Intellectual Property Law Updates

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

February 2008

---------------------------------------------------------------------------------------------------------------

CONTRACT
Artists
Experience Hendrix LLC and another v Times Newspapers Ltd

Experience Hendrix LLC which represents the interests of the Jimi Hendrix estate claimed it was the owner of (i) the performer's rights in the performances given at the Royal Albert Hall ( London, England) in February 1969 by Hendrix, and (ii) the copyright in the sound recordings of those performances. Experience sued the publisher of The Times newspaper, saying that the publisher had infringed its rights by authorising and procuring the manufacture, and the issuing to the public, of compact discs featuring copies of those recordings. The Times denied infringement, pleading that the allegedly infringing acts had actually been licensed. The basis of the defence was the existence of a chain of licences, beginning with a letter from the mid to late 1970s, which gave it a defence under section 180(3) of the Copyright, Designs and Patents Act 1988, which states:

"The rights conferred by this Part apply in relation to performances taking place before the commencement of this Part; but no act done before commencement, or in pursuance of arrangements made before commencement, shall be regarded as infringing those rights ".

Experience applied for summary judgment on the ground that The Times had no reasonable prospect of defending the claim; The Times in turn applied to adjourn the application pending the submission of further evidence relating to the purported licences.

Mann J held that, on the evidence before him, The Times had no reasonable prospect of defending the claim. The original letter was not a contractual document and no other evidence of a contractual relationship between the parties existed. However, The Times would be given the chance to obtain further evidence. If no further evidence was forthcoming, Experience would be awarded summary judgment.

The IPKat notes that, at least in this short note of the ruling, the judge was concerned that the arrangement upon which The Times relied was not a contractual document. Section 180(3) does not however stipulate that the arrangements relied upon by the party claiming to be licensed have to be contractual -- even though, in the real world in which copyrights are jealously guarded and profitably exploited, it will generally be the case that a licence will have originated from a contract.

http://ipkitten.blogspot.com/2007/12/times-gets-more-time.html

http://ipkitten.blogspot.com/2007/05/beyond-myth-judges-star-in-hendrix.html

http://ipkitten.blogspot.com/2005/02/hendrix-cuts-through-haze.html

---------------------------------------------------------------------------------------------------------------

COPYRIGHT
Record labels
US Uproar as RIAA says that copying your own CDs is stealing – or does it …

