COPYRIGHT Record labels
Zeppelin bootlegger pleads guilty R v Langley
INFORMATION FOR READERS:
This resource aims to give a brief overview of developments in Intellectual
Property law and other areas of law relevant to the music and entertainment
industries. Each item is categorised according to relevant areas of the
music or entertainment business, and by the date of uploading. Uploads
are undertaken regularly and are organised on a monthly basis. These updates
are designed to give general information for music and entertainment industry
professionals and students interested in these areas. These Law Updates
are not law reports or detailed references. Users who would like further
information should research the relevant area thoroughly. Relevant references
and links are therefore provided.
Law Updates also provides hyperlinks to other sites which may be of use or interest to legal professionals, academics, students and those involved in the music industry. These are provided at the end of Music Law Updates Archive under 'Music Business Law Links'. You will also find all of these links and other hyperlinks on the links page.
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 sits as a magistrate in Cumbria, England.
We are interested in your views on the Law Updates resource. Please forward any comments to : musiclaw01@aol.com
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COPYRIGHT
Record labels
Zeppelin bootlegger pleads guilty R v Langley
Robert Langley, “one of Europe's most notorious music pirates” and also known as ‘Mr Toad” has pleaded guilty to selling bootlegged recordings of Led Zeppelin gigs after a Glasgow court heard evidence from guitarist Jimmy Page. Langley pleaded guilty to two copyright and three trade mark infringements. He was sentenced to twenty months is custody. Giving evidence, Page testified that he had not authorised the recordings, which he said were of poor quality. He also drew a distinction between fans who swapped recordings and professional bootleggers, such as Langley . Langley sold discs featuring illegal recordings of live gigs for between £6 and £300 on his own Silver Rarities and Langley Masters labels. He was arrested by Strathclyde Police after a BPI-organised anti-piracy raid on his stall at a Scottish record fair in February 2005. The seizure of CDs and DVDs included counterfeit Led Zeppelin material valued at an estimated £11,500, a £220 set of recordings from a Led Zeppelin tour in Japan and a £40 set of a warm-up session in Denmark . It also included an estimated £1,790 of pirated Rolling Stones recordings and a cache of Beatles music valued at £885. Langley also faces another hearing under the Proceeds of Crime Act in which prosecutors are expected to seek the confiscation of almost £250,000 he's estimated to have made from music piracy.
http://www.theregister.co.uk/2007/08/01/led_zep_piracy_conviction/
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COPYRIGHT
Record labels, internet
AllofMP3 director found not guilty of copyright infringement
At the beginning of August proceedings began in the Moscow Cheremushki District Court against Denis Kvasov, the former Director of Mediaservices, which owned the recently closed Allofmp3.com website. He was accused of breaching the copyright and allied rights under Article 146 of the RF Criminal Code by selling music without the copyright holder’s consent Mr. Kvasov pleaded not guilty stating that he did “everything within the law. The maximum sentence for these offences is three years in prison and a fine of 5 million roubles. Much to the dismay of EMI and Universal who brought the claim (and the wider record industry) Mr Kvasov appears to have successfully promoted the defence that his activities were legal pursuant to Section 3, Article 1, Law 39 of the RF enabled the use phonograms without the producer’s permission by paying compensation (in effect a statutory licence although this loop hole was closed in late 2006). Mediaservices claim they made the necessary payments to the copyright holders through Russian Collection Societies and so the activities of AllofMP3 corresponded to existing Russian legislation. Judge Ekaterina Sharapova acquitted Denis Kravsov and ruled that the site operated within the bounds of Russian law. The Judge was also critical of the prosecution saying that the prosecution did not succeed in presenting persuasive evidence of his involvement in infringing copyright law. However the main Russian Collection society ROMS has been derecognised by many Western collecting societies having been expelled from the International confederation of Authors and Composers Societies in October 2004. Tellingly the site was selling music by The Beatles who have yet to license their content for download with any sites. There are two more cases against Mediaservices pending, but anti-piracy bodies have argued this ruling has set a "very bad precedent" and the IFPI are hoping that the prosecutors appeal the decision. The issue of IP protection remains a sticking point for Russia's entry to the WTO:
