PRIVACYArtists, Newspapers, Broadcasting
-ARTICLE: Douglas v Hello (2005) The Court of Appeal has its say-
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 in law from Kings College London and The City University. He also holds the degree of Master of Arts in Mass Communications from the University of Leicester. Ben is a fellow of the Royal Society of Arts. Ben acts as General Counsel for 3A Entertainments, one of the UK's leading concert promoters, and is Executive Producer for television of the Glastonbury Festival. Glastonbury is the UK's leading music and arts festival attended by over 150,000 people. For Glastonbury, Ben combines the role of managing the Festival's broadcast and other media rights alongside acting as General Counsel for the Festival. Ben's other clients have included the Prince's Trust, the Granada Media Group, Pioneer LDCE and British Telecom. Ben regularly writes articles and other material on music business and intellectual property law, contributes to books and is a regular conference speaker in particular on the live music industry. He is currently preparing a collection of cases and materials on music business law for publication. Ben is a visiting Senior Lecturer in Law at Buckinghamshire Chilterns University College in England and sits as a magistrate (Justice of the Peace) in Hertfordshire, England.
We are interested in your views on the Law Updates resource. Please forward any comments to : musiclaw01@aol.com
PRIVACY
Artists, Newspapers, Broadcasting
-ARTICLE: Douglas v Hello (2005) The Court of Appeal has its say-
By Jonathan Coad, solicitor
The long running battle over the publication of Michael Douglas and Catherine Zeta Jones' wedding photographs has reached the Court of Appeal, which handed down judgment on Wednesday on the various appeals before it. The wide range of issues permitted the court to lay down guidance on a number of principles in the sphere of privacy - the central battleground between the rights of the individual and those of the corporate publisher. After a very hard-fought trial Mr Justice Lindsay had found both for Douglas/Zeta-Jones and OK! magazine, awarding OK! approximately £1 million in damages for its commercial loss by the Hello! spoiler, and the Douglases £14,750 for distress and inconvenience. Hello! were also faced with a bill for around £1 million in costs.
Hello! appealed the award in favour of OK! both as to liability and the amount. This appeal was upheld. The court found that the economic torts relied on by OK! magazine concerned activity which had actually been directed at the claimant (the Douglases), and that the purpose of the conduct must be the causing of economic loss to the claimant. The court found that this was not made out by OK! in this case, but that Hello! would have been liable for the publication had the necessary elements been proved. The court did, however, find that at the time the photographs were published by Hello! they had not yet emerged into the public domain. Nonetheless, subject to any appeal to the House of Lords, OK! now face the prospect of having to return the nearly £2 million they were awarded in damages and costs.
The appeal against the award of damages to the Douglases was dismissed. The court also laid down that the privacy rights in photographs of private occasions subsist even after their commercial sale, and that by extension such privacy rights are therefore capable of commercial exploitation. The issue of whether the sale of such rights to a publisher also confers the right to sue depends on the terms of the contract. In this case the court found that this right had not passed to the publisher.
The case will, however, be a landmark decision in the law of privacy for two rulings which were not actually related to issues before the court, and which are therefore strictly speaking not binding in future cases.
Firstly, the court found that its own earlier decision to lift the interim injunction granted to the Douglases was wrongly decided, and that it should have remained in place because damages would not have been an adequate remedy.
Secondly, the court found that following the decision of the European Court of Human Rights in the Von Hannover case, the UK courts had a duty to protect the privacy rights given to the individual by virtue of Article 8 of the European Convention on Human Rights.
This must mean that the prospects for an individual seeking to protect his or her privacy via an injunction have been improved. This will be of concern to the media, but should come as something of a relief to claimants like David and Victoria Beckham for whom the right to privacy, and in particular the availability of interim relief, is clearly a vital issue (see below)
This update is e Simkins Partnership This bulletin is for general guidance only. Legal advice should be sought before taking action in relation to specific matters. The Simkins website is at: http://www.simkins.com
COMMENT : Whilst the Douglases claim for additional damages was refused and OK had to pay pack both the damages and costs awarded by the High Court, the basic premise of the Douglases claim was upheld - Hello had breached the couple's privacy and damages of 500 were appropriate. The Court of Appeal were less than keen on Mr Justice Lindsay's interpretation of the confidential/commercial nature of the photographs (hence the failure of OK to secure its win) but did acknowledge that photographs of a certain nature can be intrusive (even if other photographs of the same event are being published) and that there is a basic law of privacy in the UK (and Europe) which is best protected by injunctive relief (and that any award of damages would tend to be moderate as the real damage is in the actual publication itself).