Here at Music law Updates we had thought that it was generally accepted in the music industry that whilst making a copy of a CD for personal use (eg copying onto a cassette, another CD or onto a computer) is technically an infringement of copyright, it is one the record labels would never action. Think again! In the UK it is certainly illegal to make any copy – even a private copy – unless this is for the purpose of ‘time shifting’ a broadcast to view at a later date. But it has always been presumed it was accepted practice that private copies were ‘OK’. But think again – The Washington Post reported that the guardians of the record labels in the US (and morality it seems), the Recording Industry Association of America (RIAA), have said that copying your own CDs is “stealing” in a legal action in the federal courts, taking their argument against music sharing one step further: In legal documents filed in the copyright infringement case against Jeffrey Howell, a resident of Scottsdale, Arizona, the industry maintains that it is illegal for someone who has legally purchased a CD to transfer that music into his computer, here 2000 tracks. The industry's lawyer in the case, Ira Schwartz, argued in a brief filed earlier this month that the MP3 files Howell made on his computer from legally bought CDs are "unauthorized copies" of copyrighted recordings. It is important to differentiate this statement on private digital copying from the actual (and we presume subsequent) file sharing Mr Howell is alleged to have undertaken. The illegality of file sharing is illustrated by the RIAA’s recent successful case Jammie Thomas who was convicted and fined for illegal file sharing – passing on digital copying to others without permission. Thomas was ordered to pay $220,000 to the big record companies ($9,250 for each of 24 songs she was accused of sharing online). Here whilst the case revolves around sharing – the additional response was concerning copies made for personal use. Here the RIAA affirm in a supplemental brief answering questions posed by the judge, that the labels consider all copying illegal. Now. One response came fro the influential Motley Fool investment web site which warns investors to beware of 'Sony, BMG, Warner Music Group, Vivendi Universal, and EMI.' In an article entitled 'We're All Thieves to the RIAA,' Motley Fool columnist Alyce Lomax commented that the RIAAs stance in Atlantic v. Howell was 'a good sign of a dying industry that investors might want to avoid is when it would rather litigate than innovate, signaling a potential destroyer of value.'” BUT, the RIAA have now claimed their lawyer's comments have been misunderstood and that they never said the defendant in the P2P case had acted illegally by making private copies, but that the illegal act was sharing those files via a P2P network. The Post initially argued that that wasn't what the RIAA had said, but this week accepted there had been a misunderstanding, and the trade body had not been inconsistent in its copyright statements. The trade body responded thus: "We appreciate that the Washington Post cleared the record". The RIAA were perhaps right to clear the matter up whatever had been said - in the digital age this provision in copyright law is looking more and more anachronistic, even more so against the backdrop of an industry slowly changing from one focused on DRM protected music sales to a new business model - Warners became the latest label to drop DRM for sales via Amazon and SonyBMG have also said they will drop DRM in certain formats. If the labels did assert a restriction on genuine private copying they would surely leave themselves open to ridicule and criticism – and as a consumer I would be starting to ask some questions in response: If my DRM protected music cannot be played on my various different players (car stereo, CD player, computer) am I being short changed – or even ripped off (excuse the pun) by the labels? I have paid for the music after all. What if the player that stores MP3 tracks breaks or the file(s) corrupt? Will the labels refund me for all the money I spent on buying DRM protected music or music in a particular format that I cannot now play or have lost? Should I now demand a right to make private copies – something the labels have resisted in the past saying it was unnecessary? It seems to be very necessary – and in the UK will now be debated – see below.

http://www.washingtonpost.com/wp-dyn/content/article/2007/12/28/AR2007122800693.html

http://blog.wired.com/gadgets/2007/12/riaa-copying-mu.html

http://yro.slashdot.org/yro/08/01/03/1412247.shtml

and for a well written ‘common sense’ comment on where the music and film industries get it ‘wrong’ see the article by Allen Harkleroad at http://www.p2pnet.net/story/14490 (from http://www.allenharkleroad.com/ )

Our Special Correspondent Marc Holmes adds:
In the recent RIAA sponsored Atlantic v Howell litigation we find the association’s lawyers attempting to prosecute would-be file sharers, before they have actually shared a single file, for the supposed offence of ‘making available’. Arguments in Howell turned on the following question: if you move your MP3s into a file sharing client’s ‘share folder’, as Howell did, and therefore effectively ‘offer the files for sharing’, do you actually do enough to commit an offence under US copyright law?

On the subject, the RIAA seems to be unable to get its story straight. In the celebrated JammieThomas case, its star witness, a top level Sony BMG executive, stated that in ‘making a copy of song for himself’ a person ‘steals the song’. Certainly, this would have come as news to the millions of worried iTunes users who, before uploading their CDs, checked the RIAA website to make sure what they were doing was legal. They would have been reassured by news that “…burning a copy of a CD onto a CDR, or transfer to a hard drive…won’t usually raise problems”. That is, apparently, unless in doing so the music finds its way into a ‘share’ folder.

So does the RIAA’s backing of the Howell litigation constitute an embarrassing volte face as commentators are claiming? Probably not, as moving files into a ‘share folder’ is not the same as simply ripping them onto a hard drive. Nevertheless, it does not make the RIAA’s case any less hopeless. Predictably, with the aid of a ‘groundbreaking’ brief filed by the Electronic Frontier Foundation - that effectively recited the law as it stood - Howell’s lawyers have persuaded the court to reconsider the argument that simply ‘making available’ could constitute an offence. As the EFF pointed out, the statute insists that such an offence would require actual ‘unauthorized dissemination’ of the works – something that apparently would require going further than just placing files within the ‘share folder’, and offering them for downloading. Confused? The distinction is not a simple one.

