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
Live events industry, music publishing
German Collection society cannot licence ‘Grand Right’ in scenes from Disney musicals File no.: I ZR 204/05
A German concert promoter, Ulrich Gerhartz (Stimmen der Welt Musikmanagement und Veranstalungs Gmbh) , who staged a show which contained excepts from a number of Disney musicals has been held liable for copyright infringement. The "The Federal Court of Justice (Bundesgerichtshof, BGH) decided that the performance of the various indentifiable pieces from different musicals could be considered as a “dramatic performance” under German Copyright Law (Urheberrechtsgesetz). The claimant, Disney Enterprises Inc., owns of the exclusive right of use and performance of the musicals “Beauty and the Beast”, “The Hunchback of Notre Dame”, “Lion King” and “Aida”. Disney sued a German concert promoter who had staged several shows under the title “The Musical Starlights of Sir Andrew Lloyd Webber and the Disney Musical Productions”. Both the Regional Court and the Appeal Court in Frankfurt decided in favour of Disney. The Federal Court of Justice has now dismissed the final appeal of the concert promoter. Under German law an author or other copyright owner must assign the performance rights of a work of music to GEMA (Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte), the German performing right organisation. As in the UK the owner reserves the rights to stage performances of musical shows (the so called ‘Grand Right’) – but there has been a debate of the extent of the rights assigned to GEMA, especiallya s the business of musicals had become very profitable worldwide. The question for the court to decide was whether it was allowable to perform excerpts of a musical by merely paying the statutory licence fee to GEMA (in the UK 3% of box office is payable to the PRS for using music) – or whether the copyright owner’s permission was required (including an extra fee). The Federal Court of Justice decided that a dramatic performance takes place when “a meaningful development of a story line” is identifiable. If only elements of a story line or of a piece of music are strung together without any context, then this cannot be considered to be a dramatic performance. It is not relevant whether the development of the story line could be understood by the audience. The Court held it to be sufficient that the audience could identify a single element of the story line, such as a scene of the work. These requirements were met in the Disney case. In this case some of the key scenes were reproduced and several of Disney’s most famous songs were arranged with appropriate costumes and stage design and this resulted in the audience being able to recognise the complete work and can therefore be considered to be a dramatic performance under the terms of the Copyright Law. Copyright owners will now be able to stop shows containing recognisable excepts from their works being put on without their permission.
Our thanks to the IPKat – who in turn thank to Dr. Robert Harrison at 24IP Law Group - please see
http://ipkitten.blogspot.com/2008/07/beauty-beast-and-hunchback-score.html and our thanks to Birgit Clark for this link
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COPYRIGHT
Music Publishing, collection societies
India ’s PPL cannot litigate in respect of unauthorised performances
Phonographic Performance Limited v Hotel Gold Regency and others (MANU/DE/0942/2008)
From our friends at Spicy IP and the IPKat
In a landmark decision, Phonographic Performance Limited v Hotel Gold Regency and others , the Delhi High Court has held that copyright societies such as PPL, representing the interest of the music companies, cannot initiate copyright infringement actions to protect the interest of their members against unauthorized public performances of sound recordings in India. The Court found that the Indian copyright statute only permits a copyright owner or its exclusive licensee to initiate an action for infringement. Since PPL is neither the copyright owner or the exclusive licensee of the sound recording of its member companies, it is debarred from initiating such actions against unauthorized communication of the sound recordings to the public through a radio broadcast or a telecast or any other public performance. Clearly this decision will create enormous difficulties for the copyright society PPL and its member music companies in enforcing their copyrights and can have a deep impact in the collection of royalties for public performances of sound recordings.
Music companies have granted authorisations to PPL to administer their right of communication to the public in respect of their sound recordings and to administer such right by the grant of licences and collection of royalties. The music companies’ agreements with PPL also authorise PPL to initiate any actions for the enforcement of their rights for which authorizations were granted to PPL. However this usually isn’t an exclusive licence in the sound recording as labels will retain the right to sell physical product and downloads as well as the right to issue synchronization licences for sound recordings for films and TV. The High Court held that PPL merely had the authority to administer the licences and collect royalties from the licensees but the statute did not permit PPL to initiate a copyright action. This is in view of the statutory provisions which only authorize a copyright owner or its exclusive licensee to initiate an infringement action and PPL was neither the copyright owner nor an exclusive licensee.
