COPYRIGHT
Record Labels
-EFF's new guide to digital music services points to unexplained restrictions with Digital Rights Management Systems-
"If you buy music from an online music store, you may be getting much less than you thought" - that's according to the The Electronic Frontiers Foundation. The EFF have just released "The Customer Is Always Wrong - A User's Guide to DRM in Online Music," which exposes how today's digital rights management (DRM) systems can compromise a consumer's right to lawfully manage his or her music the way she wants. The Guide takes a close look at popular online music services with built-in DRM created by Apple, RealNetworks, and Napster 2.0, as well as Microsoft's "Plays for Sure" DRM labeling campaign. Although these companies claim their services allow consumers "freedom" and the ability to play music "any way you want it, The EFF suggests that "the reality often does not live up to the marketing hype". When you download in these formats from online music services, the services don't trumpet the fact that your music contains hidden restrictions that complicate your life and limit the universe of devices you can use to play your music. The Report points out that CDs purchased 20 years ago not only continue to play in every CD and DVD player, but can also be used with any of today's PCs and digital music players. Thanks to DRM, however, a similar investment in music downloaded today may be much less valuable to you 20 years from now. The EFF rightly point out that bypassing the DRM to make perfectly legal uses puts people at risk of liability under the Digital Millennium Copyright Act (DMCA). "In this brave new world of 'authorized digital music services,' law-abiding music fans often get less for their money than they did in the old world of CDs," said Derek Slater, the Harvard student and EFF intern who authored the guide. "Understanding how DRM and the DMCA pose a danger to your rights will help you to make fully informed purchasing decisions."

"The Customer Is Always Wrong": http://www.eff.org/IP/DRM/guide/

In a related article by the EFF, "TiVo Owners: Got Macrovision?" it is argued that updates often lead to 'downgrades' when it comes to consumer's rights:

Have you noticed that when you "update" a product these days, you have to be on your guard lest the vendor slip in a "downgrade"? Like when Apple "updated" iTunes to reduce the number of burns you could make from the music you bought from the iTunes Music Store? Well, here's another reminder of how "updates" can hurt you. As reported in the PVRBlog, the latest TiVo OS "update" causes some TiVos to start popping up red copyright warning flags on certain saved programs (including the Simpsons), threatening to automatically erase programs after a certain number of days. These restrictions are part of TiVo's move, as reported last year, to lockdown and auto-erase content that is marked by broadcasters with Macrovision (a technology originally intended to befuddle analog VCRs, but now also being used as a flag to mark analog video for copy restrictions). It looks like it was a glitch on TiVo's end this time. Only pay-per-view and "premium channel" (i.e., HBO) programs were supposed to be Macrovisioned. (In fact, section 1201(k)(2) of the Copyright Act forbids broadcasters from putting Macrovision on any other programs.) Of course, the fact that it was a glitch this time is should be no comfort to TiVo owners. When you bought your TiVo, you could record and keep the Sopranos, or Six Feet Under, or that exclusive boxing match. Thanks to the "updates" to your TiVo, now that capability can be taken away from you at the broadcaster's whim. It's a good reminder that, in an age when Hollywood is calling the DRM shots and technology companies acquiesce, "updates" may no longer be your friend.

The original version of this piece online: http://www.eff.org/deeplinks/archives/003979.php

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HEALTH & SAFETY
Live Event Industry
-Centre for Crowd Safety Management is launched-
The Centre for Crowd Management and Security Studies has been formally opened by the Rt Hon Bruce George MP on the 6th September. The Centre, part of Buckinghamshire Chilterns University College is headed up by live music industry veteran Mick Upton who received an honorary doctorate from the University College the same day. Keynote speakers at the launch were Iain Hill and Professor Chris Kemp. The legal consultant for the Centre is the Law Updates editor, Ben Challis. The Centre was set up to help promote the creation of a safer concert and security environment. The Centre is also endorsed by the Security Industry Authority (SIA) to offer licensed qualifications in the security industry. The Centre has already worked with the ILMC Safety Focus Group to produce the http://www.safety-rocks.org website and has conducted research at the VE Day event in London's Trafalgar Square, the Red Hot Chilli Peppers concert in London's Hyde Park, the Robbie Williams concert at Knebworth, the Eminen concerts at Milton Keynes Bowl, and at the Roskilde Festival. The Centre is now looking at safety barriers in conjunction with Mojo Barriers and Professor Kemp added that the Centre is now looking at scientific evidence to prove safety of the three barrier system used at Roskilde and elsewhere.

