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. Ben sits as a magistrate in Cumbria, England and is a Visiting Professor in law at Buckinghamshire New University.
We are interested in your views on the Law Updates resource. Please forward any comments to : musiclaw01@aol.com
COPYRIGHT
All areas
EU proposes a 95 year term for copyright in performers rights and sound recordings
The European Commission has adopted two new copyright initiatives. Firstly the Commission is proposing a new Directive “to align the copyright term for performers with that applicable to authors, in this way bridging the income gap that performers face toward the end of their lives”. Secondly, the Commission proposes to fully harmonise the copyright term that applies to co-written musical compositions. In parallel, the Commission also adopted a Green Paper on Copyright in the Knowledge Economy. The Commission’s press release says “Both of these initiatives comprise a unique mix of social, economic and cultural measures aimed at maintaining Europe as a prime location for cultural creators in the entertainment and knowledge sectors”. Internal Market and Services Commissioner Charlie McCreevy said: "The copyright measures adopted today should underline that we take a holistic approach when it comes to intellectual property. The proposal on term extension has a strong social component and the Green Paper is deeply embedded in the overall societal and knowledge context" adding in relation to sound recordings "I am committed to concentrate all necessary efforts to ensure that performers have a decent income and that there will be a European-based music industry in the years to come. The proposal on term extension envisages extending the term of protection for recorded performances and the record itself from 50 to 95 years. In this way, the proposal would benefit both the performer and the record producer. The press release says “it also signals that Europe values their creative contribution. The extended term would benefit performers who could continue earning money over an additional period. A 95-year term would bridge the income gap that performers face when they turn 70, just as their early performances recorded in their 20s would lose protection. They will continue to be eligible for broadcast remuneration, remuneration for performances in public places, such as bars and discotheques, and compensation payments for private copying of their performances”. The UK's Musicians Union issued a statement in support of an extension of the recorded music copyright term, timed to immediately precede the publication of proposals from Commissioner McCreevy supporting the EC proposal as previously the UK government's Gowers Review of copyright laws said the recording copyright term should stay at 50 years. Clearly record labels, artists and possibly session musicians all stand to win from an extension in the recording copyright but there is some debate about whether labels will simply use the extension to keep collecting royalties from unrecouped artists. According to Music Week, previously discussed proposals that would favour artists over record companies as part of any copyright term extension may be shelved. There had been talk of any copyright extension being accompanied by something called the "clean slate" provision, in which parts of existing agreements between labels and artists would be automatically wiped clean at the fifty year point, basically meaning that artists who had not recouped on their original record deal (and who are therefore not due any royalties from their record sales) and those who had waved royalty payments on discounted record releases would no longer be subject to those obligations but according to Music Week said "clean slate" provision may not now appear as part of McCreevy's proposals meaning that while the extension will still be of value to labels and those session musicians paid a straight royalty, they may be pretty worthless to signed artists who haven't recouped, which is seven eighths of them according to Music Week. Critics of the extension point out that sound recordings of 50 years' old or more should be released from copyright in order to benefit all society. They say that extending copyright terms will only benefit the players on the very small portion of 50-year-old recordings that are still available to buy. “Major record labels want to keep control of sound recordings well beyond the current 50-year term so that they can continue to make marginal profits from the few recordings that are still commercially viable half a century after they were laid down," said a statement from Sound Copyright, a group of rights activists that lobbies against the extension. "Yet if the balance of copyright tips in their favour, it will damage the music industry as a whole, and also individual artists, libraries, academics, businesses and the public." The UK IPO have given a rather chilly reception to the European Commission’s proposal to extend performers’ rights to 95 years. A press release quotes the Minister for IP, Baroness Delyth Morgan, as saying: “Because copyright represents a monopoly we need to be very clear that the circumstances justify an extension. We will therefore need to consider these proposals carefully to understand how they would work and what the benefits are likely to be.” She continues by encouraging members of public to contact the IPO with comments on the proposal by the end of August (contact details are in the press release).
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/1156&format=HTML&aged=0&language=EN&guiLanguage=en (press release)
http://www.billboard.biz/bbbiz/content_display/industry/e3ie74041aeb86526bb3b99a035603b10ea
http://www.out-law.com/page-9269
http://ipkitten.blogspot.com/2008/07/extension-of-sound-recordings-and.html
http://www.ipo.gov.uk/press/press-release/press-release-2008/press-release-20080718.htm
see Dave Rowntree’s (Blur’s drummer) comments http://www.telegraph.co.uk/opinion/main.jhtml?xml=/opinion/2008/07/17/do1707.xml
http://www.timesonline.co.uk/tol/comment/letters/article4374115.ece
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COPYRIGHT / COMPETITION
Television, sport
Satellite TV case to go to ECJ
By David Pearce writing for the IP Kat
In a judgment of over 45,000 words and 98 pages, handed down this morning in the case of the Football Association Premier League & others v QC Leisure & others [2008] EWHC 1411 (Ch), the Honourable Mr Justice Kitchin has delivered a tentative blow against the rights of satellite broadcasters such as BSkyB to protect their exclusive rights to broadcast football games to subscribers in individual EU countries. The three combined actions involved in this case concerned the use of foreign decoder cards in the UK to access foreign transmissions of live Premier League football matches. The claimants complained that the dealing in and use of such cards in the UK involved an infringement of their rights under s.298 of the CDPA 1988, as amended, and of the copyrights in various artistic and musical works, films and sound recordings embodied in the Premier League match coverage. The defendants argued that the use of copyright law to effectively prevent them from using decoder cards in the UK which had been legitimately bought in other EU states was contrary to EC law. Several Directives were cited, the key one being 98/84/EC, also known as the Conditional Access Directive. The main issue (of many) appeared to be whether the decoder cards (bought in Greece, imported and used in the UK) were to be regarded as "illicit devices" under the terms of this Directive.
Both sides put their arguments at length, and yet Kitchin J felt that he was unable to come to a definite conclusion, considering that a proper interpretation was not clear and that this was an issue that should be referred to the European Court of Justice. He did, however, offer a 'provisional' view that the defendants' arguments should be preferred, providing the following reasons (at paragraphs 79-84): "First, the Recitals do recognise the need for legal protection of broadcasting and information society services whose remuneration relies upon conditional access. For example, Recital (6) expressly acknowledges the development of a wide range of such services has the potential for increasing consumer choice and contributing to cultural pluralism but that the viability of such services often depends upon the use of conditional access in order to obtain the remuneration of the service provider. Moreover, the Recitals make clear that disparity between national rules concerning the legal protection of services based upon, or consisting of, conditional access was considered liable to create obstacles to the free movement of goods and services and that a Directive was needed to provide for an equivalent level of protection between Member States. Further, the use of the word necessary in Recital 13 indicates that appropriate legal protection against illicit devices was considered a proportionate measure and that no less a restrictive measure would suffice to protect this legitimate policy object. However, I do not believe these considerations, of themselves, assist in determining the scope of definition because the protection of the service provider against pirate cards would seem to meet all these policy objectives. I believe some indication of the intention behind this measure can, however, be derived from Recitals (13) and (15), read as a whole. The former refers to protection against the placing on the market of a device which enables or facilitates without authority the circumvention of any technological measures designed to protect the remuneration of a legally provided service. The latter explains that commercial activities in relation to such devices are detrimental to consumers who are misled about the origin of illicit devices. Both Recitals suggest to me that the Directive is concerned with the production and placing on the market of devices which do not have their origin in a legitimate service provider rather than the unauthorised use of devices which do originate from a legitimate service provider.