Von Hannover v Germany ECHR 2004 Law Updates August 2004
http://www.legalday.co.uk/current/privacy.htm
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COPYRIGHT
Music Publishing
-Harrisongs alleges late payment of royalties by Sony ATV-
George Harrison's music publisher is suing Sony ATV Music publishing, the Michael Jackson/Sony joint venture, alleging $1.8 million in royalties is owed. The legal action was filed in High Court by Harrisongs, which is owned by Harrison's estate. George's widow, Olivia Harrison, serves on the board. Harrisongs owns the rights to the late Beatle's songs. The current legal action made public for the first time that unpaid royalties of $1.77 million earned between 1991 and June 1999 on 35 songs composed between 1965 and 1968 by Harrison were paid by the Jackson/Sony joint venture last November, three years after the former Beatle died. The current lawsuit is seeking an alleged underpayment of royalties from July 1999 to the present, and seeks to settle a payment structure until the songs' copyrights expire in 2081.
See: http://www.stereoboard.com/artistnews/news-1035.html
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COPYRIGHT
Music Publishing
-New independent publishing company set up in India-
A French national, Achille Forler, who has been living in India since 1969, has set up the country's first independent music publishing house after paying $3m to buy or administer rights to compositions which include some by leading Bollywood composers and lyricists like KL Saigal, RD Burman, Javed Akhtar and Anu Malik. He has also bought the music to films such as Satyajit Ray's period classic Shatranj Ke Khiladi and Basu Chatterjee's Rajnigandha. Deep Emotions Publishing has also signed an agreement with BMG Music Publishing and a further $12 million has been set aside for catalogue acquisitions. He says Sacem, the French society of authors, composers and publishers of music, collected $400,000 in royalties between 1990 and 1995 for Indian music used in France but that no one knew whom to pay this money because most of the works of music were not registered. Eventually,
the money was sunk into creating an organisation to promote budding French songwriters. Mr Forler also found that no-one had been collecting royalties for music played in Israel. There had been some 2,000 Indian songs on radio and films on television there in the last two years alone. Even the 36-year-old Indian Performing Rights Society Limited, a non-profit organisation which picks up royalties for Indian music, estimates that its present collections are only about 5% of the total possible collections in the country.
See: http://news.bbc.co.uk/2/hi/south_asia/4464393.stm
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COPYRIGHT
Music Publishing
-Hyperion lose appeal over musicologist's editions of 'out of copyright' works. Hyperion Records v Sawkins-
Hyperion Records has failed in its attempt to overturn last year's High Court ruling that copyright royalties were payable to a musicologist for the use of his editions of the 18th-century French composer Lalande on a CD. The Court of Appeal awarded Dr Lionel Sawkins legal costs for both the initial case and the appeal. He has also been awarded damages, the amount of which are yet to be determined (although only 3300 copies of the CD were sold). The case arose out of a recording that Hyperion made in 2001 of four works by Lalande for a CD called 'Music for the Sun King'. Sawkins prepared new editions of three pieces for the recording, which also used an existing edition by him. Hyperion paid Sawkins a fee for using the editions but did not pay copyright royalties as this was the label's then policy towards editions of works by out-of-copyright composers. The disc was released in 2002. In
July last year the High Court found that Sawkins's (original) contribution was sufficient to give him copyright in three of the editions. The judge also found that Sawkins had told Hyperion prior to the disc being recorded and released that he expected to receive royalties.
See: http://www.gramophone.co.uk/newsMainTemplate.asp?storyID=2356&newssectionID=1
and Law Updates August 2004
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COPYRIGHT
Record Labels, Music Publishers, Internet
-Canadian Appeal Court maintains privacy right for file-sharers-
The Federal Court of Appeal in Canada has upheld an earlier ruling that prevents record companies from forcing ISPs to hand over the names of suspected file-sharers without detailed consideration of privacy issues and substantial evidence. However the judgment is something of a mixed ruling, as the door is now open for record companies to launch new rounds of litigation. Labels have, in the ruling, been given a 27-page document that can be used as a set of guidelines for legal actions against file-swapper. It is described as a "roadmap of how to present file-sharing evidence in future". The court ruled that the Canadian Recording Industry Association (CRIA) would require additional evidence to proceed against 29 suspected sharers who are said to have collectively made 43,541 tracks available for download. Federal Court Judge Konrad von Finckenstein ruled last year that the music
companies had failed to make a clear case of infringement and a case that public interest outweighed privacy concerns. However the Court of Appeal have qualified this ruling and also did not agree with Justice Finkenstien's rulings on the legality of downloading in Canada.
See: http://www.reuters.com/newsArticle.jhtml?type=topNews&storyID=8554843
and Law Updates May 2004
IFPI COMMENT : The IFPI today welcomed the decision by Canada's Federal Court of Appeal over the obligations of Internet Service Providers to identify alleged illegal music uploaders on peer-to-peer services. The Canadian recording industry appealed last month against the March 2004 court ruling that ISPs were not required to disclose subscribers' names. The appeal decision largely overrules that earlier ruling, opening the way for a wave of new legal actions to be taken against illegal file-sharing in Canada. IFPI General Counsel and Executive Director Allen Dixon said: "The decision confirms that ISPs must turn over the names of infringing customers; that data privacy rules cannot prevent copyright owners from taking action against infringement, and that unauthorized file sharing is not legal in Canada. The CRIA added that it welcomed the decision clarifying the steps
necessary to obtain disclosure of the identities of alleged large-scale uploaders and rejecting the findings of the motions court with respect to copyright law. The CRIA noted that the Court found that that artists and innovators "need to be encouraged to develop their own talents and personal expression of artistic ideas . . . If they are robbed of the fruits of their efforts," the incentive to create disappears and that "Modern technology such as the Internet . . . must not be allowed to obliterate those personal property rights which society has deemed important. Although privacy concerns must also be considered . . . they must yield to public concerns for the protection of intellectual property rights in situations where infringement threatens to erode these rights."