Details about the Centre can be found at http://www.crowdsafetymanagement.co.uk and further details can be requested from tdanzi01@bcuc.co.uk.

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CONTRACTS
Record Labels
-Korn sign all in deal with EMI-
Following the much discussed deal between Robbie Williams and EMI, The LA Times reports that EMI has signed a five-year deal with Korn where the label will have a stake in the band's additional earnings beyond sales of recorded music. An estimated fifteen million dollar advance has been paid. Similar deals are being done with new acts including A&M/Interscope's deal with the Pussycat Dolls. My Chemical Romance's deal with Warners covers both recording rights and merchandise. Under Korn's new deal, EMI will get more than 25% of the band's publishing, merchandising and touring revenue as well as profit from the group's albums The signing of a band as big as Korn is seen as possibly indicative of how recording contracts will change across the industry. Some see this as a way for labels to get a better/quicker return on their investment (as bands will be marketed more aggressively through all media channels). However, others are suggesting that Korn's recording and touring fortunes are on the slide, making this a curious time to sign a deal such as this with the band. Music executives and artists say that if all-encompassing agreements become common, they could significantly shift the focus of the $11 billion recording industry and bring new heavyweights to the concert and merchandise businesses.

See: http://www.latimes.com/business/la-fi-korn12sep12,1,1468209.story?coll=la-headlines-business

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LICENSING
Live Event Industry
-UK Home Office exempts football stewards from door supervisor regulations-
The Home Office has decided to exempt in-house football stewards from licensing under the Private Security Industry Act 2001 following consultation with the SIA, the Football Licensing Authority and the Department for Culture, Media and Sport. The Private Security Industry Act (PSIA) 2001 allows for specific groups to be exempt for the Act in circumstances where suitable equivalent alternative arrangements apply. The exemption for football stewards is expected to take place from around January 2006. Media enquiries on this subject are being handled by the Home Office Press Office. The Home Office has issued a Regulatory Impact Assessment (RIA) which considers the options for ensuring that football stewards, their supervisors and managers satisfy the requirements of the PSIA 2001 without creating an unnecessary burden on the businesses and individuals affected. It also sets out the Government's preferred option and explains how the proposed framework will work.

See: http://www.the-sia.org.uk

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HEALTH & SAFETY
Live Music Industry
-UK judicial review finds local authority policy illegal-
The pub sector has won a landmark legal case against Canterbury City Council in the UK finding that Canterbury's Licensing Policy is unlawful. Central to the case was that Canterbury's Licensing Policy was far too prescriptive, set broad blanket conditions on licensed businesses and misled those applying for licences about what they had to do to be granted a licence - in effect the case was that the Council's Licensing Policy was in breach of the provisions of the Licensing Act 2003. Mr. Justice Richards stated in his ruling, 'It is sufficient that my judgment speaks for itself, not just to the council [Canterbury] but also to the other licensing authorities whose policies are under examination'. The case highlighted the problem in the licensed trade where a number of local authorities attempted to use their Licensing Policies to impose what are said to be unnecessary and unlawful conditions and regulatory burdens on pubs. The Judicial Review was a joint action taken on behalf of the pub industry by the British Beer & Pub Association, The Association of Licensed Multiple Retailers and the British Institute of Innkeeping. Government figures now show that 86% of premises have now applied for a new licence from November. Just less than half were asking to change their licensed hours.
However the UK Government has now bowed to pressure from local authorities, members of the public, MPs, Police Chiefs, the Transport Police and the Association of Circuit Judges who have all variously warned of the potential for an increase in violent crime and disorder in town centres, around pubs, increased violence on trains and say that little or no account can be taken by Licensing Authorities of bona fide concerns of local residents and businesses. The licensing minister, James Purnell, will this week write to local authorities announcing a review of the way licence applications are handled. The review will look at cases where local residents objections were rejected. The Culture Secretary, Tessa Jowell, has also promised to review the new system once it was in place.

