Sookman LSUC Copyright Slides 2012

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McCarthy Ttrault S.E.N.C.R.L., s.r.l. / mccarthy.ca

Law Society: 17th AnnualIntellectual Property Law, The

Year in Review - CopyrightBarry B. [email protected] January 10, 2013

McCarthy Ttrault AdvanceBuilding Capabilities for Growth

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McCarthy Ttrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 2

Canada++

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Copyright law reform:Bill C-11, Copyright

Modernization Act,November 7, 2012.

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Supreme Court

ESA v. SOCAN, 2012 SCC 34 Rogers Communications Inc. v. SOCAN, 2012 SCC 35

SOCAN v. Bell Canada, 2012 SCC 36

Alberta (Education) v. Canadian Copyright Licensing Agency

(Access Copyright), 2012 SCC 37

Re:Sound v. Motion Picture Theatre Associations ofCanada, 2012 SCC 38

Reference re Broadcasting Regulatory Policy CRTC 2010 167,

2012 SCC 68 See, Summary of Copyright Pentology by Justice Rothstein @

http://ow.ly/go2cr

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Principles of interpretation: Copyright balance

Thberge reflected a move away from an earlier, author-centricview which focused on the exclusive right of authors and copyrightowners to control how their works were used in the marketplace:see e.g. Bishop v. Stevens, [1990] 2 S.C.R. 467, at pp. 478-79.

Under this former framework, any benefit the public might derivefrom the copyright system was only a fortunate by-product ofprivate entitlement

Thberge focused attention instead on the importance copyrightplays in promoting the public interest, and emphasized that the

dissemination of artistic works is central to developing a robustlycultured and intellectual public domain. As noted by ProfessorDavid Vaver, both protection and access must be sensitivelybalanced in order to achieve this goal: Intellectual Property Law:Copyright, Patents, Trade-marks (2nd ed. 2011), at p. 60.

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Reference re Broadcasting RegulatoryPolicy CRTC 2010 167, 2012 SCC 68

Principles of interpretation: copyright balance

The Copyright Act is concerned both with encouragingcreativity and providing reasonable access to the fruits ofcreative endeavour. These objectives are furthered by acarefully balanced scheme that creates exclusive economicrights for different categories of copyright owners in works orother protected subject matter, typically in the nature of astatutory monopoly to prevent anyone from exploiting the workin specified ways without the copyright owners consent. It alsoprovides user rights such as fair dealing and specificexemptions that enable the general public or specific classesof users to access protected material under certainconditions.

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Phonographic Performance Company of Australia Limited vCommonwealth of Australia, [2012] HCA 8 (28 March 2012)

Principles of interpretation: copyright balance

The copyright given to authors and makers of records was, as Augustine Birrell said ofthe copyright granted by the Statute of Anne of 1709, "qualified and time-limitedproperty". Although the categories of protected works were much enlarged by the time ofthe 1911 Act, speaking generally the 1911 Act, like the Statute of Anne, took intoaccount and balanced the interests of authors, entrepreneurs and the public. The public's

interest lay in the dissemination of copyright works, including dissemination onreasonable terms. Any detailed consideration of the historical context of the Statute of

Anne supports this construction of its intent and its provisions. Further, presagingcompulsory licence schemes, the prices of books under the Statute of Anne wereregulated to ensure that they were "just and reasonable" and the uses by, and rights of,nominated libraries and universities in respect of copyright works were preserved.

It was settled in Donaldson v Beckett that copyright in published works depended uponstatute, not the common law, and that the Statute of Anne limited the exclusive right ofan author or owner of the copyright to multiply copies of an original published work so asto balance that right against the public interest in freedom to have access to, and toexploit, such works. It can be noted that the American copyright tradition exemplifiedin Wheaton v Peters follows Donaldson v Beckett.

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Principles of interpretation: user rights

CCHconfirmed that users rights are an essential part offurthering the public interest objectives of the CopyrightAct. One of the tools employed to achieve the proper

balance between protection and access in the Act is theconcept of fair dealing, which allows users to engage insome activities that might otherwise amount to copyrightinfringement. In order to maintain the proper balancebetween these interests, the fair dealing provision must notbe interpreted restrictively: CCH, at para. 48.

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ESA v. SOCAN, 2012 SCC 34

Principles of interpretation: technological (media) neutrality

The principle of technological neutrality is reflected in s. 3(1) ofthe Act, which describes a right to produce or reproduce a workin any material form whatever. In our view, there is no practicaldifference between buying a durable copy of the work in a store,

receiving a copy in the mail, or downloading an identical copyusing the Internet. The Internet is simply a technological taxi thatdelivers a durable copy of the same work to the end user

The principle of technological neutrality requires that, absentevidence of Parliamentary intent to the contrary, we interpret

the Copyright Act in a way that avoids imposing an additionallayer of protections and fees based solely on the method ofdelivery of the work to the end user. To do otherwise wouldeffectively impose a gratuitous cost for the use of more efficient,Internet-based technologies.

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Rogers Communications Inc. v. SOCAN,2012 SCC 35

Principles of interpretation: technological (media) neutrality

In addition, this Court has long recognized in the context of thereproduction right that, where possible, the Act should be interpreted toextend to technologies that were not or could not have beencontemplated at the time of its drafting: Apple Computer Inc. v.

Mackintosh Computers Ltd., [1987] 1 F.C. 173 (T.D.), affd [1988] 1 F.C.673 (C.A.), affd [1990] 2 S.C.R. 209. That the Act was to apply to newtechnologies was recently reaffirmed in Robertson v. Thomson Corp.,[2006] 2 S.C.R. 363, at para. 49, per LeBel and Fish JJ.:

Media neutrality is reflected in s. 3(1) of the Copyright Act whichdescribes a right to produce or reproduce a work in any material formwhatever. Media neutrality means that the Copyright Act shouldcontinue to apply in different media, including more technologicallyadvanced ones. [I]t exists to protect the rights of authors and othersas technology evolves.

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Principles of interpretation: Structure of s.3(1) Nor is the communication right in s. 3(1)(f) a sui generis right in

addition to the general rights described in s. 3(1). Theintroductory paragraph defines what constitutes copyright. Itstates that copyright means the sole right to produce or

reproduce a work in any material form, to perform a work inpublic, or to publish an unpublished work. This definition ofcopyright is exhaustive, as the term means confines itsscope. The paragraph concludes by stating that copyrightincludes several other rights, set out in subsections (a) through

(i). As a result, the rights in the introductory paragraph providethe basic structure of copyright. The enumerated rights listed inthe subsequent subparagraphs are simply illustrative.

