasons I expressed with respect to the prior point, Ido not agree.

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    Peak Innovations Inc. v. MeadowlandFlowers Ltd., 2009 FC 661

    The sole issue on this appeal is whether the Federal Court hasjurisdiction to entertain a proceeding brought by a party fordeterminations and declarations of whether that partys productsinfringe industrial design registrations of another party, in the absenceof an action for infringement.

    Therefore, without a statutory grant of jurisdiction for a cause of

    action seeking a declaration of non-infringement, it is plain andobvious that the Federal Court lacks jurisdiction to entertain such asproceeding, and the portions of the Amended Statement of Claimseeking such relief must be struck.

    The legislative provisions submitted by the Plaintiff are therefore not

    able to support the Plaintiffs jurisdictional argument. It is thereforeplain and obvious that the Federal Court does not have jurisdictionover a cause of action for non-infringement of an industrial design.

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    Microsoft Corporation v. PC VillageCo. Ltd., 2009 FC 401I conclude that the amount of statutory damages must reflect not

    only the bad faith of the Defendants and their disregard for the rightsof the Plaintiff. It must also deter the Defendants from continuingtheir course of action. In my view, the amount for statutory copyrightdamages must be sufficiently high to serve a salutary message anddeter future infringements on the part of the named Defendants andother parties.

    The individuals involved with the Defendant numbered corporationsattract personal liability for infringing activities of the corporation bytheir direct participation in activities knowing they likely constituteinfringement..The Defendants Aziz and Ye were certainly aware of theinfringing activity and actively promoted such by offering to provide

    unauthorized copies of the software at reduced or no cost as part ofthe computer system sales by the Defendant numbered corporations.

    Order $10k statutory damages per work; $50k punitive damages;$50k solicitor client costs.

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    Microsoft Corporation v. 1276916Ontario Ltd., 2009 FC 849I conclude the amount of statutory damages must reflect not only the

    Defendants bad faith and their disregard for the rights of the Plaintiff. In light ofSmart Buys ongoing infringement of Microsofts copyrights despite havingreceived notice of its infringing activities, including through the commencement ofthis lawsuit, there is a need to deter further infringing activity by Smart Buy. Inmy view, the amount for statutory copyright damages must be sufficiently high toserve a salutary message and deter future infringements.

    Further, software piracy is a significant problem affecting Microsoft. In addition, itnot only adversely impacts Microsoft, but other computer retailers competing withSmart Buy. A business like Smart Buy that distributes unlicensed software withits computer systems has a competitive price advantage over businesses thatdistribute licensedsoftware. This behaviour should be specifically discouraged.

    Smart Buys bad faith and its conduct before and during proceedings are closely

    related. I find Smart Buy acted in bad faith and its conduct before and during theproceedings justifies a statutory award consistent with the amount in MicrosoftCorporation v. PC Village Co. Ltd. I would award $10,000 for each of the eightsoftware works infringed.

    Also $50k in punitive damages.

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    Microsoft Corporation v. 1276916Ontario Ltd., 2009 FC 849

    Microsoft submits that a permanent injunction should begranted. It argues a wide injunction provided for in section39.1 of the Copyright Actis appropriate. However, theevidence indicates the Defendants infringing actions relatedto specific popular software programs and operatingsystems. The Defendants infringing activities involved whatcould be described as illegal installation of the Plaintiffscomputer operating systems and basic software programsrather than infringement across a broader range includingbusiness or entertainment computer programs. Withoutmore, I consider the injunction should be restricted to

    previous, current and future variations of the Microsoftsoftware programs and operating systems identified byMicrosofts investigator.

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    Western Steel and Tube Ltd. v. EricksonManufacturing Ltd., 2009 FC 791

    WST relies on a line of jurisprudence that, it submits,demonstrates that it is not necessary to show irreparableharm in cases of clear violation of copyright registeredunder the Copyright Act...[to obtain an interlocutoryinjunction]

    In short, there is no automatic conclusion that irreparableharm exists merely because the foundation of an action isan infringement of copyright or trademark or the allegedtort of passing off.

    interlocutory Injunction denied.

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    Litecubes, L.L.C. v. Northern LightProducts, Inc., 2009 BCSC 181

    Litecubes seek to enforce in BC a foreign judgment for damages for

    copyright infringement in excess of US $600,000 against the defendantGlowProducts.