See: http://www.ifpi.org
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COPYRIGHT
Internet, Record Labels
-Austrian ISP's must reveal personal details of file sharers-
A performing right society has won a suit filed with the Intermediate Court of Appeals in Vienna to have the identity of a file-sharing user revealed. The court upheld the original judge's ruling which had been overturned at first appeal. The Council Chamber of the first-instance district criminal court of Vienna had overruled this ruling on December 01, 2004. The provider has been ordered to reveal the name and address of a customer charged with offering 3,864 music files as downloads for 21 minutes on October 07, 2004. The plaintiff, a performing right society, only knows the person's dynamic IP address. The first instance district criminal court rejected the plaintiff's demand to have the data revealed, arguing that a dynamic IP address is not master data (unlike names, addresses, etc.) and therefore is call data pursuant to Section 149a of the Austrian Code of Criminal Procedure and
therefore only available if crimes with penalties exceeding one year in prison were committed intentionally The Appeals Court thus had to rule that an IP address was equivalent to a telephone number, thus making both master data. Master data is not subject to privacy of telecommunications, but rather only to data protection. Information about master data provided to criminal courts - for example the identity of a user's identity based on a telephone number (which corresponds to an IP address) - can be provided if the suspect is to be investigated and prosecuted for a specific crime (eg under the Copyright Act); here, the restrictions in Section 149a do not apply", the court said. In addition, the Court explained that "providers cannot be allowed to decide at their discretion whether to issue static or dynamic IP addresses in order to avoid their duty to disclose information.
See: http://www.heise.de/english/newsticker/news/59083
for the US view on music piracy, see: http://www.dailynews.com/Stories/0,1413,200~20950~2839478,00.html
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COPYRIGHT
Internet, Record Labels
-Hamburg Court refuses labels to allow access to private data-
Internet Service Providers in the state of Hamburg can't be forced to provide customer data to record companies, even when illegal copying is suspected, at least for now. The Higher Regional Court in Hamburg has ruled that there is no legal basis for demanding customer data as ISP merely provide access to the internet and do not facilitate or undertake a criminal act. The Higher Regional Court overruled a earlier decision by the Hamburg District Court, which had granted record companies access to customer data after they discovered an FTP server where numbers by German band Rammstein could be downloaded for free. The District Court based its ruling on the German Copyright Act. The Higher Regional Court in Hamburg, however, followed a similar ruling by judges of the federal state of Hesse. Here too the court rejected the claim by a music group to hand over the name of a customer who ran
an illegal music server. Experts believe that the setback for the record industry is only temporary as legislators in Germany are drafting a new Telemedia Act, granting the recording industry more freedom in obtaining data from internet service providers.
See: http://www.theregister.co.uk/2005/05/17/hamburg_isp_ruling/
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COPYRIGHT
Internet
-EFF support efforts to revise US Digital Millennium Copyright Act-
The Digital Millennium Copyright Act 1998 (DMCA) has, in the words of the Electronic Frontiers Foundatoin "been wreaking havoc on consumers' fair use rights for the past seven years". Now Congress is considering the Digital Media Consumers' Rights Act (DMCRA, HR 1201), a bill that would reform part of the DMCA and formally protect the "Betamax defense" relied on by technology innovators from Sony, who created the Betamax videocassette recorder (VCR) and Amstrad who manufactured a dual cassette tape recorder/player along internet service providers and software manufacturers whose services are used for both legal and infringing activities. HR 1201 would give citizens the right to circumvent copy-protection measures as long as what they're doing is otherwise legal. For example, it would make sure that when you buy a CD, whether it is copy-protected or not, you can record it onto
your computer and move the songs to an MP3 player. It would also protect a computer science professor who needs to bypass copy-protection to evaluate encryption technology. In addition, the bill would codify the Betamax defense, which has been under attack by the entertainment industry through the US "Induce Act" last year and the MGM v. Grokster case currently before the Supreme Court.