Despite the EFF’s certainty on the whole matter, the difference between making something available for the taking, and ‘actual dissemination’ is not that clear-cut. There is unquestionably room for the RIAA’s argument, even it is one has been proved unsatisfactory at first instance. The problem remains that a successful litigant would have to prove that a defendant’s intention was that others should help themselves to those files - not an easy task.

So, for the time being, there will be no offence of ‘attempted file sharing’. The difficulty remains in the intangible nature of digitised musical works that may only ever exist inside a computer or portable device. It is the transition from the ‘real world’ into the intangible world of the internet that the law continues to struggle to make, and with record companies left with little choice but to use ‘real world’ law to tackle problems peculiar to the internet, this kind of confused litigation will keep appearing until all possible avenues are exhausted. It is perhaps only at this point that a truly creative solution will appear.

---------------------------------------------------------------------------------------------------------------

COPYRIGHT
Record labels
ARTICLE LINK - Interview with a Vampire, the RIAA speaks

Cara Duckworth, spokesperson for The RIAA explains their recent activities (and, I have to say, come across very badly indeed!)

http://www.zeropaid.com/news/9211/Interview+With+a+Vampire+-+the+RIAA+Speaks

---------------------------------------------------------------------------------------------------------------

COPYRIGHT
Record labels
ARTICLE LINK – Canadian labels – we get absolutely zero credit for not suing fans

Here Graham Henderson from the Canadian Recording Industry Association (CRIA) industry explains why it wants copyright reform and this article also looks at the calls for copyright reform from the Creators' Copyright Coalition (CCC) which represents 16 trade groups for actors, writers, filmmakers, and songwriters.

http://arstechnica.com/news.ars/post/20080122-canadian-labels-we-get-absolutely-zero-credit-for-not-suing-fans.html

---------------------------------------------------------------------------------------------------------------

COPYRIGHT
All areas
Proposals in UK to make CD copying legal as both UK Government and the EC look to make copyright law ‘fit’ for the digital age as Swedish MPs go even further

Copying compact discs on to computers or iPods could become legal for the first time in the UK under government proposals in a move that parts of the music industry has warned could “open the floodgates” to further filesharing. Lord Triesman, minister for intellectual property, will begin a consultation process which will end on March 7 2008. The consultation will look at the viability of legalising such recordings as long as they are for personal use. The Association of Independent Music, the industry group, has warned that the exception could open the floodgates to “uncontrolled and unstoppable” private copying and sharing from person to person. Alison Wenham, chairman and chief executive of the AIM, said that the move could set a dangerous precedent. CDs would largely be redundant in five years, she predicted, but the new legislation would still remain and could be misused. But Geoff Taylor, chief executive of the British Phonographic Industry, another industry group, said he was broadly in favour of the changes because it would clarify the law for consumers. However, Mr Taylor said the government should ensure that the move would not “do harm to” the record industry. The consultation will also look at wider intellectual property issues surrounding new media. These range from the legality of companies offering distance learning or online education to upload film or sound recordings. At present this is not easily done. The changes come at a time of upheaval in the industry where internet-based media are taking a growing share of the market from traditional providers of news, music and other entertainment. The change of the rules regarding copying CDs was one of the recommendations of the Gowers report into intellectual property laws by Andrew Gowers, former editor of the Financial Times. But it was counterbalanced by Mr Gowers calling for harsher sentencing for online music and film pirates. One suggestion in his Treasury-commissioned report was that online piracy could be punished by prison sentences of up to 10 years instead of the current two-year maximum. This would bring the punishment into line with those convicted of trading in counterfeit CDs or DVDs.

http://www.ft.com/cms/s/0/f6527478-bd74-11dc-b7e6-0000779fd2ac.html?nclick_check=1

For other recommended changes including the sue of new media in educational establishments, museums and libraries, the future of DRM as well as possible changes to the definition of ‘faire dealing’ see

http://ipkitten.blogspot.com/2008/01/major-consulation-on-copyright.html

Marc Holmes reports on Swedish moves to decriminalise file sharing

Liberal members of the Swedish parliament have responded fiercely to a recent report by the government’s ‘copyright analyst’, Cecilia Renfors. The report recommends that ISPs should be forced to regulate all of their clients’ communications, in an attempt clamp down on illegal filesharing of copyright material - a move that would mirror similar action in other European jurisdictions such as France. A paper authored by six members of the Moderate Party in opposition to the report attempts to ally the sharing of information over the internet with fundamental rights of privacy included in the European Convention on Human Rights, as well as characterising the issue as one of ‘freedom of information’.