Second, Article 1 makes clear that the objective of the Directive is to approximate provisions in Member States concerning measures against illicit devices which give unauthorised access. However, I do not think it can be inferred the Directive is concerned only with effect, as the claimants contend. To the contrary, it seems to me that if this were the position then there would have been no need to limit its scope to illicit devices. Rather, it would have been directed to all devices which are used give unauthorised access.
Third, this impression is reinforced by the definitions of Article 2. A “conditional access device” means equipment or software designed or adapted to give access to a protected service. This suggests to me that it is concerned with the physical nature of the device or, as the defendants say, with its inherent nature. Similarly, an “illicit device” is a conditional access device which is designed or adapted to give such access without the authorisation of the service provider. Once again, it is the physical or inherent nature of the device which must confer this characteristic. This is the natural interpretation of the words used.
Fourth, and as the defendants submit, any reading of this definition which means that a device is “illicit” or “not illicit” depending upon where it is intended to be used is wholly unworkable given the infringing acts defined in Article 4 and the Community wide scope of the prohibitions. These are acts performed by manufacturers and dealers, not end users, and no mens rea or mental element is involved. Equipment becomes an “illicit device” upon its manufacture in any Member State of the Community; a device which is not illicit to begin with cannot change its status by reason of the subjective intention of a dealer as to the place where it is to be used. Indeed, a dealer may not even know where an end user intends to use a device which is supplied by a dealer to another dealer or to an end user.
Fifth, I agree with the defendants that it is very hard to see what substance there can be to Article 3(2)(b) if the interpretation for which they contend is not correct."
There were a whole raft of issues considered in much detail, which the IPKat will leave for other readers to delve into for themselves, including of course the central issue of the applicability of Article 81 EC. Kitchin J concluded as follows (at paragraph 385):
"The issues in this case have at their heart the proper interpretation of a number of instruments of Community legislation concerning the cross-border broadcasting of television programmes by satellite. There can be no doubt that recent years have seen a proliferation of encrypted television channels which are accessible only on payment of a fee. Yet the broadcasting organisations responsible for the transmissions are often prohibited from permitting viewers in other Member States to access the encrypted programming; and this is so even when such viewers are prepared to make the requisite payment. This prohibition stems from the desire of rightholders to extract what they perceive to be the fair remuneration to which they are entitled. However, it creates a tension with the concept of a Community audiovisual area and the principles of an internal market without frontiers, and it is this tension which is reflected in the multitude of claims and defences deployed in this case. I have made such findings as I can. But I believe the issues which I have identified and upon which the assistance of the Court of Justice is sought are so fundamental that they should be considered as a whole by the Court at the earliest opportunity. I therefore invite the parties to make submissions on the precise wording of the questions to be referred and to suggest, if so advised, any additional questions for this court’s consideration."
The IPKat is pleased on the one hand that this important issue is getting the attention it deserves. BSkyB have for years been able to charge several thousand pounds to UK pubs for the right to show football matches on their premises to paying customers, when similar rights in Greece cost only a few hundred pounds. Many pubs across the country have been complaining bitterly that this is daylight robbery (see, for example, the Morning Advertiser to find out more). If Community legislation on free movement of goods and services is to mean anything, this surely must be an issue that goes to the heart of the matter. Is the current decoder card market a legitimate sub-division of the common market, allowing consumers a fair share of the benefit, or is it contrary to the principles of Article 81 EC? On the other hand, however, the IPKat is slightly disappointed (although not in the least surprised) that the issue has been so clouded with Directive after Directive, when the fundamental issue appears to be quite clear: are these devices "illicit" or not (the IPKat thinks not)? We will now have to wait an indeterminate amount of time for the issue to be considered, via the process of Chinese whispers that is the ECJ referral procedure, and then finally decided by the High Court (although even then the issue will almost certainly not stay there).
http://www.thepublican.com/story.asp?sectioncode=7&storycode=60214&c=1
http://ipkitten.blogspot.com/2008/06/satellite-tv-case-to-go-to-ecj.html
http://www.mondaq.com/article.asp?articleid=62814&email_access=on
UPDATED AUGUST 14TH: http://www.out-law.com/page-9222
The second phase of Karen Murphy's appeal is listed for 25th & 26th June at the Divisional Court, when the court will consider the EU law issues.
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COMPETITION
Television
Competition inquiry delays UK broadcasters’ online platform
The combination of BBC, ITV and Channel 4 in the proposed new ‘Kangaroo’ online service which will have more than 10,000 hours of classic TV has led to a referral to the Competition Commission. Rival broadcasters including BSkyB have complained that the launch of Kangaroo would risk ‘skewing the market and the Office of Fair Trading made the referral after not being able to make a judgment on whether or not the new venture would limit consumer alternatives. When the venture was launched last year the head of BBC Worldwide said the development was partially motivated by the need to avoid the mistakes made by the record labels when they allowed Apple to corner the market in online download sales and ITV Chief Sir Michael Grade warns that the delay caused by the referral will allow global rivals to steal a march on domestic broadcasters and that the regulatory framework seems “unable to take the most important interest into account – that of the British viewer”
The Guardian July 1 st 2008
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COPYRIGHT/CONTRACT
Live Events
Ticketmaster win case against queue jump technology provider
Ticketmaster have won a case in the Los Angeles court against a technology company who they claimed had developed software which enabled ticket resellers to circumvent restrictions on their website in order to get priority and repeat access to in-demand tickets where the numbers of tickets offered per sale were limited. The ticketing giant claimed RMG Technologies' software, sold mainly to ticket brokers and scalpers (touts), infringed their copyrights and interfered with their contractual relations with tour promoters. The court had already issued a temporary injunction stopping the distribution of RMG's ticket acquiring technology, and last week's court ruling means they will have to pay Ticketmaster the profits they made from it (about $18K), plus their legal costs. Welcoming the court ruling, Ticketmaster General Counsel Edward Weiss told reporters: "Consumers understand that there often simply are not enough tickets to meet demand, but RMG's technology was used by some to unfairly cut to the front of the line. Ticketmaster will continue to fight for an equitable ticket distribution process". Ticketmaster had already secured a preliminary injunction against RMG when U.S. District Court Judge Audrey Collins issued a preliminary order against RMG. The court order stemmed from a lawsuit brought against RMG by Ticketmaster in April 2007 before tickets for the 54-date Hannah Montana concert tour went on sale. Ticketmaster said that the RMG software enables digital scalpers to breach its Internet box-office system and electronically cut in line ahead of regular human customers to scoop up large numbers of tickets that can then be resold at highly inflated prices. The practice has come under investigation by the attorney generals of at least three states ( Missouri, Arkansas and Pennsylvania) who are looking into whether ticket resellers are violating state consumer protection laws. Judge Collins' order barred RMG from "creating, trafficking in, facilitating the use of or using computer programs or other automatic devices to circumvent" the copy protection system on Ticketmaster's Web site. It also prohibited RMG from using information gained from the Ticketmaster site to create computer programs designed to evade its copy protection and regulation systems.
