Tag Archive for: Infringing

TV Network Declares IPTV Tool Copyright Infringing, Even Though It’s Just A Tool

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To a certain segment of the population, just mentioning IPTV is enough to get them frothing at the mouth and shouting “copyright infringement” at anyone who will listen. This isn’t entirely without cause, of course, as IPTV is a technology that can be used to infringe by streaming copyrighted TV shows and films. There are entire sites out there that list such infringing content, as well. But the fact remains that IPTV is a tool, not content that infringes copyright itself. As such, there are plenty of IPTV-related tools and uses out there that are perfectly legit.

Like Perfect Player, for instance. Perfect Player is an android app that allows the user to choose what IPTV playlists from 3rd party providers can be played. In other words, it’s essentially a media player for IPTV streams. Upon installation, it does not come with infringing playlists to stream. What is watched on the player is entirely the choice of the end user. Despite all of this, one unnamed major pay-TV company filed a copyright complaint against the app with Google, arguing that because end users can use Perfect Player to infringe on copyright, the app itself was infringing. Google, frustratingly, complied and has delisted the app from the Play Store.

This week, however, the software – which has in excess of a million downloads from Google Play – was removed by Google because of a copyright complaint. It was filed by a major pay-TV provider, the name of which we’ve agreed not to publish while the complaint is ongoing.

It states that the software allows users to watch channels from unauthorized sources and is therefore illegal. However, there appears to be a considerable flaw in the pay-TV company’s arguments.

In common with the developers behind various torrent clients, Perfect Player’s developer doesn’t dictate how the software is used because no control can be exercised over that. Just like Windows Media Player, uTorrent, or even VLC (which has similar capabilities), it can be used for entirely legal purposes – or not, depending on the choice of the user.

In other words, it’s a tool. Now, the entertainment industry has a long and storied history of pretending that tools that have perfectly legitimate uses are the world’s greatest devils and somehow themselves infringe copyright. This goes back to the Betamax, and likely before that. But this particular case is one that ought to have the attention of a great many software providers out there, if not hardware providers as well. As the TorrentFreak post notes, if Perfect Player is infringing, why isn’t Windows Media Player? They have the exact same capabilities. And, taken a step further, if Perfect Player is infringing because users can use it to infringe copyright, then why aren’t android phones themselves infringing?

Is that line of thought extreme and ridiculous? Of course it is, but it’s built off of the same ridiculous line of thinking as whoever complained about Perfect Player. TorrentFreak is rather charitable in positing that perhaps this TV company came across a version of Perfect Player that had already been loaded with pirate IPTV streams and is simply confused.

Giving the TV company the benefit of the doubt for a moment, it’s not beyond the realms of possibility that it acquired a ready-configured copy of Perfect Player from a third-party that already contained a URL for a ‘pirate’ service. That could give the impression it’s a dedicated pirate app.

That being said, downloading a copy from Google Play would’ve highlighted the important differences between a non-configured player and one set up for piracy. That’s impossible now, of course, because Google has taken Perfect Player down.

The latest at the time of this writing is that Perfect Player will be filing a DMCA counternotice, having retained a lawyer. One hopes that some simple facts about what this app is and how it operates out of the box will be all that Google needs to get it relisted quickly. And maybe, just maybe, one TV industry player will learn a lesson about firing off DMCA notices without actually knowing what its talking about.

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Today In Bananas Copyright Law: Court Urged To Rule That A Banana Costume Is Not Infringing

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In the fall of 2017, we wrote about a, well, bananas copyright lawsuit filed by costume maker “Rasta Impsta” against K-Mart, alleging that it was selling an infringing banana costume.

That case quickly settled (so, it’s likely K-Mart just paid off Rasta Imposta to go away), but around the same time the company had sued a few other companies over similar costumes, including one operation called Kanagroo Manufacturing, for making a similar banana costume. As we had noted at the time of the Kmart case, historically, there’s been no recognized copyright in costumes, since articles of clothing are considered uncopyrightable. Except, in a truly awful Supreme Court ruling in 2017, the court swung open the door to clothing/costume copyrights, by arguing that certain elements in a piece of clothing could be considered copyrightable as “design” rather than as a “useful article” (which is not subject to copyright).