www.forbes.com
http://eng.cnews.ru/news/top/indexEn.shtml?2007/08/01/261106
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COPYRIGHT
Record labels
German Court says privacy more important than ‘petty’ file swapping crimes
The fine balance between individuals right to privacy and copyright owner’s right to protect their intellectual property against theft and infringement swung back in favour of privacy with a ruling by a Local Court in Offenburg Germany which held that public prosecutors were prohibited from requesting ISPs (internet service providers) provide details of an IP address to allow prosecutors to determine of identities of users of a P2P network. On the grounds of "obvious disproportionateness” the court declared that the ISP should protect privacy and pointed to the fact that offering a few copyright-protected music tracks via a P2P network client was "a petty offence" (we are not sure that record labels would agree!). This seems to be a trend in Germany as the public prosecutor's office in Celle had already refused to determine individuals associated with an IP addresses submitted by a law firm representing copyright owners, a process that would have involved forcing the providers to reveal the relevant personal data, The supervising authority dismissed the complaint as baseless and said that the case did not fulfil the “indispensable condition of an investigation being in the public interest” because the offences committed by the alleged users of the file-sharing network had not "disturbed law and order beyond the sphere of life of the client". In addition the offences were "minor." And there was no evidence that substantial damage had been done. The chief public prosecutor's office goes on to say that "some parties may regret the fact" that the legislator has not given holders of copyrights a civil law right to obtain the type of information in question from providers. Such parties "could not however expect such omissions on the part of the legislator to be offset in other areas and in every minor case by the endeavours of the prosecuting authorities with their limited resources." Another case in Berlin was even more explicit. When a law firm submitted a claim based on 9,186 IP addresses to the public prosecutors office, asking for them to be investigated, the office denied a request for information to be obtained from the provider. The law firm then complained in writing to the chief public prosecutor's office in Berlin and to the Minister of Justice of the German federal state of Berlin. In its reply the chief public prosecutor's office accused the copyright holders of trying "under cover of pretending to want to initiate criminal proceedings to obtain for free and by exploiting the limited resources of the prosecuting authorities and at the expense of the budget of the federal state of Berlin the personal data required for the successful pursuit of civil claims." The chief public prosecutor's office in Berlin also denied that launching an investigation was in the public interest. The Chief Prosecutor commented that all the offences that had been brought to its attention were minor and that the damage done by the P2P networks was contrary to the statements found in the complaint, "insignificant" and hence the criterion of "minimal culpability" of necessity, had to result in a nolle prosequi being issued without any prior investigation. In addition the "deciphering of IP addresses" and search warrants were intrusions on basic rights, to which the principle of proportionality had to be applied. This principle required that no investigation be launched in response to the complaints filed, the office declared. Here too the chief public prosecutor's office points to the copyright holders' likely motivation in filing the complaints: "Criminal-law-based investigations that entail intrusions on basic rights must not be launched for extraneous reasons - such as nothing more than a desire to obtain evidence for a civil suit." This mirrors a recent Spanish decision in Productores de Música de España v Telefónica de España SAU which held that telecoms data was not available to copyright owners in civil actions. However in another recent case in Belgium, SCRL Societe Belge Des Auteurs v SA Scarlet the ISP Scarlet (formerly Tiscali) was found liable in 2004 for the unauthorised exchange of music files through its service and, in a judgment made available this week, the Belgian Court of First Instance has ordered Scarlet to put into place blocking and filtering mechanisms to stop its users sending or receiving music through peer-to-peer application offering a glimmer of hope to record and film companies.
