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420 posts

Ultimate Geek
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  Reply # 308859 18-Mar-2010 17:59
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Doesn't NZ Copyright Law provide an exclusion for Fair Use i.e.

Fair dealing; for purpose of criticism, review, news reporting, research, private study.

(My bolding.)  

Given that no one is making any money out of this and the EPG provider is not loosing money as a result of this activity and, given that one's use of this EPG data is only for private study and not for any commercial purpose - I am struggling to see where there could be a copyright issue if we exercise our Fair Use rights!

The use of names such as "Sky Sport 2" however, whilst probably not copyrightable is almost certainly trademarkable, so no question about that or the Logo.

Does anyone have any more recent knowledge of the Fair Use Exclusion in NZ Copyright Law.


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Uber Geek
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  Reply # 308927 18-Mar-2010 21:30
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blur: I'm loving it - count me in...

Can we rely on Mauricio to put this on Geekzone and forward to... is it Steven Joyce?


As wound up as I am about this, I must admit I am loving it too.

Great letter Rusty.  I respect the passion you are displaying.

1983 posts

Uber Geek
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  Reply # 308928 18-Mar-2010 21:35
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davidcole: Anyone thought of going to the press with this, or does the wording of the Take down order preclude this?


I did think about something along the lines of Campbell live, but wasn't sure just how achievable that would be.  They seem to like picking up the most trivial of things so who knows?

And bugger the terms of the take down order.  Those of us who relied on the various sources of the EPGs have been told due to C&D notices from Sky Television that they can no longer provide the free service they were.  We're not under any C&D terms and conditions so can say what we like to whoever we like!

Deev8: Reven also accepts donations from users of the service that he provides. Again, the use that is actually made of those donations will be immaterial if this went to court - I'm sure that Sky's lawyers will say that he has been making money by distributing data that he has no right to distribute.


I guess it all depends on what the purpose of these donations were for.  Were they for a piece of code Reven wrote, or access to Sky "copyrighted" data?  There may be no real distinction, but worth a thought.

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Uber Geek
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  Reply # 308957 18-Mar-2010 22:56
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I totally agree on the commerce commission complaint and the letter to Mr Joyce.

I reckon what sky is doing could be described simply as bullying. Pathetic.

This needs more coverage, has anyone put up any blog posts yet? We've had a few thousand views on these threads.

35 posts

Geek


Reply # 308959 18-Mar-2010 23:18
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Why doesn't everyone just boycott Sky until they sort themselves out?

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Uber Geek
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  Reply # 308961 18-Mar-2010 23:31
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doolz: Why doesn't everyone just boycott Sky until they sort themselves out?

Because the reality is that isnt going to happen.

Sure, a few will unsubscribe. And some will claim they will. But the reality is they are a paytv monopoly and if you want to watch sports or documentries etc, thats your only option. Not many people will give this up just because they took down an EPG.

194 posts

Master Geek
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  Reply # 308965 18-Mar-2010 23:50
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Why not host the epg's that Sky is seeking to suppress in Australia.

It is a matter of settled case law in Australia.

gb

9 posts

Wannabe Geek


Reply # 308976 19-Mar-2010 00:32
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Hi reven

Disclosures:

  1. IAAL.

  2. I am a Sky TV shareholder

  3. I have written about the IceTV case (a blog post of mine was referenced earlier, here it is again).

And a disclaimer: a practising lawyer (i.e. with a practising certificate) can't actually give legal advice without a formal disclosure and instruction. Beware “legal advice” offered for free. So therefore this ain't (and isn't allowed to be) legal advice – it's just my personal views Smile

I don't know what was in the letter from Sky so my v. quick & rough thoughts are:

1. Copyright in TV listings

The IceTV case in Australia found that, in those circumstances, there was no copyright in the factual information in a simple TV schedule. So a database of time, dates and names of shows for an EPG listing was not protected by copyright in Australia. Basically, in Australia you can now take a newspaper (for example) and copy the basic listing data onto a website (or xml file) and that won't breach copyright. Of course, that doesn't stop someone sending a nasty legal letter. Some points to note:


  • The IceTV case is Australian law, not New Zealand.

  • While it is (IMHO) quite likely that a New Zealand court would come the same result, we don't know that for certain.

  • As many people have said, it would cost a lot of money to find out...


Did the letter actually accuse you of infringing copyright? If so, did they say what exactly? I don't know what info your app was copying. From my quick look at your app, I think it just scrapes info and you don't host/distribute any info other than URLs in an xml file? If so I would struggle to see exactly what copyright material is being infringed (if they even raised that).

The website terms of use issue is interesting – following the IceTV case, license terms like that are probably the only real way to limit any kind of copying – but I can't imagine that would cause a problem for an application (which can't enter into a contract) that reads non-copyright data. The s37 Copyright Act issue (a device specifically intended to infringe copyright) is also interesting, but there are a few big hurdles that would need to be cleared first.

2. Trade marks

You said the letter mentioned the Fair Trading Act and to take down logos and names. You do need to be careful about using other's trade marks, and logos in particular. Of course you can use a company/channel name, but not in a way that potentially causes confusion, etc.

Trade marks (and the Fair Trading Act) are totally separate issues from copyright infringement and scraping listings though. It is actually easy to comply with the trade mark demands. If you are not sure, I'd ask them to identify the specific pages, image files and text that they are not happy with, and proof of trade mark ownership.