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CONTRACT/COPYRIGHT
Internet
BPI confirms internet service providers will warn filesharers
Hot on the heels of Virgin promising to contact customers who illegally download films, TV programmes and sound recordings, record label trade body the BPI has confirmed that BT is sending warning letters to customers of its internet service provider packages who the labels believe are acquiring music from illegal sources, telling said customers that uploading or downloading tracks to or from such sources is illegal. It was reported on IT website. Confirming they were now working with both BT and Virgin Media on the warning letter programme, the boss of the BPI, Geoff Taylor, said on Friday: "Establishing partnerships with ISPs is the No 1 issue for the BPI, and we are beginning to form positive working relationships with BT, Virgin Media and most of the other major ISPs". ISPs had been resistant to taking on a more proactive role, and some still are, but with BT and Virgin Media on board more are now expected to follow. The labels want the ISPs to ultimately cut off persistent copyright infringers. Whether the ISP would do that, or even hand over the contact information of the individual (customer) to allow the labels to take legal action, remains to be seen.
The IPKat adds this sensible comment (in the context of one student warned of downloading an Amy Winehouse track who was furious to be associated with the artist!): “Unless the IPKat is very much mistaken, the allegations relating to file sharing are at the moment all about section 20(2) of the CDPA, which makes "the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them" an infringing act. This is important because downloading itself, which everyone seems to be talking about, is not in itself an infringing act (although one could argue that the copy thereby created on your computer would be infringing). The act that the BPI are relying on is instead is that of making files available for others to download, which they can check by seeing which IP address is hosting which files. The IPKat finds it hard to imagine how a user can not realise that their computer is set up for doing this, as it has to be done deliberately, and can only agree with the approach so far taken by Virgin and the BPI. This is, after all, a far cry from the heavy-handed approach taken by the US RIAA, which has resulted in some very bad press over the last few years.
CMU Daily 30 June 2008 www.cmumusicnetwork.co.uk
http://ipkitten.blogspot.com/2008/07/virginbpi-letters-arrive-student.html
Update: (see news 24/07/08): Six of the UK's biggest net providers have agreed a plan with the music industry to tackle online music piracy. The deal, negotiated by the government, will see hundreds of thousands of letters sent to net users suspected of illegally sharing music. BT, Virgin, Orange, Tiscali, BSkyB and Carphone Warehouse have all signed up to a new Memorandum of Understanding brokered by the Department for Business, Enterprise & Regulatory Reform (BERR). But major record labels, represented by the British PhonographicIndustry, would like to go further and have people's internet cut off if they ignore repeated warnings, something the web firms say they are not prepared to do. In France, PresidentSarkozy has introduced a 'three strikes and you are out' scheme (where after warnings the infringing user’s subscription is terminated) which the BPI hoped the UK government would follow. http://news.bbc.co.uk/1/hi/technology/7522334.stm
Update 2: As we ‘went to press’ (a quaint term as actually it is Luke uploading everything without any ink or paper in sight!) this story got bigger and bigger. A humdinger of a backlash began mostly mocking the BPI : Here’s some additional comment:
CMU Daily reports that Billy Bragg has dismissed that announcement that six ISPs are to begin sending warning letters to customers thought to be partaking in illegal file-sharing as "nothing more than a gesture". Writing on the Guardian website he said: "New technology has made it possible for people to acquire music without going through the traditional route of buying objects in a shop. Rather than fighting this trend, the industry itself needs to find new methods of collecting royalties. What needs to happen is for the industry to reverse its priorities, put artists to the fore and pay them a larger share of the price in return for their support in the transition to new business models". He uses the UK radio system as an example of possible new ways to earn money from music, both through ad-funding and licence fees. He concludes: "In an ideal world, such royalties or the blanket licence fee would not be paid to music companies themselves but to an independent collection agency that would pay the money directly to artists. The music industry treats the internet as a threat, whereas for artists it gives us an opportunity to get closer to our audience than ever before. We must be very, very careful that we don't alienate those fans and make it impossible for the next generation of singer-songwriters to have viable careers".
The Times ran an article titled ‘Efforts to police illegal web downloads are greeted with derision by computer geeks’ (Times July 25 th 2008): here’s some highlights
A quick trawl through technology blogs and comments, however, revealed a number of techniques that could be used to obtain free music over the internet without risk of sanction. The Times downloaded free songs from the Killers and Deep Purple using the tips. According to Terry Hands, writing on Times Online’s comment boards, one of the easiest methods is to use recording technology already installed on most Microsoft computers. “The best way to download is to use Windows Sound Recorder and ‘tape’ the music you want on YouTube or the artist’s Myspace page,” he said. “Happy downloadin’!” On the popular slashdot.com website, an alternative technique was proffered by someone called Anonymous Coward, who said: “Forget file sharing for music. Download Station Ripper (www.stationripper.com), register and hook it up to Last.fm, Pandora. com or any of the hundreds of streaming stations, leave it going for a week, throw away the crap you don’t want.” A more sophisticated approach involves searching for “hidden” directories of music held by individuals on the web. Using the right Google search terms (obtained by searching for “How to get MP3s from Google”) thousands of files from hundreds of artists can be accessed – all freely available to download in seconds. “Getting music by this means is pretty much undetectable,” said Petko Petkov, 25, a self-described “ethical hacker” from Bulgaria who lives in London. “The big file-sharing sites like BitTorrent and LimeWire will be monitored, but anyone can put up a few hundred songs without being noticed. It’s just about knowing where to look.” Other suggestions were strictly for the hardcore computer geek. “Just sign up for an SSH tunnel account that has a SOCKS proxy,” a slashdot blogger suggested, unhelpfully. “I tunnel all my tracker communications through there. Simple.” An easier solution would be to change your ISP to one that did not sign up to yesterday’s agreement. Whatever the technique, everyone agreed that the latest effort by the music industry to protect itself would be defeated by an army of teenage computer geeks willing to try.
