Intellectual Property Law Updates

Law Updates also provides hyperlinks to other sites which may be of use or interest to students and those involved in the music industry. These are provided at the end of Law Updates under 'Music Business Law Links'.

This resource is compiled by Ben Challis. Ben is a UK lawyer specialising in entertainment law and a graduate of London University and The City University. Ben acts as General Counsel for 3A Entertainments and is Executive Producer for television of the Glastonbury Festival. Ben is a visiting Senior Lecturer in Law at Buckinghamshire Chilterns University College in England.

We are interested in your views on the Law Updates resource. Please forward any comments to : musiclaw01@aol.com

SEPTEMBER 2004

COPYRIGHT
Record Labels
-IFPI RELEASE "RECORDING INDUSTRY IN NUMBERS 2004"-
The IFPI (International Federation of the Phonographic Industry) have published the 2004 edition of the "Recording Industry In Numbers" which contains a mass of detail on the current state of the global music market including a list of the top 50 best-selling albums, globally, in 2003. The top 10 has Norah Jones's 'Come 'Away With Me' as the year's best-selling album, followed by (in order of sales): 50 Cent 'Get Rich or Die Tryin'', Linkin Park 'Meteora', Dido 'Life for Rent', Beyonce Knowles 'Dangerously in Love', Coldplay 'A Rush of Blood to the Head', Evanescence 'Fallen', Britney Spears 'In the Zone', Avril Lavigne 'Let Go' and Celine Dion 'One Heart'.
The major companies' top ten albums and top ten videos are also listed as are market shares of the major and independent companies by country. For the first time IFPI has produced market shares based on wholly or majority owned content on a country by country basis. The global market shares for 2003 were BMG at 11.9%, EMI at 13.4%, Sony at 13.2% (now combined with BMG), Universal at 23.5% and Warner at 12.7%. Independents had a 25.3% market share. Analysis of trends in retailing show a clear trend towards non-specialist retailing and sales of music over the Internet. For example, in the UK, supermarkets' share of the market increased from 8.9% in 1999 to 21.9% in 2003. In France, where the trend is more pronounced, hypermarkets accounted for 39% in 2003. Internet sales - the sale of physical product via online stores - has increased in Germany from 1% in 1999 to 12% in 2003. This section also charts retail trends across five years in seven major markets. An overview of the still nascent music-to-mobile market, a potentially exciting growth channel, includes details of the sector and the main service launches. The mobile providers claim a near 8% share in all spend on music.

Non-IFPI members can order the full publication via : http://www.ifpi.org

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COPYRIGHT
Television
-Television Format Rights - Simon Fuller and Simon Cowell at Legal Loggerheads Over Claims That The 'X Factor' Infringes 'Pop Idol'-
Simon Fuller, the ex Spice Girls manager and owner of 19 Management and 19 TV which produces the successful Pop Idol television programmes has issued legal proceedings in the United Kingdom against Pop Idol judge and A&R executive Simon Cowell, his companies Syco and Simco and Freemantle Media (part of Bertlesmann's RTL) alleging that Simon Cowell and Freemantle's new talent competition 'X Factor' infringes the copyright in the Pop Idol programmes and Pop Idol format. The programmes share two of the same judges, Simon Cowell himself along with Boyzone Manager Louis Walsh (along with new judge Sharon Osbourne), a shared presenter (Kate Thornton who presented for Pop idol on ITV2) and alleged similarities in direction: contestants audition in front of the three judges and receive immediate comment; the deliriously happy or distraught contestants are then commiserated with, or hugged, by the presenter. Fuller is also investigating similarities in the music used, logo and other format features.

Simon Fuller also claims that a number of key Pop Idol production executives who have moved to X Factor are under non-compete clauses in their Pop Idol contracts. In an added twist, Simon Cowell is still under contract for a further two Pop Idol series in the US.