See: EFFector Vol. 18, No. 14 May 5, 2005 The Electronic Frontiers Foundation: http://www.eff.org
and The EFF Action Center: http://www.eff.org/deeplinks/archives/003517.php
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COPYRIGHT
All Areas
-US Family Entertainment and Copyright Act passed-
The Family Entertainment and Copyright Act has been approved the House of Representatives and signed by President Bush into law on April 25th 2005. The Statute represents the entertainment industry's latest attempt to thwart rampant piracy on file-swapping networks. The law had drawn some controversy because it broadly says that anyone who has even one copy of an unreleased film, software program or music file in a shared folder could be subjected to prison terms and fines of up to three years. Penalties would apply regardless of whether or not that file was downloaded. The statute also includes sections criminalizing the use of camcorders to record a movie in a theater, and authorizing the use of technologies that can delete offensive content from a film. "The protection of intellectual property rights is vital to the movie industry," said Rep. Lamar Smith, a Texas Republican who joined
Bush for the signing ceremony. "This bill is necessary to ensure that all those involved in the production of a film, from the director to the set carpenter, are not cheated".
See: http://news.com.com/Bush+signs+law+targeting+P2P+pirates/2100-1028_3-5687495.html
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COPYRIGHT
Record Labels, Music Publishers
-Sweden looks to protect both IP and consumer rights-
Sweden's justice minister, has called for record companies to stop issuing copy-protected CDs, arguing that consumers should be able to make copies of CDs they bought for personal use. This comes at a time when the Swedish government is looking to push through tougher laws to clamp down on file-sharing. Thomas Bodström argues that IP needs to be protected, but not at the expense of restricting consumers' rights. He has threatened that the government could consider making it illegal if labels continue to put anti-copying software on discs.
See: FiveEight Magazine - http://www.fiveeight.net
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PRIVACY
Artists
-In a pre Douglas v Hello! case the Beckhams lose right to gag ex-nanny on grounds of public interest-
David and Victoria Beckham failed in a legal attempt to gag the UK's News of the World. The Beckhams launched a court bid to prevent the paper from publishing revelations from their former nanny Abbie Gibson, 27. Lawyers of the couple applied for an emergency injunction from High Court judge Mr Justice Langley on the grounds of confidentiality. They argued that Abbie had signed a contract guaranteeing that she would not speak out about their lives. But lawyers acting for Abbie and the News of the World convinced the judge that the story was in the public interest. The court decided the News of the World was entitled to publish Abbie's account about the state of the Beckhams' marriage and David's affairs on Sunday April 24th. The News of the World, represented by Richard Spearman QC, was given the green light to publish at 8:30pm in the evening on Saturday 24th April following a 90 minute
hearing. The newspaper's Legal Manager Tom Crone said: 'The Beckhams have spent a lot of their lives basking in a warm glow of publicity which they have created for themselves. For the first time the world can now read an insider's detailed account about what their marriage is really like.'
COMMENT : Writing in the Times newspaper Mick Hume noted "of course we are familiar with the notion that the line between public and private is becoming increasingly blurred even so this business of the Beckham's nanny surely marks a new low. A woman employed to care for children breaks a confidentiality agreement and goes to the papers with her version of David and Victoria Beckham's sexual and family secrets. A [judge] refuses to stop publication because he rules the story is 'in the public interest'. If publishing intimate details of marital relations is now considered in the public interest where will it end? Can the state set up CCTV in celebrity bedrooms". The most recent test of what is in the 'public interest was set out by Lord Woolf in A v B & C (2002) and this somewhat limits the Human Rights Act 1998 'right to privacy' when it comes to celebrities (see below). Writing in the Cambridge Evening News Bob Satchel, Director of the Society of Editors says 'the public interest and the media's right to publish override individual rights of privacy or expectations of confidentiality if revelations reveal wrongdoing or expose hypocrisy we had [privacy] laws to protect soccer legends, movies queens and pop stars very quickly we would have bent businessmen, corrupt officials and less than savoury pop stars hiding behind them. The decision of the Court of Appeal in Douglas v Hello! just after this case does, to an extent, provide a happier picture for the Beckhams with injunctive relief now promoted by the Court of Appeal as appropriate in privacy cases and a recognition of the Von Hannover decision by the European Court of Justice that Article 8 protection for all citizens including celebrities was relevant to UK law.
The parties returned to the High Court at the end of the week and an order was
made preventing Ms Gibson from making further revelations and allegations. The
order did not prevent her from repeating what was already in the public domain.
Ms Gibson must also hold the sum of £125,000 she received pending the legal proceedings
the Beckhams have said they will bring against Ms Gibson for breach of confidence.
In another case Eastenders actor Jessie Wallace was refused an injunction against a former boyfriend (and father of her child) Dave Morgan who has said he will 'wreck her career' with revelations. Mr Justice Andrew Smith found that as she had herself placed flattering details of her private life into the public domain she forfeited her right to privacy. Whilst this case did not involve the issue of a confidentiality agreement, it shows that when celebrities put themselves and detail about their private lives voluntarily into the public domain they will have some trouble in stopping others revealing far less favourable comment publicly.