See: http://www.beerandpub.com/content.asp?id_Content=2155&id_Content_Parent_Override=97

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COPYRIGHT
Radio, Record Labels, Internet
-EFF criticize US labels' approach to digital radio: EFF article "Don't Touch That Dial, RIAA!"-
The EFF have (somewhat tongue in cheek) suggested that the Recording Industry Association of America (RIAA) has seen the future of radio - and would prefer to live in the past. Digital broadcast radio is a standard for transmitting digital stations on existing analog radio bands. Known somewhat misleadingly as "HD radio" (the audio quality is about the same as analog FM), its adoption is giving tech companies a chance to experiment and innovate in the world of consumer radio. TiVo-like functionality could be built into your digital receiver, letting you automatically build playlists and skip across channels based on your personal tastes. Computer-operated radio cards could be enhanced with new features using the standard's metadata. Tomorrow's tinkerers could give us new ways to enjoy radio, just as the engineers who brought us VCRs helped transform the way we watch TV. As Mitch Bainwol, chairman of RIAA says, radio has a chance to become active, not passive, entertainment. But when he and the RIAA say that, they don't say it like it's a good thing.

Last week, with a coalition of copyright holders, the RIAA sent messages to members of Congress requesting that the FCC be given new powers to hobble digital radios so they perform worse than the analogue radios of yesteryear. According to the RIAA, you should be able to record off the radio, but only subject to their "usage rules": (1) recordings must be for no less than 30 minutes; (2) recordings cannot be divided into individual songs, nor will you be allowed to jump between songs; (3) recordings must be encrypted and locked to the individual recording device (no transfers to your iPod!); (4) recordings can only be triggered by a human pressing a "record" button or by pre-programmed date-and-time (like your old VCR!), which means no smart metadata driven features like TiVo's "Wishlist." In other words, the RIAA wants to micromanage how you record off the radio! The most amazing thing about this? There is nothing illegal about recording from digital radio. Congress specifically gave radio fans the right to record off the radio (including digital radio) in the 1992 Audio Home Recording Act (AHRA). That law also gave innovators the right to build digital radio recorders (including smart digital radio recorders) without fear of copyright liability. There is nothing in that law that says the recorders have to be made artificially stupid by FCC regulation.

More info on the latest RIAA lobbying in Congress: http://www.eff.org/deeplinks/archives/003967.php

EFF's comments to the FCC on the RIAA proposals (pdf file): http://www.eff.org/deeplinks/archives/EFF-BC%20DAB%20comments.pdf

An informative exchange between the Presidents of the RIAA and the Consumer Electronics Association: http://cryptome.sabotage.org/RIAA-CEA.htm

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COPYRIGHT
Record Labels, Music Publishers, Internet
-Australian Court rules that Kazaa file swapping software is illegal: Universal Music of Australia Pty Ltd vs Sharman License Holdings (2005) whilst other P2P companies review strategies in light of the Grokster decision-
The Federal Court of Australia has ruled that the internet peer-to-peer operator Kazaa is illegal and the IFPI has called on similar networks throughout the world to stop infringing copyright or face the legal consequences. The judgment, coming just ten weeks after the US Supreme Court ruling against the 'file-sharing' operator Grokster, concludes the 18-month trial of the best-known international file-swapping service and helps to lay down the law for the new generation of unauthorised peer-to-peer operators. The Court ruled that Kazaa - until recently the world's biggest single internet piracy operation with 2.4 million users worldwide - is an illegal business that is liable for copyright infringement. The move is part of a global trend clarifying the rules around internet music distribution. A court ruling in Korea last month required the peer-to-peer service Soribada to stop unauthorised file-swapping on its network or shut down. IFPI Chairman and CEO John Kennedy said: "Within the space of ten weeks, three courts in three different continents have given a huge boost to the efforts by music and technology companies to forge a legal online music business …. today's judgement shows that Kazaa - one of the biggest engines of copyright theft and the biggest brand name in music piracy worldwide - is illegal. This is a milestone in the fight against internet piracy worldwide and a resounding signal to other unauthorised file-swapping networks: they should adapt their systems and go legitimate now". Justice Murray Wilcox ruled today that companies and individuals associated with Kazaa knowingly facilitated and profited from copyright infringement, and failed to take any measures to stop it and must now start to filter its infringing recordings within two months or face closure. Justice Wilcox made findings of liability against Sharman Networks, LEF Interactive Pty Ltd, Altnet Inc, and Brilliant Digital Entertainment Inc, along with executives Nicola Hemming and Kevin Bermeister. He concluded that:

This analysis is taken from an article by Clare McCurley and published in e-tips (a publication of Deeth Williams Wall LLC) edited by Richard Potter QC.