By way of further elucidation, the court held that the authority that a copyright owner gives to a copyright society for the collection of fees relates to the fees in respect of the licences granted by the copyright societies. It is arguable that such an authority to an agent like PPL would include the authority to recover royalties from delinquent licensees by filing a civil suit. However, the situation is entirely different where persons to whom no licence has been granted by the copyright society unauthorisedly uses the copyright work. In such cases where no licences have been granted to such a person, the copyright society would have no authority to file a suit against such persons either for infringement or for recovery of royalties or for damages. The suit, if any, would have to be filed by the copyright owner or its exclusive licensees".
http://spicyipindia.blogspot.com/2008/07/copyright-societies-dealt-severe-blow.html
http://ipkitten.blogspot.com/2008/07/indian-ppl-has-no-right-to-enforce.html
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COPYRIGHT
All Areas
ARTICLE LINK: Copyright; locks, levies, lawsuits or licensing?
By Rusell McOrmond
This is an interesting four piece blog looking at ‘locks, levies, lawsuits and licensing’ – the different ways in which copyrights can be protected and legally used.
http://blogs.itworldcanada.com/insights/2008/07/28/part-4-licensing/
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COPYRIGHT
Music publising, internet
Collection societies break ranks on pan-Eurpean licensing
In a classic example of the concepts of territoriality in licensing pitted against the free market within the European Commuity the IPKat brings news of a dramatic development in the Netherlands where a Dutch has issued a preliminary injunction prohibiting Dutch collection society BUMA from granting any further licences for the online sale of the repertoire of works administered by the UK's Performing Rights Society in so far as those licences extend beyond the territory of the Netherlands. BUMA had previously granted a licence for the territory of the entire European Community to beatport.com. PRS maintained that the reciprocal agreements between collecting societies did not grant BUMA any royalty-collecting rights beyond the Dutch territory. In its defence, BUMA attempted to rely on the Commission's recent decision in CISAC where the European Commission ordered 24 European copyright collecting societies to stop restricting competition by limiting their ability to offer their services to authors and commercial users outside their domestic territory, while still letting them keep (i) their current system of bilateral agreements and (ii) their right to set levels of royalty payments due within their domestic territory. BUMA argued that any territorial restriction in its reciprocal representation agreements is null and void, as these restrictions are anticompetitive and infringe Article 81 of the Treaty of Rome. The judge in the interim proceedings rejected BUMA's argument, stating that even if the territorial restrictions in the agreements are invalid, BUMA still has no right to license the PRS repertoire beyond the territory of the Netherlands.
http://ipkitten.blogspot.com/2008/08/collecting-societies-find-new-way-of.html
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COPYRIGHT
Internet, technology
Australian customs to search for illegal music on iPods
If it was April 1st we might have thought this was a clever joke. It isn’t and the following is just a depressing story. In what could prove to be an administrative nightmare, it has been revealed that the Australian government (amongst others) is considering conducting searches of MP3 players as they pass through airports, in order to check for illegally-obtained music. The proposal, which suggests "criminal sanctions for infringement on a commercial sale" was discovered when an Australian Federal Government discussion paper was leaked to the press. CMU Daily reported that the office of Australian Foreign Minister Stephen Smith confirmed that they were part of negotiations for the international agreement but that they had not agreed or signed up to any aspect of it.
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COPYRIGHT
Internet
MediaSat take on YouTube
Silvio Berlusoni’s MediaSat has said it will sue YouTube and parent company Google for illegal use of its copyrights. MediaSat’s own analysis showed that there were 4,643 unauthorised videos and clips owned by the Italian media conglomerate on YouTube, equivalent to more than 325 hours of television transmission. Mediasat has said it is seeking E500 million (£383 million) in damages. In the USA, film, TV and broadcast giant Viacom have brought a similar action.
Support grows for blanket music licensing
http://yro.slashdot.org/article.pl?sid=08/08/19/1821215
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COPYRIGHT
Internet
New US bill to clamp down on campus piracy
The US Congress has passed a law to help curb piracy on college campuses. The Higher Education Opportunity Act, passed Wednesday by the House and Thursday by the Senate, promotes education, legal alternatives, and improved monitoring of campus networks. signed into law by President George W. Bush, the bipartisan bill would require publicly funded universities and colleges to teach students and employees about illegal downloading, distribution of copyrighted materials, and related campus policies. The bill also requires universities and colleges to create plans to prevent piracy by using technology and to present legal alternatives. The bill would provide grants to support those efforts. David Israelite, president and CEO of National Music Publishers Association called the bill "an enormous step forward in addressing the problem of illegal downloading on campus networks." He said the bill recognizes that the best way to address the problem is through cooperation among universities, technology, and legal content providers. The Motion Picture Association of America claims peer-2-peer Internet piracy costs its member studios $3.8 billion a year, with losses from Internet piracy surpassing $2.3 billion. The Recording Industry Association of America cites an Institute for Policy Innovation study that concludes global music piracy causes $12.5 billion in economic losses every year.