    In the circumstances of GlowProducts submission to the foreignjurisdiction, I conclude that GlowProducts ought not to be permitted tonow challenge the foreign courts jurisdiction by arguing that the real

    and substantial connection test was not met. However, if I am wrongand attornment is not a stand alone ground for recognizing the foreigncourts jurisdiction, I conclude that GlowProducts submission to the USCourt amounts to a real and substantial connection between the USCourt and the subject matter of the US Proceeding and GlowProducts.If no real and substantial connection existed before, by the facts of its

    participation in the US Proceeding, GlowProducts created a real andsubstantial connection with the US Court. This conclusion leads to thesame result, namely, recognition of the US Judgment, and it is notnecessary to find other connections.

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    Foreign Decisions

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    IceTV Pty Limited v Nine Network AustraliaPty Limited[2009] HCA 14 (22 April 2009)

    One final point should be made. This concerns the submission by theDigital Alliance that this Court consider the Full Court's decision inDesktop Marketing and, to the contrary ofDesktop Marketing, affirmthat there must be "creative spark or exercise of "skill and judgmentbefore a work is sufficiently "original" for the subsistence of copyright.

    It is by no means apparent that the law even before the 1911 Act was

    to any different effect to that for which the Digital Alliance contends. Itmay be that the reasoning in Desktop Marketing with respect tocompilations is out of line with the understanding of copyright law overmany years. These reasons explain the need to treat with somecaution the emphasis in Desktop Marketing upon "labour and expense"per se and upon misappropriation. However, in the light of theadmission of Ice that the Weekly Schedule was an original literarywork, this is not an appropriate occasion to take any further thesubject of originality in copyright works. Per Gummow J.

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    IceTV Pty Limited v Nine Network AustraliaPty Limited[2009] HCA 14 (22 April 2009)

    "There is some argument that some databases do not have authors in the copyright sense. Thisargument is based on the proposition that electronic databases are arranged automatically bythe computer program ... The operator may simply key in the data in an undiscriminatingmanner or insert data that are already in digital form, and the data may be organised by thecomputer program. There may be no originality associated with the selection of the data includedin the database, particularly if the selection consists of all the available material relating to aparticular topic. It could be further argued that, as the arrangement has occurred automaticallyas a consequence of the operation of the computer program that manipulates the data, thesupposed author of the database has not in fact authored it....

    there are a number of possible responses to this problem, but that these:"require some understanding of the process of creating and updating an electronic database.First, the actual creation and updating of a database is rarely as simple as indiscriminatelykeying new data into some form of digital storage ...A decision has to be made about definingthe records and fields (or the rows and columns) that are to be contained within the database ...Even though the final result is produced by the 'work' of a computer in arranging the material inthis way, human thought went into the scheme of the database and the conception of how thematerial would look to the external user...

    The second response ... is based on the proposition that the authors of databases can claimauthorship by virtue of having considered the possible outcomes of their input into the database.They have chosen the software used in the database and therefore chosen the operations that itcan carry out on the data included. Quoting, Davison, The Legal Protection of Databases.

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    di i d il l ib l d d

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    Editions du Seuil v Google Inc, Tribunal de GrandeInstance de Paris 3me chambre, 2me section Ruling ofDecember 18, 2009

    French law applies to the acts of digitization and publication of extracts.

    But seeing that the law applicable to non-contractual liability in tort complexis the state where the harmful event occurred; this place means that boththe fact that the damage that that place of realization of the latter;

    in this case, it is undisputed that the disputed works of French authors to bescanned with excerpts available to users on French national territory, thatalso should be noted that besides the fact that the court is the French court,

    the plaintiffs are companies established in France for the Editions du Seuilcompany or subsidiary of a French company for the other two, as well asstakeholders volunteers empowered to defend the interests of authors andpublishers of French are of French nationality, that Google France has itsheadquarters in France, that the domain name to access the sitewww.books.google.fr has an extension. "en" and that this site is written inFrench ;

    it follows from all of these elements that France is the country having theclosest connection with the dispute, which justifies the application of Frenchlaw contrary to the contentions of the defendants;

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    Editions du Seuil v Google Inc, Tribunal de GrandeInstance de Paris 3me chambre, 2me section Ruling ofDecember 18, 2009

    The Court, publicly, by making available to the Registry, by trial

    and made contradictory at first instance...

    Said that the law applicable to this case is the French law.