http://www.heise.de/english/newsticker/news/93759
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COPYRIGHT
Internet, music publishing
Eminen brings action against iTunes
News that song sales on iTunes have passed the three billion mark was somewhat soured by a federal lawsuit filed by Eminem's music publisher, claiming that iTunes violated copyrights for as many as 80 Eminem songs. Apple has an agreement with Universal Music Group, the record company that owns the recordings, but doesn't deal directly with publishers, who own the rights to scores and lyrics. The lawsuit was filed in the U.S. District Court in Detroit by Eight Mile Style, and copyright manager Martin Affiliated seek more than $75,000 for copyright infringement, unfair competition and a violation of the Michigan consumer protection act. The lawsuit also asks for damages of up to $150,000 per infringement or each time a song is downloaded. Of the usual 99c download price of a track on iTunes, 70c goes to the record label and 9c to the music publisher for the songwriting.
http://www.washingtonpost.com/wp-dyn/content/article/2007/08/01/AR2007080100443.html
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COPYRIGHT
Record labels, live industry
15 fold increase in nightclub levy heads for Australian courts
The hotel and nightclub industries in Australia have launched a Federal Court challenge against The Phonographic Performance Company of Australia , the group that represents Australia's largest record labels, following a recent decision to increase the cost of music in dance venues by 15 times. Last month the Australian Copyright Tribunal lifted the rate for music played in nightclubs from seven cents per person a night to $1.05. PPC, which represents more than 600 record companies, hailed the decision as a victory for musicians who had been exploited by nightclubs for years
Article link: Copyright ruling produces sour note for musos
“The recent furore over a rise in recorded music licence fees that nightclubs and commercial dance parties must pay has mostly missed the point. It is not about picking the "good guys" — promoters and venue operators versus record companies and musicians. It is about record companies trying to protect their fading businesses”. This article asks whether musicians are properly protected when labels look to find new revenue streams.
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PATENT
Internet, technology
Apple wins important victory in patent claim
A US judge has overturned a jury's $1.52 billion award in a patent infringement lawsuit brought by Alcatel-Lucent against Microsoft. Ruling that Microsoft had not violated one of the two patents in the case, Judge Rudi Brewster overturned the verdict and indicated that the second patent should be revisited as well (possibly by way of a re-trial). The two patents cover MP3 compression; the underlying technology was co-developed by Bell Labs (now Lucent) and German firm Fraunhofer in the 1990s. Bell Labs became Lucent Technologies in 1995 after a spin-off from parent AT&T and was snapped up by French firm Alcatel in 2006. Microsoft says that it licensed the technology from Fraunhofer for $16 million so that it could support MP3 playback natively in Windows. Alcatel-Lucent argued that a license from Fraunhofer was insufficient and that Microsoft had been infringing on its patents for years.
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COPYRIGHT
Internet
More join infringement class action against YouTube and Google
A number of new copyright owners have joined the class action brought by The UK’s Football Association Premier League and Bourne Co against YouTube and owners Google. The US's National Music Publishers Association (NMPA) and a number of other music groups including Cherry Lane Music Publishing and film music publisher X-Ray Dog Music have joined the lawsuits over copyright infringement. The lawsuit, The Football Association Premier League Limited, et al. v. YouTube, Inc., et al., 07 Civ. 3582 (LLS), is pending before the Honorable Louis L. Stanton in the United States District Court for the Southern District of New York. In addition to the NMPA, renowned investigative journalist Robert Tur has joined along with writer Daniel Quinn, the U.K.’s Rugby Football League, the Finnish Football LeagueAssociation, Knockout Entertainment Limited ( Secondsout.com) and Seminole Warriors Boxing. The action already had the support of other sports and entertainment entities around the world including: the Association of European Professional Leagues (which represents the interests of 25 Member and Associate Member Leagues across Europe and more than 800 affiliated clubs), the French Tennis Federation; the French Professional Football League and Cal IV Entertainment, LLC, the major country music publisher with over 15,000 copyrights. Viacom is currently suing YouTube to the tune of $1B over "massive intentional copyright infringement" and Japanese songwriters/music publishers collection society JASRAC have already taken action to force the removal of 30,000 infringing music tracks.