http://www.informationweek.com/news/internet/policy/showArticle.jhtml?articleID=2099015
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TRADE MARK
All areas
2006 Fifa trademarks cancelled for lack of distinctive character: OHIM Cases R 1466/2005-1, R 1467/2005-1, R 1468/2005-1, R 1469/2005-1 and R 1470/2005-1. All
The Board of Appeal of the OHIM has allowed appeals brought by Ferrero oHG mbH against the refusal of the Cancellation Division to cancel marks belonging to the Fédération Internationale de Football Association (Fifa). The five marks in dispute have now dated and are of little commercial value as the event in question, the 2006 football World Cup, has passed. However the case sets an important precedent. The marks are:
WORLD CUP 2006 (referring to the football world cup);
GERMANY 2006 (the event taking place in Germany);
WM 2006 (WM is Weltmeisterschaft, "World Cup" or World Championship" in German);
WORLD CUP GERMANY;
WORLD CUP 2006 GERMANY.
The grounds upon which the registrations were challenged were that the signs in question were descriptive and lacked distinctive character.
http://oami.europa.eu/search/legaldocs/la/en_BoA_Index.cfm?CFID=2933140&CFTOKEN=92532803
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COPYRIGHT
Record labels, music publishers
ARTICLE LINK: Girl talk album prompts music sampling debate
If you have heard of the new Girls Talk album you may or may not be aware than none of the 300 or so eclectic music samples appears to have been cleared with copyright owners. Will fair use be enough to protect the artist and his label?
http://futureofmusiccoalition.blogspot.com/2008/08/girl-talk-and-sample-license-clearance.html
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DEFAMATION
Internet
Online insults were slander not libel Smith v ADVFN & Others [2008] All ER (D) 335
Eady J has handed down a judgment in the case of warring bloggers although in light of the small number of members of the public exposed to the "mere vulgar abuse" to a fairly dim view of why the case was brought at all, staying proceedings. The High Court case was brought by Nigel Smith, also known by his online avatar "Anomalus". Acting as the coordinator of an action group to recover shareholders investments from an alleged fraud, Smith had himself lambasted an individual known as "Wiganer" as a fraudster on the ADVFN Board and alleged that various others were falsely claiming compensation for the fraudulent losses. These allegations prompted comments from other shareholders and contributors to the discussion board in support of those who had been "threatened and bullied" by Smith. Smith requiring ADVFN to disclose the IP addresses of those concerned and the of the legal proceedings triggered more (allegedly) defamatory comment against Smith who - unemployed and thus unfettered by the requirement to pay court issue fees - issued 37 sets of proceedings! Of comments made on a discussion board, Eady J observed that they were (a) read by relatively few people, who share an interest in the subject matter, (b) like contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) and were (c) often uninhibited, casual and ill thought-out. The Judge also noted that the participants often used pseudonyms or "avatars", and that this was likely to be a "disinhibiting factor". The register of these kinds of forums was characterised by witty retort and as such the Judge acknowledged that "give and take" was expected of participants. Thus the Judge considered that in the context of defamation law, postings and communications of this kind are more "akin to slanders". The distinction between the two causes of action is important because slander is only actionable if the claimant can prove special (monetary) damage. in the context of this case, both the fact that some of the comments were mere vulgar abuse ("My wipers scraped better things from my car windscreen", for instance) or qualified privilege (as the contributors were mainly shareholders in company in question and therefore had legitimate interest in the subject matter of the discussion board) seem to have been considered by the judge who came to the conclusion that to lift the stays would be "totally without merit". From a Simkins ‘Early Warning’ by Lily Riza.