    Said that fully reproducing and making available extracts fromworks items of the minutes of the bailiff June 5, 2006 and onwhich the plaintiffs hold copyrights on the site whose address is a"http: / / books.google.fr "without their permission, Google Inc.has committed acts of infringement of copyright to the detrimentof companies Editions du Seuil, Delachaux & Niestle and Harry N.Abrams

    * Translations performed using Google Translation.

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    Lucasfilm Ltd & Ors v Ainsworth & Anor[2009] EWCA Civ 1328 (16 December 2009)Firstly we think that the two-fold rule in Moambique applies to such

    claims... Infringement of an IP right...is essentially a local matter involvinglocal policies and local public interest. It is a matter for local judges.

    Secondly enforcement may involve a clash of the IP policies of differentcountries...

    Thirdly... Extra-territorial jurisdiction will involve (and does here) a restrainton actions in another country an interference which prima facie a foreign

    judge should avoid...

    Fourthly if national courts of different countries all assume jurisdiction thereis far too much room for forum-shopping, applications for stays on forum nonconveniens grounds, applications for anti-suit injunctions and applications fordeclarations of non-infringement.

    Fifthly it is quite clear that those concerned with international agreementsabout copyright have refrained from putting in place a regime for theinternational litigation of copyrights by the courts of a single state...

    Sixthly all of the other considerations which we have mentioned and whichled the Court of Appeals in Voda to decline jurisdiction over foreign patentclaims apply equally to enforcement of a foreign copyright here.

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    To enforce a foreign judgement, UK law requires that the judgment debtor be

    present in the foreign country at the time proceedings are commenced.Therefore, does the use by Mr Ainsworth or his company of thewebsite...amount to such presence?

    The question... is whether for current purposes the internet or a website arefundamentally different from other matters which have enabled businesspersons to present themselves and their products where they are not

    themselves present: such as advertisements, salesmen, the post, telephone,telex and the like. We do not believe so...

    On the contrary, it might be said that the sheer omnipresence of the internetwould suggest that it does not easily create, outside the jurisdiction orjurisdictions in which its website owners are on established principle already tobe found, that presence, partaking in some sense of allegiance, which has been

    recognised by our jurisprudence and rules of private international law as anecessary ingredient in the enforceability of foreign judgments.

    *Note under Beals v. Saldanha, [2003] 3 S.C.R. 416 the result would bedifferent in Canada.

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    Lucasfilm Ltd & Ors v Ainsworth & Anor[2009] EWCA Civ 1328 (16 December 2009)

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    Dish Network LLC v Zentek International Co Ltd[2009] HKEC 220

    The word "publish" is defined to mean, among others: (1) to makepublic, to make publicly or generally known, ... (4)(a) to issue orcause to be issued for sale to the public (copies of a book, writing,engraving, piece of music, or the like); said of an author, editor, orspec. of a professional publisher, (b) to make generally accessibleor available for acceptance or use; to place before or offer to the

    public, now spec. by the medium of a book, journal, or the like.I prefer the meaning of "publish" as defined in the OxfordDictionary and disagree with the defendants on their interpretationof section 275(2)(b). I find that the mere availability of thesoftware on the Websitesamounts to publishing and constitutesan infringement of the plaintiffs' rights as copyright owners. Itherefore find in favour of the plaintiffs that there is cogent andcompelling evidence that serious tortious activities against theplaintiffs have taken place in Hong Kong.

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    RecordTV Pte Ltd v MediaCorp TVSingapore Pte Ltd[2009] SGHC 287Whether for profit companies that operate Internet DVR services for

    television programming are liable for copyright infringement.

    Who makes copies: Following the reasoning in Cartoon Network LP vCSC Holdings Inc536 F 3d 121 (2nd Cir 2008), the court held that Ifthe end-user is the maker of this time-shifted recording for thepurposes of the VCR, it must remain that the end-user is the maker of

    the recording in the context of the DVR, remote or local.

    Who communicates the programs to the public:The key questionis this: where exactly do the end-users volition and control cease tooperate? ...

    The line, therefore, has to be drawn somewhere, and I think it sensible

    that it be drawn once the end-user hasproperly exercised his volition inmaking a choice. In other words, while I accept and have accepted thatthe end-user is the one who has control over what programmes torecord, the subsequent transmission of that content would be effectedby a process governed entirely by the plaintiff.

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    IsoHunt Web Technologies, Inc v EMI GroupCanada Inc. Sup. Ct. B.C. March 11, 2009

    The Court: Its obvious. I mean, you take another field. A person

    who sells handguns isnt automatically responsible for the murder.If he sells the handgun knowing that the person intends to go outand kill somebody with it, he is...And then its kind of the sameissue here.