In particular, the authors see it as crucial that members of the Swedish parliament, and Swedish politicians in general, do not affiliate themselves with so called ‘special interest’ groups such as the copyright industries, that endlessly lobby governments for changes in the law to protect their investments. This is particularly the case, as they see it, because those industry bodies will never in fact be satisfied and will always crave more and further reaching measures, and such further attempts to criminalise the sharing of information will only result in ever more draconian measures to keep up with a technology that is becoming more and more sophisticated.

The authors advance a further argument, citing the copyright industry’s track record of scepticism to all major technological advances in the realm of the consumption of entertainment products. The example of Beta-Max and the early MP3 players are given, in an attempt to illustrate the copyright industry’s paranoid desire to control the ebb and flow of their product at any cost. They claim that their aim is to ensure that Sweden does not become a country hostile to technological advancement and does not surrender to rights holders who want return on investment above all else, even if that means interfering with what the authors see as fundamental rights.

Almost simultaneously with these two stories, The European Commission published its Communication on Creative Content Online in the Single Market aiming to ... encourage the content industry, telecoms companies and Internet service providers to work closely together to make available more content online. There is a 29th February deadline for responses to a number of key questions posed in the Communication which singles out four challenges which "merit action at an EU level": (1) availability of creative content; (2) multi-territory licensing for creative content; (3) interoperability and transparency of DRM systems and (4) legal offers and piracy saying this:

Availability of creative content – Owners of creative content are sometimes reluctant to make it available for online distribution. Amongst the reasons for this are concerns over illegal downloads and online "piracy". In addition, there are across the EU major difficulties in negotiating and settling terms of trade between the right owners and the online distributors of creative content. The Commission is therefore today strongly encouraging stakeholders to find innovative and collaborative solutions to exploit the market for content online. A first step into this direction was taken in 2006 with the "European Film Online Charter" (see IP/06/672), but the Commission notes a lack of ambition and implementation in the follow-up to this initiative.

Multi-territory licensing for creative content – Online environments such as the Internet and mobile services inherently allow content services to be made available across the single European market. However, the lack of multi-territory copyright licences – allowing the use of content in several or all EU Member States – makes it difficult for online services to be deployed across Europe and to benefit from economies of scale. While it is first for rights holders to appreciate the potential commercial benefits of multi-territory licensing, there is an underlying need, also from a consumer perspective, to improve on existing licensing mechanisms.

Interoperability and transparency of Digital Rights Management systems (DRMs) – Technologies that support the management of rights and the fair remuneration of creators in an online environment can be a key enabler for development of innovative business models. Lengthy discussions amongst stakeholders have yet to lead to the deployment of interoperable and user-friendly DRM solutions. The Commission therefore seeks to establish a framework for DRM transparency concerning, amongst others, the interoperability of different DRMs, and ensuring that consumers are properly informed of any usage restrictions placed on downloaded content, as well as of the interoperability of related online services;

Legal offers and piracy – Piracy, including the unauthorised up- and downloading of copyrighted content, remains a central concern. The Commission intends to instigate co-operation procedures ("codes of conduct") between access/service providers, right holders and consumers to ensure not only the widespread offer of attractive content online, but also adequate protection of copyrighted works, and close cooperation on the fight against piracy and unauthorised file-sharing

And finally the European Parliament's Committee on Culture and Education has rejected proposals that would have set up mandatory Internet Service Provider copyright filters (against illegal file sharing and downloading) and would have extend EU sound recording copyrights from the current 50 year term to match the USA's approximate 95 year term.