http://www.simkins.co.uk
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COPYRIGHT
All areas
US federal court enforces copyright in open source software Jacobsen v Katzer 2008-1001
The US Court of Appeals for the Federal Circuit has held that an open source copyright ‘Artistic Licence” can be enforced under copyright law, rather than merely under contract law. The case involved. The dispute was between the developers of the Java Model Railroad Interface (JMRI), and Kamind, a company that used portions of DecoderPro to develop a competing product. The product at issue was DecoderPro, an open source project released on SourceForge under an open source artistic license, for interfacing with model railroad control chips. Kamind used a number of DecoderPro files in developing its product, Decoder Commander. However, Kamind did not comply with the Artistic License in a number of respects, including attribution to the original authors, the original owner’s copyright notices, tracked changes or availability of the underlying standard version. The lower court denied relief, saying that the artistic license merely imposed 'contractual' promises, and that a violation did not constitute copyright infringement (any contract-based relief would probably have been meaningless). However the Federal Circuit found that the Artistic License is legally enforceable, that its terms constituted 'conditions' for reliance on the license, and consequently that a violation of those conditions would put the violating product outside the license and thus make the violator a copyright infringer, potentially liable for an injunction. The lack of money changing hands in open source licensing should not be presumed to mean that there is no economic consideration, however. There are substantial benefits, including economic benefits, to the creation and distribution of copyrighted works under public licenses that range far beyond traditional license royalties. The terms of the licence were classed as ‘conditions’ on the scope of the licence rather than ‘covenants’, which meant they were governed by copyright law, and enforceable as such. On its literal wording, the licence referred to ‘conditions’. Moreover, the fact that money didn’t change hands in return for being allowed to use the copyright work didn’t mean that the restrictions weren’t copyright restrictions. According to the court : The case lays out a clear and compelling description of the rationale for open source, and reflects a complete willingness by the court to lend the force of law to these licenses.
http://news.slashdot.org/article.pl?sid=08/08/13/1857241&from=rss
http://www.techdirt.com/articles/20080813/1655461968.shtml
http://ipkitten.blogspot.com/2008/08/open-source-licence-enforced-under.html
http://www.cafc.uscourts.gov/opinions/08-1001.pdf
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COPYRIGHT / IMAGE RIGHTS
Music publishing, record labels, artists
McCain fried? Campaigning senator upsets Paris and Jackson
First US presidential candidate Senator John McCain liked Barak Obama’s cultural appeal to Paris Hilton, and Hilton hit back with a rather amusing and somewhat damaging video which mocked the ‘white haired dude’ and rather put McCain on the back foot. Now Jackson Browne's management have taken action over the use of one of his iconic songs, “Running On Empty” in one of the Senator’s ads. When Browne’s management began receiving emails from people who wondered why the legendary singer and songwriter - an Obama supporter who doesn't allow his songs to be used in advertisements of any kind - would allow "Running on Empty" to play in a John McCain campaign commercial – they decided to investigate. It turns out Jackson never granted permission for any such use and according to a lawsuit in US District Court in Los Angeles, the Ohio and National Republican Parties and McCain himself are responsible for two illegal actions by infringing Browne's copyright and creating the false impression that Browne had endorsed John McCain. Browne's lawyer Larry Iser said "When you're a senator, or you're elected president, you take an oath to preserve, protect, and defend the Constitution of the United States" asdding "Copyright derives directly from the Constitution… Someone who is running for president needs to set a good example in adherence to the laws" and further added that McCain, the Republican National Party and the Ohio Republican Party should pay damages in excess of $1 million. There is no compulsory right for music synchronisation in the US and each criminal act of copyright infringement warrants statutory damages of $150,000. Iser added that ordinary Americans who have been somewhat browbeaten over issues of copyright infringement deserve an apology. It will be interesting to see if the record labels and music publishers come out in support of this position!. The claim under personality (image) rights is more interesting - the complaint claims (under the Lanham Act apparently ) that "because 'Running on Empty' is so famously associated with Jackson Browne his identity has been appropriated without permission and according to Iser "they've put it in a commercial in a way that says that Jackson Browne is supporting senator McCain." In addition, Browne does not allow his music to be use in advertisements, which could drive up the value (or associated damages) of his association with a product - in this case, John McCain. Tom Waits successfully sued Frito Lay and its advertising agency in 1992 for $2.5 million, in a false endorsement case upheld by the Ninth Circuit Court of Appeals. And several other artists including John Mellancamp have complained about their songs being appropriated by politicians with whom they do not agree.
http://blog.wired.com/music/2008/08/jackson-browne.html From an article by Eliot van Buskirk
http://en.wikipedia.org/wiki/Lanham_Act
For US, UK, European, Canadian and Australian image rights see “The Right Image” by Ben Challis on this site (Articles).