    Mr Mason: Absolutely.

    The Court: Are serious questions of law raised? Yes, this caseraises a very serious question which is of importance to a largenumber of people far beyond the Petitioner in this case and, forthat matter, the Respondents. It is well known in Canada thatthrough the use of the Internet many people can download

    copyright material. It is important for the law as some point toclearly delineate what the limits of facilities which allow this to bedone.

    Case not appropriately brought Isohunt by way of application.

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    Arista Records LLC v Usenet.com Inc.91 USPQ2d 1744 (S.D.N.Y.2009)

    Operators of Usenet.com site found liable for directly infringingthe distribution right. ...contrary to Defendants contentions,here their service is not merely a passive conduit thatfacilitates the exchange of content between users who uploadinfringing content and users who download such content;rather, defendants actively engaged in the process so as tosatisfy the volitional-conduct requirement for directinfringement.

    Plaintiffs also successful in establishing liability for (1)inducement of copyright infringement, (2) contributory

    copyright infringement and (3) vicarious copyrightinfringement.

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    Th Pi B C St kh l

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    The Pirate Bay Case, StokholmDistrict Court, April 17, 2009

    Is the making available an offence under Swedish law where the seedersare outside of Sweden?

    The investigation into the case has revealed that some of The PirateBays users, whose making available is the subject of the action, havebeen located outside Sweden when they made the works available to thegeneral public

    According to the District Court, there is strong reason to regard anoffence which involves the making available of something on the Internetas having been committed in a country where the Internet user canobtain the information which has been made available, provided that themaking available has legal implications in the country. This applies notleast when the information as in this case is published in a languagespoken in that country. This suggests that all principal offences, even

    those committed by persons located outside Sweden, should be regardedas having been committed in Sweden. This conclusion is furtherreinforced by the fact that the servers (computers) hosting The PirateBays website and the tracker were located in Sweden.

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    Th Pi t B C St kh l

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    The Pirate Bay Case, StokholmDistrict Court,April 17, 2009

    Were the site operators liable for aiding and abetting infringement?

    The investigation into the case has shown that, during the timeperiod specified in the indictment, The Pirate Bay was a popularwebsite with a large number of users around the world. The purposeof The Pirate Bay was to create a meeting place for filesharers.

    In accordance with what will be further demonstrated below, all thedefendants were aware that a large number of the websites userswere engaged in the unlawful disposal of copyright protectedmaterial. By providing a website with advanced search functions andeasy uploading and downloading facilities, and by putting individualfilesharers in touch with one other through the tracker linked to the

    site, the operation run via The Pirate Bay has, in the opinion of theDistrict Court, facilitated and, consequently, aided and abetted theseoffences.

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    BREIN MININOVA B V DISTRICT

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    BREIN v MININOVA. B.V., DISTRICTCOURT OF UTRECHT, 26 August 2009The District Court:

    5.1. issues a declaratory judgment that Mininova is acting unlawfully byenabling, inducing and profiting from infringements of the copyrights andneighbouring rights of the entitled parties affiliated with Brein;

    5.2. orders Mininova to take such measures within three months after theservice of this judgment to ensure that no torrent links are offered on itsplatform regarding which there should be a valid doubt as to whether

    they contain copyrighted works or works protected by neighbouringrights, the disclosure of which has not been authorised by the entitledparties;

    5.3. orders that if, after three months after the service of this judgment,torrent links are offered on Mininovas platform, the titles of which areidentical or similar to titles of works appearing on a list of titles of

    copyrighted works or works protected by neighbouring rights provided byBrein... Mininova will incur a penalty of EUR 1,000 to Brein for eachautomatic reference to such an infringing file or per day that such areference is offered, such at the discretion of Brein, at a maximum ofEUR 5,000,000.00;

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    Sony BMG Music Entertainment v Tenenbaum,2009 WL 4547019 (D.Mass. Dec 7, 2009).

    The defendant mounted a broadside attack that wouldexcuse all file sharing for private enjoyment. He argued thatall a defendant needs to show is that he did not make moneyfrom the files he downloaded or distributed-i.e., that his usewas non-commercial.

    It is a version of fair use so broad that it would swallow thecopyright protections that Congress created, defying bothstatute and precedent.

    Court held that allowing fair use for any non-commercial filesharing would be harmful to rights holders and undermine

    legitimate markets for sound recordings.

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