See the Times Friday April 29th 2005
See the Cambridge Evening News April 20th 2005 (pp6-7)
See also 'Putting the Boot Into Posh and Becks Inc (Peter Preston) The Observer April 31st
See the Guardian May 9th 2005 EastEnder is denied 'gag'
See 'Law On Trial: Free Expression' by Marcel Berlins at: http://www.eurozine.com/article/2003-10-15-berlins-en.html
In A -v- B & C (2002) the Court of Appeal overturned an injunction obtained by a A, well known footballer (Blackburn Rovers Skipper Gary Flitcroft), against B and C who wanted to sell 'kiss and tell' stories about extra-marital affairs to national newspapers. At first instance Mr Justice Jacks had held that individual's sex lives were private and there was no contravening public interest. But on appeal Lord Woolf held that public figures must expect and accept that their actions, private or public, would be examined by the press. Lord Woolf equated public interest with 'interesting stories' about public figures rather than the more restrictive 'public interest'.
See above for the revised appeal decision in Douglas v Hello! and see the Guardian (Media Section page 14) 'Photo Finish' by Dan Tench 23 May 2005
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CONTRACT
Artists, Record Labels
-Linkin Park seek to exit Warners deal-
Just as Warner Music geared up for its $2.6 billion IPO (flotation), one of its biggest acts has said that it would like to get out of its contract with the label. Nu-metal genre leaders Linkin Park allege that cost-cutting across the company has diminished its strength, leaving it "unable to compete in today's global music marketplace" and that senior executives are taking profit at the expense of musicians. The band has threatened to stop work on its new album, believing the company will not be able to market it sufficiently. The band has sold over 35M albums globally and says that it makes up 10% of the company's US sales. Warner Music has stated that it is closer to 3%. The band still has a further four albums to deliver under its current contract and Warner Music has dismissed this outburst as a "negotiating tactic" built on "baseless charges". It has been suggested that the band
had asked for $60M in advances to release their new album through a JV deal in exchange for a split of profits. Warner Music is said to have offered substantially less and a profit split. The band is said to have renegotiated its contract back in 2000 to put them on more favourable deal terms. The band's first album Hybrid Theory sold 15 million copies worldwide and the 2003 Meteora sold 10 million.
See: http://news.bbc.co.uk/1/hi/entertainment/music/4507903.stm and The Times 4th May 2005
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TRADEMARK
Artists, Merchandising
-Westlife lose battle over name in European Court of Justice-
Judges in Luxembourg ruled that "Westlife" cannot be registered as an EU trademark - because it is too similar to the word "West". A German tobacco firm has already trademarked that name and judges said the fact that Germans say "vest" and not "west" did not lessen the confusion with the merchandise of the pop group. Westlife can still go on using their name as well as on merchandise, but it means they cannot protect it as an exclusive trademark. The band applied for an EU trademark in 1999, but the Germany company claimed there was potential confusion because the two sell similar types of merchandise (not least because of West's involvement in motor racing as a team sponsor selling branded clothing etc). During a five-year legal tussle, lawyers for Westlife argued that there was a clear distinction between the group's name and the single word West.
See: http://www.itv.com/news/entertainment_1535352.html
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COPYRIGHT
Music Publishers
-Cuba and St Lucia sign copyright pact-
The Cuban Musical Society and its St. Lucia counterpart Hewanorra Musical Society (HMS) have signed a reciprocal agreement for the protection of copyright material. The St. Lucian organization will protect intellectual property rights and collect royalties on behalf of members of its Cuban counterparts, while the Cuban will do the same for the local society. In the past, the HMS conducted business with Cuba through the UK's Performing Right Society that dealt directly with the Cuban Agency for Musical Authors Rights (CAMAAR). Similar agreements have also been signed with HMS Societies in Jamaica, Trinidad and Tobago and Barbados.
See: http://www.plenglish.com/article.asp?ID=%7BF3D3A825-FF15-4F53-B0B2-5CF5CEACA006%7D&language=EN
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PERFORMERS' RIGHTS
Artists
-Hendrix Estate wins infringement action for 1969 recording: Experience Hendrix LLC v Purple Haze Record Ltd and Another -
A performance by the late Jimi Hendrix with his band the Jimi Hendrix Experience in Stockholm in 1969 has been found to be subject to the retrospective provisions of the Copyright Designs & Patents Act 1988 and the later Copyright & Related Rights Regulations 1996. The High Court upheld an infringement claim by Experience Hendrix LLC (successors in title to Jimi Hendrix's estate) against defendants Purple Haze Records Ltd and Lawrence Miller who had released the recording as an album. At the time of the Stockholm recording, UK law only offered criminal sanctions against unauthorised recordings. The so called 'performers right' was introduced in 1988 but was conferred retrospectively. Even though held in Stockholm in 1969 the High Court held that Hendrix's personal performer's right could be asserted as Stockholm was a country designated as receiving reciprocal protection in
1969 and in 1995 became a EU member. Mr Justice Hart held that both the performance itself (which could be individually owned by Mr Hendrix even if part of a band performance) and the place of performance fell within the scope of the Act. Summary judgement was given against Purple Haze Records Limited and Mr Miller.