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COPYRIGHT
Record labels, internet
Atlantic v Andersen draws to a sorry close for the RIAA
The RIAA's much criticised pursuit of an disabled Oregon woman in Atlantic v Andersen has finally drawn to a close and the RIAA must pay Ms Anderson $107, 951 representing the amount of her attorneys fee judgment plus interest. But as some commentators have pointed out, the sum does not compensate Ms. Andersen for the other damages she's sustained, and that's where the case may switch around as Tanya Andersen does the hunting, as she pursues the record companies for malicious prosecution. Should be interesting.
http://yro.slashdot.org/article.pl?sid=08/08/15/1145236
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COPYRIGHT
All Areas
UK IPO calls for comments on penalties for Copyright Infringement
(Closing date: 31 October 2008)
Currently the maximum fine that Magistrates' Courts can award for online copyright infringement is £5,000. To reflect the commercial damage that large scale copyright infringement causes, the UK-IPO is consulting on increasing the level of fine handed down by a Magistrates’ Court to a maximum of £50,000. This consultation takes forward Gowers Review recommendation 36, which recommended matching penalties for online and physical copyright infringement by increasing sanctions for online infringements. Further to this in February this year "Creative Britain: New Talents for the New Economy" was published by the Departments for Culture, Media and Sports (DCMS), Business, Enterprise and Regulatory Reform (BERR), and Innovation, Universities and Skills (DIUS). It included a commitment to consult on increasing the fines available in the Magistrates’ Court from the current £5,000 limit to a maximum of £50,000 for online copyright infringement. Scotland does not have Magistrates’ Courts; therefore the consultation considers introducing maximum levels of fines for Scottish summary courts that deal with equivalent cases in Scotland.
Magistrates Court currently do have extended powers to levy fines in certain specific instances including fines of up £50,000 under the Environmental Protection Act 1990 and up to £20,000 under the Water Resources Act 1991 and the Health & Safety at Work Act 1974.
Our Editor Ben Challis writes: As well as my music law practice I also sit as a lay magistrate in Cumbria. I was quite surprised when I saw this Consultation and this would be a very interesting development. Currently magistrates’ usual maximum financial penalty is a fine of up £5,000 – this covers some quite serious offences including offences against the person (such as assault), burglary, thefts and serious traffic offences such as drink driving. Compensation can also be ordered. Fines are available as a disposal alongside community penalties and custodial sentences – here magistrates can imprison for a maximum of six months for a single offence. Where magistrates feel that their powers to sentence are insufficient they would usually decline jurisdiction and pass the case up to the Crown Court for trial (or sentencing).
A Magistrates’ Court’s powers to fine are extended to £20,000 for a number of specific offences. These are offences concerned with the health and safety of workers and the general public and offences concerned with the protection of the environment. These offences can be found under the Health & Safety at Work Act 1974 (eg for breaching health and safety duties, for failing to comply with an improvement or prohibition notice) and the Water Resources Act 1991 (eg for polluting controlled waters). S33 of the Environmental Protection Act 1990 (depositing, recovering or disposing of waste without a site licence and fly tipping) provides for fine u p to £50,000 on summary conviction and/or 6 months imprisonment. The Court of Appeal ( R v Howe)have said that with these offences the fine needs to be substantial enough to have a real economic impact which, together with the bad publicity often associated with such cases, will bring home to those who manage a company, and their shareholders, the need to improve regulatory compliance.. A deliberate breach of legislation by a company or an individual with a view to profit seriously aggravates the offence.
So should similar powers be extended to prosecutions for copyright infringement? Certainly commercial piracy can have a huge economic effect on the copyright industries and these themselves are at the heart of the creative industries which now represent over 7.3% of the UK’s economy, or £60 billion in revenues each year (OECD/DCMS). The IFPI estimate that only one in twenty music downloads are paid for by consumers with the remaining nineteen illegally downloaded or burnt from consumers own, or others, CDs. But still the question must be asked – why should copyright infringement (and in particular online infringement) be treated any differently in magistrates courts than any other offences – including offences including premeditated dishonesty or violence? The offences detailed above which protect workers, the public, our water and our environment are clearly there to protect all members of society.
Copyright theft, whilst not a ‘victimless crime’ as some advocate, does not in itself effect the whole of society. The victims are the owners of copyright – sometimes authors, artists, performers and musicians – but more often companies which have acquired copyrights from the creators of copyrights. Should these victims have a ‘preferential’ treatment when compared to the public at large and society in general? And these victims will have clear civil law remedies for damages available under The Copyright Designs and Patents Act 1988 and relevant trade mark legislation.. The same week this consultation was published, the Patents County Court awarded £6,000 in damages to a games producer for infringement of copyright against a woman who fileswapped their video games.
I am also somewhat unclear why online infringement is highlighted. If the proposed new fine levels were for commercial piracy I feel this might make more sense. But I cannot understand why separating out online piracy from physical piracy (which is still a major problem for the music, games and film sectors) makes any sense at the moment. Without this separation individual fileswappers – even those not concerned with profit or gain – and technically even those who make copies of their OWN files for other players and devices – would be liable for these high level fines.