The full article by Alexi Moustrous and Dan Sabbagh can be found at http://entertainment.timesonline.co.uk/tol/arts_and_entertainment/music/article4393540.ece
And see pithy comment from the IPKat at http://ipkitten.blogspot.com/2008/07/bmiisp-agreement-costs-in-pcc.html
And here’s some comment from St Etienne band member Bob Stanley – ‘Paying for Downloads is like buying air’
http://www.timesonline.co.uk/tol/comment/columnists/guest_contributors/article4400789.ece
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COPYRIGHT
Record labels
BPI release new revenue statistics
The BPI has, for the first time, released statistics showing growth in non-traditional revenue streams at the record which now account for 11.4% of UK record companies' income. The data offers some hope that labels can weather the threat from illegal; downloading as alternative revenues rose 13.8% in 2007 to £121.6 million. A big part of that rise comes from licensing which is an increasingly important revenue source. Revenues from so called 360 degree deals (“multiple-rights revenues”) where labels secure their investment in new talent on more than recording revenues - in particular touring, merchandising and sponsorship revenue were up 16.2% in 2007, though the total amount of such revenues probably weren't very significant to start with, so actually that increase is probably quite small. Commenting on the stats, BPI boss Geoff Taylor said this: "The core business of record companies is investing in talent, working in partnership with artists to create great music and to help to find it an audience. Selling CDs and digital downloads remains the main way in which we recoup that investment, but increasingly new streams of revenue are coming into the picture. As consumption patterns change, music companies are finding new ways to recoup the huge investments they make in music. They are using new technology to find new audiences and offer consumers more choice. Today's record business is unrecognisable to that of five years ago. Labels have rapidly evolved into digitally literate businesses that generate significant revenues through licensing". Record companies made £943 million from music sales last year, with digital formats accounting for 8.6% of all sales income.
CMU Daily 30 June 2008 CMU www.cmumusicnetwork.co.uk
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COPYRIGHT
All Areas
Consultation on copyright exemptions for public performance of music
A consultation on exemptions to copyright law for certain charitable and not-for-profit organisations was launched today by the UK Intellectual Property Office. The Music Licensing Review consultation will seek views from music rights holders, representative bodies of users and rights holders and users on two exemptions which allow charitable organisations to pay for only one of two licences normally required for playing music. There are three options for amending the exemptions: (a) Recasting the exemptions so that they apply only to smaller charities (b)Introduction of an alternative scheme requiring payment of equitable remuneration for playing music (c) repeal of the exemptions. Ian Fletcher, Chief Executive of the UK-IPO, said "It is important that we carefully consider the use of exemptions within copyright law. We need to ensure we find the correct balance between the fair application of exemptions for the benefit of society and the need to ensure a fair reward to the creators of the music we enjoy in a way which is consistent with European and international law." The UK-IPO has worked closely with the Office of the Third Sector to ensure the third sector is involved in the consultation. Key areas of the consultation also include (a) whether an exemption should be introduced allowing the NHS to play televisions and radios in areas such as hospital wards without payment of copyright licence fees and (b) a proposal to remove the requirement for rights holders to notify certain new licensing schemes to the Secretary of State for possible reference to the Copyright Tribunal. The 16 week consultation will run until 31 October 2008-07-02 http://www.ipo.gov.uk/press-release-20080701
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COPYRIGHT
All areas
McFly DIY – is there now a new way forward?
By Cassandra Williams postgraduate student at the College of Law
No one can have missed the constant criticism levelled at record companies and their approach to selling music in the digital age and there is a suggestion that recorded music is now vaguely irrelevant to artists – and should no longer be the main product. Some commentators see recorded music as a marketing tool – for example to promote ticket sales and live concerts, to sell other merchandise, or even to sell drinks, newspapers or burgers According to Bob Stanley from St Etienne the answer is to give downloads away, or to make them cost no more than sending a text. Radiohead famously allowed fans to self price ‘In Ranibows’ but clearly will garner huge revenues from their touring activitoes.. Matador, once home to Cat Power, provides a free download when you buy vinyl copies of its records. With technology allowing music to be produced and distributed cheaply artists no longer need a major label. It is now possible for DIY labels, run out of bedrooms and shacks, to finally challenge the majors.
A recent example of the DIY system is the new self-released album from McFly who have followed in the footsteps of Prince and offered their new album as a covermount for the Mail On Sunday. This decision to ‘go it alone’ according to McFlyster Tom, in an interview with the Daily Star, was made after their former label, Island Records, advised McFly to take their music in a less ‘rocky’ direction. Tom told The Daily Star: "We always wanted to be bigger and better and we never felt that we had achieved our true potential so we felt that we could get closer to achieving that on our own.’ They havecertainly done just that – McFly’s album giveway boosted The Mail On Sunday’s sales by 300,000 – no doubt bringing a younger audience to the Mail On Sunday whilst ensuring that McFly reach a more diverse audience. This really does seem like a win won situation for both band and newspaper – and MoS cief Stephen Miron says he is "very pleased" with the performance of the McFly promotion. And McFly have a second bite at the cherry when they release the ‘deluxe’ version of the album later in the year as a paid for CD / download with bonus tracks and DVDs.
Even Dragons Den’s mogul Peter Jones is grabbing a piece of the action, a £75,000 piece to be exact, after Cambridge based indie band Hamfatter appeared on 'Dragon's Den' late in July and persuaded the Dragon to invest the sum in the band in return for a 30% stake in their future earnings. The band's manager Jamie Turner said he was seeking a venture capital style investor rather than a traditional record label deal to launch his band because it "doesn't make sense for artists to sign away their rights to a label". This way, he says, the band will make £3.50 per album, rather than a projected 30p an album via a label deal. Hamfatter’s chart history has so far been limited to the lower reaches of the charts and a surprisingly good run in the Austrian charts – not band since its self financed. Whether a £75,000 investment from a Dragon is enough to push them up to the level remains to be seen – as does the conundrum of whether a Dragon knows more about marketing music than a recognised record label - although the publicity Hamfatter received in the week following the show was fairly sensational. Which brings us round in a full circle about whether or not the music industry is all about ‘selling’ albums and singles now – or is it something else? The answer is neither yes or no. There are now many many ways to market and artists, labels and publishers need to have open minds in the current environment to maximise the monestisation of their sound recordings, songs and other copyrights.
