The Premier League made their court debut in the Southern District back in 2007.
Joined by music publisher Bourne Ltd and others, the Premier League filed a class action law suit alleging that YouTube (owned by GoogleInc.) copied, stored and electronically disseminated, publicly displayed and performed in whole or a substantial part of the claimants’ motion pictures, sound broadcasting, musical compositions, television productions and sound recordings. The claimants specifically alleged that YouTube and Google pursued “a deliberate strategy of engaging in, permitting, encouraging, and facilitating massive copyright infringement” and adopted “a cynical and self-contradictory strategy designed to perpetuate the unlawful exploitation” of the claimants’ valuable IPR, such as audiovisualfootage of the Premier League’s football matches. YouTube and Google countered by contending, among other things, that they were protectedby the Safe Harbour legislation in the Digital Millennium Copyright Act(DMCA).
Two years later, US District judge LouisStanton ruled that the plaintiffs were prohibited from requesting statutory damages “for foreign works which were not registered in theUS except those in suit under the ‘live broadcast exemption’ in Section411(c) of the Act.”
Section 412 of the Copyright Act prohibits recoverof statutory damages for any work unless the work was registered before the commencement of the infringement or within three months after the work’s first publication. There is no exception in the legislationfor excusing foreign works from this requirement. District JudgeStanton held that it was clear that Congress did not intend to exempt foreign works in Section 412 and in fact was passed in order to incentivize copyright registration (see H.R. Rep. No 94-1476 at 158Spet. 3 1976).
The plaintiffs’ contention with this was that, unless Section 412 was construed to exempt foreign works from this requirement, its application would violate the Berne and TRIPS agreements which prohibit any formal requirement necessary for the enjoyment of copyright protection.
Judge Stanton stated that the Senate Judiciary Committee concluded that Section 412 did not completely prohibit the ‘availability of all meaningful relief” to foreign works. Also, even if in conflict with these treaties, because the Berne Convention and TRIPS are not self-executing under U.S. law they have “no effect on U.S. law unless Congress so provides.”
District Judge Stanton therefore held that foreign works not registered could not benefit from statutory damages under the Copyright Act.
If this ruling stands, a burden will be placed on foreign companies to register their copyright in order to protect their ability to claim statutory protection in future litigation.
The plaintiffs’ contention with this was that, unless Section 412 was construed to exempt foreign works from this requirement, its application would violate the Berne and TRIPS agreements which prohibit any formal requirement necessary for the enjoyment of copyright protection.
Judge Stanton stated that the Senate Judiciary Committee concluded that Section 412 did not completely prohibit the ‘availability of all meaningful relief” to foreign works. Also, even if in conflict with these treaties, because the Berne Convention and TRIPS are not self-executing under U.S. law they have “no effect on U.S. law unless Congress so provides.”
District Judge Stanton therefore held that foreign works not registered could not benefit from statutory damages under the Copyright Act.
If this ruling stands, a burden will be placed on foreign companies to register their copyright in order to protect their ability to claim statutory protection in future litigation.
The silver lining for the Premier League was however found in section 411(c). Under this section a foreign work containing sounds and/or images which was first recorded simultaneously with its live transmission may obtain statutory damages in the absence of registration if the copyright owner serves the infringer an “Advance Notice of Potential Infringement.” In their defence, YouTube/Google alleged that the plaintiffs could not “point to a single work for which they claim to qualify for the exception” nor did they “satisfy the provision’s detailed notice requirements.” In reply, the Premier League by way of their lawyer submitted a declaration that since 10 September 2008 the Premier League has served more than 340 Advance Notice on YouTube. District Judge Stanton held that this was satisfactory to amend plaintiffs complaint and YouTube/Google’s argument therefore failed.
Source: IPkat
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