TorrentFreak reports that Google is threatening action against one of the web’s largest YouTube conversion sites. The site, YouTube-MP3.org, extracts MP3 audio from YouTube videos and makes it available for users to download.

According to Google’s own statistics, the site attracts 1.3 million visits per day. Google is demanding that the website cease using the YouTube API to allow users to “separate, isolate, or modify the audio or video components of any YouTube audiovisual content.”

Ofcom, the UK communications regulator, has revised its proposed code on ISP’s responsibility for online copyright infringements of their customers.

The code sets out a ‘three strikes’ procedure, whereby:

• ISPs are required to maintain a list of customers who have been associated with three or more suspected online copyright infringements in any 12-month period;
• that list, in anonymised form, must be disclosed to copyright owners on request;
• armed with the ‘three strikes’ list, copyright owners can obtain a court order requiring the ISP to disclose the identity of customers on the list; and
• once the identity of the customers is known, the copyright owner can sue them for infringement.

The revised draft code maintains these features, but varies them in a number of ways, including:

• the evidence-gathering methods used by copyright owners must be approved by Ofcom
• ISPs no longer have discretion to ignore copyright infringement allegations on the basis of “reasonable opinion”
• the infringement notices sent to customers must identify the time of alleged infringements
• the grounds on which a customer may appeal an infringement allegation are limited to those specified

The revised draft code, which is considered by many to be ‘tougher’ than the original, is open for comment until 26 July 2012.

The Court of Appeals for the Ninth Circuit Court is reconsidering its Veoh decision on the Digital Millennium Copyright Act (the “DMCA”) copyright infringement safe harbor standards, in light of the Second Circuit’s decision in Viacom v. YouTube (Baker Hostetler)

The Tribunal de Grande Instance has ruled that the effort made by Google to remove copyrighted content uploaded by its YouTube users was sufficient to avoid liability for copyright infringement (Reuters)

Google has released a detailed report which contains various data on content removal requests submitted by copyright holders from July 2011 to mid May 2012 (1709 Blog)

Optus has announced that it will seek leave from the High Court of Australia to appeal the recent Full Court of the Federal Court decision that its cloud-based ‘TV Now’ service infringes copyright.

Optus has no automatic entitlement to have the High Court hear an appeal. It must seek the consent of the High Court, through a ‘special leave’ application.

Only a small percentage of special leave applications succeed. Nevertheless, given the general importance of the legal issues involved (especially the question of who ‘makes’ an automated, cloud-based recording) and the fact that the first instance decision was contrary to the Full Court deicsion, there must be some reasonable prospect that the High Court will agreed to hear an appeal.

The introduction of the UK’s controversial graduate response – ‘three-strikes and you’re disconnected’ – process for dealing with online copyright infringement has been delayed for two years.

Despite the recent failure of a court challenge by ISPs to the Digital Economy Act‘s provisions on notifying infringing customers, the BBC reports that the UK government has decided to delay implementation of the system until 2014 at the earliest.

The Full Court of the Federal Court of Australia has ruled that the Optus ‘TV Now’ cloud-based recording service infringes copyright.

In National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd, the Full Court upheld the appeal against the first instance decision, which had found that a recording of a TV show using a cloud-based service is made by the individual user of the service, not by the provider of the service. The first instance finding was significant, because Australian copyright law permits individuals to record a TV broadcast if it is for “private and domestic use” for watching at a later time – i.e. for “time-shifting”. Because the TV recordings by the Optus service were found to have been made by Optus’s customer rather than Optus itself, the “time shifting” exception applied and the recordings did not infringe copyright.

The Full Court came to a different view on the crucial question of who “made” the recordings. It found that the recordings were made either by Optus alone, or by Optus and its customer jointly. Either way, Optus made the recordings – and these recordings were not for its own “private and domestic use”.  As a result, Optus could not take advantage of the time shifting defence – and hence it was found liable for infringement of copyright in the TV shows recorded by its ‘TV Now’ service.

The Australian decision is consistent with the outcome of a similar case in France, but contrary to cases in the US and Singapore.

The Australian High Court has ruled in favour of an ISP which failed to terminate access to the Internet for those of its customers engaged in copyright infringement using the BitTorrent protocol.

In Roadshow Films v iiNet, various owners of copyright in films sued the ISP on the basis that it “authorized” the copyright infringements of its customers.  Under s.101(1A) of Australian copyright legislation, the issue of whether a person has authorized an infringement by another is determined by considering various factors, including:

(a) the extent to which the person has power to prevent the infringement;
(b) the nature of the relationship between the person and the infringer; and
(c) whether the person took reasonable steps to prevent the infringement.

The first of these factors was determinative.  The High Court ruled that, to be liable for the infringement of another, a person “must have a power to prevent the primary infringements”.

In this case, the ISP “had no direct technical power at its disposal” to prevent a customer from using the BitTorrent system to download the films.  At most, the ISP “could only ensure that result indirectly”, by terminating its contractual relationship with the customer.  This indirect power was largely ineffective, because “on receiving a threat of such termination, it was possible for a customer to engage another ISP for access to the internet” – a fact which highlights the limitations on the ISP’s power to prevent infringements, and explains why it could not be held liable for them.