In his Opinion of 26 November 2013 (not yet available in English) Advocate General Cruz Villalón has taken the position that the Internet Service Provider (“ISP”) of the user of a website infringing copyright should be considered to be an “intermediary” under Directive 2001/29 and, as such, can be ordered to block access to the website for its clients.
The Austrian Supreme Court referred questions regarding the legality of orders to block access in the context of a dispute between two film production companies on the one hand, Constantin Film Verleih and Wega Filmproduktionsgesellschaft, and UPC Telekabel Wien, a major Internet provider in Austria, on the other. The website kino.to allowed users to stream or download films for which Constantin Film and Wega hold the rights, without their consent. The two companies sought an injunction prohibiting UPC Telekabel from allowing its customers to access kino.to. The injunction was granted but without setting out specific measures to be taken by the ISP. Continue Reading
On 26 November 2013, the German Federal Cartel Office (FCO) announced that it ended the probe into Amazon’s price parity policy (the “Policy”). The Policy required that the price of an item offered by a retailer on Amazon’s online marketplace platform, Amazon Marketplace, should not be higher than the retailer’s lowest offer for that item elsewhere, including other online shops or the retailer’s own website.
In August 2013 Amazon decided not to implement the Policy in the EU. As a result, the UK competition authority (OFT) stated that it was minded to close its probe without reaching a view on infringement, and the FCO announced that it would assess whether the measures taken by Amazon were sufficient for it to close its investigation (see our previous posts here and here). The FCO wanted to ensure that Amazon removes price parity terms and conditions for all dealers in a legally binding manner, and that it clearly informs dealers about the changed terms and conditions. According to its press statement of 26 November 2013, the FCO has determined that these requirements have been met, noting that dealers have confirmed implementation of these measures.
While the probe into Amazon’s price parity policy has come to an end, competition authorities in Europe have been closely watching price relationship agreements in the context of online platforms, especially in the e-books (see our previous post here) and online hotel booking sectors.
*The authors would like to thank Monika Kuschewsky for helpful comments.
Written by Ezra Steinhardt and Colin Warriner
On 29 October 2013, the Republic of Ireland’s Department of Jobs, Enterprise and Innovation (DJEI) published a report containing proposed amendments to its copyright laws, named “Modernising Copyright” (“the Report”). Taking account of submissions received during a public consultation that ran between February and May 2012, the DJEI’s Copyright Review Committee (CRC) uses the Report to recommend a series of amendments to the Irish Copyright and Related Rights Act, 2000 (CRRA).
Some of the Report’s key findings and recommendations are outlined below.
Earlier today, the FCC placed on public notice two petitions requesting that the agency clarify or forbear from enforcing certain aspects of its new TCPA regulations that went into effect on October 16, 2013. Those regulations, which we summarized here, created, among other things, a new “prior express written consent” requirement for the transmission of automated “telemarketing” or “advertisement” text messages or prerecorded calls to mobile phones. Both of the petitions for which comment is being sought take issue with the implementation of the “prior express written consent” requirement, though each in its own way. You can read our summary of each petition and access copies here.
Based on the FCC’s public notice, comments on the petitions are due by December 2, with reply comments due by December 17.
Written by Ezra Steinhardt and Colin Warriner
On 3 October 2013, in the case of Peter Pinckney vs. KDG Mediatech AG, the Court of Justice of the European Union (CJEU) confirmed that, with certain qualifications, when a copyrighted work is reproduced in one Member State, and offered for sale online by companies established in another, the author of the work can bring an action for copyright infringement in the courts of their own home Member State if infringing copies are accessible from that State – even if that State is not among the States where the work was reproduced and/or made available online. Continue Reading
This post highlights material recent developments in Europe concerning standard essential patents (SEPs) and FRAND licensing, including Samsung’s commitments proposed in the context of the ongoing antitrust probe of the European Commission (see our previous post).
Samsung’s Commitments Proposal
In its commitments proposal, Samsung offered not to seek injunctions based on its patents essential to smartphone and tablet technology standards (“Smart Mobile SEPs” as defined in its commitments proposal) against a potential licensee who agrees to Samsung’s particular licensing framework. The proposed commitments are limited to the European Economic Area and would only apply for a period of five years.
According to the Commission’s press statement, the FRAND licensing framework proposed by Samsung consists of several steps: (i) a potential licensee of Smart Mobile SEPs must agree to follow the framework as the exclusive means for determining FRAND terms for a license to Smart Mobile SEPs; (ii) negotiations must take place between Samsung and the potential licensee for 6 to 12 months before they can be considered to have failed; (iii) if the negotiation fails, the parties will resort to a third party determination of FRAND terms by either a court or an arbitration tribunal, as agreed by the parties; (iv) if the parties cannot agree on (iii), the issues will be submitted to arbitration.
The Commission now invites comments from interested parties on Samsung’s commitments. If the feedback from the market consultation is positive, the Commission will take a decision making the commitments legally binding. This means that the Commission will not take a position on whether Samsung infringed Article 102 TFEU.
Towards Increased Clarity on the Issue?
Vice President Joaquín Almunia observed that “if we can reach a good solution in this case, it will bring clarity to the industry.” But in addition to the Samsung case, there are also other cases on foot at the European Union level. For example, the Commission’s investigation of whether the circumstances in which Google (MMI) sought an injunction on the basis of SEPs was anti-competitive is still on foot. The closed-door hearing in that case took place at the end of September.
