On October 24th, Belgium-based Scarlet ISP avoided paying a €750,000 fine after the Brussels Court of First Instance agreed that it was unrealistic to expect it to monitor or control how its members share copyrighted content through Peer to Peer networks.

Last year, in response to a complaint brougt by the Society of Authors, Composers and Publishers (SABAM), the Court ordered Scarlet ISP to pay €2,500 for each day that it did not block illegal file-sharing on its servers and required Scarlet ISP deploy Audible Magic, a content monitoring program on its servers.  However, Scarlet ISP argued that the technology does not work and violated Belgian wiretapping laws; the Court agreed.  Scarlet ISP plans to appeal to get the entire ruling overturned by the full Belgian Court of Appeal next year.  

This approach, based in both the impracticality of stopping illegal file-sharing and the concern for the privacy of consumers, is starkly different from the French Government’s proposed new enforcement body to oversee the collection and monitoring of information collected by ISPs on high-volume users to detect those taking part in illegal file-sharing. The Belgian court’s response was much in line with the European Parliament’s recent report which warned against over-zealous measures to protect copyright over the internet at the possible expense of civil liberties.  Monsieur Sarkozy, écoutez-vous?

Liked This Article? Bookmark It

On Monday, Central District of California Federal Judge Gary Klausner gave Presidential candidate John McCain, the Republican National Committee, and The Ohio Republican Party an extension until November 17 to respond to the complaint for copyright infringment filed against them by musician Jackson Brown.  Judge Klausner had previously ordered the defendants to answer the complaint by October 24.

At issue in the case is a commercial released by the Ohio Republican Party that mocks Barack Obama’s suggestion that the country’s motorists could conserve gasoline by keeping their tires properly inflated.  During the commercial, a sound recording of Jackson Brown’s Running on Empty plays in the background.  According to Mr. Brown’s complaint, this “falsely suggests that Brown sponsors, endorses and is associated with McCain and the Republican Part. when nothing could be further from the truth.”  None of the defendants sought or obtained a license of permission to use Mr. Brown’s work.

McCain and the republican party have been on the wrong end of a number of cease and desist letters from artists whose songs were used without permission of compensation, including ABBA, Franki Valli, and John Mellencamp.  To date, only Mr. Brown has brought suit, but any of the other artists likely would have standing to do the same.  (If you change your mind ABBA, take a chance on me.)

Assuming for the moment that this is a clear cut example of copyright infringement, the interesting question becomes what potential exposure does McCain have for damages?  We don’t know what his position is because the defendants have managed to avoid answering Mr. Brown’s complaint.  However, I think its safe to assume that McCain will claim that he had no hand in the development of the commercial and that he never approved violating intellectual property or publicity laws. 

That’s where the Bipartisan Campaign Reform Act (BCRA), enacted in 2002, comes into play.  It requires “a statement by the candidate that identifies the candidate and states that the candidate has approved the communication”. The “Stand By Your Ad” provision was intended to force political candidates running any campaign for office in the United States to associate themselves to their television and radio advertising.  One would think then, as a matter of law, Mr. McCain cannot claim to be an innocent infringer. It will be interesting to see whether BCRA is interpreted this way by the court.   

Liked This Article? Bookmark It