Source: The Guardian 11 September 2004

For an article by Ben Challis and Jonathan Coad in this area, "Format Fortunes: Is there Legal Recognition for the Television Format Right?", see : http://www.musicjournal.org/04formatfortunes.html

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COPYRIGHT
Record Labels
-Classic Rock & Roll Sound Recording Copyrights Begin to Expire in Europe-
The re-entry of Elvis Presley's That's All Right into the charts in Britain fifty years after it was first released in the US is a success story for BMG but one which possibly will be very short lived. Unless there are changes in UK (and European copyright law with which UK law is now harmonised) the track will fall into the public domain on January 1, 2005 and anyone will be able to use the sound recording without paying royalties to the owners of the master. Landmark rock 'n' roll recordings such as Presley's That's All Right and Shake, Rattle and Roll by Bill Haley and his Comets also come out of copyright in Europe in January next year. Over the next few years, major hits by acts such as Little Richard, Johnny Cash, Bo Diddley and Fats Domino will also come into the public domain. The Beatles' catalogue would begin to become freely available from 1 January 2013, with their first single Love Me Do. The band's entire repertoire - the most prized catalogue in rock music - would follow over the next eight years.

The song (the musical composition) will remain in copyright though. Copyright in sound recordings lasts for fifty (50) years from the end of the year of release. Copyright in compositions (music and lyrics) lasts for seventy (70) years from the death of the author(s) under the Copyright Designs & Patents Act 1988 (as amended).

BMG will continue to own the rights to the recording in the US. Under the 1998 "Sonny Bono" Copyright Term Extension Act, sound recordings are protected for 95 years from the day of recording in the United States and for post-1976 recordings, coverage is the artist's life plus 70 years. The Elvis case illustrates the importance of the issue for record companies in Europe. It also highlights the discrepancy between Europe and the United States. Many recordings from the '50s and then the '60s will start falling into public domain in the coming years and its not surprising that the extension of the term of duration of recording rights is the music industry's main priority on the legislative agenda in Europe with extensive lobbying from the IFPI - the IFPI has started a campaign to raise awareness among policy makers and legislators on the issue. It targets EU member states, the EC and the Parliament. The BPI argue that less favourable copyright terms could put the UK's record industry at a commercial disadvantage to the US.

See : http://www.ifpi.org

See an interesting comment on this area 'Elvis Has Left The Building - Time To Free His Works Too' by Becky Hogge at: http://www.indexonline.org/news/20040812_unitedstates.shtml

also see : http://news.bbc.co.uk/1/hi/entertainment/music/3925975.stm

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COPYRIGHT
Music Publishing
-Lil Romeo Faces Lawsuit From Album 'Ghostwriter'-
Lil Romeo's album Gametime is the subject of a lawsuit over claims that the author of some of the album's material was never compensated or credited for his contributions. Sean Cunningham claims that he wrote six songs on the album, one that appeared in a motion picture titled "Max Keeble's Big Move" that featured a cameo by Romeo. The lawsuit was filed in the Federal District Court in Houston, Texas. The lawsuit names Lil Romeo, Master P., Master P. Music LLC, One Up Entertainment, Universal Music Group and Buena Vista Home Entertainment as defendants. In addition to claims of not being properly credited, Cunningham also claims that Lil Romeo copied his style which could be an interesting development if this is argued in court. At present the whole area of 'image rights' are still being developed although they are more accepted in the US than in the UK. Cunningham's lawsuit claims he was not paid to be a ghostwriter for the album and is seeking an undisclosed amount.
The case will go to trial on 5 March 2005.

