The High Court had real difficulty. It said that that it was impossible to forecast what the box office takings would have been for a film, especially one that had yet to be finished. It was also impossible to test the claimant’s projections of the likely losses. Projecting the numbers of CDs and DVDs, let alone associated sales such as ringtones and radio income, were just a matter of pure guesswork. However, that should not stop Experience Hendrix from being able to claim any losses, as that would have hit the wrong note entirely. The Court therefore had to find some way of quantifying the losses.

Despite all the speculation over figures, two pieces of evidence enabled the High Court to come up with a figure of lost sales of US$5.8m for the 12 month period following 2010. One piece of evidence was a distribution agreement entered into with a company in 2010 and another was from a rival offer made to the claimant for the DVD and soundtrack rights. The High Court just did the best it could based on those two pieces of evidence. Additional damages would not be awarded as a punishment for flagrant infringement, as The Times had made a genuine attempt to have an appropriate licence.

It is doubtful whether this case or its results would be music to anyone’s ears – whether the fighting parties, judge or even the deceased music star.

The ASA acknowledged that ASDA applied the 100 day guarantee to the goods whether they were faulty or not and therefore this did go beyond the consumer’s rights at law for non-faulty goods, but this had not been made clear from the advert. Accordingly, ASDA had breached the Broadcasting Code of Practice and was ordered not to repeat the ad in that form.

But some comedians find this no laughing matter when their livelihoods depend on the uniqueness of their scripts. This is not the first time comedians have threatened legal action against others for copyright infringement.

And one of the biggest comedians to suffer was the winner of the funniest joke award at the Edinburgh Festival Fringe in 2009, Dan Antopolski. His joke was so funny that it ended up posted all over the Internet. He was not given attribution for the gag. If he would have tried to use it again, people might have thought he was ripping someone else off or copying someone else’s material! In any event, it would not have been funny because it had become so notorious that it would not have been funny the second time. Then the only joke would have been on him!

The US District Court for the Southern District of New York disagreed with Viacom. District Judge Louis Stanton said: ‘Mere knowledge of prevalence of such activity in general is not enough. The provider need not monitor or seek out facts indicating such activity.’ As such, Google was entitled to the safe harbour protection as it had had insufficient notice of any particular infringements. The ruling said that the case showed how well Google’s take-down facility worked, because Viacom had accumulated 100,000 videos over several months and nearly all of them were disabled the day after Viacom had notified Google of them. Responsibility to find and identify infringing material was the copyright holder’s and not the online service provider’s.

Google has described the victory as important not just for itself but also its millions of users around the world who want to enjoy the benefits that Web 2.0 brings.

The Bill contains these provisions:

• To allow the Government to make laws that could require Internet service providers to cut off the Internet connections of suspected copyright infringers and impose other technical measures on them. The burden of proof would be on the copyright owner to prove that the Internet user’s connection had been used for copyright infringement, and the Internet user would then have a right to appeal, but he would then have to show that he did not commit the infringing act or he took reasonable steps to prevent other people from committing the infringement via his Internet connection. Any introduction of this provision into law would require further scrutiny from Parliament first. The effects would be severe, particularly for whole households who would suffer because of the actions of one teenager or another person living there. People may also suffer if other people use their Internet connection for unlawful activity without their knowledge.
• The courts to have the power to grant orders to ensure that certain web sites are blocked if they satisfied that the sites have been used or are likely to be used in connection with copyright infringement. However, this new measure can only be introduced if Parliament has approved it and if the Government is satisfied that using the Internet for copyright infringement activities has a serious adverse effect on businesses or consumers and the sanctions are not a disproportionate measure. Blocking a particular site would be reserved for the most serious offenders.
• The right for copyright owners to notify ISPs if they suspect that copyright material has been infringed, and to have the right to receive anonymised lists of the Internet Protocol addresses (ie the web addresses) of the computers at the centre of the notifications.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of Upload-IT, comments: ‘Interestingly, this long-awaited measure for the benefit of the entertainment industry may be a matter of shutting the door after the horse has bolted. In this cat and mouse game, the copyright infringers are already ahead of the game. They may become ever more immune to the measures in this new legislation by increasingly using private networks that do not need a public web site in order to facilitate the file-sharing, and by the use of so-called proxy servers that hide the real identities in order to avoid detection.’