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COMPETITION
All areas
RIAA spend $658,000 on lobbying but should Sound Exchange be ‘lobbying’ at all?
The Recording Industry Association of America spent more than $658,000 in the first half of 2007 to lobby the federal government, according to a disclosure form. The trade group lobbied on intellectual property and copyright issues, including more funding for enforcement, according to the form posted online Friday by the Senate's public records office. Under 1995 federal law, lobbyists are required to disclose activities that could influence members of the executive and legislative branches. But in other news, it appears collection society Sound Exchange who collect for the erformaqnce of recorded music by way of interenet and satellite media has also spent money lobbying and PR as part of its musicFIRST campaign – and US commentators are now claiming that such activities are not permitted under the US Copyright Act. One lawyer added “t he lobbying efforts do exceed the legislative and regulatory authority given to SoundExchange. I also believe that the lobbying activity on a matter outside the scope of SoundExchange’s original charter constitutes a violation of the 501 (c) (6) tax-exemption held by SoundExchange“ saying that Sound Exchange should only be spending money on collecting, administering and distributing royalties from the use of recorded music. 17 USCA 114 (g) 3 appears to say that only (1) ‘reasonable’ costs in relation to collecting roualties and ; the costs of (2) the settlement of disputes relating to the collection and calculation of the royalties and the costs of; (3) the licensing and enforcement of rights with respect to the making of ephemeral recordings and performances subject to licensing under section 112 and this section, including those incurred in participating in negotiations or arbitration proceedings under section 112 and this section, except that all costs incurred relating to the section 112 ephemeral recordings right may only be deducted from the royalties received pursuant to section 112
http://blog.wired.com/music/2007/08/music-lawyer-to.html
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COPYRIGHT
Record labels
Online CD Seller Fights Universal's Infringement Allegations
The Electronic Frontiers Foundation (EFF) is supporting an eBay seller in taking on Universal Music Group (UMG) in court after the record industry giant targeted his online music sales with claims of copyright infringement. The EFF and the San Francisco law firm of Keker & Van Nest LLP are representing Troy Augusto, whose online auctions included sales of promotional CDs distributed by Universal. Augusto does business on eBay under the name Roast Beast Music and specializes in sales of rare and collectible music. The EFF say that US copyright law's "first sale" doctrine makes it clear that the owner of a CD is entitled to resell it without the permission of the copyright holder. Nevertheless, Universal demanded that eBay take down Augusto's auctions, claiming that CDs marked as "promotional use only" remain the property of Universal and thus can never be resold. "When a consumer buys a CD, he gets certain rights, including the right to resell it. Universal is mistaken if it thinks that it can trump these rights simply by putting a label on a CD," said Fred von Lohmann, EFF Senior Intellectual Property Attorney. "Universal is trying to unilaterally rewrite copyright law to the detriment of Augusto's legitimate business and the public. Unless this effort is blocked, it could jeopardize not only sales of used CDs, but also libraries, used bookstores, and businesses that rent movies and video games." In May, Universal filed a copyright infringement lawsuit against Augusto. Now the EFF have filed papers with the federal court in Los Angeles answering Universal's claims and counter-suing the company for sending bogus "takedown notices" to eBay that resulted in the unwarranted suspension of Augusto's auctions. However its interesting to note that Universal are making the point that you cannot ‘buy’ a promotional CD in the first place and they are not usually circulated to consumers so a court may well not agree with EFF’s position which relies on Section 109Copyright Act 17 USC 109) – in effect Universal are saying they have always been the ‘owner’ even if promotional CDs are not in their actual possession. The EFF also say that this is not the first instance of Universal and its affiliated companies abusing copyright law. Last month, the EFF filed a suit against Universal Music Publishing Group on behalf of a mother who had a home video removed from YouTube because a snippet of a Prince song could be heard in the background. In May, The EFF say UMG made ‘baseless’ copyright complaints about a video podcast by political blogger Michelle Malkin.