See : http://www.allhiphop.com/hiphopnews/?ID=3343

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COPYRIGHT
Music Publishers, Record Labels, Internet
-The Recording Industry Association of America Settles Its Lawsuit Against Israeli File-Swapping Company iMesh-
The RIAA has settled its lawsuit against iMesh for damages of $4.1 million. The organisation sued iMesh last September, charging that the company was contributing to copyright infringement on a massive scale. As a part of the deal, iMesh has agreed to move to a business model that "abides by U.S. copyright laws," the RIAA said. The RIAA has had some notable successes against file swapping services effectively closing down the then illegal Napster and Aimster (and 'madster'). However the RIAA has not always had such success and In April 2003 Judge Stephen Wilson, a federal judge in Los Angeles, handed a stunning court victory to the file-swapping services Streamcast Networks and Grokster, dismissing much of the record industry and movie studios' lawsuit against the two companies. In an almost complete reversal of previous victories for the record labels and movie studios, federal court Judge Stephen Wilson ruled that Streamcast -parent of the Morpheus software - and Grokster were not liable for copyright infringements that took place using their software. The ruling does not directly affect Kazaa, software distributed by Sharman Networks, which has also been targeted by the entertainment industry. "[the] Defendants distribute and support software, the users of which can and do choose to employ it for both lawful and unlawful ends," Wilson wrote in his opinion. "Grokster and StreamCast are not significantly different from companies that sell home video recorders or copy machines" both of which can be and are used to infringe copyrights. This case follows a similar decision in the Netherlands last year that found that Kazaa was not liable for its users' copyright infringements (BUMA/STEMRA v Kazaa BV). The Supreme Court of Canada has also released Internet Service Providers from the responsibility and legal liability for individual file swapping (see Law Updates August 2004) and has the US Court of Appeals (CoStar Group v Loopnet). In a partial response to that decision, the RIAA has shifted much of its recent legal activity toward suing individual file swappers rather than peer-to-peer companies but is extensively lobbying for new legislation in the United States of America. The label group previously settled with Audiogalaxy, which ultimately distributed Rhapsody, RealNetworks' subscription-based music service. iMesh was the fifth most popular piece of software last week on Download.com, a software aggregation site owned by News.com publisher CNET Networks. The software has been downloaded more than 76 million times, according to the site's records.

Law Updates June 2004 (Dutch Court Clears Search Engine of Infringement)
Law Updates March 2004 (RIAA Actions Against Individual File Swappers)
Law Updates February 2004 (Dowloading is Legal in Canada)
Law Updates February 2004 (Kazaa v BUMA/STEMRA)
Law Updates February 2004 (Verizon Win Appeal)
Law Updates January 2004 (Record Industry Suffers Three Major Setbacks)
Law Updates December 2003 (Australian ISP Faces Claim for Infringement)
Law Updates June 2003 (RIAA v Morpheus & Grokster)
Law Updates February 2003 (RIAA v Aimster)

Also see the article by Professor Michael Geist - 'A Blueprint For A Better Copyright Law' for the Toronto Star at : http://www.thestar.com/NASApp/cs/ContentServer?pagename=thestar/Layout/Article_Type1&c=Article&cid=1092003010458&call_pageid=968350072197&col=969048863851 and see the US appellate court update on Streamcast and Morpheus below.

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COPYRIGHT
Record Labels, Music Publishers, Artists, Telecommunications
-Russian Mobile Phone Downloads Violate Copyright Law-
The leader of the popular Russian rock group Leningrad, Sergei Shnurov, has won a case focusing on intellectual property rights violation in Russia by the use of melodies in mobile phone ringtones. The Basmanny Court of Moscow court has ruled that S.B.A. Music Publishing, a subsidiary of the Gala Records company, must pay 100,000 roubles to Sergei Shnurov for violating his intellectual property rights by issuing a permission for mobile phone companies to use Shnurov's music for mobile phones and karaoke, Gazeta reports. Without the musician's consent, S.B.A. concluded contracts with companies co-operating with mobile phone operators and gave them the right to adapt compositions of the Leningrad leader for mobile phone melodies. No recording rights were involved as the mobile operators would produce their own 'recording' for phone ringtone use. One Russian mobile phone operator, Beeline, alone downloaded $90,000 worth of Shnurov's songs in early 2000-February 2004. Shnurov estimated his losses at $40,000, but the Basmanny Court found this figure too high and ruled to pay him less. Russian recording companies will now have to be more careful about adapting people's music.

See : http://newsfromrussia.com/main/2004/07/23/55208.html

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COPYRIGHT
Record Labels, Music Publishers
-McCartney Objects to Use of Sample-
In the USA Paul McCartney has taken action on a sample used without his direct permission: A writ filed in a New York court claims that EMI and record company Universal illegally allowed the hit tune "Tomorrow", from the musical Annie - to which McCartney owns the rights - to be sampled on the rap song What Da Hook Gon Be by Murphy Lee. The lawsuit was lodged by McCartney's company MPL Communications and Charles Strouse, composer of Annie. Lee's record sold 500,000 copies in America alone.