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JT International SA v. Commonwealth ofAustralia [2012] HCA 43 (5 October 2012),

Principle of interpretation: copyright is a negative right

A copyright is a purely negative right. Thus, if someone

owns a copyright in work, the person can stop others fromdoing any of the acts included within the owners exclusiverights. But the copyright does not give the owner thepositive right to exercise any of the copyright rights. As anegative right, it has been called a power to prevent the

making of a physical thing by copying.

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Principles of interpretation: Copyright pre-emption

S.89: No person is entitled to copyright otherwise than under and inaccordance with this Act or any other Act of Parliament, but nothing inthis section shall be construed as abrogating any right or jurisdiction inrespect of a breach of trust or confidence.

The deliberate use of the words this Act or any other Act of Parliamentrather than this Act or any other enactment means that the right tocopyright must be found in an Act of Parliament and not in subordinatelegislation promulgated by a regulatory body. Act and enactment aredefined in s. 2 of the Interpretation Act, R.S.C. 1985, c. I-21, where Act

means an Act of Parliament; and enactment means an Act or regulationor any portion of an Act or regulation.

The definitions confirm that Parliament did not intend that a subordinateregulatory body could create copyright by means of regulation orlicensing conditions.

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Does the CRTC have jurisdiction to create a value for signal regime?

The CRTC does not have jurisdiction to permit local television stationbroadcasters to negotiate compensation for the retransmission of theirsignals by cable and satellite companies (BDUs).

First, the value for signal regime conflicts with s. 21(1) of the CopyrightActbecause it would grant broadcasters a retransmission authorization rightagainst BDUs that was withheld by the scheme of the Copyright Act.

Second, a further conflict arises between the value for signal regime and theretransmission rights in s. 31, which creates an exception to copyrightinfringement for the simultaneous retransmission by a BDU of a work

carried in local signals.

Third, the value for signal regime would create a new right to authorize andprevent retransmission, in effect, amending the copyright conferred by s. 21.Thus the value for signal regime would create a new type of copyright andwould do so without the required Act of Parliament, contrary to s. 89.

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Communication/public performance: Is a download a

communication?

We agree with ESA. In our view, the Boards conclusion that aseparate, communication tariff applied to downloads of musicalworks violates the principle of technological neutrality, whichrequires that the Copyright Act apply equally between traditionaland more technologically advanced forms of the same media:Robertson v. Thomson Corp., [2006] 2 S.C.R. 363, at para. 49.The principle of technological neutrality is reflected in s. 3(1) of the

Act, which describes a right to produce or reproduce a work in anymaterial form whatever. In our view, there is no practical difference

between buying a durable copy of the work in a store, receiving acopy in the mail, or downloading an identical copy using theInternet. The Internet is simply a technological taxi that delivers adurable copy of the same work to the end user

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the right to communicate is historically connected to the rightto perform a work and not the right to reproduce permanent copiesof the work

The right to perform historically presupposed a live audience thatwould be present at the site where the performance took place

we agree with Rothstein J. (at para. 98) that there is a historicrelationship between the performance right and thecommunication right in the Copyright Act, but we disagree with hisconclusion that Parliament intended to sever this relationshipbased on the 1988 amendments. In our view, this historical

connection between communication and performance still existstoday.

Did the amendments in Bill C-11 change the law?

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Dramatico Entertainment Ltd & Ors v BritishSky Broadcasting Ltd & Ors, [2012] EWHC

1152 (Ch) Communicate to the public/making available right

I turn, therefore, to consider whether such users [of The Pirate Bay] therebycommunicate such recordings available to the public. This involves two

questions. First, do they communicate the recordings by electronictransmission? In my judgment they do. I consider that they make therecordings available by electronic transmission in such a way that members ofthe public may access the recordings from a place and at a time individuallychosen by them within section 20(2)(b).

Accordingly, I conclude that UK users of TPB infringe the Claimants'copyrights in this way also. This conclusion is consistent with that of the FullCourt of the Federal Court of Australia, albeit under a slightly different statutoryprovision, in Roadshow Films Pty Ltd v iiNet Ltd [2011] FCAFC 23, (2011) 89IPR 1: see Emmett J at [151]-[158], Jagot J at [322]-[330] and Nicholas J at[664]-[672].

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Hoffman v Drug Abuse ResistanceEducation (UK) Ltd, [2012] EWPCC 2 (19

January 2012) Communication/making available right: Does posting of a photo on a website

infringe the MAR?

Section 20(2)(b) is expressed to include making the work available to the

public by electronic transmission in such a way that members of the public mayaccess it from a place and at a time individually chosen by them (see Art 3.1 ofthe Information Society Directive).

In terms of s20(2)(b), in this case the claimant's artistic works have beenmade available to the public on the defendant's websites by electronictransmission in such a way that members of the public may access the worksfrom a place and at a time individually chosen by them. In terms of the Art 3.1the claimant's artistic works have been communicated to the public by wire orwireless means and have been made available to the public in such a way thatmembers of the public may access the works from a place and at a timeindividually chosen by them.

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Rogers Communications Inc v SOCAN,2012 SCC 35

Communication/public performance: Are on-demand transmissionsto the public?

A communication is not restricted to a purely non-interactivecontext.

Section 3(1)(f) Is Not Limited to Traditional Push Technologies; It IsTechnology-Neutral

Although the words in any material form whatever qualify the rightto produce or reproduce the work in s. 3(1), the same principle

should guide the application of the neutral wording of the right tocommunicate to the public by telecommunication. The broaddefinition of telecommunication was adopted precisely to provide fora communication right not dependent on the form of technology

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Focusing on each individual transmission loses sight of the true character ofthe communication activity in question and makes copyright protectiondependant on technicalities of the alleged infringers chosen method ofoperation. Such an approach does not allow for principled copyrightprotection. Instead, it is necessary to consider the broader context todetermine whether a given point-to-point transmission engages the exclusive

right to communicate to the public. This is the only way to ensure that formdoes not prevail over substance.

CCH (SCC) determined that a series of repeated transmissions of thesame work to numerous different recipients may constitute a communicationto the public within the meaning of s. 3(1)(f) of the Act (CCH (SCC), at para.

78). Where such a series of point-to-point communications of the same workto an aggregation of individuals is found to exist, it matters little for thepurposes of copyright protection whether the members of the public receivethe communication in the same or in different places, at the same or atdifferent times or at their own or the senders initiative.