http://www.timesonline.co.uk/tol/comment/columnists/guest_contributors/article4400789.ece
http://blogs.guardian.co.uk/music/2008/07/dragons_den_reappears_this_eve.html
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COMPETITION / COPYRIGHT
Music publishing, record labels
European Commissioners look at business practices and consumer rights
The Guardian has reported on a draft decision from the European Commission which, if adopted, would lead to major reforms of Europe's music collecting societies. According to the report, the draft, which has not yet been signed by EU Competition Commissioner Neelie Kroes, berates the fact that the collecting societies operate as monopolies within their national borders, partitioning the EU market on national lines. It gives the collecting societies 90 days to terminate their agreements and calls on them to cross-license. The draft has been criticised for not going far enough to break down national monopolies. The IPKat notes that, from what little information is available, it seems that the Commission isn't too worried about the notion of collecting societies, but rather about the way in which they operate territorially. This territoriality is understandable, since copyright has grown up as a system of national rights with a slightly different focus in the different Member States.
http://ipkitten.blogspot.com/2008_06_01_archive.html
http://www.ip-watch.org/weblog/index.php?p=1156
http://www.mcps-prs-alliance.co.uk/monline/news/Pages/EuropeanCommission.aspx
Here are edited highlights of what NeelieKroes said at the OpenForum European Breakfast seminar,'Being Open About standards' :
"It is simplistic to assume that because some intellectual property protection is good, that such protection should therefore be absolute in all circumstances.
It is simplistic to assume that because standardisation sometimes brings benefits,
more standardisation will bring more benefits.
It is simplistic to assume that if the best approach is sometimes to base a standard
on proprietary technology, then that is always the best approach.
And it is simplistic to assume that we can fix on a standard today, without paying
attention to the risk of being locked-in tomorrow".
And here’s what the EU Consumer Commissioner for Consumer Affairs, Meglena Kuneva has been saying (the third EU commissioners mentioned in one month!). The Commissioner has put a heavy emphasis on online issues, firstly criticising the fact that music downloaded from Apple's iTunes music store can play only on Apple’s iPod music players. In a speech in London last month she outlined her online priorities calling for the removal of "artificial geographical restrictions" that force consumers in Europe to buy goods online from Web sites specific to their countries, sometimes leading to terms, prices and selections that vary from country to country. "In the world we live in, we are not obliged to shop in the supermarkets and stores of our postal code," she said during the speech. "We should also not be forced to shop within our national borders. Yet we cannot buy computers, train tickets or PlayStations freely across the EU." Kuneva acknowledged that some of the differences could be attributed to complex laws that vary from country to country in Europe. She said she would propose a framework of consumer contract law this fall, covering both online and offline retail, that would simplify the rules across Europe. She said that, for years, consumers in the United Kingdom paid higher prices for music bought from the iTunes music store than in other countries in Europe. That practice ended in January after Apple cut its prices in the aftermath of negotiations between the company and the European Union (although currency fluctuations almost negated the need to do this as the Euro strengthened against sterling). Kuneva also said that she would address a different concern – that of that large amounts of data about users were being collected without their consent. "There always needs (to be) consent from the consumer, and (the) consumer must be absolutely aware that his or her data will be (the) subject of further commercial activity," she said.
http://seattlepi.nwsource.com/business/370755_eu15.html
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COMPETITION
Record labels
European Court overrules Court of First instance on annulment of Sony-BMG merger
Bertelsmann and Sony Corporation of America v Impala C-413/06 P
The European Union's highest court has set aside the Court of First Instances ruling that annulled the European Commission's approval of a merger between the Sony Music and BMG record labels. The European Court of Justice also ordered that the lower court to reconsider its decision in order to review three of five pleas it had not dealt with. The court said that "since the Court of First Instance examined only two of the five pleas relied on by Impala, the Court of Justice considers that it is not in a position to give a ruling itself on the dispute. It is accordingly referring the case back to the Court of First Instance". In July 2006, the lower Court of First Instance threw out the Commission decision at the request of Impala, an independent group of music producers. The lower court said the Commission had taken insufficient care in giving its approval. It should have looked more carefully at whether collective market dominance existed in the music industry and could grow after the merger, the court said. There has been no practical effect of a flurry of decisions on the case since 2004, but the court ruling reflects on the powers of the Commission, the EU's executive arm.
The Commission approved the deal for a second time in October 2007, saying it had taken care to meet the standards set by the Court of First Instance. Impala challenged that second decision in June, again before the Court of First Instance. The Commission approved the deal for a second time in October 2007, saying it had taken care to meet the standards set by the Court of First Instance. Impala challenged that second decision in June, again before the Court of First Instance. The high court's decision on Thursday, in an appeal by Sony BMG, concerns the annulment by the lower court in July 2006. The court said the lower court had been wrong to equate a charge sheet, or statement of objections, with conclusive findings of fact. It also said the lower court made an error in law "in relying on documents submitted by Impala on a confidential basis, since the Commission itself could not have used them for the purposes of adopting a decision, by reason of their confidential nature." So far, the decisions have made no practical difference to Japanese electronics and entertainment giant Sony and BMG, owned by Germany's Bertelsmann. Bertelsmann is intensifying talks with Sony to pull out of the venture, media have reported.
The IPKat adds
"... On 19 July 2004, the Commission approved the concentration of the global recorded music businesses of Bertelsmann AG and Sony (with the exception of Sony’s activities in Japan) into three newly-created companies to be operated under the name Sony BMG.
Following an action brought by Impala, an international association of independent music production companies, the Court of First Instance annulled that decision ... on the grounds that it was vitiated by manifest errors of assessment and was inadequately reasoned.
As a result of that annulment, the Commission carried out further review proceedings relating to that merger and approved the creation of Sony BMG for a second time on 3 October 2007, again without imposing any conditions or stipulations.
At the same time as those proceedings were taking place, Bertelsmann and Sony brought an appeal before the Court of Justice against the judgment of the Court of First Instance, claiming that that court had overstated the legal requirements to be applied in relation to a Commission decision approving a merger and that court’s role in carrying out judicial review.
... the Court of Justice rejects the argument put forward by Bertelsmann and Sony to the effect that there is a general presumption that a notified concentration is compatible with the common market, which would mean that the standard of proof the Commission is required to comply with in the case of a decision approving a concentration is less high than in the case of a decision prohibiting a concentration.
None the less, the Court of Justice considers that the Court of First Instance committed a number of errors of law in its judgment.
First ..., the Court of Justice holds that the Court of First Instance did not merely use the statement of objections as a basis for verifying the correctness, completeness and reliability of the factual material which underpinned the contested decision, but treated certain of the conclusions set out in that statement as established, whereas those conclusions could, however, only be considered as being provisional.
Furthermore, the Court of First Instance committed an error in requiring, in essence, that the Commission apply particularly demanding requirements as regards the probative character of the evidence and arguments put forward by Bertelsmann and Sony in reply to the statement of objections and in finding that the lack of additional market investigations after communication of the statement of objections and the adoption by the Commission of the arguments in defence put forward by those companies amounted to an unlawful delegation of the investigation to the parties to the concentration.