For an article on the legalities of music sampling see : http://www.musicjournal.org/03thesongremainsthesame.html

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COPYRIGHT
Record Labels, Artists
-Hallyday Wins Back Control of Master Tapes-
French singer Johnny Hallyday partially won a legal battle with his record company, Universal, when a Paris tribunal awarded him control of more than 1,000 master tapes recorded during his 40-year career. But the artist, who has sold more than 80 million records, will not know until next March whether his E50m () damages claim against Universal Music France is justified. This win will be viewed with some alarm in the music industry, which traditionally tries to retain control of artists' original recordings at all costs. Hallyday argued that he had been "robbed" and "swindled" by Universal, which had 'lent' him E16.3m over the years since 1978 and used the debt to impose "unfair and unjust" conditions in successive recording contracts. The loans were repaid (or 'recouped') directly from Hallyday's royalties and the court yesterday appointed an expert to examine every contract between the two parties and establish whether the singer had been charged too much interest or pressed into signing recording deals which were plainly disadvantageous to him. The star claims that the record company loans set him on an "infernal spiral", forcing him to work simply to repay his debts and to cede to Universal ownership of two houses in Paris and all profits from merchandising bearing his name. And in each new recording contract, the singer's royalties were lower, he alleges. The Tribunal refused to declare the singer's latest contract void but shortened it to one album. Universal argued that the loans were made at Hallyday's express request, and that without the company the star would be bankrupt and possibly in jail for failing to pay income tax.

See : http://www.guardian.co.uk/arts/news/story/0,11711,1274900,00.html

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COPYRIGHT
Live Event Industry
-Publican Escapes Prison After Repeatedly Failing to Obtain a PRS Licence-
A licensee has escaped a possible prison sentence after repeatedly failing to take out a Performing Right Society (PRS) music usage licence. Tim Doyle, who runs Doyle's Tavern, in Holloway, London, was taken to the High Court for failing to comply with a court order following persistent infringement of copyright in PRS members' musical works since 1998. Doyle agreed to take a PRS licence for his premises and to pay a total of 71.24 in respect of PRS royalties for the period 6 July 1998 to 5 July 2005. The court ordered he also pay PRS's legal costs totalling 056.50. The court warned Doyle of the consequences of not complying in the future with Court orders saying "If a breach of the court order happens again, prison is a live possibility. Orders of the court are to be obeyed; if not, certain consequences follow."

See : http://www.thepublican.com/cgi-bin/item.cgi?id=14212&d=32&h=24&f=23&dateformat=%25o%20%25B%20%25Y

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LICENSING, HEALTH & SAFETY
Live Event Industry
-Scottish Promoters Use a 'Wedding' to Try to Foil Licensing Laws-
A local authority has banned a music festival in the Scottish Lothians after organisers tried to bill it as a wedding to help escape the need for licensing. Twisted Events, the company behind Green's Music Festival, had hoped to overcome problems licensing the event with West Lothian Council by rebranding it as a private wedding party. A couple had offered to take the plunge on stage to help push the event forward as licensing negotiations between organisers and council chiefs rumbled on. As a private party, entertainment and alcohol licensing was not required and twenty four local young rock acts were due to perform for 1000 revellers on farmland near Broxburn. The bands had taken part in a competition. But the local authority took the organisers to court, threatening to ban the event entirely. At Linlithgow Sheriff Court the parties reached an out-of-court settlement but an array of restrictions were slapped on the "wedding". All bands enlisted to perform were cancelled while restraints were placed upon music played and numbers of guests permitted. In addition, council and police officials had to be informed fully about all plans. The couple who had planned to get married said the lack of bands was 'bad news'. The scotsman.com reported that a spokesperson for Twisted Events had said "We're all hugely disappointed. We can't understand this. This whole fiasco has been a nightmare." A West Lothian Council spokesman confirmed an all-out ban on the event had been averted but restrictions had been enforced. The council has been assured that this event will be organised as a wedding for 200 guests and that they would be provided with details of security arrangements, sound system and marquee.