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Ultimately, in determining the extent of copyright, regard must be hadfor the fact that [t]he Copyright Act is usually presented as a balancebetween promoting the public interest in the encouragement anddissemination of works of the arts and intellect and obtaining a justreward for the creator (Thberge v. Galerie dArt du Petit Champlaininc., 2002 SCC 34, [2002] 2 S.C.R. 336, at para. 30). This balance is

not appropriately struck where the existence of copyright protectiondepends merely on the business model that the alleged infringerchooses to adopt rather than the underlying communicationactivity. Whether a business chooses to convey copyright protectedcontent in a traditional, broadcasting type fashion, or opts for newer

approaches based on consumer choice and convenience, the end resultis the same. The copyrighted work has been made available to anaggregation of individuals of the general public.

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American Broadcasting Companies, Inc. v. Aereo,Inc., 2012 U.S. Dist. LEXIS 70749, (S.D.N.Y. 2012)

Communication/public performance: Are on-demand transmissions to the public?

Aereo characterizes its system as merely allowing users to rent a remotely locatedantenna, DVR, and Slingbox-equivalent device, in order to access content they couldreceive for free and in the same manner merely by installing the same equipment at home.Housing this argument more specifically in the terms defined by Cablevision, Aereocontends that, like the RSDVR system in Cablevision, its system creates unique, user-requested copies that are transmitted only to the particular user that created them and,

therefore, its performances are nonpublic.

Despite this creative attempt to escape from the express holding ofCablevision, for thereasons discussed below this Court finds itself constrained to reject the approach Plaintiffsurge. Contrary to Plaintiffs' arguments, the copies Aereo's system creates are not materiallydistinguishable from those in Cablevision, which found that the transmission was made fromthose copies rather than from the incoming signal. Moreover, Plaintiffs' attempt to distinguish

Cablevisionbased on time-shifting fails when confronted with the reasoning of that case,particularly considering that the Second Circuit's analysis was directly focused on thesignificance of Cablevision's copies but did not say one word to suggest that time-shiftingplayed any part in its holding.

See, contra, Fox Television Studios v BarryDriller Content Systems, Case, No. CV-12-6921,(C.D.Cal. Dec 20, 2012)

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Reference re Broadcasting Act, 2012 SCC 4

Who is responsible for committing the infringing act?

We therefore agree with Nol J.A.s answer to the reference question, namely, thatISPs do not carry on broadcasting undertakings under the Broadcasting Act when, intheir role as ISPs, they provide access through the Internet to broadcasting requestedby end-users.

This interpretation of broadcasting undertaking is consistent with Electric DespatchCo. of Toronto v. Bell Telephone Co. of Canada (1891), 20 S.C.R. 83. In ElectricDespatch, the Court had to interpret the term transmit in an exclusivity contractrelating to messenger orders. Like the ISPs in this case, Bell Telephone had noknowledge or control over the nature of the communication being passed over itswires. This Court had to determine whether the term transmit implicated an entitywho merely provided the mode of transmission. The Court concluded that only theactual sender of the message could be said to transmit it...

This Court relied on Electric Despatch in Society of Composers, Authors and MusicPublishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45, [2004] 2S.C.R. 427, a proceeding under the Copyright Act, R.S.C. 1985, c. C-42, to concludethat since ISPs merely act as a conduit for information provided by others, they couldnot themselves be held to communicate the information

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Fox Broadcasting Company Inc. v. DishNetwork, L.L.C., 2012 U.S. Dist. LEXIS

169112, (C.D. Cal, 2012) Who is responsible for committing the infringing act?

It is clear that Dish exercises a degree of discretion over the copyingprocess beyond that which was present in Cablevision. Nevertheless,

at this stage of the proceedings, the Court is not satisfied that PTAT[Primetime AnyWhere, home DVR] has crossed over the line thatleads to direct liability. Despite Dish's involvement in the copyingprocess, the fact remains that the user, not Dish, must take the initialstep of enabling PTAT after deciding that he or she wants to initiatethe recording. The user, then, and not Dish, is the most significantand important cause of the copy. Prosser and Keeton on Torts 42.

Accordingly, the Court finds that Fox has not established a likelihoodof success on the merits of its claim that PTAT directly infringes on itsexclusive right to reproduction.

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National Rugby League Investments Pty Limited vSingtel Optus Pty Ltd, [2012] FCAFC 59 (April 2012)

Who is responsible for committing the infringing act? Legality of TV Now service enables a subscriber to have free to air television

programmes recorded as and when broadcast and then played back at thetime (or times) of the subscribers choosing on the subscribers compatibleOptus mobile device or personal computer.

we consider that Optus role in the making of a copy ie in capturing thebroadcast and then in embodying its images and sounds in the hard disk isso pervasive that, even though entirely automated, it cannot be disregardedwhen the person who does the act of copying is to be identified.

So one comes back to the question of construction raised by the word make

and its application in the present setting. As we have indicated, Optus not onlyhas solicited subscriber utilisation of its Service, it has also designed andmaintained a sophisticated system which can effectuate the making ofrecordings wanted for viewing by subscribers. For s 101 purposes, it manifestlyis involved directly in doing the act of copying. It counts as a maker of copiesfor the subscriber. Does the subscriber as well?

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Phonographic Performance (Ireland) Ltd vIreland, CJEU, Case C-162/10, 15 March, 2012

Who communicates a sound recording to the public?

A hotel operator which provides in guest bedrooms televisions and/or radiosto which it distributes a broadcast signal is a user making a communicationto the public of a phonogram which may be played in a broadcast for the

purposes of Article 8(2) of Directive 2006/115/EC of the European Parliamentand of the Council of 12 December 2006 on rental right and lending right andon certain rights related to copyright in the field of intellectual property.

The user makes an act of communication when it intervenes, in fullknowledge of the consequences of its action, to give access to a broadcast

containing the protected work to its customers. In the absence of thatintervention, its customers, although physically within the area covered by thebroadcast, would not, in principle, be able to enjoy the broadcast work.

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Warman v. Fournier, 2012 FC 803

Communication/public performance: does linking communicate a work? The evidence is clear that the Barrera Work was posted on the

applicants personal website and thus the communication of the BarreraWork occurred by creating a hyperlink to the applicants ownwebsite. Thus, the applicant authorized communication of the Barrera

Work by posting it on his website and therefore there is no infringement. Crookes v. Newton 2011 SCC 47?

See, Government of the United States v ODwyer, WestministerMagistrates Court, 13 January, 2012

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Re:Sound v. Motion Picture TheatreAssociations of Canada, 2012 SCC 38

Is the soundtrack of a cinematographic work a sound recording?