Source: The Times Law Report 5th May 2005
Copyright & Related Rights Regulations (SI 1996 No 2967)
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COPYRIGHT
Technology, Software, Internet
-UK hackers jailed for software Piracy R v Bell (and others) 2005-
Four internet hackers who spent their time cracking codes for fun and releasing pirated software onto the internet were jailed at the Old Bailey (London's senior criminal court). The four, members of the 'DrinkorDie' group, caused mayhem by cracking protection on software programmes to enable games and other programmes to be downloaded without payment. Judge Paul Focke told the four that their activities 'struck at the heart of the software trade' and that the loss to software owners through piracy was staggering. The Judge said that he estimated that a third of all software used in the UK is pirated. Alex Bell (29) and Steven Dowd (39) were jailed for two and a half years and two years respectively for conspiracy to defraud after a five month trial. Andrew Eardley (35) and Mark Vent (31) were jailed for eighteen months each after pleading guilty. DrinkorDie was closed down after a global investigation involving the police from the UK, America, Australia and other countries.
Source: The Times May 7th 2005
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COPYRIGHT
Television, Internet
-US Appeals Court rejects FCC's attempts to control digital piracy: ALA v FCC-
The US Court of Appeals for the DC Circuit has rejected the US broadcast regulator's attempts to control the copying of digital TV with an anti-piracy technology. The Court has ruled that the Federal Communications Commission (FCC) overstepped its authority in its attempt to control how electronic devices work in the US. The "broadcast flag" system the FCC proposed is a technology that is a piece of code attached to programmes which tells devices that receive digital signals the level of copy protection on that programme. "We can find nothing in the statute, its legislative history, the applicable case law, or agency practice indicating that Congress meant to provide the sweeping authority the FCC now claims over receiver apparatus," said the appeals court panel. Supporters of the flag had argued it would combat the illegal copying and distribution of TV programmes but critics said it
would strop people making legitimate copies or copies for educational, teaching, criticism or review purposes. It was also feared that the rule would set a precedent, meaning the FCC would have the right to say how future TVs, computers, and other devices which can receive digital signals, are made
See: http://news.bbc.co.uk/1/hi/technology/4523597.stm
The Electronic Frontiers Foundation (EFF) COMMENT :"This case is a great win for consumers and for technology innovation. It's about more than simply broadcasting. It is about how far the FCC can go in its regulations without permission from Congress," said Public Knowledge President Gigi Sohn. "Had the flag been implemented, Hollywood, acting through the FCC, would have been able to dictate the pace of technology in consumer electronics. Now, thankfully, that won't happen. While we recognize that the content industries may ask Congress to overturn this ruling, we also recognize that Congress will have to think very hard before it puts restrictions on how constituents use their televisions." Since the FCC announced the July 1st deadline, EFF had been encouraging consumers to beat the Broadcast Flag by purchasing HDTV receivers manufactured before the restriction, as well
as teaching them how to use the hardware with free, open-source digital video recorder applications such as MythTV. Part of the education campaign was a daily countdown to the date when the Broadcast Flag was to take effect.
EFFector Vol. 18, No. 15 May 13
See: http://www.eff.org/deeplinks/archives/2005_05.php
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PRIVACY
Internet
-ARTICLE: The Right Way to Fight Spyware-
By Wendy Seltzer, Electronic Frontiers Foundation Special Projects Coordinator
The New York State Attorney General's office has filed suit against Intermix Media for deceiving people into installing and using spyware. The lawsuit is a step forward for users' rights to control their own computers. It also demonstrates the right way to address the spyware problem: with lawsuits, not new laws. The New York complaint runs through a veritable catalogue of deceptive acts and practices: interception of web requests; installation of hidden programs, unrequested toolbars, mechanisms that report user activity back to Intermix and display advertising, etc. All of this was done with minimal notice and no genuine consent from users. Attorney General Eliot Spitzer charges Intermix with violating New York state's prohibitions on "deceptive acts or practices" and "false advertising," provisions common to state and federal law. He also charges the company with "trespass to chattels" for interfering with the use of personal computers onto which the software was downloaded.
The complaint is only the beginning of a lawsuit, of course, but the screenshots and descriptions leave little doubt that promoting spyware in the guise of a screensaver or game is indeed a "deceptive act." If the company doesn't agree to stop on its own, it's quite likely a judge will put an end to these practices - using existing law. The lawsuit comes as Congress and many state governments consider anti-spyware legislation. Bills have been introduced in both the House and Senate providing detailed lists of prohibited activities, such as "modifying settings relating to the use of the computer or to the computer's access to or use of the Internet, including ... altering the default Web page that initially appears when a user of the computer launches an Internet browser" (S. 687). While the Congressional efforts may be well-meaning, such specific legislation is bound to be both too narrow and too broad. A law that targets web browser bookmarks and start pages says nothing about instant messenger traffic. And what about a portable device that connects to the Internet but offers no way to accept or reject the terms of a useful new feature?