On September 5, 2005, Australian Federal Court Judge Murray Wilcox ruled that Kazaa's popular file-sharing service violated Australia's copyright law by authorizing users to infringe music companies' copyright in sound recordings. The judgment does not go so far as to make file-swapping illegal. It does, however, conclude that Sharman Networks Ltd, and five other respondents associated with the Kazaa software, violated section 101 of the Australian Copyright Act. Under this section, copyright is infringed when a person who does not own the copyright and who does not have a licence from the copyright owner, authorizes another person to do an infringing act. The judge found that the warnings on Kazaa's website urging users not to exchange copyright materials were not enough to discourage illegal file sharing. The six respondents found to have authorized the infringement were ordered to pay 90 per cent of the record industry's costs in the case. They have been given two months to modify the software to include a filter so that only licensed music can be accessed. Sharman says that it will appeal the ruling.

http://www.austlii.edu.au/au/cases/cth/federal_ct/2005/1242

http://www.ifpi.org

See also the story that the RIAA has issued seven 'cease and desist' letters against US P2P websites including eDonkey, LImeWire, WinMX and BearShare It also appears that Mashboxx is in talks to acquire Grokster and turn it into a full legal service and it emerges that a number of other file-sharing companies are moving to cross over to the 'legal side of the street', driven in part by the Supreme Court's June ruling on Grokster. Mashboxx was said to have also approached eDonkey, Morpheus and LimeWire but no serious talks had taken place. iMesh - which settled with the music industry last year and went legal - is also said to have approached other file-sharing companies with a view to acquiring them and making them legal. At the time of writing, industry magazine FiveEight suggested that it is possible that a number of operators will close down. http://www.hollywoodreporter.com/thr/music/brief_display.jsp?vnu_content_id=1001137897

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COPYRIGHT
Record Labels, Music Publishers, Internet
-First criminal ruling against an internet peer-to-peer service in Taiwan-
The IFPI, representing the international recording industry, has welcomed the conviction of Taiwan-based internet file-sharing service Kuro, in what is the first criminal conviction of a peer-to-peer (p2p) service in the world. A Taiwan court today convicted Kuro of criminal copyright infringement, imposing a fine of NT$3 million (approx US$90,000) and sentencing the three principals of Kuro, along with a user, to jail terms of up to three years. The judgement follows three other court rulings on file-sharing services - all within the past three months. The IFPI say that all four - the ruling against Kazaa in Australia (see abopve), the unanimous US Supreme Court ruling against Grokster, and the injunction against Soribada in Korea - establish there is no defence for file-sharing services that build their businesses on the back of unauthorised trading of copyrighted material. Lauri Rechardt, IFPI Taiwan has called upon Kuro to stop immediately the unauthorised file-sharing, to either close or make the necessary changes to allow the technology to be used legally. The Chen brothers, who ran the service, have been each sentenced to three years imprisonment; their father, who was president of Kuro, to two years; and the user - convicted of uploading copyrighted material onto the service - to four months. Kuro was established as a subscription peer-to-peer service, charging users for access to music files via the service. This was predominantly local repertoire, but nothing has been paid to the artists or the record labels who own the sound recordings.