With its usual excellent analysis see

http://ipkitten.blogspot.com/2008/01/boost-or-bust-for-eu-online-content.html

---------------------------------------------------------------------------------------------------------------

COPYRIGHT
Artists
Seventy years on from some notable deaths, there are famous works coming into the public domain

Having all sadly died in 1937, works by J M Barrie (Peter Pan), Jean de Brunhoff (Babar) and composers George Gershwin, Antonio Gramski, Maurice Ravel and Karol Szymanowski are all now entering the public domain.

http://ipkitten.blogspot.com/2007/12/coming-out-of-copyright-some-notable.html

---------------------------------------------------------------------------------------------------------------

COPYRIGHT
Music publishing
Shop’s face higher PRS rates

Shop owners face inflation-busting rises in the cost of playing music to entice customers into their stores from Tuesday 1 st January. The smallest shops - those up to 100 sq m - will see the royalty payments they have to make each year to play background music increase by 13pc. Those with larger premises face slightly smaller rises, with, for example, a 1,001 sq m shop now paying £495.50 a year to play CDs or the radio, up 6pc. The Performing Right Society, said that increased shop opening hours and the growing the importance of music "in creating a brand and attracting customers" justified the price rises. It said it also planned to review the tariffs charged to other workplaces, like offices, pubs and restaurants.

http://www.telegraph.co.uk/money/main.jhtml?xml=/money/2008/01/01/ybmusic101.xml

---------------------------------------------------------------------------------------------------------------

COMPETITION
Internet
Apple to harmonise European iTunes pricing

Apple has agreed to harmonise its European price structure for iTunes songs which are currently 79p in the UK ($1.55) and 99 cents in the rest of Europe ($1.45) by cutting the price of music downloads in the UK to settle a European Union antitrust case. The European Commission, in its first case involving online music sales, said it's not a price regulator and won't set a rate for Apple's U.K. downloads. ``This is an important step towards a pan-European marketplace for music,'' Apple Chief Executive Officer Steve Jobs said in an e-mailed statement today. ``We hope every major record label will take a pan-European view of pricing.'' The Brussels-based commission, the EU's antitrust regulator, said last April that Apple and the world's four largest music companies illegally restrict where iTunes users can buy songs by setting higher prices in some countries. The companies could have been fined as much as 10 percent of annual sales for an antitrust violation.

http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2008/01/10/nmusic110.xml

---------------------------------------------------------------------------------------------------------------

COPYRIGHT / TRADE MARK
Artists, music publishing
ARTICLE LINK: Tribute bands zapped
By Tim Cain

An interesting story about how Frank Zappa’s estate (The Zappa Family Trust) is seeking to stop unauthorized tribute bands and events using the music of Frank Zappa - and effectively stop bands playing and events taking place. The trust's cease-and-desist case - which has altered but not shut down any blogs, and which failed to stop at least two tribute band performances it was designed to halt - seems to rest on assertion that “ASCAP licenses limit the grant of rights to nondramatic performances … many works by Frank Zappa are inherently dramatic in nature."

http://www.herald-review.com/articles/2008/01/11/columnists/cain/1029236.txt

---------------------------------------------------------------------------------------------------------------

COPYRIGHT
Internet, technology
Canadian Court Overturns ‘iPod Tax’ in Apple Canada Inc. and Canadian Private Collective, A-369-07. Federal Court of Appeal ( Ottawa).