S2: sound recording means a recording, fixed in any material form,consisting of sounds, whether or not of a performance of a work,but excludes any soundtrack of a cinematographic work where it

accompanies the cinematographic work; The Board made no error in finding that the word soundtrack

includes pre-existing sound recordings and that such recordings areaccordingly excluded from the definition of sound recording whenthey accompany a cinematographic work. This interpretation of the

word soundtrack is consistent with the scheme of the Act, theintention of Parliament and Canadas international obligations.Contrary to the appellants suggestion, it does not lead to absurdresults.

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Izard, et al. v. Claude Robinson, SupremeCourt of Canada case 34468

Infringement: Idea/expression dichotomy/substantial similarity

Leave granted from France Animation v Robinson, 2011 QCCA1361

In issue: Steps and tests for determining whether substantial partof work reproduced within meaning of ss. 2 and 3 of Copyright Act

Admissibility of experts testimony concerning reproduction ofsubstantial part of work within meaning of ss. 2 and 3 of Copyright

Act.

Did the main characters, and their characteristics and certaindrawings in the childrens TV series Robinson Sucroe infringe the

copyright in Robinson Curiosite?

See, also Supreme Court grants leave in Cinar/Robinson copyrightcases, http://www.barrysookman.com/2012/05/24/supreme-court-grants-leave-in-cinarrobinson-copyright-cases/

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Robinson v. Films CINAR Inc., 83 C.P.R.(4th) 1

Similarities between Robinson Curiosit and Robinson Sucro

3012084941

The Court concludes that there is a substantial similaritybetween these two characters.


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Similarities between Vendredi Fri and Mereredi



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Similarities between Boum Boum and Duresoire aliasHildegarde Van Boum Boum

The Court concludes that there is a substantial similaritybetween these two characters Duresoire and Boum Boum.


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Similarities between Gertrude and Gladys



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Similarities between Charlie the Pilot and Courtecuisse



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Marlboro Canada Limited v. Philip MorrisProducts S.A., 2012 FCA 201

Infringement: objective/substantial similarity

Do the Defendants 1996, 2001, and 2007 ITL Canadian Marlboro packagesinfringe PMPSAs copyright in the MARLBORO Red Roof Label?

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Blehm v Jacobs 2012 WL 6700437 (10th.Cir.Dec 27, 2012)

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Peace sign images: We conclude that no reasonable juror coulddetermine that the Jake figure is substantially similar to the protected,expressive choices Mr. Blehm used for the Penman figure.

Infringement: idea expression dichotomy
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Frisbee Images: Although the images share a similar idea of catching aFrisbee between the legs, the protectable expression in the Penman is notsubstantially similar to the Jake image.


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Temple Island Collections Ltd v. New English Teas Ltd &

Anor [2012] EWPCC 1 (12 January 2012)

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The blank sky serves to emphasise the buildingsand gives the whole image a dramatic appearanceand the bright red bus stands out even moreprominently. This has been reproduced. The basiccomposition of the image has the Routemasterdriving from right to left on the bridge but there ismore to it than that. The bus is actually framed bythe building. Although the framing is a little differentin Annex 2, to my eye the essence of the framingeffect has been reproduced. Although the bus islarger in Annex 2 than Annex 1, in both images thebus roughly in scale with the facade of the Houses ofParliament. Also the riverside facade of the building

is a prominent feature. There are no other vehiclesclearly visible and although there are some smallpeople visible they are not prominent. This all givesthe image an element of simplicity and clarity.

I
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Harmony Consulting Ltd. v. G.A. FossTransport Ltd., 2012 FCA 226

Infringement: Is a screen display a reproduction of a computer program?

With respect, I cannot agree that a screen display is simply a reproduction ofthe object code. A computer program is defined in section 2 of the Act as:

computer program means a set of instructions or statements,expressed, fixed, embodied or stored in any manner, that is to be useddirectly or indirectly in a computer in order to bring about a specific result;

In my view, the screen display on a user monitor is the result of such a set ofinstructions rather than a reproduction of the set of instruction in anotherform. To use the analogy of the Supreme Court of Canada in Cuisenaire v.South West Imports Ltd., 1968 CanLII 122 (SCC), [1969] S.C.R. 208, 2D.L.R. (3d) 430, the screen display is the rabbit pie rather than the recipe (therecipe being the set of instructions).

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Keatley Surveying LTD v Teranet Inc, 2012ONSC 7120

Infringement: what is a translation?

What is a translation? The word translation is not defined in theCopyright Act. However, there is case law and authoritative texts thatdiscuss the meaning of this word as used in the Act. In essence thesesources confirm that the word translation is used in the Act in its

primary sense of the turning of something from one human languageinto anotherIn order to constitute a translation, the resulting workmust also be original

The statement of claim alleges that copies of the plans of survey weretranslated into various digital formats, including Portable DocumentFolder (PDF) and Tagged Image File Format (TIFF). Following Apple, I

conclude that scanning the plans of survey to create a digital format isnot a translation within the meaning of s. 3(1)(a) of the Copyright Act.The resulting digital plan of survey is not an original work, as there is noskill and judgment involved in simply scanning the plans of survey.

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SOCAN v Bell, Access Copyright

Fair dealing: the framework

The onus is on the person invoking fair dealing to satisfy all aspects of thetest.

The term private study can include students in a classroom setting. The wordprivate in private study should not be understood as requiring users to view

copyrighted works in splendid isolation. Studying and learning are essentiallypersonal endeavours, whether they are engaged in with others or in solitude.

The term research must be given a large and liberal interpretation and caninclude users listening to previews to decide whether to purchase music.Research is not limited to creative purposes. It can include many activitiesthat do not demand the establishment of new facts or conclusions. It can be

piecemeal, informal, exploratory, or confirmatory. It can in fact be undertakenfor no purpose except personal interest. Consumers uses of previews for thepurpose of conducting research to identify which music to purchase can beresearch under the fair dealing framework.

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Fair dealing: the framework

The relevant perspective when considering whether the dealing isfor an allowable purpose under the first stage of CCH is that of theuser and not the copier.

The copiers purpose is relevant at the fairness stage; copierscannot camouflage their own distinct purpose by purporting toconflate it with the research or study purposes of the ultimate user.

If, as in the course pack cases, the copier hides behind the shieldof the users allowable purpose in order to engage in a separate

purpose that tends to make the dealing unfair, that separate purposewill also be relevant to the fairness analysis.