The EU Courts are also considering the issue, as a result of questions referred by the Düsseldorf District Court in Germany (Case C-170/13 Huawei v. ZTE). Samsung’s commitments proposal expressly notes that the Commission will take “full account” of the Huawei case or any other relevant judgment. In this context it is worth bearing in mind that, even if a settlement is reached, the Commission may reopen proceedings in any case in light of the judgment, either on its own initiative or at the request of Samsung.
The European Parliament is also very interested in FRAND licensing of SEPs. It recently released a study that it commissioned, “The Contribution of Competition Policy to Growth and the EU 2020 Strategy”, which calls for the Commission to provide explicit guidance on FRAND licensing of SEPs, and observes that clarity regarding the determination of FRAND licensing rates would be of value.
On October 22, Rep. Marsha Blackburn (R-TN) introduced a bill serving to “provide for regulating medical software, and for other purposes” in the House of Representatives. The bill, entitled the Sensible Oversight for Technology which Advances Regulatory Efficiency (“SOFTWARE”) Act (“the bill”), was co-sponsored by a bi-partisan group of lawmakers.
The bill creates a regulatory scheme based on three newly defined categories of software—“medical software,” “clinical software,” and “health software.” Although the bill proposes to carve out “medical software” from the definition of “device” in Section 201(h) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. § 321) (“the Act”), medical software would be subject to the same regulatory requirements as medical devices under the Act. In contrast, “clinical software” and “health software” would not be subject to regulation under the Act.
The bill defines medical software as software intended for human or animal use that is intended to be marketed (1) “to directly change the structure or any function of the body of man or other animals;” or (2) for “use by consumers and makes recommendations for clinical action that (i) includes the use of a drug, device, or procedure to cure or treat a disease or other condition without requiring the involvement of a health care provider; and (ii) if followed, would change the structure or any function of the body of man or other animals. . . .” Medical software does not include software “whose primary purpose is integral to the functioning of a drug or device” or software that is a “component of a device;” such software presumably would continue to be regulated as part of the “parent” device or drug product. Continue Reading
On October 18, 2013, the FCC issued a Public Notice confirming the deadlines to submit comments and reply comments to refresh the record in the FCC’s pending “cramming” proceeding. Comments are due by November 18 and reply comments are due by December 2, 2013.
The Court of Justice of the EU (“CJEU”) has now ruled on the Pinckney case, dealing with national courts’ competence to hear online copyright infringement cases in the EU. See our post on the Opinion of Advocate General (“AG”) Niilo Jääskinen of 13 June 2013 here.
In his Opinion, AG Jääskinen took the view that, in identifying the competent national courts, the territory in which the damage occurs is a relevant factor that should be considered. He went on to opine that the damage from an online copyright infringement occurs in the territory whose population was targeted by the infringing website (at para. 64). The activity of the website should disclose an intention to target persons in that territory (para. 61).
The CJEU did not follow the AG. It took the view that the relevant criterion was not whether the activity of the website was “directed to” a specific Member State, but rather whether copies of the infringing product (in this case CDs with Mr Pinckney’s music) were accessible online in a Member State (para. 44). The CJEU’s judgment marks an interesting departure from previous case law on online infringement of other IP rights (e.g., trademarks and database rights), under which liability can be attributed to a website only when it is targeted at consumers in a specific Member State.
The CJEU’s ruling means that copyright owners do not need to show that a website’s activity is targeted at Internet users in a specific Member State. Nor do they need to take on the notoriously difficult task of proving the intention of the website owner. However, the CJEU made clear that copyright owners might need to bring multiple actions in multiple Member States in order to obtain redress in all of the territories in which the website could be accessed (para. 45).
Earlier today, two entities — the Direct Marketing Association (“DMA”) and a Coalition of Mobile Engagement Providers (“Coalition”) — filed petitions at the FCC asking the agency to stay and forbear from enforcing, or clarify, certain aspects of the “prior express written consent” requirement that went into effect yesterday for prerecorded calls to residential numbers and autodialed or prerecorded calls or text messages to mobile numbers. The petitions are accessible here.
The DMA petition asks the FCC to forbear from enforcing the definition of “prior express written consent,” which as a practical matter requires entities to incorporate certain FCC-prescribed language into their consent processes before “telemarketing” or “advertisement” calls can be transmitted via prerecorded messages or automated means to mobile numbers. Part of the DMA’s rationale is that consents secured in advance of the October 16, 2013, implementation date for the new “prior express written consent” requirement should be sufficient, and that requiring entities to include the FCC’s prescribed language in the consent process likely would cause confusion, especially among consumers who previously consented to receive such calls and messages. The DMA also asked the FCC to stay its “prior express written consent” definition until the FCC rules on the forbearance request.
The Coalition petition is more narrow, and asks the FCC to clarify that the new “prior express written consent” requirement (and thus the FCC-prescribed language for such consent) applies only to consents secured after October 16, 2013. Part of the Coalition’s argument is that the text of the FCC order promulgating the new requirement focused on new customers and suggested that “prior express written consent” would be needed only where some form of written consent had not previously been obtained.
The FCC’s new rules have been subject to criticism from various quarters, principally because the “prior express written consent” process does not appear to have been formulated with commercial text message programs and existing industry best practices in mind. We would not be surprised if more petitions seeking clarification, forbearance or stays are filed in the coming weeks. In the meantime, the next steps for the DMA and Coalition petitions will be for the FCC to place them on public notice so interested parties can comment on them. After that, they will be subject to consideration by the agency.