In my personal opinion until the totality of the Gowers Report is considered, including the suggested personal right to make private copies - and the whole issue of DRM is explored in more detail, it seems unwise to increase Magistrates’ powers in isolation – particularly as offences can still be sent to the Crown Court where Magistrates feel their powers are limited. Whatever else, I feel that those who want this change need to explain why the change is for the good as at the moment I feel uneasy that the copyright industries gain unusual and special exception for online infringements.
Gowers 36 consultation
Copyright and Enforcement Directorate, Concept House, Cardiff Road, Newport, South Wales
NP10 8QQ
http://www.ipo.gov.uk/about/about-consult/about-formal/about-formal-current/consult-gowers36.htm
http://www.culture.gov.uk/reference_library/media_releases/2132.aspx
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COPYRIGHT
Internet, games industry
First filesharing judgment for UK gamer as gaming industry gets tough
A woman has been ordered to pay more than £16,000 in a landmark ruling after a crackdown on gamers who illegally share computer games and films over the internet. Isabella Barwinska is the first defendant to pay damages after being taken to court in the UK by computer game manufacturers seeking to protect their copyright. In a decision of the Patents County Court in London she must pay damages of £6,086.56 and costs of £10,000 to Topware Interactive which owns the computer game Dream Pinball 3D. It is understood that she did not file share for commercial profit or gain - but took files to share with friends and was given 28 days to settle the judgment. Last night Topware Interactive's London lawyers Davenport Lyons revealed that they had launched civil proceedings against 100 people - who are all suspected of illegally uploading copyrighted works - on behalf of Topware Interactive. The latest case comes after earlier this year the Central London County Court ruled against four people who were found to have infringed copyright by illegally sharing games on the internet. The games industry has also announced that would serve notices on 25,000 people across the UK requiring each of the to pay £300 immediately to settle out of court. It is a brave move and the gaming companies which include Topware along with Atari, Techland, Codemasters and Reality Pump must be aware of the problems and horrific negative publicity suffered by the music industry, particularly in the US, for actions against individuals. But clearly the games industry has to do something. When Topware released Dream Pinball 3D it sold 800 copies in the first week but was downloaded illegally 12,000 times; Peerland estimate that Operation Flashpoint was downloaded 691,324 in one week and Battlefield 1942 almost 1.5 million times. David Gore, a partner at Davenport Lyons, said: 'Illegal file-sharing is a very serious issue resulting in millions of pounds of losses to copyright owners ... as downloading speeds and internet penetration increase, this continues to be a worldwide problem across the media industry which increasingly relies on digital revenues”. Davenport Lyons is applying for a High Court order asking for internet service providers to hand over the names and addresses of the 25,000 people suspected of illegally downloading computer games.
http://news.bbc.co.uk/1/hi/technology/7568642.stm
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COPYRIGHT
Internet, games industry
US games pirate fined
A Florida man has been sentenced to 15 months in prison and ordered to pay $415,900 in restitution after selling video games systems preloaded with up to 75 illegally copied video games. Kifah Maswadi, 24, was sentenced in the US District Court for East Virginia for one count of criminal copyright infringement. The court heard that Maswadi had sold Power Player handheld games consoles pre-loaded with mostly illegal copies of Nintendo games and made profits of $390,000. Maswadi was also sentenced to three years of supervised release after his prison term and 50 hours of community work educating others on the risks of criminal copyright infringement.
http://www.goodgearguide.com.au/index.php/id;548719918;fp;4;fpid;802453;pf;1
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COPYRIGHT
Internet
RIAA close down Muxtape
Despite online mixtape service Muxtape claiming earlier this week that their site was just temporarily closed while they were sorting out a problem the site now appears closed. In a statement, the Recording industry Association of America (RIIAA) said: "For the past several months, we have communicated our legal concerns with the site and repeatedly tried to work with them to have illegal content taken down. Muxtape was hosting copies of copyrighted sound recordings without authorization from the copyright owners. Making these recordings available for streaming playback also requires authorization from the copyright owners. Muxtape has not obtained authorization from our member companies to host or stream copies of their sound recordings".
CMU Daily 22 August 2008 www.cmumusicnetwork.co.uk
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COPYRIGHT
Internet
Prince v Dancing Baby - First round to Mother in the YouTube case
Stephanie Lenz, a mother who posted a clip of her baby dancing Prince's song, 'Let's Go Crazy' has won the first stage of her battle against Universal Music. Ms Lenz's clip was removed from YouTube after the site received a takedown notice under the Digital Millennium Copyright Act from Universal, the holder of the copyright in the song. The clip was reinstated after a month, but Lenz sued under the DMCA, pointing to the requirement therein that copyright owners can only demand the taking down of a work if they have "a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law."