SOCAN v Bell, Access Copyright

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Monge v. Maya Magazines, Inc., 2012 U.S.App. LEXIS 16947, (9th Cir. 2012)

Fair use

The fair use doctrine has been called the most troublesome in the whole law ofcopyright. Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661, 662 (2d Cir. 1939) (percuriam). This affirmative defense presumes that unauthorized copying has occurred,and is instead aimed at whether the defendants use was fair

In the years following the 1976 Act, courts have decided countless cases involving the

fair use doctrine. Some commentators have criticized the factors, labeling thembillowing white goo or naught but a fairy tale, echoing courts that threw up theirhands because the doctrine is so flexible as virtually to defy definition. Princeton Univ.Press v. Mich. Doc. Servs., Inc., 99 F.3d 1381, 1392 (6th Cir. 1996) (citation omitted).

A leading treatise in this area notes that the statute provides no guidance as to therelative weight to be ascribed to each of the listed factors, and, in the end, courts are

left with almost complete discretion in determining whether any given factor is presentin any particular use. Nimmer on Copyright 13.05[A] (footnotes omitted).

We acknowledge the porous nature of the factors but nonetheless recognize that weare obliged to make sense of the doctrine and its predicates

See, also, Balsley v. LFP, INC691 F.3d 747 (6th.Cir.2012)

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Authors Guild, Inc. v. HathiTrust, 2012 U.S.Dist. LEXIS 146169, (SDNY, 2012)

Fair use:

The totality of the fair-use factors suggest that copyright law's "goal ofpromoting the Progress of Science . . . would be better served by allowingthe use than by preventing it." Bill Graham, 448 F.3d at 608. The enhancedsearch capabilities that reveal no in-copyright material, the protection of

Defendants' fragile books, and, perhaps most importantly, theunprecedented ability of print-disabled individuals to have an equalopportunity to compete with their sighted peers in the ways imagined by theADA protect the copies made by Defendants as fair use to the extent thatPlaintiffs have established a prima faciecase of infringement... I cannotimagine a definition of fair use that would not encompass the transformative

uses made by Defendants' MDP and would require that I terminate thisinvaluable contribution to the progress of science and cultivation of the artsthat at the same time effectuates the ideals espoused by the ADA.

See also, Cambridge University Press v. Becker, 863 F.Supp.2d 1190(N.D.Ga. 2012)

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Meads v. Meads, 2012 ABQB 571

Subsistence of copyright: originality

There is not authority present, nor, I believe, capable ofestablishing that a personal name can form a creative work thatwould be subject to copyright. In any case, even if that were so,then copyright in a name would presumably vest with its authors,

Mr. Meads parents. The Copyright Actalso sets theconsequence of infringement on copyright: ss. 34-41.Infringement can lead to damages and recovery of profit (s. 35)and where no damage is proven then statutory damages (s. 38.1)can be claimed. There is no provision for the kind of contract or

notice claims found in OPCA foisted unilateral copyrightagreements.

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Waldman v. Thomson Reuters Corporation,2012 ONSC 1138

Subsistence of copyright: originality

I would have thought that the overwhelming majority of documents on Litigatorare the product of judgment and skill, especially since Thomson advertised thisfeature in promoting litigator, but, nevertheless, Thomson is entitled to assert thata particular document is not subject to copyright protection, and it cannot be

simply assumed that originality exists in all of the court documents available onLitigator. Thomsons position means that question 1 is not a certifiable questionbecause it lacks commonality.

I agree with Thomson that ultimately authorship and ownership is an individualissue about what class member has the copyright in a particular court document.If one borrows from the set theory of mathematics, there will be a

correspondence between individual members of the set of authors and copyrightowners and the set of documents in Litigator, but this correspondence will be anindividual correspondence and not a class-wide correspondence. Accordingly,question 2 is not certifiable because again it is not a common issue and itsanswer requires individual assessments.

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Acohs Pty Ltd v Ucorp Pty Ltd [2012]FCAFC 16 (2 March 2012)

Subsistence: originality, computer generated works

The primary judge reasoned (at [47]), correctly in our view, that there was no apriori reason to deny a body of source code, such as that described, the status of aliterary work. The significant question, however, was whether the HTML sourcecode for each identified MSDS, generated and rendered by the Infosafe system asdescribed, was an original literary work for copyright purposes.

On appeal the appellant sought to invoke the notion that in any given case of aliterary work whose creation has been assisted by computer, the question whetherthe work has been created by a human author or by human authors is one of factand degree: Telstra Corporation Ltd v Phone Directories Company Pty Ltd (2010)194 FCR 142 at [118] per Perram J and [169] per Yates J. To this end, we were

taken in the course of argument, to an example of the relevant source code. Thisexample simply confirmed the discrete nature of the source code as a separatework created by the operation of the Infosafe program on other elements enteredinto the Infosafe system. It did not emanate from authors. It was not an originalwork in the copyright sense.

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Harmony Consulting Ltd. v. G.A. FossTransport Ltd., 2012 FCA 226

Infringement: Onus of proof

Writing for the Court in Positive, Justice Pelletier held that infringement is defined inthe Act in terms of the absence of consent and, consequently, proof of infringementrequires proof of lack of consentIn my view, this statement can only mean that theplaintiff bears the burden of persuasion with respect to the lack of consent. This is inline with the general principle that a plaintiff must establish on a balance ofprobabilities all the necessary elements of its claim.

A defendant who says he has the plaintiffs impliedconsent equally puts this point inissue, but then it seems reasonable for the defendant to plead and prove the facts onwhich he relies, and the inferences to be drawn from them. The plaintiff can thenproduce whatever tends to rebut this case. That does not change the ultimate legalburden of proof, which remains on the plaintiff throughout. Only the evidentiary burdenshifts to the defendant: he needs to produce some evidence of consent or theplaintiffs prima faciecase succeeds Quoting, David Vaver, Consent or NoConsent: The Burden of Proof in Intellectual Property Infringement Suits, (2001) 23I.P.J. 147

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Nautical Data International, Inc. v. C-MapUSA Inc., 2012 FC 300

Infringement: status of sole licensee to sue

NDI relies on subsection 13(7) of the Copyright Actwhich provides that:For greater certainty, it is deemed always to have been the law that agrant of an exclusive licence in a copyright constitutes the grant of an

interest in the copyright by licence. Hence, it says, there is no doubt thata licensee of an exclusive licence is allowed to bring an action in its ownname: Robertson. NDI relies on authorities which found an exclusivelicence where the licensee had a sufficient grant of interest to preserve andenforce its rights protected under the Copyright Act: Bouchet vKyriacopoulos (1964), 45 CPR 265 and Close Up. However, those

authorities do not say that the contractual right to sue will necessarily leadto an exclusive licence. In my view, even if a licensee has been given aright to sue in its own name by means of an agreement, it does notnecessarily lead to a characterization of the licence as exclusive.

