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Sky Television: A takedown conversation

Posted on July 23, 2010

If you've read our article about Sky's takedown notices you might be interested to see what a Sky takedown letter looks like, complete with the follow-up conversation.

Initial letter from Buddle Findlay/Sky Television

Buddle Findlay

6 May 2010

Sky Network Television Limited
Unauthorised use of programme listings information

1. We act for Sky Network Television Limited ("SKY").

2. SKY is the owner or licensed user of the progrmme listings information for all programming that it broadcasts, as well as all of the names and logos associated with its channels (including the PRIME channel).

3. We have been informed that you are, through the "djkxml" application, which is downloadable from the website http://djkxml.oztheory.com and possibly through other means, providing to your users SKY programme listings information that you are not authorised to distribute to the public in New Zealand. If so, we believe this is a breach of:

(a) the Copyright Act 1994;
(b) the Trade Marks Act 2002; and
(c) the Fair Trading Act 1993.

4. Sky considers any breach of its intellectual property rights to be a very serious matter, and accordingly, if you are making the "djkxml" application vailable as described above we request that you immediately:

(a) remove the djkxml application (and any other infringing applications) from the http://djkxml.oztheory.com website and any other websites controlled by you, and refrain from assisting any other person to provide access to such applications;
(b) stop providing or helping others to provide, by any means or mechanism, unauthorised access to programme listings information;
(c) stop the unauthorised use, or assisting in the unauthorised use, of all trade marks owned by SKY and third parties;
(d) destroy or require the destruction of all documents, electronic files and information withing your control (including material held by third parties) that contain the infringing content referred to in (a) to (c) above; and
(e) confirm in writing to us that you have complied with, and will continue to comply with, the requiremens in paragraphcs (a) to (d) above.

5. Please provide the requested confirmations by close of business on Friday, 14 May 2010.

6. We look forward to receiving the requested confirmation from you and hope that this matter can be settled amicably. In the meantime, SKY reserves all its rights in relation to this matter.

7. We also reserve the right to inform your website host and other parties of your unauthorised use of SKY's listing information and trade marks.

8. We suggest you seek independent legal advice immediately.

Yours faithfully
Buddle Findlay

Philip Wood
Partner

Writing back

13th May 2010

Dear Philip Wood,

I acknowledge receipt of your letter of 6 May 2010 concerning the djkxml application and the http://djkxml.oztheory.com website.

I have no intention of breaching any New Zealand laws or of infringing Sky's legitimate intellectual property rights.

However, I do not believe that the djkxml application or the http://djkxml.oztheory.com website breach any New Zealand laws, nor do they infringe Sky's legitimate intellectual property rights.

Both the application and the website do not contain Sky programme listings or Sky trademarks.

I reject your claim that I am supplying Sky programme listings to anyone.

I also reject your claim that I am infringing Sky trademarks.

As your letter contains no specifics about how the tool or the website is breaching New Zealand law or Sky's intellectual property, I must now consider this matter closed.

Regards,

The lawyers respond

Thank you for your email.

In response to your query as to how your tool breaches New Zealand law, as you are aware, Sky's programme listings (even those available on third party websites) are protected by copyright. Therefore, any tool that enables its users to reproduce Sky (or Prime) programme listings in any format without Sky's permission will infringe that copyright. This rule applies, regardless of whether the programme itself contains infringing material, or if the programme merely enables users to access that infringing material themselves.

Accordingly, if your "djkxml" application or any of your websites contain information or tools that would help a user to reproduce Sky's electronic programme guide in any format, you may be liable for copyright infringement and Sky may have various remedies against you. Whilst you deny that you are providing programme listings to anyone, you or someone most certainly have advertised to the public that the djkxml application can do this (e.g. "new channels added for version 2.2.1 which are...Sky 1..." on http://forums.gbpvr.com//showthread.php?30586-Alternative-New-Zealand-XMLTV-listing-source/page4).

However, assuming that you continue to assert that your djkxml application cannot be used in the above manner, please provide us with the written confirmations requested in our letter of 6 May 2010.

We are continuing to monitor online abuses of intellectual property relating to Sky's programme listings and reserve all of Sky's rights (including the right to instigate legal proceedings for damages and or an injunction) in relation to this matter.

Sincerely,

Philip Wood
Partner

Second response

Dear Philip Wood,

Thank you for your reply and the explanation of why you believe the djkxml application breaches Sky's copyright.

I am now seeking advice on this matter and would like to clarify a few points to make sure we're not talking at cross-purposes.

1. If I understand correctly, your claim is that djkxml is in breach of Copyright Law because it lets someone access Sky listing
information on a website and save it as a file. Is this correct?

2. Your original letter said you believed the djkxml application also breached the Trademark Act 2002 and the Fair Trading Act 1993. Do you have any reason for this belief or do you wish to withdraw these claims?

I look forward to receiving your response so that we can move forward to a mutually satisfying resolution.

Regards,

The end

There was no further response from Sky or their lawyers.

Posted by Thomas Beagle

Comments (2) Trackbacks (0)
  1. Random dude! It must have been pretty scary getting an official letter like that? I bet they used official looking letterhead and everything? :)

  2. I am old enough to remember when “The Listener” magazine had the sole rights to publish TVNZ and Radio NZ programme listings one week in advance. Newspapers were only allowed to publish the TV and radio listings for the day of their publication.

    Back then TV, Radio NZ (commercial and non-commercial), “The Listener” and even the broadcast transmission towers located up and down the country were all state-owned and all came under the authority of the Minister of Broadcasting.

    Muldoon was Prime Minister and there was a huge campaign by the print media organisations to have the Government remove the week-long programme monopoly that “The Listener” enjoyed.

    The news media claimed it was wrong to deny them the weekly listings but “The Listener”, whose then enormous circulation was in part due to having a monopoly on publishing programming a week in advance, used the very same argument that Sky have used against you, namely that the listings were the intellectual property of the TV/Listener.

    The Minister of Broadcasting ordered the BCNZ (now TVNZ) and Radio NZ to make their weekly listings available to the private news media, and the rest is history, which is how the crappy “TV Guide” magazine started up.

    It seems however, when the boot is on the foot and a private company like Sky has the monopoly on publishing programming information, then its somehow wrong to force them to release the programme listings, when it was OK for a private news organisation to force a State-owned company to release the programming.

    Their arrogance is breathtaking.


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