The Court of Justice also considers that the Court of First Instance committed an error of law in relying on documents submitted by Impala on a confidential basis, since the Commission itself could not have used them for the purposes of adopting the decision, by reason of their confidential nature In addition, the Court of First Instance misconstrued the legal criteria applying to a collective dominant position arising from tacit. The Court of Justice finds that the assessment of the relevant criteria in that regard, including the transparency of the market in question, should not be undertaken in an isolated and abstract manner, but should be carried out using the mechanism of a hypothetical tacit coordination as a basis. However, the Court of First Instance did not carry out is analysis of market transparency in the light of a plausible theory of tacit coordination.
Lastly, the Court of Justice rejects the arguments of Bertelsmann and Sony that a Commission decision approving a concentration can never be annulled on the ground of inadequate reasoning. Nevertheless, the Court of Justice considers that the Court of First Instance could not find that the Commission had failed, in this case, to comply with the duty to provide an adequate statement of reasons for the decision. In that regard, the Court of Justice notes that the decision showed the reasoning followed by the Commission in a way which subsequently allowed a party such as Impala to challenge its validity before the Court of First Instance. Furthermore, the Court of First Instance was aware of the reasons for which the Commission decided to approve the concentration and devoted numerous paragraphs in its judgment to the analysis of whether those reasons were well founded. It cannot therefore be claimed that it was impossible for the Court of First Instance to exercise its power of judicial review. ... Since the Court of First Instance examined only two of the five pleas relied on by Impala, the Court of Justice considers that it is not in a position to give a ruling itself on the dispute. It is accordingly referring the case back to the Court of First Instance".
So in summary …. Because this one isn’t easy – the EC made a decision that Sony-BMG could merge – Impala appealed this approval and the Court of First agreed that the EC’s approval was flawed - so the EC had to review their own decision on the Sony-BMG merger – this the EC did – the result was a second decision clearing the merger – and now the ECJ said the EC didn’t have to do review anyway (but they already had) …… meanwhile Impala had filed a second appeal against the EC’s second (reviewed) approval …. AND … Bertlesmann are selling their 50% stake anyway …… read more here!
http://ipkitten.blogspot.com/2008/07/bertelsmania-comes-to-luxembourg.html
http://www.billboard.biz/bbbiz/content_display/industry/e3ia9dec6e36d9df174a6259701f0f1eb82
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COMPETITION
Music publishing
Big Life Music sale cleared
The UK’s Competition Commission has now formally approved Universal Music Publishing Group’s purchase of Big Life Music bringing the publishing of artists such as Snow Patrol, Futureheads and Badly Drawn Boy into the Universal stable.
http://www.billboard.biz/bbbiz/content_display/industry/e3i3a02b4b8960ca28a756947e739f852b2
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LICENSING
Live event industry
Loud reggae nights lead to criminal conviction
A Bradford businessman has been given a conditional discharge and ordered to pay costs of £2,291.60 over noise complaints. Nirmal Singh MBE, who owns Marlborough Hall, a former cinema in Carlisle Road, Manningham, was charged with failing to comply with a noise abatement order which Bradford Council served in June 2006 after reggae nights led to complaints from a number of residents that the loud drum beats were making it “impossible” for them to sleep and in one case, left the householder’s floor thumping. Magistrates heard that Singh, 56, had been repeatedly warned about the complaints and that the Council would take action if he did nothing to prevent the noise nuisance continuing. It was accepted that Singh did not promote the reggae nights but as the venue owner had failed to rake action to prevent the nuisance. Singh pleased guilty to three charges. The reggae nights have now been stopped.
http://www.thetelegraphandargus.co.uk/news/3202086.Community_stalwart_admits_noise_breaches/
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LICENSING
Live event industry
ARTICLE LINK – A new effort to end the New York ‘Dance Police’
New York ’s 1926 Dance Laws are under review again – read more here
http://cityroom.blogs.nytimes.com/2008/07/14/a-new-effort-to-end-the-dance-police/
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LICENSING
Live events
New Licensing Act simply extends trouble later into the night
The relaxation of the licensing laws has failed to reduce drunken violence while costing taxpayers £100m, a report from the Local Government Association (LGA) says. The survey found that around seven in 10 police authorities, primary care trusts and councils had seen either no change or an increase in alcohol-related disorder. At the same time the cost to council taxpayers have stretched resources, with 86% of health authorities and 94% of councils reporting increased pressure. The findings were based on responses from 51 local authorities, 49 primary care trusts and 20 police forces. Around a third of primary care trusts said they had experienced a rise in alcohol-related incidents. Meanwhile, half of police authorities reported that the 2003 Licensing Act had simply led to alcohol-related disorder occurring later at night than prior to the new rules. The LGA claimed that administering the Act, which involved more than 190,000 pubs, restaurants and clubs being issued with new licences, and monitoring it had cost local authorities more than £100m. Sir Simon Milton, chairman of the LGA, said the new drinks laws had made “no impact whatsoever on reducing the alcohol-related violence that blights town centres” adding that "The vast majority of local councils, police and hospitals have reported no change at all, with violent incidents generally just being shifted later into the evening” and called for a wide-ranging national debate.
http://www.guardian.co.uk/politics/2008/jul/01/health.justice
http://uk.reuters.com/article/domesticNews/idUKL0118969120080701
http://www.morningadvertiser.co.uk/news.ma/article/80010
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LICENSING
Live industry
High Court refuses to review Magistrates’ decision to refuse a lapdance licence
A bid to open Durham’s first lap-dancing bar has failed after the High Court refused to overturn the decision of a Magistrates Court which itself overturned a decisionn allowing a licence for the club by the Local Authority. South Tyneside firm Vimac Leisure went to the High Court to overturn the rejection of its controversial application to start a lap-dancing club in the centre of Durham. The company sought the Judicial Review after magistrates overruled the city council's approval for the controversial planning application following objections from residents. The decision was welcomed by Durham City MP Roberta Blackman-Woods who has led a campaign to make it easier for local authorities to turn down attempts to open lap-dancing clubs. For licensing purposes, she wants them to be treated as "sexual encounter venues" not just pub and club entertainments – a move backed by Government Minister Gerry Sutcliffe. Dr Blackman-Woods said: “This shows what I have always said – that local councils do have the authority and the duty to turn down applications for these clubs where having one would be inappropriate. “Local people put an awful lot of hard work into showing that having a lap-dancing club on North Road would contravene the Licensing Act and I am pleased that their hard work paid off at the Magistrates’ Court, and now at the High Court too.” Teacher Kirsty Thomas joined Durham residents Desmond and Ann Evans last year to persuade magistrates that a lap-dancing club was inappropriate in the city. She said: “ Durham was the first case where residents successfully opposed a licence, yet the 2003 Licensing Act was supposed to consider the wishes of the public. “It was obvious that large numbers of people in Durham City and surrounding villages did not want that sort of establishment.” Magistrates found that the city council were wrong in granting the application for The Loft in the first place on all four of the relevant licensing objectives. The High Court has backed that decision and found that there was no need for a review into the matter. In his decision Sir George Newman wrote: “It is absurd to suggest that a table-dancing club with booth dancing will not impact upon a neighbourhood”.