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Nautical Data International, Inc. v. C-MapUSA Inc., 2012 FC 300

Where, as here, the suit is being brought by a person other than thecopyright owner, a grant of interest is necessary. A copyright owner maygrant any interest in writing to whomever it so wishes, either wholly orpartially: Copyright Act, s. 13(4).

The parties are in agreement that only an exclusive licence constitutes agrant of interest sufficient to grant a licensee standing to bring a claim forcopyright infringement. The Supreme Court of Canada in Robertson vThomson Corp, 2006 SCC 43 (CanLII), 2006 SCC 43 at para 56[Robertson], stated:

We are satisfied that Weiler J.A. was correct in concluding that only anexclusive licence must be in writing. If Parliament intended for any typeof non-exclusive licence to be deemed a "grant of an interest" requiringa written contract, it could have explicitly provided so just as it did forexclusive licences in s. 13(7).

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http://www.canlii.org/eliisa/highlight.do?text=c-map&language=en&searchTitle=Canada+(Federal)+-+Federal+Court+of+Canada&path=/en/ca/fct/doc/2012/2012fc300/2012fc300.htmlhttp://www.canlii.org/eliisa/highlight.do?text=c-map&language=en&searchTitle=Canada+(Federal)+-+Federal+Court+of+Canada&path=/en/ca/fct/doc/2012/2012fc300/2012fc300.htmlhttp://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-42/latest/rsc-1985-c-c-42.htmlhttp://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-42/latest/rsc-1985-c-c-42.htmlhttp://www.canlii.org/en/ca/scc/doc/2006/2006scc43/2006scc43.htmlhttp://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-42/latest/rsc-1985-c-c-42.htmlhttp://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-42/latest/rsc-1985-c-c-42.htmlhttp://www.canlii.org/en/ca/scc/doc/2006/2006scc43/2006scc43.htmlhttp://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-42/latest/rsc-1985-c-c-42.htmlhttp://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-42/latest/rsc-1985-c-c-42.htmlhttp://www.canlii.org/eliisa/highlight.do?text=c-map&language=en&searchTitle=Canada+(Federal)+-+Federal+Court+of+Canada&path=/en/ca/fct/doc/2012/2012fc300/2012fc300.htmlhttp://www.canlii.org/eliisa/highlight.do?text=c-map&language=en&searchTitle=Canada+(Federal)+-+Federal+Court+of+Canada&path=/en/ca/fct/doc/2012/2012fc300/2012fc300.htmlhttp://www.bailii.org/ew/cases/EWCA/Civ/2012/1740.htmlhttp://www.bailii.org/ew/cases/EWCA/Civ/2012/1740.html


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Golden Eye (International) Ltd & Ors vTelefnica UK Litd & Anor [2012] EWCA Civ

1740 (21 December 2012) Infringement: obtaining identities of alleged infringers In my judgment the correct approach to considering proportionality can be summarised in the

following propositions. First, the Claimants' copyrights are property rights protected by Article 1of the First Protocol to the ECHR and intellectual property rights within Article 17(2) of theCharter. Secondly, the right to privacy under Article 8(1) ECHR/Article 7 of the Charter and the

right to the protection of personal data under Article 8 of the Charter are engaged by thepresent claim. Thirdly, the Claimants' copyrights are "rights of others" within Article 8(2)ECHR/Article 52(1) of the Charter. Fourthly, the approach laid down by Lord Steyn where both

Article 8 and Article 10 ECHR rights are involved in Re S[2004] UKHL 47, [2005] 1 AC 593 at[17] is also applicable where a balance falls to be struck between Article 1 of the FirstProtocol/Article 17(2) of the Charter on the one hand and Article 8 ECHR/Article 7 of theCharter and Article 8 of the Charter on the other hand. That approach is as follows: (i) neither

Article as such has precedence over the other; (ii) where the values under the two Articles arein conflict, an intense focus on the comparative importance of the specific rights being claimedin the individual case is necessary; (iii) the justifications for interfering with or restricting eachright must be taken into account; (iv) finally, the proportionality test or "ultimate balancingtest" - must be applied to each. Statement on Norwich orders approved in Rugby FootballUnion v Consolidated Information Services Limited [2012] UKSC 55

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http://www.bailii.org/ew/cases/EWCA/Civ/2012/1740.htmlhttp://www.bailii.org/ew/cases/EWCA/Civ/2012/1740.htmlhttp://www.bailii.org/uk/cases/UKHL/2004/47.htmlhttp://www.bailii.org/cgi-bin/redirect.cgi?path=/uk/cases/UKHL/2004/47.htmlhttp://www.bailii.org/uk/cases/UKSC/2012/55.htmlhttp://www.bailii.org/uk/cases/UKSC/2012/55.htmlhttp://www.bailii.org/uk/cases/UKSC/2012/55.htmlhttp://www.bailii.org/uk/cases/UKSC/2012/55.htmlhttp://www.bailii.org/cgi-bin/redirect.cgi?path=/uk/cases/UKHL/2004/47.htmlhttp://www.bailii.org/uk/cases/UKHL/2004/47.htmlhttp://www.bailii.org/ew/cases/EWCA/Civ/2012/1740.htmlhttp://www.bailii.org/ew/cases/EWCA/Civ/2012/1740.htmlhttp://www.bailii.org/ie/cases/IEHC/2012/H264.htmlhttp://www.bailii.org/ie/cases/IEHC/2012/H264.html


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EMI Records (Ireland) Ltd & Ors v The DataProtection Commissioner, [2012] IEHC 264

Infringement: obtaining identities of alleged infringers "An activity of swarm participation for peer-to-peer downloading does not legitimately

carry the expectation of privacy. It is flying in the face of commonsense for the DataProtection Commissioner to equate participation in an open communication with allcomers on the internet for the purpose of illegal downloading of copyright material withinterception, with tapping or with listening. Those concepts are rightly to be deprecated as

illegal in circumstances of privacy. That is not the situation here: there is no legitimatereposing of trust pursuant to contract or reasonable expectation that when a person goeson the internet with a view to uploading or downloading what does not belong to them.That circumstance does not give rise to any constitutional entitlement or human right toremain immune from a music company also participating in that open forum to discoverthe economic damage that is being done to it and to creative artists. The interest of musiccompanies is proper and proportionate. It is beyond doubt that while each individual act of

copying, in itself, does little damage the reproduction of that activity by millions repeatedover time is industrial in scale. The response of internet service providers of doing nothingperhaps reflects the greater economic strength of intermediaries as compared to creativepeople or recording companies. There is also the immeasurable and disproportionatepower of these peer-to-peer swarms which are increasingly rendering the entitlement tothose on whom creativity depends to no consideration.