Universal argued that copyright holders, in making this assessment, did not need to take into account whether the use made by the subject of the notice was fair use, since fair use is a defence, rather than a legal right. Not so, according to Judge Jeremy Fogel, who states:
"Even if Universal is correct that fair use only excuses infringement, the fact remains that fair use is a lawful use of a copyright. Accordingly, in order for a copyright owner to proceed under the DMCA with “a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law,” the owner must evaluate whether the material makes fair use of the copyright. 17 U.S.C. § 512(c)(3)(A)(v)."
However, he went on the conclude that Lenz was unlikely to win the case at full trial as she would need to show subjective bad faith on the part of Universal, i.e. that when it issued the takedown notice, it knew it was making a groundless threat of infringement.
The LA Times observes that the need to evaluate fair use will make it difficult for copyright owners to use automated 'bots to root out works which borrow from copyright works and issue take down notices ('bots can't evaluate whether use is fair).
The IPKat reckons that this is a good decision. On the whole, copyright owners are likely to be in a better position to evaluate fair use than individuals who post materials, and hosting sites, if forced to evaluate fair use may take a risk-averse strategy that would prevent them from allowing many socially useful works. The IPKat reckons that unless copyright owners are forced to evaluate fair use, many works which constitute fair uses will just disappear if made the subject of take-down notices since only exceptional individuals like Ms Lenz will persevere in getting their work reinstated.
http://www.betanews.com/article/Judge_affirms_takedown_notice_recipients_right_to_sue/1219352421
http://ipkitten.blogspot.com/2008/08/gold-in-china-mother-wins-round-1-of.html
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/08/20/MNU412FKRL.DTL
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COPYRIGHT
Internet
Pirate Bay to fight Italian ban
The BitTorrent tracking website The Pirate Bay has decided to fight the Italian government's recent move to have it blocked in Italy by all ISPs in the country. The site has filed an appeal against the decree, which was passed by an Italian court earlier this month alongside advice to consumers on how to use technological means to sidestep the ban. The Pirate Bay's lawyers Giovanni Battista Gallus and Francesco Micozzi told TorrentFreak: "The decree can be defined as 'original' or 'creative' at best. Even the judge who issued the decree states that no infringing material is hosted on The Pirate Bay, which provides just a tracker search engine. The judge tries to 'create' a sort of contributory infringement accusation against The Pirate Bay. We will bring all our arguments before the Tribunal, and we are confident of the Tribunal's decision".
CMU Daily 22 August 2008 www.cmumusicnetwork.co.uk
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LICENSING / HEALTH & SAFETY
Live event industry
Police Licensing Act objections force Moonfest cancellation
For the first time in the UK the police have used Section 160 (orders to close premises in an area experiencing disorder) of the Licensing Act 2003 to get a live festival performance stopped. Wiltshire Constabulary applied to the Magistrates to ban a festival appearance by Pete Doherty and his band Babyshambles on the grounds that there could be public disorder and applied to have the whole of the Friday of the Moonfest festival be scrapped due to crowd control issues. A Closure Order may be made by a Magistrates’ Court on application by the Police where the Court is of the opinion that closure is necessary in the interests of public safety because of order or likely disorder on the premises, or in the vicinity and relate to, the premises and/or an order is necessary to ensure no public nuisance is or is likely to be caused by noise coming from the premises. North Wiltshire Magistrates agreed to the police application to cancel the show on the Friday. The Police made no application for Saturday and Sunday which featured The Australian Pink Floyd, Ozric Tentacles, Zenyth, Curiosity Killed the Cat, Shakatak, Heaven 17, Go West and Imagination. The police showed Magistrates YouTube footage of Pete Doherty's recent solo performance in July at the Royal Albert Hall to demonstrate the likelihood of a stage invasion, and cited possible violence and disorder by fans as the main reason for forcing the festival to drop the whole of Friday from the event. Chief Supt Julian Kirby, the divisional commander said "We became concerned because the organiser did not appear to have due cognisance of all the risks. We carried out an analysis of what Pete Doherty and his band does. What he does as part of his routine is to gee up the crowd. They speed up and then slow down the music and create a whirlpool effect in the crowd. They (the crowd) all get geed up and then they start fighting.". Music website eFestivals commented that “this is despite the fact that at the Albert Hall gig there was no crowd barrier, a low stage, and the footage shows no sign of violence, merely a 'stage invasion' and say that the Festival argued that at the London concert, the event contained only Doherty fans and not a wider demographic of a festival crowd, that they would have a 'mojo' crowd barrier, and a higher stage. Festival organiser John Green, speaking exclusively to eFestivals said, "It's absolutely obscene, I think the police have totally over reacted to what was going to be a fantastic evening." He added that Wiltshire police had invited him into a meeting yesterday during recess and invited him to make a compromise. "They said that if he spent another £50,000 on security, £25,000 on policing and dropped Pete Doherty from the bill, then they would drop the action." The police felt that the level of crowd control and number of stewards the organisers proposed was what they were also unhappy about. Mr Green says that they had 20 security guards on rota duty, with numbers set to increase at peak time and the festival had made offers to increase the number of security guards to ally their fears.