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LICENSING
Live events
Select Committee announce Licensing Act inquiry
An inquiry into the impact of the Licensing Act 2003 is to be launched by the Select Committee for Culture, Media and Sport. The Committee is seeking views from interested parties on whether the legislation, which allows for 24 hour opening, has had any effect on the levels of public nuisance, the number of night-time offences or perception of public safety. It also wants to establish the impact the act has had on live music, sporting and social clubs, if it has led to financial savings for relevant industries and whether it has reduced bureaucracy for those applying for and administering licences.
Details of how to make a submission can be found at http://www.parliament.uk/parliamentary_committees/culture__media_and_sport.cfm
http://www.thestage.co.uk/news/newsstory.php/21317/licensing-act-inquiry-announced
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LICENSING
Live events
Facebook party forces potential alcohol ban at beach resort
It was planned to stop every shop and pub in a seaside resort from selling alcohol after it was targeted as the venue for a "night of mayhem" beach party for 10,000 people organised on the social networking site Facebook. Police officers in Torbay, Devon, say that thousands of revellers were expected to gather at one of five possible beaches for the mass party at the weekend. The event had been advertised on Facebook with organisers hailing it as "the biggest ever beach party" with alcohol, loud music and barbecues. Described as a "night of mayhem" between the 4 th and 6 th July the exact location and time would not be posted until hours beforehand and police, fearing a health and safety risk, were desperate to stop the party taking place. Officers claimed the mass beach party was planned to be held next to one of five beaches - in Torquay, Paignton, Preston, Goodrington or Broadsands and planned to use powers under the Licensing Act 2003 to introduce an emergency blanket ban on the sale of any alcohol in the five areas. Police said as soon as they know the location every retailer and pub in a specified area will be banned from selling alcohol until the party is cleared. Superintendent Chris Singer said: "The event is likely to cause disruption and difficulty for our community. The supply and consumption of alcohol would add to those difficulties. "It may therefore be necessary for me to apply to magistrates to instigate the provisions of Section 160 of the Licensing Act 2003. "I fully understand making the order would be an unprecedented step, and one which would not be taken unless fully justified." Over 4,000 youngsters confirmed their attendance and police were worried that the number would rocket to 10,000. But licensees in the area said that banning alcohol on one of the busiest weekends of the year would be "catastrophic" for retailers. But the police warning worked and within a few days the Facebook page warned that people attending beaches in Torbay on the weekend "will be asked to leave or be arrested". It continued: "Do not travel to Torbay. There will still be a high police presence around the coast” adding that "No event whatsoever will be taking place in Torbay and we urge you to inform all others you know that are planning to attend that it is no longer going ahead” adding "Sorry for any inconvenience" and that the page would be closed "in due course".
Story from Telegraph News: http://www.telegraph.co.uk/news/uknews/2228968/Facebook-beach-party-forces-alcohol-ban-in-Torbay.html and http://news.bbc.co.uk/2/hi/uk_news/england/devon/7485813.stm
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TRADE MARK
Artists
Drifters victory over former band members, tour, tour manager and agent
The Treadwell family, who have owned the Drifters name since 1953, have succeeded in a High Court action against a group of former band members using the band’s name. The Treadwell family, who have legally controlled the Drifters since 1953, served a writ in December accusing four musicians, their former UK tour manager Philip Luderman and their former agent Mark Lundquist of "passing off" a UK group as the real thing and thus infringing the Drifters' trademark. The action ended with a settlement but representatives of the band say that the legal victory confirms the ownership of the UK and European trademarks of The Drifters name, as well as removing the ambiguity surrounding the band’s identity. This court order prohibits former Luderman and Lundquist, plus four former employees, from using the Drifters name again and the settlement has been agreed over prior unauthorised use of the name. Tom Frederikse from Clintons solicitors, a regular contributor to this site who represented the Treadwells said “The Drifters’ history is as interesting as it is unique, but there is one theme that's constant - the name Treadwell. This is a moral victory for the Treadwells and we are delighted that they have now reaffirmed their legal right to the family business, which they have run for 55 years.” The Treadwell managed Drifters are now on a UK Tour.
http://news.bbc.co.uk/1/hi/entertainment/7488215.stm
http://www.nme.com/news/various-artists/37840
http://www.musicweek.com/story.asp?storycode=1034748
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COPYRIGHT / PRIVACY
Internet
Google ordered to hand over YouTube logs in Viacom litigation
Google has been told to hand over logs of every video ever watched on its YouTube video sharing platform, plus details of the user names and/or IP addresses of the people who have watched them. Google have been told to make the logs available by District Judge Louis L Stanton as part of its ongoing legal fight with MTV owners Viacom. As previously reported, Viacom are suing the video site for copyright infringement, because of the amount of content from its channels available on YouTube without their permission. YouTube have put forward the standard defence - that they do not personally make unlicensed content available, and that they remove any unlicensed content uploaded by punters if and when content owners make them aware of it. YouTube say that under current US copyright laws that policy means they are not guilty of infringement - though that interpretation of the law is so far untested in court, and this case could be the first to do so. Unlike other record companies and broadcasters, Viacom have not seemed interested in doing a licencing deal with YouTube - something that the video site has managed to do when most other content owners have threatened to sue - possibly because Viacom see the video service as a particular threat among their youth demographic, and they'd rather see it cripplingly restricted rather than work with it. Viacom asked for YouTube to reveal its viewing logs in a bid to demonstrate that [a] most videos watched on the website are not user-generated and [b] to ascertain just how much Viacom content has been viewed. The court agreed with the need for such data to be revealed as part of the case, but refused another request to have details of how the YouTube system works revealed, because that would infringe Google's commercial confidence rights.