The levy system in Canada is once more in the news after a proposed tax on digital recorders and storage devices, such as Apple Inc.'s iPod media player, was held to be is illegal by the federal court of appeal overturning a Copyright Board ruling that set a tariff that would have increased unit prices as much as C$75 (£35) on devices capable of storing more than 30 gigabytes of memory, the target of the highest level of the tax. The tariff would have raised the cost of an 80-gigabyte iPod by 29 percent to C$335. The court ruled that the Board ``has no legal authority to certify a tariff on digital audio recorders or on the memory permanently embedded in digital audio recorders,' and ordered the copyright board to reconsider the case. The fees, ranging from C$5 for digital devices capable of storing less than 1 gigabyte of information to the C$75 maximum were proposed to compensate the recording industry for music that was copied. The levy would have created an exception to copyright law, allowing Canadians to copy their music files freely to hard drives and portable storage devices like iPods. Apple, Microsoft and other makers of digital storage devices or digital players objected to the rationale for the tax, saying digital storage devices aren't just used to hold copied music. The Retail Council of Canada, which also lobbied against the tax proposal, said shoppers would buy players that weren't taxed in the U.S. or on the Internet.

http://www.bloomberg.com/apps/news?pid=20601082&sid=aOa.22qHOODg&refer=canada

---------------------------------------------------------------------------------------------------------------

COPYRIGHT
Music Publishing
Article: US Court Recognises Existence of a “Sync Right”: Leadsinger v BMG Music
By Tom Frederikse, Solicitor, Clintons.

The US 9 th Circuit Court of Appeals has recognized the existence of a “sync right” under US copyright law and the need for a separate “sync licence” for the graphic display of lyrics on a karaoke device. In Leadsinger Inc v BMG Music Publishing et al [2007] No 06-55102, D.C. No. CV-04-08099-VAP (reported 2 January 2008), the Court dismissed Leadsinger’s request for a declaration that it had a right to visually display song lyrics without anything more than the compulsory mechanical licence.

Leadsinger had argued unsuccessfully in a lower court that the standard mechanical licence it already had to “make and distribute phonorecords” would also authorise display of lyrics in real time with the recordings. The US Appeal Court held that Leadsinger’s karaoke device (being “a series of related images with accompanying sound”) constituted an “audiovisual work” rather than a “phonorecord” and therefore was excluded from the US compulsory licensing scheme. As UK law does not contain such an express exclusion of “audiovisual works” from the definition of a “literary” copyright work, it is unlikely that this precise line of reasoning could be followed here, though it is of course possible that any court could follow the spirit of this decision. The US Court also held that Leadsinger’s display of lyrics was not covered by the “fair use” doctrine.

UK copyright law has plenty of restrictions on the “copying” of works but there is no prohibition on “synchronisation” (or any specific combination with images) under UK or US statutory law – though a US court has previously recognised a right to control the synchronisation of musical compositions with the content of audiovisual works and has even required US parties to obtain “synchronisation licences” from rightsholders. It is unclear whether a UK court could or would seek to invent a “synchronisation” right or legally-require any such “sync licence” in any circumstances.

Because it would be impractical to join music to film or images without making a “copy” of the music, it is clear that some sort of licence would be needed – but the legal argument in the UK would have to be based on the existing “mechanical” licence language rather than any sort of “sync licence” (and there may be an issue in some cases as to whether the writer/publisher or the relevant collection society controls this “mechanical” right). Presumably the concept of a “sync licence” was colloquially adopted in the UK from the US (or is simply a form of shorthand for the music and film industries) but, in any case, it does not explicitly exist in UK law.

This case highlights the apparent gulf between common industry practice and actual UK law and suggests that a clarification is needed (either from the government or a UK court) on the widely-presumed existence of a “sync right”. The case specifically throws into doubt any assumption in the US that a standard “mechanical” (or “sync”) licence covers all uses of lyrics in an audiovisual (i.e. online) delivery of music.

The full text of the judgment may be accessed via: http://www.ca9.uscourts.gov/ca9/newopinions.nsf/6128717C16DB42D8882573C400597DC7/$file/0655102.pdf?openelement.