See : http://www.edinburghnews.scotsman.com/index.cfm?id=848352004

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COPYRIGHT
Record Labels, Music Publishers
-MCPS and BPI Finally Agree Rates for DVDs-
The Mechanical Copyright Protection Society (MCPS) and British Phonographic Industry (BPI) have finally agreed the terms of a 2 year licensing agreement for the copying of musical works to be released in DVD format. BPI members who use music on DVDs are required to take a licence from MCPS. MCPS represents composers, songwriters and publishers; it collects and distributes royalties on their behalf and administers copyright in their works. In 2003 MCPS informed BPI that it was going to introduce a DVD Licensing Scheme. Some of the proposed terms were rejected by BPI and the matter was referred to the Copyright Tribunal. The parties have now reached a settlement with reduced rates payable for the immediate future and then new rates applicable for 2005 onwards for both royalties and synchronisation licences.

Under the agreement, the royalty rates are:

- 6.25% of PPD for music DVDs that are predominantly audio-visual and contain no more than two audio-only music tracks
- 7.25% of PPD for music DVDs that contain more than two audio-only music tracks and more than two audio-visual music tracks e.g. a DVD release packaged with a CD
- 8.5% of PPD for music DVDs that contain audio-only music tracks and no more than two audio-visual music tracks e.g. many DVD singles
As part of this agreement, products issued on other, primarily audio formats that have the capacity for some visual content (e.g. SACD, DVD audio, enhanced CDs) will be licensed at 8.5% of PPD, with a sliding scale of introductory new format discounts. These royalty rates are inclusive of both the mechanical and synchronisation rights, which, except in the case of live classical recordings, will not need to be paid for separately. Producers will also have automatic access to all MCPS members' and affiliated societies' repertoire without the need for prior approval from copyright owners for the use of each individual work.

Commentary taken from Picton's Solicitors "In The Know" e-newsletter

See : MCPS (official website) - http://www.mcps.co.uk

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COPYRIGHT
Record Labels, Music Publishers
-Australian DJs Guilty of Copyright Infringement-
Five Australian DJs who used CD burning equipment to create CDs for their own use in clubs but also sold or gave copies of the CDs to the public have been found guilty of copyright infringement and ordered to pay damages of AU$18,000 to Universal Music and other applicants. A sixth respondent was joined in the case for selling the CDs online. The respondents were also ordered to pay additional damages pursuant to section 115 of the Australian Copyright Act when Justice Wilcox found that the respondents had knowledge that their act constituted an infringement and that they benefited from it: additional damages totalled AU$30,500. Justice Wilcox applied an approximate cost of AU$8.50 per CD in determining the loss of income for the copyright holders and the sum of damages to be paid by the respondents. Despite argument from the respondents' lawyer that many of the CDs were given away, forgoing any financial benefit for the DJs in question, Justice Wilcox found that the infringements were "deliberately made for their ultimate financial gain" and that the respondents were aware that their act constituted an infringement of copyright. Justice Wilcox refused to offer any leniency to some of the respondents pointing out that one of them had given an interview months after the delivery of Justice Lindgren's initial judgement on liability in this case "in which he used crudely offensive language to express his opinion about disc jockeys who strive to get a legit CD deal". The respondents were also ordered to pay costs of $AU 90,000.

See : http://www.zdnet.com.au/news/security/0,2000061744,39155178,00.htm

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COPYRIGHT
Broadcast
-EFF Pushes Digital Television Revolution-
The Electronic Frontier Foundation is stepping up its campaign against the new technology regulations from the Federal Communications Commission which will outlaw a set of technologies in less than a years time and police the way people record and view digital television broadcasts. Aimed at preventing illegal copying, The EFF suggests that the FCC's "broadcast flag" could actually prevent a number of activities that are perfectly legal under copyright law - such as recording a clip of a Fox News program and redistributing it with commentary for the purposes of criticising the company's reporting. EFF is fighting back with the Digital Television Liberation Project - an initiative to help people make their own broadcast flag-resistant personal video recorders (PVRs) from off-the-shelf parts. EFF has created such a PVR and demonstrated the machine at the Defcon 12 conference in Las Vegas, Nevada in late July.
"We want to keep the right to time- and space-shift that the VCR has given us. We want to keep the fair use rights that let us excerpt clips from press conferences or make our own 'Daily Show' from the evening news," says EFF Staff Attorney Wendy Seltzer."That's why we're encouraging people to buy HDTV tuner cards now and build multi-function receivers and recorders around them."