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COPYRIGHT
Internet, record labels
Mum turns on Prince over YouTube takedown
A mother who uploaded a video of her son dancing to a Prince track is taking the artist and his label to court over their efforts to have the video taken off YouTube. Stephanie Lenz of Pennsylvania made a video of her 13-month-old boy dancing to an almost inaudible song, and posted it on YouTube as thousands of parents do world wide. In the background "Let's go Crazy" is the “barely distinguishable song” in the background – it is by Pirnce and the copyright is owned by Universal Music's copyright and they issued a “take down notice”. YouTube initially took it down but Lenz fought back and he sent a letter to YouTube, demanding her video be reinstated. They in turn sent a letter to Universal Music, which represents Prince. Eventually YouTube posted the video back up because Universal Music never answered. And that's where it would have ended, except Lenz decided to file a lawsuit against Universal Music with the legal help of the Electronic Frontier Foundation in San Francisco. A federal judge in San Jose will hear arguments in a lawsuit filed by Lenz. She claims Universal Music misused the takedown notice, are abusing copyright law and that the use of the track is covered by ‘fair use’ provisions in the US.
http://www.mercurynews.com/valley/ci_9932068?nclick_check=1
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TRADE MARK
All areas
US court finds that eBay is not liable for counterfeits sold on it’s site
A US District Court has decided that the internet auctioneer eBay had not infringed Tiffany's trade marks in failing to prevent fake Tiffany goods to be sold through its site. According to the New York Times, the court found that it was the responsibility of trade mark owners, and not online retailers, to police the online sites for infringers. The US decision runs counter to the emerging trend it Europe, where eBay has been found to have infringed in both France and Germany. Judge Richard J Sullivan in the Manhatten Federal District Court said “Tiffany has failed to demonstrate that eBay knowingly encouraged others to dilute Tiffany’s trademarks,” in his 66-page decision. “Rather, to the extent that eBay may have possessed general knowledge of infringement and dilution by sellers on its Web site, eBay did not possess knowledge or a reason to know of specific instances of trademark infringement or dilution as required under the law.”
See Music Law Updates July 2008 for a report on the position in France - French courts holds eBay liable for sale of counterfeit goods
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BROADCASTING
Television
Court throws out Janet Jackson wardrobe malfunction fine
This is a tad embarrassing for the US’s Federal Communications Commission. Their $550,000 fine against broadcaster CBS for broadcasting Janet Jackson’s ‘wardrobe malfunction’ at the 2004 Super Bowl halftime show when she performed with Justin Timberlake has been ruled to have been made “arbitrarily and capriciously” by a three judge panel of the 3 rd US Circuit Court of Appeals. The 90 million people watching the Super Bowl, many of them children, heard Justin Timberlake sing, "Gonna have you naked by the end of this song," as he reached for Jackson's bustier and then saw fleeting nudity. The court found that the FCC deviated from its nearly 30-year practice of fining indecent broadcast programming only when it was so "pervasive as to amount to 'shock treatment' for the audience." "Like any agency, the FCC may change its policies without judicial second-guessing," the court said. "But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure
http://www.billboard.com/bbcom/news/article_display.jsp?vnu_content_id=1003829656
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COPYRIGHT
Internet, record labels
FBI Interview Guns n Roses blogger
The blogger who allegedly leaked nine tracks from the long awaited album from Guns ‘n’ Roses 'Chinese Democracy', has reportedly been interviewed by the Federal Bureau of Investigation in the US. According to reports Kevin Skwerl was visited by two FBI agents yesterday and questioned about his source of the files, which were taken down almost as soon as they were posted after GNR issued a cease and desist order. But the take down was too late to stop some file swappers getting their hands on the tracks and digital files are already in circulation Skwerl is a former Universal Music employee and Guns N Roses were signed to Universal's Geffen label. Speaking about the whole episode to Rolling Stone magazine, Skwerl stressed that GNR weren't threatening when they got in touch to request the removal of the tracks off his website, and he adds that he's hopeful he will avoid any further legal action regarding the leak - civil or criminal. He told the magazine: "A really cool guy from the GNR camp that was a middle man between someone who was very angry and me. He was trying to reach out and see if I'd go without a fight, which is more or less what I did. I'm not so worried about [legal action]. It's a legal grey area since it wasn't for download, it wasn't a finished product. We aren't sure who owns the recordings. I feel like I might survive this". CMU Daily 25 June 2008 www.cmumusicnetwork.co.uk
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PRIVACY
Newpaper publishing, Artists
Mosley beats the World! Max Mosley wins record damages in privacy case: Mosley v News Group Newspapers Ltd (2008) EWHC 1777 (QB)
From the IPKat
Max Mosely, President of the Fédération Internationale de l'Automobile (FIA) since 1993 and a trustee of its charitable arm, the FIA Foundation, objected to the publication of an article in the News of the World newspaper. This article, headed 'F1 BOSS HAS SICK NAZI ORGY WITH 5 HOOKERS', was billed as an exclusive and ran under the subheading "Son of Hitler loving fascist in sex shame". The article in question concerned an event, described as a party by Mosley and as an orgy by the newspaper. The text was accompanied by images taken from clandestine video footage and a concealed camera at the event itself. A sequel, published the following month under the banner "EXCLUSIVE: MOSLEY HOOKER TELLS ALL: MY NAZI ORGY WITH F1 BOSS", was mainly a purported interview with one of the women who participated in the event, who had filmed it with a camera supplied by the newspaper and concealed in her brassiere.
Mosley alleged breach of his of privacy under Article 8 of the European Convention on Human Rights (ECHR), seeking exemplary damages. He argued that the content of the published material was inherently private in nature and that there had existed a pre-existing relationship of confidentiality between the participants. The public display of this private event was thus unlawful.
Eady J, awarding a new UK record sum of £60,000 damages, agreed. In his 236-paragraph judgment he said as follows:
The full article can be seen at
http://ipkitten.blogspot.com/2008/07/judge-in-privacy-damages-romp-with-4.html
Perhaps unsurprisingly the UK’s national press came out against the judgment. The former Archbishop of Canterbury, Lord Carey of Clifton said the decision was a ‘dangerous precedent’ and that the first major victim was ‘free speech’ saying ‘unspeakable and indecent behaviour, whether in public or private, is no longer significant under this ruling’ (News of the World, 27 July 2008). Max Mosely has confirmed he will bring a defamation action against the newspaper.
and see http://news.bbc.co.uk/1/hi/uk/7523034.stm and
http://www.itv.com/News/Articles/Mosley-to-sue-after-privacy-win-164146451.html
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DEFAMATION / PRIVACY
Internet
High Court awards £22,000 for victim of Facebook slur
A fake Facebook site set up about businessman Mathew Firsht has resulted in an award of £22,000 in damages against instigator Grant Raphael, an estranged friend of Mr Firsht. Using real details about Mr Firsht Mt Raphael then put in false details about his sexual orientation and political beliefs ending with a company profile with was titled ‘Has Mathhew Firsht lied to you too?”. The High Court damages break down at £15,000 for libel against Mr Firsht, £2,000 for invasion of his privacy and £5,000 for libel against his company, Applause Store Productions.
http://technology.timesonline.co.uk/tol/news/tech_and_web/article4389538.ece
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© 2008, Ben Challis