This article can be found at http://www.clintons.co.uk/?news_id=38

---------------------------------------------------------------------------------------------------------------

COPYRIGHT
All areas
Polish police smash organised crime operation

Polish border police arrested eight people involved in the smuggling and manufacture of pirate CDs and DVDs in a raid carried out on 16 th January 2008. Officers also seized illegal firearms, including handguns, a machine gun and a sawn-off shotgun, contraband cigarettes and tobacco as well as € 50,000 in cash. The border police from the region of Klodzko smashed the organised gang who both smuggled music and films believed to be produced in Russia and Ukraine as well as producing their own counterfeit discs. The pirate CDs and DVDs were allegedly destined for the German market. During the raid some 66,000 CDs, DVDs, CD-Rs and DVD-Rs and 108,000 inlay cards were seized along with counterfeit inlays and packaging. The discs contained a mixture of German and international repertoire. Officers secured the secret laboratory used for the illegal reproduction of discs which contained computers, two tower burners and two high-quality printers. Four of the eight suspects arrested, including the one German citizen, were remanded in custody for three months. The other four suspects were released. The investigation continues.

www.ifpi.org

---------------------------------------------------------------------------------------------------------------

COPYRIGHT
Internet
ARTICLE : Warner Music to sue MP3 Search Engine in US
From CMU Daily

Ah, vicarious infringement. That's my favourite kind of infringement. Actually, I just like the word vicarious. I really ought to look up what it means one day. Anyway, the Warner Music Group has accused a US based search engine called Seeqpod of "direct, contributory and vicarious" copyright infringement. Seeqpod is a search engine which specifically seeks out music files, so if
run a search on Robbie Williams (which I just did) rather than linking me to official websites and Wikipedia biogs, it only provides links to sources of Robbie music online. Mainly illegal sources, naturally. Not only that, but there is a nifty player on the Seeqpod website which will then enable you to play those music files through the browser without downloading the actual music file. The result is an extensive on demand jukebox which is really rather good but really rather illegal.

Well, I say that, Seeqpod claim they are operating within US copyright laws, hence the WMG lawsuit. The issue of search engines which specificallyprovide links to illegal sources of music has been bubbling away for a while now, of course, most notably in China where MP3 search facilities provide by Baidu.com and Yahoo! China have been challenged by the record companies [see more on Music Law Updates on these claims]. In America search engines like Seeqpod claim that their services are covered by the so called 'fair use' provisions in the Digital Millennial Copyright Act because they only link to sources of illegal content, they themselves to not host files. If they are liable for enabling infringement, they argue, so are generic search engines like Google which, while not tuned to specifically search for MP3 files, will invariably provide links to illegal sources of music files if you search for an artist name, albeit normally listed several search result pages down.

As far as I remember, it's not been tested in the US courts as yet as to whether search engines that specifically search for music files, and predominantly link to illegal sources of music, can use the 'fair use' defence available in the DMCA. The litigation against Seeqpod, should it reach court, might lead to a ruling on that matter, though said lawsuit would possibly centre more on the search engine's player, which really does set the service apart from the Googles of this world.
Seeqpod claim that songs played through their player are streamed, so they are not providing a download of the track, and that the original source of the songs are on other people's servers. But in order to stream an MP3 through their in-browser player Seeqpod is surely making a mechanical copy of the track somewhere along the line, even if the copy is immediately
deleted after being played, and, of course, you need a licence to make such copies. So even if Seeqpod can successfully use the 'fair use' defence to avoid infringement claims regarding the search facility, I find it hard to see how they could justify the player bit, which is what really sets their service apart.

Of course when record companies issue lawsuits against services like Seeqpod it's actually more common for the defendant to go offline, or reach some kind of out of court settlement or licencing deal with the record company, rather than for the case to go to court. But it would be interesting if this one did reach the courtroom, because we might get some clarification regarding just how much fair use can be used to protect websites that direct users to illegal content sources.

© UnLimited/CMU: Originally published at http://www.cmumusicnetwork.co.uk

See: Dutch courts hold deeplink search engine illegal (MLU July 2006), Australia - High Court confirms deep-linking is illegal (MLU July 2007), US 9th Circuit reverses the District Court’s decision in Google v Perfect 10 (MLU July 2007), Beijing Court confirms Yahoo’s music service infringes copyright law (MLU January 2008) and see Kelly v Ariba .

---------------------------------------------------------------------------------------------------------------