Newzbin provided indexing and search services for the Usenet Internet discussion system. Usenet enables people to upload and view messages on a public bulletin board. Usenet was not designed for big files such as films, which need to be split into thousands of small parts. Any user who wants to see the film needs to piece all those bits together. Newzbin made that process much easier for users. They compiled an index of films, had 250 editors who compiled reports of the films and links to other information about the films, and provided a one-click mechanism that enabled premium paying members to readily assemble the work from its component parts without having to spend days doing so. Newzbin claimed that it was ‘content agnostic’ by indexing the entire content of Usenet with providing links where possible and any unlawful activity was done by a user of the hyperlinks.

The High Court had little time for Newzbin’s arguments. It described terms and conditions saying that its editors must not do any act to enable, incite or encourage any unlawful acts and similar terms and conditions for its users as being ‘entirely cosmetic’ and a ‘superficial attempt’ to conceal Newzbin’s purpose. Newzbin’s functionality and categorisation of content and encouragement given to editors to report films meant it had been aware for many years that copyright in the vast majority of films accessed through Newzbin were being infringed.

Newzbin had authorised the infringement. Authorisation went beyond mere enablement, assistance or even encouragement. It meant purporting to grant a right to do something, and that could be express or implied from the relevant circumstances. The circumstances included the nature of the relationship with the primary infringer, whether material supplied was used for the infringement, whether infringement was inevitable, the degree of control retained by the supplier, and whether any steps had been taken to stop infringement. Newzbin fell foul of all of those criteria. A reasonable member would have concluded that Newzbin purported to have the authority to grant the required permission and had sanctioned, approved and countenanced the copying. Newzbin provided a searchable and user-friendly facility for premium paying members, it must have known what users were doing and took no steps to stop it; instead, any contractual restrictions were window dressing.

Authorisation the infringement was sufficient to have liability to the film industry, but the High Court went further and said that Newzbin had also procured the infringement or had a common design to infringe. It went beyond mere facilitation and extended to being so involved with the infringement as to be jointly responsible. The Court said that Newzbin operated a web site designed and intended to make infringing copies of films readily available to premium members, the service was structured so as to promote infringement and inevitably did so, editors had been encouraged and induced to make reports of films, it had encouraged its members to give advice to each other about how to do it, and it had profited from the infringements.

The Court ruled that there had been a third form of copyright infringement. The facility had enabled Newzbin’s premium members to download the films from a place and at a time individually chosen by them, and when doing so the way in which Newzbin’s service worked meant that it had been actively involved with communicating the copyright work to the public by electronic transmission without permission

It was certainly a happy ending for Twentieth Century Fox and the other film makers and distributors in this case, and they will be hoping that there is no twist in the plot in the appeal courts.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of www.Upload-IT.com, comments: ‘This result is not particularly surprising. If Newzbin had been able to get away with what they did, it would have been open season for everyone. The case does not alter the best practice advice for genuine service providers on the Internet who do not wish to profit or encourage intellectual property infringement. They should have a good system in place to enable the reporting and rapid takedown of infringing material, and act on it.

‘There is still no reported UK case on whether web sites simply providing hyperlinks to other sites where infringing material can be found but without doing more or otherwise benefiting would be doing anything wrong. However, I’d be surprised if such a service provider was pulled up if they were simply facilitating a service to users and had no control or intention over what their users do.’

Amongst the changes are the following:

• More consistency between the CAP Code and BCAP Code, such as for misleading advertising, harm and offence
• The Codes are intended to be simple, user-friendly and joined-up.
• Television and radio advertising need to have regard to social responsibility to the audience and society as a whole.
• A prohibition on collecting data from under 12 year-old children without the consent of their parents or guardian. In addition, information cannot be collected from under 16 year-olds about other people.
• Further clarification over how to use the word ‘free’.
• A prohibition on advertisers from exaggerating any environmental benefits. Absolute claims of green credentials must be supported by a high level of substantiation. Meanwhile, comparable claims such as ‘greener’ or ‘friendlier’ must be justifiable on the basis of the total environmental impact over the previous range or the competitor’s product. The environmental claims must be measured over the full lifecycle of the product. As with other ads, the green qualities must not mislead.