Source: http://www.ifpi.org

See also the article "Hong Kong: Sale of Pirated DVDs by Foreigners in China - Criminal Act or Copyright Infringement" by Angela Wang & Co (Solicitors) at : http://www.mondaq.com/article.asp?articleid=34684&email_access=on

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COPYRIGHT
Internet, Record Labels
-Major labels seek to outlaw Chinese search engine-
China's leading internet search engine has said that it would appeal a decision by a Beijing court that it should pay compensation to a unit of global music group EMI music, over downloads of pirated pop music offered through its website. The ruling, which also ordered the company to stop providing the services, highlighted the potential legal vulnerability of the popular "MP3" digital music search service offered by Baidu, which enjoyed a hugely successful listing on the Nasdaq last month. The Baidu search engine (commonly refered to as 'the Chinese Google') has been sued for making copyright infringement easy via its MP3 search option. Baidu commands 37.4% of China's search market. German and Australian courts have already held that internet links sites to other illegal download sites are in themselves illegal. The company claims that it is not offering downloads itself: it is merely offering a search option. Baidu's VP of Marketing, Liang Dong, says: "From the copyright point of view, we think differently than the music companies. Baidu is just a platform for music search".

Source: Five Eight Magazine - http://www.five-eight.net

See: http://www.mg.co.za/articlePage.aspx?articleid=251123&area=/breaking_news/breaking_news__business/

For the Australian decision see Law Updates August 2005 and Germany see Law Updates September 2005, and : http://p2pnet.net/story/5746

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COPYRIGHT
Record Labels
-BPI issues new proceedings against CDWow!-
The BPI is to issue legal proceedings against internet music retailer CD Wow for importing illicitly cut-price CDs and DVDs from south east Asia. The BPI says it has evidence that CD Wow has broken court undertakings not to import such material. The BPI originally reached an out of court settlement with CD Wow in January 2004 after similar allegations. The retailer gave undertakings to both the BPI and the High Court that it would only import music legally. The case covers CDs and DVDs (including a cut-price version of the Live Aid DVD which the BPI feels may potentially have deprived the charity of income).

Source: http://www.bpi.co.uk

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COPYRIGHT
Broadcasting
-ARTICLE: Pirating cable TV in Hong Kong: By Ken Yip-
This is a link to a useful article on pirated internet streaming of cable TV programmes via the internet: Synopsis "First it was CD. Then it was DVD. Now, it is cable-TV …… Recently, a couple of specialized computer programs have been developed to allow P2P streaming of cable-TV contents, such as ESPN and Discovery Channel, over the Internet. Anyone can now log on to the internet and watch ESPN without paying a dime to a cable-TV operator or ESPN"

See: http://www.mondaq.com/article.asp?articleid=34786&email_access=on

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COPYRIGHT
Software, Films, Record Labels
-Music and film industries launch new software to fight file sharing-
The IFPI, in conjunction with Motion Picture Association of America, have launched the Digital File Check software to help individuals and companies prevent their computers from being used to illegally file-share copyrighted works online. The software is free and helps users delete P2P software and also ensure that copyright material is not in their shared folders. In addition, the IFPI is sending a copyright guide to IT managers at large companies to help them ensure their machines and networks are not used for file-sharing. The software is available online for free and will also be issued on CD in Denmark, Finland, Germany, Italy, the Netherlands, Spain, Sweden and the UK. This finally seems to be a positive move from the record labels who have tended to rely on litigation against file-sharers and P2P operators to 'solve' the problem of P2P file sharing. The timing of the initiative is also interesting in light of the growing legal pressure on Congress in the US to investigate how effective colleges and universities' anti-piracy measures have been.

See: http://www.ifpi.org/site-content/press/20050922.html

and http://www.hollywoodreporter.com/thr/music/brief_display.jsp?vnu_content_id=1001179669

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COPYRIGHT AND PERFORMERS' RIGHTS
Record Labels, Artists
-Experience Hendrix LLC files additional suit against Purple Haze Records-
Following its victory over Purple Haze Records earlier this year, Seattle-based Experience Hendrix LLC filed a second suit (on September 12th 2005) to stop the marketing and sales of all unauthorized Jimi Hendrix recordings through the U.K. independent label. In February, the High Court of Justice in London held Purple Haze and proprietor Lawrence Miller liable for infringing the rights of Experience Hendrix in recordings of the Jimi Hendrix Experience's 1969 Konserthuset performance in Stockholm as these breached the artists performers rights provided for under the Copyright Designs and Patents Act 1988 (as amended in 1996 and as applied retrospectively).

See law updates July 2005 and June 2005 Experience Hendrix LLC v Purple Haze Record Ltd and Another

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© 2005 Ben Challis