New tech-specific laws will look outdated as soon as the technology changes, while creating a welter of regulations that hinder software development. Moreover, some of the federal proposals would preempt state law, blocking the very laws that may be most effective against malware. No one likes invasive spyware. As Spitzer's complaint shows, however, older, more general laws already prohibit these deceptive practices. Rather than rushing to regulate a field that's still changing, with laws that could have unintended consequences for legitimate software development, we should focus on enforcement of these existing laws. Kudos to the New York State Attorney General for doing just that.
For the original version of this piece online: http://www.eff.org/deeplinks/archives/003536.php
EFFector Vol. 18, No. 14 May 5 : http://www.eff.org/effector/
The Editor of the Law Updates Ben Challis has written an article examining potential new online methods of payment for copyright use of films and music which might have a serious impact on personal and online privacy. See: The Digital Dilemma - How Do We Pay The Piper? at: http://www.musicjournal.org/05digitaldilemma.htm
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CENSORSHIP
Artists, Television, Theatre
-Jerry Springer opera did not break TV rules-
The UK's communications regulator Ofcom has said that Jerry Springer: The Opera did not breach broadcasting guidelines. The decision to screen the musical on BBC2 sparked accusations of blasphemy from Christian groups who launched the largest ever number of complaints against a programme. Ofcom accepted that the portrayal of religious figures could have been offensive to some people but said it understood that the show's effect was to "satirise modern fame and the culture of celebrity". Ofcom also noted that the programme was preceded by a programme designed to put the Opera in context. The BBC Board of Governors have also supported the broadcast saying that it was justified because the outstanding artistic significance outweighed the offence which might be caused to some people and that the show was a satire preceded by clear warnings.
Source: The Guardian 10 May 2005
and see Law Updates February 2005 Demonstrations by some members of the Sikh community close the theatric presentation of Behzti and raise issues of free speech
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DEFAMATION
Artists, Newspapers, Television, Internet
-Beckhams kidnap case shows the difficulties of 'no-win no-fee' litigation-
Mr Justice Eady has thrown out a claim by Mr Bogdan Maris, a 24 year old Romanian (who initially sued under a false name) against the News of the World who 'caught' Mr Maris in a sting designed to uncover a plot to kidnap Victoria Beckham. The story was published in 2003 and Mr Maris obtained counsel on a no-win no-fee basis (a conditional fee arrangement or CFA). Mr Maris was arrested and charged but the trial collapsed when the Crown Prosecution Service offered no evidence. Whilst during the trial Eady J found that there were a number of inaccuracies in the News of The World's story, he found the case all the more unusual as Mr Maris was not presently in the UK and had not even produced a witness statement outlining his side of the story. His counsel had continued proceedings based on past instructions. This of course meant that the newspaper could not cross examine Mr Maris or see any
evidence from him. The judge pointed out that a 'ransom factor underpin CFAs as costs build up for the defending newspaper with no likelihood of recovery if the newspaper wins but significant costs (including the enhanced fee for counsel operating under the CFA) if the newspaper loses. The Department of Constitutional Affairs has initiated a review of CFAs.
The Guardian 10 May 2005 (article "As absurd as you can get" pp16-17 Law by Alex Wade)
See Law Updates July 2004: Lawyers Costs Capped in Contingency Fee Cases, Musa King v Telegraph Group Limited (2004)
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COPYRIGHT
Music Publishing, Artists
-Buena Vista dispute reaches High Court-
The copyright dispute over ownership of Cuba's Buena Vista Social Club's music has reached the High Court in the UK. The dispute concerns who actually owns the rights to the songs, some of which relate to songs written in the 1930s and how and if writers and composers have been paid. Peer International Corporation claims that the Cuban government unlawfully took control of its copyrights (some of which date back to the 1930s) via its company Editora Musical de Cuba (EMC). These rights in turn were passed to Termidor Music Publishing which has sought to register the songs in the UK. EMC counters saying that it is trying to "salvage" royalties for the writers who were either paid nothing or "a few pesos and maybe a drink of rum" and that the original contracts with the writers were void as they "unconscionable bargains". Peer has stated that it did pay royalties until 1959, but, after
the revolution, US trade embargoes stopped payments to composers based in Cuba. Payments were made to writers situated outside of Cuba whereas payments to those in Cuba were placed in bank accounts. This changed somewhat in 1994 when the US relaxed the embargoes. EMC counters this by saying that even when the embargo was relaxed Peer obtained a licence to distribute pre-1988 royalties at 'no more than $300 (now ) per person over time'. EMC allege that Peer's contracts were constructed to allow the publisher to get away with paying writers and composers just a few pesos and 'maybe a drink of rum'.
See: http://www.guardian.co.uk/international/story/0,,1481035,00.html and The Times 11 May 2005
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CONTRACT
Artists
-Nine Inch Nails' Reznor sues ex-manager-
Trent Reznor has now testified against his longtime manager, saying he was stunned to learn in 2003 that despite millions of dollars in earnings by his band, Nine Inch Nails, he was left with as little as $400,000 in cash and $3 million in assets. The New York federal civil lawsuit is against John Malm. Reznor contends that his former friend duped him into signing a contract that allowed Malm to collect 20 percent of the singer's gross earnings rather than net earnings. A lawyer for Malm, said in an opening statement that his client worked many years for no salary and kept nothing secret from Reznor. Reznor said that pair created their own production company and managed sales of merchandise but the expenses piled up, draining large portions of the millions of dollars the band earned with its albums and concert tours. Reznor said he began to grow worried about finances when he was told during a meeting with Malm in 2002 that there was "cause for alarm."