And, thus, last year a District Court judge issued an injunction against Kangaroo Manufacturing, arguing that its banana costume likely infringed on the banana costume of Rasta Imposta. The court, not surprisingly, cites that awful Star Athletica Supreme Court ruling to argue that elements of the banana costume are separable and thus can be covered by copyright. Rasta argued that the following elements were separable and could be covered by copyright:

Rasta Imposta claims the following as the unique features of the banana design: the overall shape and cutout holes of the costume, the black ends of the banana, and the vertical lines running down the middle of the banana.

Really. The lower court ruled that the cutout holes are not subject to copyright, as they are utilitarian, but decides otherwise on the shape, lines, and black ends of the banana. Oh, and also the placement of the cutout holes, rather than the holes themselves. Which is… bananas. The following is from a real, actual court ruling:

The Court can easily identify the features of the Banana Costume having a pictorial, graphic, or sculptural quality.

These features include: a) the overall length of the costume, b) the overall shape of the design in terms of curvature, c) the length of the shape both above and below the torso of the wearer, d) the shape, size, and jet black color of both ends, e) the location of the head and arm cutouts which dictate how the costume drapes on and protrudes from a wearer (as opposed to the mere existence of the cutout holes), f) the soft, smooth, almost shiny look and feel of the chosen synthetic fabric, g) the parallel lines which mimic the ridges on a banana in three-dimensional form, and h) the bright shade of a golden yellow and uniform color that appears distinct from the more muted and inconsistent tones of a natural banana.

The court does then basically argue that Kangaroo’s Banana is way too similar to Rasta Imposta’s banana and that there could be other ways to design a banana costume:

Rasta Imposta provides this Court with twenty-one banana costumes available in the marketplace that are easily distinguished from Rasta Imposta’s design, which suggests that the limited number of options requirement necessary for merger to apply is absent. (Arena Decl. Ex. A). The Court has reviewed this submission and notes several unique ways of designing a banana costume.9 The shape and curvature can vary, as can the existence and color of tips to the banana. Bananas can also be designed to appear ripe, overripe, or unripe, ranging in color from yellow, to brown, to green. The shape can be long or more stout, relatively elongated or thin or more plump. The banana may be whole or partially peeled. There can also be the production of vertical lines and the texture and material can differ.

While the court admits that Rasta has a “relatively weak copyright” in its banana costume, it is a valid copyright, and thus Kanagaroo should be barred from continuing to sell its own version.

Anyway, Kangaroo appealed the case, and the 3rd Circuit recently held a hearing where the judges were able to crack some jokes.

“I thought the counsel would wear the costumes,” U.S. Circuit Judge Michael Chagares laughed.

According to Courthouse News, the debate centered around what parts of a banana are copyrightable:

But Schrader argued Wednesday that there is nothing original about Rasta’s banana costume, such as brown spots or perhaps sunglasses, that would make it protectable; it is simply a ripe, yellow banana.

“So a costume of a terribly underripe or an overripe banana is copyrightable?” U.S. Circuit Judge Thomas Hardiman said. “But one of a normal off-the-shelf banana is not copyrightable?”

Schrader says not exactly, but pressed that there are only so many ways a banana can look.

“It was designed to look like a banana in nature,” Schrader said. “There is no artistic twist.”

Rasta’s lawyer retorted (and, again, this really happened): “There are so many ways to conceive a design of a banana. And they conceived it exactly as ours.”

Anyway, it’s not clear how this case will actually turn out. Thanks to the Star Athletica decision, the Supreme Court has opened up this kind of nonsense as actually worth litigating. I’d still be hard pressed to think that the framers of the Constitution intended copyright law to be used to fight over two similar looking banana costumes, however.

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