EFFector Vol. 17, No. 27 July 29, 2004

Digital Television Liberation Project : http://www.eff.org/broadcastflag

Wired article: "Group Warns DVRs Endangered" : http://www.wired.com/news/digiwood/0,1412,64309,00.html

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COPYRIGHT
Music Publishing
-JibJab Files Suit to Defend Fair Use Rights-
In early July, the two brothers behind the animation shop JibJab released a short flash animation featuring cartoon versions of President Bush and Senator John Kerry slinging insults at each other to the tune of Woody Guthrie's "This Land Is Your Land". The short, called "This Land" has been very popular but the copyright holder to the music composition, Ludlow Music, Inc., has threatened JibJab and its upstream website hosting providers with copyright litigation. Jibjab have argued that their use of "This Land is Your Land" should qualify as a fair use under copyright law: The animation house used only a few lines of Guthrie's lyrics and the short is also a parody, commenting not only on the 2004 elections, but also on Woody Guthrie's famous song. JibJab has asked the Electronic Frontiers Foundation to help to protect its fair use and free speech rights and the EFF have filed a lawsuit on JibJab's behalf, asking a federal court in San Francisco to declare that the use of the composition is perfectly legal. Ludlow were previously successful in a copyright action against Robbie Williams after Williams used near identical lyrics from a Guthrie song in Williams' song "Jesus In A Camper Van". However the EFF's motion to allow for 'fair use' does have some merit. In the case of Abilene Music v Sony Music and Others (2003) (see Law Updates December 2003) a New York federal court (Judge Gerald Lynch) upheld the fair use doctrine under the US Copyright Act holding that a parody of "What a Wonderful World" by rapper Ghostface Killah wad not an infringement of copyright as the rap was clearly a parody - replacing an ode to the beauty of nature with an invitation to get high on drugs with the rapper.

See : http://www.eff.org/deeplinks/archives/001782.php and http://www.musicjournal.org/03thesongremainsthesame.html

Ludlow Records Inc v Robbie Williams, Guy Chambers, EMI Music & BMG Music (2002)

ADDENDUM

The Electronic Frontiers Foundation backed Jibjab and provided research that showed that the piece had fallen into the Public Domain and a 're-registration' of the title in 1984 was ineffective as the copyright expired in 1973, 28 years after first publication in 1945. Fred von Lohmann, EFF Senior Intellectual Property Attorney said:

JibJab's fantastic animation is a clear fair use of Woody Guthrie's "This Land Is Your Land," for the reasons described in detail in EFF's initial letter to Ludlow's attorney. But also important was our other discovery: the Guthrie classic has been in the public domain since 1973. Fact 1: Guthrie wrote the song in 1940. At that time, the term of copyright was 28 years, renewable once for an additional 28 years. Under the relevant law, the copyright term for a song begins when the song is published as sheet music. (Just performing it is not enough to trigger the clock.). Fact 2: A search of Copyright Office records shows that the copyright wasn't registered until 1956, and Ludlow filed for a renewal in 1984. Fact 3: Thanks to tips provided by musicologists who heard about this story, we discovered that Guthrie published and sold the sheet music for "This Land Is Your Land" in a pamphlet in 1945. An original copy of this mimeograph was located for us by generous volunteers who visited the Library of Congress in Washington, DC. This means that the copyright in the song expired in 1973, 28 years after Guthrie published the sheet music. Ludlow's attempted renewal in 1984 was 11 years tardy, which means the classic Guthrie song is in the public domain (I'll note that Ludlow disputes this, although I've not heard any credible explanation from them.) So Guthrie's original joins "The Star-Spangled Banner", "Amazing Grace", and Beethoven's Symphonies in the public domain. Come to think of it, now that "This Land Is Your Land" is in the public domain, can we make it our national anthem? That would be the most fitting ending of all.