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http://www.bailii.org/ie/cases/IEHC/2012/H264.htmlhttp://www.bailii.org/ie/cases/IEHC/2012/H264.htmlhttp://www.bailii.org/ie/cases/IEHC/2012/H264.htmlhttp://www.bailii.org/ie/cases/IEHC/2012/H264.htmlhttp://www.canlii.org/eliisa/highlight.do?text=blizzard&language=en&searchTitle=Ontario+-+Superior+Court+of+Justice&path=/en/on/onsc/doc/2012/2012onsc4312/2012onsc4312.htmlhttp://www.canlii.org/eliisa/highlight.do?text=blizzard&language=en&searchTitle=Ontario+-+Superior+Court+of+Justice&path=/en/on/onsc/doc/2012/2012onsc4312/2012onsc4312.html


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Blizzard v. Simpson, 2012 ONSC 4312

Remedies: enforcement of foreign injunction orders

Based on the evidence before me, the submissions of Mr. Radhakantand Mr. Simpson, and the case law upon which the plaintiff relies, I amsatisfied that the plaintiff has met the test for recognition andenforcement of foreign judgments, as set forth by the Supreme Court of

Canada in Beals v Saldana, supra, and that none of the defences toenforcement are applicable, including fraud, denial of natural justice orbreaches of public policy. I am satisfied that the injunctive relief sought isenforceable in this Court, that the terms of the Order of the CaliforniaCourt are clear and specific and that the considerations set forth in ProSwing Inc. v Elta Golf Inc., 2006 S.C.C. 612 have been satisfied.

Accordingly, I order that the judgment of the United States District Courtof the Central District of California, Southern Division CV 01495 CJC(MLG) dated July 20, 2011 be recognized and enforced as a judgment ofthis Court.

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Blizzard v. Simpson, 2012 ONSC 4312

Mr. Simpson submitted that the Blizzard lawyers must havegained access to his website and, in so doing, given the termsand conditions, would have breached those conditions, beingaffiliated with Blizzard. I note that the snapshot was taken in thecontext of the investigation pursuant to the California Court

order With respect to the Blizzard lawyers accessing Mr. Simpsons

map hack website and breaching the terms of his useragreement, Mr. Radhakant submitted that if infringers couldprotect themselves from infringement actions by posting terms

and conditions on their websites, this would be an untenableposition in IP law. I agree with the Applicants submissions, Mr.Simpson has not satisfied the onus of establishing any applicabledefences to enforcement of the California judgment.

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United States

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Bl h J b 2012 WL 6700437 (10th Ci


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5712084941

Peace sign images: We conclude that no reasonable juror coulddetermine that the Jake figure is substantially similar to the protected,expressive choices Mr. Blehm used for the Penman figure.


Bl h J b 2012 WL 6700437 (10th Ci
http://scholar.google.ca/scholar_case?q=blehm+and+jacobs&hl=en&as_sdt=2,5&case=15971158539814344691&scilh=0http://scholar.google.ca/scholar_case?q=blehm+and+jacobs&hl=en&as_sdt=2,5&case=15971158539814344691&scilh=0http://scholar.google.ca/scholar_case?q=blehm+and+jacobs&hl=en&as_sdt=2,5&case=15971158539814344691&scilh=0http://scholar.google.ca/scholar_case?q=blehm+and+jacobs&hl=en&as_sdt=2,5&case=15971158539814344691&scilh=0


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Frisbee Images: Although the images share a similar idea of catching aFrisbee between the legs, the protectable expression in the Penman is notsubstantially similar to the Jake image.

S i t f H l T fi ti M t
http://scholar.google.ca/scholar_case?q=blehm+and+jacobs&hl=en&as_sdt=2,5&case=15971158539814344691&scilh=0http://scholar.google.ca/scholar_case?q=blehm+and+jacobs&hl=en&as_sdt=2,5&case=15971158539814344691&scilh=0http://scholar.google.ca/scholar_case?q=Society+of+Holy+Transfiguration+Monastery,+Inc.+v.+Gregory&hl=en&as_sdt=2,5&case=15744080020299469103&scilh=0http://scholar.google.ca/scholar_case?q=Society+of+Holy+Transfiguration+Monastery,+Inc.+v.+Gregory&hl=en&as_sdt=2,5&case=15744080020299469103&scilh=0


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Society of Holy Transfiguration Monastery,Inc. v. Gregory, 689 F.3d 29, (1st.Cir. 2012)

Infringement: substantial similarity

We traditionally have assessed whether substantial similarity lies betweencopyrightable expressions by applying the ordinary observer test. Under thisrubric, two works will be deemed substantially similar if a reasonable ordinaryobserver, on examining both, would be disposed to overlook [the disparities

between the works], and regard their aesthetic appeal as the same.

a court's substantial similarity analysis must center on a work's originalelements.. Such examination may require more than the simple determinationthat "an overall impression of similarity" between the contested works as awhole exists... Typically, to properly conduct this examination, a court must

"dissect[] the copyrighted work and separat[e] its original expressive elementsfrom its unprotected content," honing in solely on the unique (and thusprotected) components... Indeed, should a work's appearance of similarityrest upon elements that are not themselves copyrightable, this will drive aproblematic stake through an infringement claim.

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O l G l 2012 WL 1964523
http://scholar.google.ca/scholar_case?q=Society+of+Holy+Transfiguration+Monastery,+Inc.+v.+Gregory&hl=en&as_sdt=2,5&case=15744080020299469103&scilh=0http://scholar.google.ca/scholar_case?q=Society+of+Holy+Transfiguration+Monastery,+Inc.+v.+Gregory&hl=en&as_sdt=2,5&case=15744080020299469103&scilh=0http://scholar.google.ca/scholar_case?q=Society+of+Holy+Transfiguration+Monastery,+Inc.+v.+Gregory&hl=en&as_sdt=2,5&case=15744080020299469103&scilh=0http://scholar.google.ca/scholar_case?q=Society+of+Holy+Transfiguration+Monastery,+Inc.+v.+Gregory&hl=en&as_sdt=2,5&case=15744080020299469103&scilh=0http://scholar.google.ca/scholar_case?case=5342775470160390700&q=oracle+and+google+may+31,+2012&hl=en&as_sdt=2,5http://scholar.google.ca/scholar_case?case=5342775470160390700&q=oracle+and+google+may+31,+2012&hl=en&as_sdt=2,5


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Oracle v Google 2012 WL 1964523(N.D.Cal. May 31, 2012)

Infringement: idea/expression dichotomy

As long as the specific code written to implement a method is different, anyone is freeunder the Copyright Act to write his or her own method to carry out exactly the samefunction or specification of any and all methods used in the Java API. Contrary to Oracle,copyright law does not confer ownership over any and all ways to implement a function orspecification, no matter how creative the copyrighted implementation or specification may

be. The Act confers ownership only over the specific way in which the author wrote out hisversion. Others are free to write their own implementation to accomplish the identicalfunction, for, importantly, ideas, concepts and functions cannot be monopolized bycopyright.