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COPYRIGHT
Record Labels, Music Publishing, Internet, Technology
-Holland to implement iPod Tax-
Holland has passed legislation to implement a point of sale surcharge on any device capable of storing illegally downloaded or "pirated" music. The recently passed Dutch legislation will become law within the next three months, with reports suggesting the levy could be around 3.28 per gigabyte. On Apple's 60gb iPod that would add over 190 to the price. The levy would be paid to copyright holders, to compensate for profits lost to illegal filesharing. In a recent article (see reference below) Doug D'Arcy, the former head of Chrysalis and BMG, thinks Britain should follow suit. "The illegal digital download market is in danger of crippling the British music industry and unless something is done to address this quickly, it will spell disaster for thousands of artists and independent record labels. Unlike other territories, the UK never implemented a blank tape levy on cassette tapes. One
of the most persuasive arguments against this is of course that those who copy legally (and who now download legally) are in effect being penalised as they are paying twice for a copyright.
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CONTRACTS
Telecommunications, Internet
-Ringtone advertising raises consumer protests worldwide-
Mobile phone ringtones have prompted complaints to Trading Standards Offices and the Advertising Standards Authority in the UK. Often subscribers think they are paying a one-off or a ringtone only to find themselves (or if children, their parents) locked into a contract for a weekly payment. Jamster, one of the accused companies, has been the target of four complaints upheld by the Advertising Standards Authority (ASA). The ASA ruled that the small print racing across the bottom of the television screen during an advert for a Crazy Frog ringtone and mobile phone wallpaper was not prominent enough. In the US where Jamster is advertised on MTV and Nickleodeon, a San Diego parent has brought a lawsuit against a number of ringtone service providers alleging that their advertising was misleading and unclear.
See: http://new.edp24.co.uk/content/news/story.aspx?brand=EDPOnline&category=News&tBrand=edponline&tCategory=news&itemid=NOED27%20Apr%202005%2019%3A06%3A47%3A337 and http://www.smh.com.au/news/Technology/Ringtones-play-out-in-a-50m-market/2005/05/18/1116361617683.html?oneclick=true and http://news.com.com/Teens+dialing+up+ring+tone+trouble/2100-1039_3-5692489.html
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COPYRIGHT
Film, Television, Record Labels, Music Publishers, Computer Software
-Pakistan to fight piracy-
The Pakistan government is taking urgently-needed actions to curb the mass-scale violation of copyright. "Pakistan is showing that it takes seriously the need to address its severe levels of copyright piracy," said a joint press statement issued the International Federation of Phonographic Industry (IFPI), Business Software Alliance (BSA) and Motion Picture Association (MPA). The response follows administrative reforms and strict enforcement actions announced by the Government in recent weeks. The Pakistan Intellectual Property Rights Organization (PIPRO) has been created to oversee copyright, trademark and patent protection issues. The Federal Investigation Agency (FIA) arrested nine people and confiscated more than 400,000 pirate CDs, DVDs and audio cassettes, along with 10,000 Master Discs (stampers) in the course of closing down six illegal optical disc plants around Karachi.
Pakistan has become one of the largest manufacturers of pirate discs in the world - producing over 230 million discs in 2004, of which the vast majority was exported to at least 46 countries worldwide.
See: http://www.ifpi.org and http://www.pro-music.org
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COPYRIGHT
Record Labels
-Universal and Warners file infringement file in China-
The Huangpu District People's Court in Shanghai has accepted two copyright cases filed by Universal Music and Warner Music against the Shanghai Book City and several Chinese music producers. The plaintiffs said in their lawsuits that the Book City sold pirated MP3 discs that contain songs from pop stars Daniel Chen and Sammi Cheng. Universal Music and Warner Music hold the copyrights associated with the songs. The suit also alleges that Beijing Yuncheng Laser Disc Co Ltd, Beijing Weidi Electric Publishing House, Hebei Jiyuan Photoelectricity Co Ltd, Anhui Culture and Music Publishing House and Beijing Zhengpu Scientific Development Co Ltd issued MP3 discs containing the songs without authorization. Universal Music and Warner Music have asked the court to order the defendants to stop sales immediately and make a public apology. The plaintiffs are also seeking unspecified financial
compensation. Book City said it performed its obligation as a retailer to stock products from authorized suppliers. If the suppliers produce pirated books or music products, they should be held responsible. Book City also said it is impossible to check whether all its goods are properly licensed since it sells tens of thousands of music and video products and books.
See: http://news.xinhuanet.com/english/2005-04/21/content_2858056.htm
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© 2005 Ben Challis