For the answer and counterclaim:
http://www.eff.org/legal/cases/umg_v_augusto/20070806_augusto_answer.pdf
For more on this case:
http://www.eff.org/legal/cases/umg_v_augusto
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COPYRIGHT
Record labels, internet
RIAA hits major opposition in fight against campus piracy
The Recording Industry Association of America (RIAA) has had a number of setbacks in its move to unearth campus based file swapping which the labels believe is rife. Courts in a number of staes have thrown out motions for discovery, Universities and institutes are critical of being asked to ‘police’ the internet and now students of different campuses are banding together to build robust defences to the RIAA’s case.
http://yro.slashdot.org/article.pl?sid=07/08/09/1925220
http://www.davisenterprise.com/articles/2007/08/10/news/147new1.txt
See also a variety of ‘RIAA’ stories and articles on the blog Recording Industry vs The People http://recordingindustryvspeople.blogspot.com/. The blog is written by two New York lawyers, Ty Rogers and Ray Beckerman, who represent people who have been sued by the Recording Industry Association of America (RIAA) for having computers whose internet accounts were believed to have been used to access peer-to-peer file sharing: “In these cases, a cartel of multinational corporations collude to abuse our judicial system, distort copyright law, and frighten ordinary working people and their children. We established this site to collect and share information about this campaign” say the blog.
In particular take a look at the (now class) action by Tanya Anderson against the RIAA. The original case was filed against Anderson, a disabled single mother – for illegal downloading. she has always maintained her innocence. The case was “dismissed with prejudice” – it cannot be filed by the RIAA again. The court found that neither she nor her 10 year old daughter downloaded gangsta rap tracks, as alleged by RIAA’s unlicensed private investigators who once posed as the 10 year olds grandmother on the telephone to attempt to extract incriminating information. Last week Anderson countersued in US Federal Court for malicious prosecution, seeking to have the suit elevated to class action status.
The suit charges RIAA, its private investigator and several music companies with “negligence, fraud, negligent misrepresentation, federal and state RICO, abuse of process, malicious prosecution, intentional infliction of emotional distress, violation of the Computer Fraud and Abuse Act, trespass, invasion of privacy, libel and slander, deceptive business practices, misuse of copyright law, and civil conspiracy. Phew!
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COPYRIGHT
All areas
New Zealand to legislate for music private use exemption
New Zealand has put forward proposed law changes will make it legal to copy music for personal use but the exemption will not extend to television programmes and films which will still only able to be kept for “time shifting” purposes – to be watched at the viewers convenience - and must be then erased. In New Zealand it is currently illegal to copy music from a CD or tape to another device such as an iPod or an MP3 player. But The New Zealand Parliament's commerce select committee has changed the Copyright (NewTechnologies) Bill to make it legal to "format shift" - or copy - music from a CD to other devices if it is for personal use. The committee has not changed the current law which allows home videotaping from TV, but only if programmes are kept for "no longer than is reasonably necessary for viewing ... at a more convenient time". That provision will remain. MPs on the committee have specified that copying DVDs or videotapes onto a device such as an iPod should not be permitted.
http://www.nzherald.co.nz/category/story.cfm?c_id=93&objectid=10457134
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COPYRIGHT
Record labels, film and TV
Market owners found liable for pirate DVDs and CDs sold on their site
The UK's music and film industries welcomed a verdict delivered by St Albans Crown Court which both the BPI and FACT (The Federation Against Copyright Theft) say could prove hugely significant as the UK's creative industries step up their fight against copyright crime as the verdict against Wendy Fair Markets Ltd is significant as all previous commercial piracy cases have been brought against sellers or distributors, rather than the market owners themselves. Directors Nicholas Hobday and Sally Ward, together with the company itself, were yesterday found guilty of money laundering charges. Sentencing will take place in September. The case was brought by Hertfordshire Trading Standards after the BPI and FACT uncovered evidence that the defendants and company were benefiting financially from the illegal sale of counterfeit DVDs, CDs, and computer software at Hemel Hempstead's Bovingdon Market. The BPI says it marks the first time a market operator has been convicted of accepting - in the form of pitch rents - money it knew, or suspected, had been earned through criminal means. Both the company, Wendy Fair Markets Ltd and the directors could lose their assets as they are now vulnerable to a claim under the Proceeds of Crime Act. Seven traders also face the possibility of custodial sentences; two of whom were found guilty of copyright offences yesterday after five others pleaded guilty earlier in the year.