As for classes, the rules of the language likewise insist on giving names to classes andthe rules insist on strict syntax and punctuation in the lines of code that declare a class. As

with methods, for any desired functionality, the declaration line will always read the same(otherwise the functionality would be different) save only for the name, which cannot beclaimed by copyright. Therefore, under the law, the declaration line cannot be protected bycopyright. This analysis is parallel to the analysis for methods. This now accounts forvirtually all of the three percent of similar code.

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T t i H ldi LLC Xi I t ti I
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Tetris Holding, LLC v. Xio Interactive, Inc.,2012 U.S. Dist. LEXIS 74463 (D NJ, 2012)


Xio's argument that the Tetrispieces are unprotectible because they are related to arule or function of the game is without merit. The idea ofTetrisdoes not necessitate theparticular characteristics of the audio-visual display. And Tetris'scopyright is notprotecting the style and movement of the pieces as methods of operation, but insteadthe expression associated with those elements. There are many ways Xio could have

expressed these same concepts. To accept Xio's reasoning would give a copyrightdefendant free reign to copy another's expression, to pilfer another's creativity, merelyby describing that expression in sufficient detail related to a rule or a function. TetrisHolding has given the rules of its game to the public domain, but has kept the rights toits expression. Tetris Holding made specific and deliberate design choices and itsproduct has enjoyed great success; to allow Xio to profit off that expression, and thatsuccess, by blatant copying, without offering any originality or ingenuity of its own,defies the very purpose of copyright law. Any game expression can always be definedas relating to a game rule and be defined in such detail that the description of theexpression would add nothing to the idea. There was no necessity for Minotomimic Tetris'sexpression other than to avoid the difficult task of developing its own takeon a known idea.

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T t i H ldi LLC Xi I t ti I
http://scholar.google.ca/scholar_case?case=7039389566875417792http://scholar.google.ca/scholar_case?case=7039389566875417792http://scholar.google.ca/scholar_case?case=7039389566875417792http://scholar.google.ca/scholar_case?case=7039389566875417792


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Tetris Holding, LLC v. Xio Interactive, Inc.,2012 U.S. Dist. LEXIS 74463 (D NJ, 2012)

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The first is Tetris and the second is Mino.Without being told which is which, a commonuser could not decipher between the two games.

Any differences between the two are slight andinsignificant. If one has to squint to finddistinctions only at a granular level, then the

works are likely to be substantially similar. []There is such similarity between the visualexpression of Tetris and Mino that it is akin toliteral copying. While there might not haveactually been literal copying inasmuch as Xiodid not copy the source code and exact images

from Tetris, Xio does not dispute that it copiedalmost all of visual look of Tetris. This leaves oneto wonder what Xio believed was protectibleexpression.

WPIX I I i I 2012 U S A LEXIS


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WPIX, Inc. v. Ivi, Inc., 2012 U.S. App. LEXIS18155 (2d Cir, 2012)

Communication/public performance: Is internet streaming a publicperformance?

Indeed, ivis actions streaming copyrighted works without permission would drastically change the industry, to plaintiffs detrimentThe absenceof a preliminary injunction would encourage current and prospective

retransmission rights holders, as well as other Internet services, to followivis lead in retransmitting plaintiffs copyrighted programming without theirconsent. The strength of plaintiffs negotiating platform and business modelwould decline. The quantity and quality of efforts put into creating televisionprogramming, retransmission and advertising revenues, distribution modelsand schedules - all would be adversely affected. These harms wouldextend to other copyright holders of television programming. Continued liveretransmissions of copyrighted television programming over the Internetwithout consent would thus threaten to destabilize the entire industry.

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Fl W k I G t 2012 U S A


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Flava Works, Inc. v. Gunter, 2012 U.S. App.LEXIS 15977, (7th Cir, 2012)

Public performance: is uploading a video to a web site to the publicBut if the uploaded video is copyrighted, the uploader has (depending on the termsof use) infringed the copyright. A customer of Flava is authorized only to downloadthe video (or if he obtained it on a DVD sold by Flava, to copy it to his computer) forhis personal use. If instead he uploaded it to the Internet and so by doing socreated a copy (because the downloaded video remains in his computer), he was

infringing.

One possible interpretation is that uploading plus bookmarking a video is a publicperformance because it enables a visitor to the website to receive (watch) theperformance at will, and the fact that he will be watching it at a different time or in adifferent place from the other viewers does not affect its publicness, as the statutemakes clear. Well call this interpretation, for simplicity, performance by uploading.

An alternative interpretation, howevercall it performance by receivingis thatthe performance occurs only when the work (Flavas video) is transmitted to theviewers computerin other words when it is communicated to the public in a formin which the public can visually or aurally comprehend the work.

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American Broadcasting Companies Inc v Aereo


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American Broadcasting Companies, Inc. v. Aereo,Inc., 2012 U.S. Dist. LEXIS 70749, (SD NY, 2012)

Communicate/public performance: are on-demand transmissions to the public? Aereo characterizes its system as merely allowing users to rent a remotely located

antenna, DVR, and Slingbox-equivalent device, in order to access content they couldreceive for free and in the same manner merely by installing the same equipment at home.Housing this argument more specifically in the terms defined by Cablevision, Aereocontends that, like the RSDVR system in Cablevision, its system creates unique, user-requested copies that are transmitted only to the particular user that created them and,

therefore, its performances are nonpublic.

Despite this creative attempt to escape from the express holding ofCablevision, for thereasons discussed below this Court finds itself constrained to reject the approach Plaintiffsurge. Contrary to Plaintiffs' arguments, the copies Aereo's system creates are not materiallydistinguishable from those in Cablevision, which found that the transmission was made fromthose copie

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