IP Round-up: Newzbin 2, Copyright Infringement and Stormtroopers

This is a post from Jonny Mayner with additional input from Jas Purewal.  The Star Wars’ theme to the post is the fault/genius of Jonny (depending on how you feel about Star Wars, ofc).

This is a quick post looking back on some high profile IP cases in the UK on which we saw rulings in the first half of this year.  Read on for a brief round-up of what the cases were about and how they’re relevant to games and tech.

Newzbin 2: a new hope for copyright holders? (Twentieth Century Fox and others v British Telecommunications)

Summary: for the first time a UK court has ordered an ISP to block access to a website on anti-piracy grounds

Last year the operators of Newzbin were successfully sued for copyright infringement by a group of film producers and distributors. Newzbin provided indexing functions which enabled users to search for and collate files containing pirated films which were posted on Usenet. Newzbin promptly shut up shop only to reopen as Newzbin2, hosted offshore in a bid to escape the reach of the UK courts. In response the original claimants sought and have now obtained an injunction compelling BT to prevent their own customers from using BT services to access the Newzbin2 website.

While the original claim against Newzbin and these injunction proceedings were brought by film makers it is worth noting that the Newzbin and Newzbin2 websites were also used to index and make available illegal copies of games as well. So the decision is good news for copyright holders, including games developers and publishers, but bad news for ISPs who may no longer be able sit back and claim that they are a “mere conduit” in the process of peer-to-peer file-sharing. It seems that where the infringing activities of sites such as Newzbin2 and their users are widely known that courts may assume that ISPs have the requisite “actual knowledge” of the infringement so as to render them responsible to take action to prevent the infringement.

In other news the UK government recently announced that controversial website-blocking provisions in the Digital Economy Act will be suspended pending an investigation by Ofcom into the viability and efficacy of those provisions. A judicial review of the Digital Economy Act has also been called to consider the arguments for and against website-blocking measures.

Will website-blocking become the next weapon for copyright holders in their battle against piracy?  These developments suggest ‘yes’ so far…

Size matters not (Newspaper Licensing Authority v Meltwater)

Summary: even copying very small amounts of a copyright work (e.g. a newspaper headline) can mean copyright infringement

The claimant in this UK Court of Appeal case was the NLA, which licenses and collects licence fees in relation to the making of copies of newspaper and other media content. The defendant was Meltwater, a news aggregator which provides media-monitoring services to its clients including Meltwater News, a regular email update providing links to news content harvested from the internet using “spider” programs. These email updates typically contain a reproduction of a new stories’ headline of a news story as a hyperlink to the URL of the original story along with a verbatim extract of the first few lines of the story. The Court of Appeal held that a piece of work as small as a newspaper headline may be a work protectable by copyright and that the very small extracts of the stories which were reproduced verbatim in Meltwater News may also be capable of being protected by copyright is they constituted a substantial part of the original story.

This ruling reinforces the English law position that the test for determining whether copyright infringement has taken place is not based on the amount of copying that has taken place, but on the importance of what has been copied to the overall work. So if someone copies even a small part of your website, game or other digital content, the question of whether they have copied “all or a substantial part” is a qualitative, not quantitative test.

This was not the decision they were looking for. . . (Lucasfilm v Ainsworth)

Summary: George Lucas doesn’t control Stormtrooper helmets (!)  Also, US copyright cases can in principle be heard by UK courts

This UK Supreme Court ruling is the latest episode in the long-running dispute over copyright relating to the iconic Stormtrooper helmet and sales of replicas in the UK and beyond. The main defendant, Andrew Ainsworth worked on the original Star Wars film and, having received drawings, a clay model and some moulds from Mr Lucas and Co. then produced his own moulds to manufacture the Stormtrooper costumes for the film. He retained his own moulds and in 2004 began producing replica costumes for sale to the populous Star Wars fan community worldwide. Lucasfilm sued in the US and in the UK claiming breach of copyright.

The Supreme Court ruled in Ainsworth’s favour and decided that as the Stormtrooper helmet is utilitarian in nature and not an artistic work it is not protected by UK copyright at all. Insofar as the case relates to copyright of physical objects this isn’t of huge relevance to the games industry however it warrants a mention on Gamer/Law not only because of the involvement of Lucasfilm, sibling company of developer Lucasarts, but also because of the more significant jurisdictional issue which was little discussed in much media coverage. The Supreme Court held (in Lucasfilm’s favour) that claims for copyright infringement under US or other foreign law could be tried in the UK provided the UK courts have personal jurisdiction over the defendant. Going forward this means that if a UK resident breaches US copyright in a game then that claim can be heard in the UK courts. As always, watch this space for future games-related developments.