However, the dispute has now turned nasty. YouTube is alleging that Viacom had paid at least 18 marketing agencies to open YouTube accounts with fake addresses, upload its content onto YouTube and ‘rough it up’ to make it look like it had been stolen – so as to make a claim against YouTube.

Viacom had considered buying YouTube before Google did. The law suit commenced soon after. As to who is the goodie and who is the baddie in this thriller, we’ll just have to watch on. The plot continues to thicken. Reality is sometimes stranger than fiction. It all sounds like Viacom could make a good movie about this case itself!

In a welcome ruling for the downtrodden UK media, the High Court decided that what Terry was really concerned about was protecting his sponsorship and endorsement deals rather than his privacy rights. To obtain an injunction in privacy cases, a claimant has to establish that he had a reasonable expectation of privacy, there was no public interest in disclosure and an injunction would be a proportionate remedy. The judge said that it was important to bear in mind the right to freedom of expression under the Human Rights Act, as well as the right to privacy. While respect for private life meant people should live freely according to their own choices, their conduct did not have to be illegal before it could be criticised in public. The freedom to live as you choose is a valuable freedom, but so is the freedom to criticise people’s actions (within the boundaries of the law) for being socially harmful or wrong. Even if Terry’s rights to privacy would prevail, an injunction would not be a necessary remedy, as damages would be sufficient to compensate him for loss of money from his reduced sponsorship contracts.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of www.Upload-IT.com, comments: ‘This case shows just how much of a mess the law of privacy is in this country – although admittedly not quite as much of a mess as the private lives of certain high-profile footballers. Following the recent groundbreaking privacy win for Max Mosley when he was able to claim damages for publication of his sexual exploits and the injunction granted in favour of a married Premier League manager to stop details of his brothel escapades being published, it was thought the British public might never get to read gossip again. As this judgment shows, that’s not necessarily so. However, the dividing line remains unclear and it is creating an enormous headache for the media to know what they can publish and what they can’t. The law of privacy badly needs clarifying.’

After he was severely injured in the great storms of 1987, Gorden Kaye, the ‘Allo ‘Allo actor, was unable to stop the press intruding in his hospital ward and taking photos of his injuries. However, since the introduction of The Human Rights Act 1998, a creeping law of privacy has been developed by the courts. The 1998 Act gives people a right to have protection for their private lives even if they are famous, although this has to be balanced against the press’s right to freedom of expression. Cases have gone each way with some people being protected and others not.

More recently, particularly with the case of Mosley v News Group Newspapers last year – when Max Mosley was able to claim record damages for breach of privacy because of The News of The World’s reports of his German uniform styled orgy session – the courts have been taking a more pro-privacy line. For more on that story, click here: http://www.upload-it.com/editArticle.aspx?ID=2746.

In the current case, The Sun alleges that when he drove up to the brothel the unnamed married boss – dressed in branded football training clothes still – smiled and shamelessly admitted that he knew it was a brothel. That would be no justification to naming him, though. At least, that was The Sun’s concerns based on the current state of the law.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of www.Upload-IT.com, comments: ‘There should clearly be a right for people to be able to go about their everyday lives without being hounded in the way that Princess Diana was, even if they are celebrities. However, it is questionable whether famous married people taking no steps to hide their moral misdemeanours deserve that right. This was not something that went on behind closed doors and if the married manager was really that flippant about his antics, why should his privacy be maintained? There is clearly a distinction between what is in the public interest and what is interesting for the public. In a lot of cases, even celebrities should be entitled to a private life. However, in my opinion the dividing line between freedom of expression and protection of privacy is in the wrong place if someone who has chosen to be in the public eye conducts himself in public in a highly questionable fashion and the press is unable to report on the grounds of respect for his privacy.’

What do you think of this situation?

In addition, the Government is looking into implementing “short extract” provisions, which would enable broadcasters to show extracts from “events of high interest to the public” even where another broadcaster has exclusive rights. Meanwhile, the Department for Culture, Media and Sport has published a consultation on introducing product placement to UK television for the first time. The DCMS is keen to find out what safeguards there should be.