http://www.bpi.co.uk/index.asp?Page=news/press/news_content_file_1092.shtml
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COPYRIGHT
Record labels
Music Piracy costs US economy $12.5 billion annually
A new study released the US’s Institute For Policy Innovation estimates that worldwide recorded music piracy (including counterfeit discs & tapes, bootlegs and illegal file swapping) costs the US $12.5 billion in economic output and 71,060 in jobs annually in the US. Billed as the first report to ever "credibly estimate the impact of sound recording piracy not just on the recording industry, but also on the US economy as a whole", the paper estimates that the record industry itself loses $1.1 billion because of piracy, but that the knock on effect on other industries costs a further $1.6 billion. Of the 71,060 jobs effected, the report says 26,860 are in the recording and music retail sectors, while 44,200 come from other effected industries. The report adds that the piracy losses also cost the US government $422 million in taxes.
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COPYRIGHT
Record labels
Big fine for Baltic pressing plant
Baltic Optical Disc, the largest CD replicating plant in the Baltic States, has been ordered to pay a coalition of record companies a €500,000 payout after a Lithuanian court ruled it was guilty of music piracy.The civil action, brought jointly by the public prosecutor and 13 IFPI member companies, related to large scale pirate CD manufacture in 2001. The claim stemmed from police and customs’ seizures of more than 210,000 pirate CDs containing a mix of predominantly international and Polish repertoire. Forensic experts at IFPI traced the origin of the illegal discs, found in Vilnius and on the Czech/Polish border, back to the Baltic Optical Disc factory. This conclusion was confirmed by investigators at the Lithuanian government’s forensic laboratories. The judge ruled that Baltic Optical Disc should pay €494,000 in compensation to the record companies whose repertoire was pirated, as well as more than €5,000 in costs. The court imposed the maximum compensation award it could, given the numbers of discs manufactured.
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COPYRIGHT
Artists
New session fee structure for advertising industry
The Musicians' Union (MU) and the Institute of Practitioners in Advertising (IPA) have signed a new agreement that introduces a revised sliding scale of session fees related to ensemble size in the UK. This is to reverse the trend for orchestral music for ad soundtrack use being outsourced to Eastern Europe. The deal comes into effect in September and was brokered by Leap Music.
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COPYRIGHT
Internet
Sound Exchange settles new rates with webcasters
The dispute between the larger webcasters in the US and SoundExchange now seems to be over. A deal has been means that webcasters who run multiple niche channels will not be penalised as the minimum charge will be capped Under rules originally approved by the US Copyright Royalties Board stations were obligated to pay a $500 per station minimum charge per year. If a webcaster ran twenty stations/channels, they would have to pay $10,000. The new offer caps the minimum charge protecting webcasters who run hundreds of niche / tailor made channels.
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TRADE MARK
Artists
New York signs off on ‘Truth In Music’ law
New York has become the latest state to sign up to laws which are aimed to prevent Musical fakers impersonating groups they are not affiliated with – imposter bands will now will now face up to $15,000 in fines after Govenor Eliot Spitzer signed the state's Truth in Music law. The bill, which will go into effect in one month, was prompted by groups representing themselves as doo-wop artists like the Platters, the Coasters and the Drifters. Jon Bauman, "Bowzer" from the group Sha Na Na, advocated for the legislation in New York and other states.
http://www.newsday.com/entertainment/music/ny-limusi225341043aug22,0,7885163.story
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© 2007, Ben Challis