However Billboard.com reported that Ludlow Music had agreed a settlement with Jiobjab: Ludlow agreed to allow the cartoon - one of the biggest Internet draws of the summer - to keep using the song. In return, JibJab dropped a lawsuit against Ludlow that sought an order saying its use of the song was protected because it was a parody and "This Land" was in the public domain. The creators also agreed to provide a link on their Web site to the song's original lyrics and to donate 20 percent of any profits to the Woody Guthrie Foundation (www.billboard.com August 26th 2004).

EFFector Vol. 17, No. 31 August 26, 2004
http://www.eff.org/deeplinks/archives/001840.php

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COPYRIGHT
Music Publishing
-Retired Police Officer Held Massive Database of Music Files for Swapping. R v Manton-
After British Phonographic Industry (BPI) investigators spotted a website selling CDs by mail order, Trading Standards Officers seized two computers, a stack of 1,262 disks and details of emails from Howard Manton - alleged evidence of the illegal internet-based music business the retired policeman was running from his home. The 45-year-old ran a website which offered copied albums for sale. His online catalogue featured 37,650 songs - some of which had been recorded live and had not been released by the record companies. Among his collection were counterfeits of tracks by Robbie Williams, Oasis, Queen and Pink Floyd. The music was downloaded in mp3 format onto disks, which each contained up to eight albums. They also included artwork from the front and back cover of the genuine CD. Manton, admitted 14 charges including copyright and trade mark infringement. He told Nottingham magistrates that he made from the venture but had ploughed this back into his music collection. He also claimed that he had contacted trading standards prior to setting up the site and had been told that it was not illegal. The Magistrates Court sent the case to Nottingham Crown Court for sentence - they ordered a full examination into the profits he made. The Crown Court has substantially higher powers of sentencing than magistrates (who are limited to six months imprisonment) including unlimited fines.

See : http://www.thisisnottingham.co.uk/displayNode.jsp?command=newPage&nodeId=133941&contentPK=10730345

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COPYRIGHT
Artists
-Megadeth Members Serve Lawsuits On Each Other-
The founding members of 1980s metal band Megadeth have exchanged lawsuits after bassist David Ellefson filed an action on July 12 2004 in U.S. District Court for the Southern District of New York alleging that co-founding guitarist David Mustaine breached their long-running partnership agreement. He claims Mr Mustaine wrongfully took the lion's share of the band's income (estimated at more than $200 million since 1984) for himself and cut Ellefson out of the band's music publishing and merchandise revenues. The bassist is seeking at least $18.5 million in damages. Mr Mustaine's counterclaim, filed July 29 in California Superior Court in L.A., alleges that Mr Ellefson executed a settlement agreement in which he gave up his 20% interest in Megadeth. Mr Mustaine maintains that the settlement, which Ellefson alleges was signed under pressure (duress) and ultimately withdrawn, released Mr Mustaine from all claims and his suit seeks damages to be determined.

Source : Billboard
See : http://msnbc.msn.com/id/5627419/

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COPYRIGHT
Reord Labels, Music Publishers, Broadcasting, Internet, Artists
-BPI Welcomes Government Crackdown On IP Theft-
The UK recorded music industry's association the BPI (British Phonographic Industry) today welcomed the Patent Office's increasing commitment to fighting the escalating problem of intellectual property (IP) theft - piracy and counterfeiting - in unveiling the UK's first IP crime strategy. Music piracy generates over million annually for counterfeiters, and this figure grew by 13% in 2003- six times the growth in legitimate CD sales. Intellectual property crime cheats consumers, costs jobs and helps fund organised crime. Piracy and counterfeiting, including DVDs, perfumes, clothing and alcohol, costs the UK economy billions of pounds and undermines the success of many of the UK's best companies. The national strategy, developed by the Patent Office and launched by Industry Minister, Jacqui Smith MP, brings together brand owners, police, trading standards and customs to:

- increase the sharing of intelligence between different agencies;
- improve training for those working at the front-line;
- better co-ordinate the agencies involved in the fight against intellectual property crime; and
- monitor progress and success by publishing an annual national enforcement report

The Industry Minister, said "Pirates and bootleggers cheat consumers and place a drain on our economy We cannot and we will not simply turn a blind eye to copyright and trade mark crime. Intellectual property crime is not victimless. As well as cheating consumers, the trade in counterfeit goods costs UK companies billions of pounds and thousands of jobs every year. That is why we are working together with industry and law enforcement agencies to clamp down on this illegal trade." Lord Sainsbury, Minister for Science and Innovation, said "I am greatly heartened by the speed with which the Patent Office has been able to pull together such a broad range of interests so quickly to deliver this important strategy. Clearly a common purpose is shared by the police, customs, trading standards and many brand owners to co-ordinate their efforts to best effect. This bodes well for our fight against IP crime."

Source : BPI (British Phonographic Industry) Press Release. Official website: http://www.bpi.co.uk

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COMPETITION LAW/CENSORSHIP
Record Labels, Artists
-US Antitrust Settlement 'Censored' By State Lawyers-
In 2002 US District Judge D Brock Hornby sitting in the federal court approved the settlement of a lawsuit filed on behalf of millions of record club members who alleged they had been overcharged in a price-fixing conspiracy. The sum of US $143 million was agreed by the five major record companies (Sony, BMG, EMI, Universal and Warners) and three large music retailers in settlement of the anti-trust claims - the claims were that they had been conspiring to set minimum prices for music CDs in the United States. Under that settlement, 3.5 million people received cheques for $12.60 and libraries and schools across the country will due to get $75.7 million worth of music CDs. The lawsuit was signed by the attorney generals of 43 states and territories.

However, all is not well with the settlement. In Kansas City, Missouri the Attorney General Phil Kline has withheld 1,600 of the state's allotted 51,000 discs, because they are contrary to his "concept of decency". He will not allow any albums that "promote violence or illegal activity" to go into public libraries or schools. The 25 offending artists include Outkast, Notorious B.I.G., Rage Against The Machine, Stone Temple Pilots, Lou Reed and Devo. The American Civil Liberties Union director in Kansas, Dick Kurtenbach has said of Kline's action "what he is doing is enforcing his concept of decency on the libraries in the state of Kansas and that's not his business". Attorney Generals in several other states have also taken action; in Indiana AG Steve Carter removed 5,300 discs, or 5 percent of the 107,000 CDs his state was scheduled to receive.

Source : ILMC Round the Clock News -

http://www.ilmc.com

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COPYRIGHT
Record Labels, Internet, Music Publishers
-US: Ninth Circuit Declares Grokster, Morpheus Not Liable for Infringement-
The Ninth Circuit Court of Appeals made a crucial decision in support of technology innovators by declaring that distributors of the peer-to-peer software Grokster and Morpheus cannot be held liable for the infringing activities of their users. The Electronic Frontier Foundation argued on behalf of Streamcast, the creators of the Morpheus software, in a case that pitted dozens of entertainment conglomerates against two small software companies.
The Ninth Circuit decision is based in part on the fact that P2P networks have significant non-infringing uses, and that they can help artists earn money. The ruling is similar to the Supreme Court's decision in the 1984 Betamax case, which determined that Sony was not liable for copyright violations by users of the Betamax VCR.
"Today's ruling will ultimately be viewed as a victory for copyright owners. As the court recognized today, the entertainment industry has been fighting new technologies for a century, only to learn again and again that these new technologies create new markets and opportunities," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "There is no reason to think that file sharing will be any different." The court's decision was unanimous.
It is likely that the entertainment companies will appeal the Ninth Circuit's decision to the Supreme Court.

See EFFector Vol. 17, No. 30 August 19, 2004. http://www.eff.org

Law Updates June 2004 (Dutch Court Clears Search Engine of Infringement)
Law Updates February 2004 (Dowloading is Legal in Canada)
Law Updates June 2003 (RIAA v Morpheus & Grokster)
Law Updates February 2003 (RIAA v Aimster)

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04 Ben Challis