3. Confidentiality of the letter

A business cannot just write you a letter, and force you to keep it secret. Of course, they don't want you disclosing it, but they cannot stop you. For a maybe similar example last year, see here: http://editingtheherald.blogspot.com/2009/05/text-bullying.html

Go ahead and post it (or email it, etc), but only if you want. It is your private correspondence. It is easy for other people to say what you should do, but it can be daunting to get a heavy-sounding lawyer's letter. If it's not worth a fight or you'd just rather not have it in public, that's your call.

5. Getting legal advice

If you do want to get legal advice (I.e. hire a lawyer), that will cost money. Legal aid for “civil” matters (I.e. non-criminal business disputes) is hard to get, more often than not unavailable, and often hardly worth it. I am happy to give you my “non-legal-advice thoughts” any time though via email. If proceedings are actually issued against you (or are imminent), I would strongly recommend contacting a lawyer promptly.



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Uber Geek
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  Reply # 309002 19-Mar-2010 08:51
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the letter accused me of

- providing a programme listings by my site or other means which they claim is a breach of: the copyright act (1994), the trade marks act (2002) and the fair trading act (1993)

they want me to
- cease providing a means to get the epg data
- cease using any trademarks owned by sky or third parties i have no legal right to use (can they do this, they don't have legal rights over the 3rd parties either)
- destroy all documents, electronic files within my control

so far i've done as they have requested. I've removed the xmltvnz config file (xmltvnz is still available, but without the config file it cant do anything). The command builder is empty and not listing any channels. v2.5 of xmlTVNZ has been destroyed (this is the version that had sky hardcoded, it didnt work, but it was hardcoded in the source).

if they have the right to force me to do this, i will let it end. I don't have the time or money to pursue this. Kind of want this community to get behind the fight and leave the me out of it, i was asking for donations to get access to xmltvnz v3 (the donations werent even covering my webhost in the end, so i wasnt actually making money off of it - and ill also provide the binary for free once the new website is up).

I'm certain they cant do anything the xmltvnz program itself, it hasnt got anything to do with sky or nz tv in general, and it can work legally with sources you have permission to use. similar to bittorrent, which can work legally.

611 posts

Ultimate Geek
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  Reply # 309007 19-Mar-2010 08:57
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+ 1 for the letter to Minister and ComCom.

I also agree when gb, ask for extact details on everything, keep them busy, always be nice, but question everything so you understand it. Ask for it all in writing.

Now a simple takedown letter has ballooned into several letters, phone calls, maybe even visits to their offices, lots of hours of work, and big bills for Sky.

All who recieved C&D letters should be taking the same approach.




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Uber Geek
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  Reply # 309014 19-Mar-2010 09:13
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gb first off thank you so much for giving us your thoughts. I am sure Reven really appreciates it.
Just want to run something past you. Reven has effectively done as required from the take down notice and stopped the software he provides from working. I take it that now that he has done that he is able to follow though on some of his options like ask for the specifics on exactly what copyrights are being broken by him without any possibility for Sky to actually take him to court?

My gut feel is that Sky would struggle to actually show what copyright he is breaking as to my untrained eye he and his website are not in fact breaking any copyright. It MIGHT be possible to push that his software breaks copyright when it runs but if that is the case then surely Sky would only be able to go after the people using the software not Reven who created it.
If that is the case then good luck to them. Just imagine the cost of trying to pursue every individual that uses xmlTVNZ and or other software that works the same way.







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gb

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Wannabe Geek


  Reply # 309060 19-Mar-2010 11:32
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Just want to run something past you. Reven has effectively done as required from the take down notice and stopped the software he provides from working. I take it that now that he has done that he is able to follow though on some of his options like ask for the specifics on exactly what copyrights are being broken by him without any possibility for Sky to actually take him to court?


Not necessarily. They are free to respond / not respond as they want, as is reven. Having said that, lawyers love getting into tit-for-tat letter exchanges (and be paid for it!).


My gut feel is that Sky would struggle to actually show what copyright he is breaking as to my untrained eye he and his website are not in fact breaking any copyright. It MIGHT be possible to push that his software breaks copyright when it runs but if that is the case then surely Sky would only be able to go after the people using the software not Reven who created it.


I would agree, based on my understanding of what the software & website are doing.


If that is the case then good luck to them. Just imagine the cost of trying to pursue every individual that uses xmlTVNZ and or other software that works the same way.


Exactly. This is the RIAA / torrent / p2p problem.

372 posts

Ultimate Geek
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  Reply # 309067 19-Mar-2010 11:40
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gb - what are the chances of this actually going to court?

Would the partners of Clendons consider acting for Reven on the basis that this would be a very high profile case, presumably producing case law?




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gb

9 posts

Wannabe Geek


  Reply # 309078 19-Mar-2010 11:58
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blur - it would be nice, but would be a pretty major case to run! I think it would need to wait for a MajorCorporate vs MajorCorporate case. To get to the IceTV standard, it would need to go through the High Court, then the Court of Appeal, then the Supreme Court (which would take 3+ years).

The chances of it going to court are statistically remote. But then again, anyone can issue court proceedings against someone at any time. It's a question of what happens when it gets there.

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Uber Geek
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  Reply # 309081 19-Mar-2010 12:03
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Is there a limited time frame from when the first letter was received by raven, to when it can goto court?
Eg, A business I help are considering going to court in Australia, and have been told that they have up to 6 years to take it to court.
So could raven have 6 years of sweating?

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