The police move ultimately forced the festival to cancel the whole event. A statement on the Moonfest website reads: "On Monday 18th Aug 2008, we appeared before Chippenham magistrate's court where the police successfully convinced the magistrates that the appearance of Pete Doherty at Moonfest was likely to cause public disorder. Using section 160 of the Licensing Act 2003, the magistrates revoked our licence for Friday 29 Aug. With Pete and Babyshambles being our headlining act for the weekend, this draconian action taken by the Police makes it impossible to run the event at the end of August. To say we are surprised and devastated would be an understatement. The Police attended every public licensing meeting over the last six months. They have always been aware that Babyshambles and Pete were appearing. The police also attended the public hearing on the 24 July when the licence was granted and made no objections; indeed they actively supported the event at the meeting. We are currently carrying out the huge task of contacting all the people involved in putting the festival together. Once we have done that we will be contacting directly all people who have purchased tickets".
They added: "We would like to extend our thanks to all the people that have been so helpful and understanding in what has become an enormous nightmare to the Moonfest team. There are too many to list individually however we would like to say a special thank you to Pete Doherty who has volunteered to put on a free performance at a private party we are looking to organise for all the people who are affected by this terrible news".
Its also interesting to note that the former chair of the Live Music Forum and now CEO of British Music Rights, Feargal Sharkey, wrote a letter on the Guardian’s Free to Comment web pages asking how the Wiltshire constabulary “can wield such unreasonable and disproportionate powers in deciding what kind of musicians can and can not play live in their immediate vicinity" saying he is writing to Culture Secretary Andy Burnham on the subject adding that he looked “forward to hearing back as to what these extraordinary circumstances were. No doubt UK musicians would also appreciate clarification as to where the line of censorship is drawn". This is turning into a serious debate and here at Music Law Updates we think that Feargal is right to ask these questions and his final comment is telling “ As someone who oversaw the implementation of the Act, I can confirm that it was actually designed to modernise an archaic system of licensing, not to enable faceless bureaucrats ride roughshod over culture and creativity and have undue influence over an artist's ability to forge a career - regardless of their whirlpool inciting powers or not”.
http://www.guardian.co.uk/commentisfree/2008/aug/20/petedoherty
http://www.efestivals.co.uk/news/080819d.shtml
http://www.westwiltshire.gov.uk/licensing_subcommittee_minutes_for_web.pdf
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LICENSING
Live event industry
Police investigate cheeky buttock act in Keswick
Two street entertainers could face prosecution after the mayor of Keswick accused them of going “beyond public decency” with their act in the Lake District town’s Market Square. Police acted following complaints from councillor Roger Purkiss. The two men, who are from Bristol and who say they are circus trained begin their act in trousers and T-shirts and perform an acrobatic act that ends up with them wearing just thongs and socks, putting lighted torches down their thongs and as a finale sticking lit sparklers between their buttocks and doing hand stands. Their 20-minute act attracted over 100 spectators earlier this week, some of them children, and stunts included blowing up a rubber glove on their heads then bursting it with a torch. Cllr Purkiss claims the act is disgraceful behaviour and very distasteful – it perhaps wouldn’t be out of place in an adult nightclub but not on the streets of the town in frnt of families wit children …. and not what a Lakeland tourist town is all about’. A police spokesman told the Lake District Herald that a decision on whether they were to be charged with a public order offence would be made by the Crown Prosecution Service. A voluntary street entertainment code of conduct was set up two years ago in Keswick, but traders say it is not working. There have been a number of complaints during the summer about entertainers blocking entrances to shops and the Moot Hall. Local authorities with responsibility for Market Square have been trying to reach agreement on some sort of licensing scheme for a number of years, but traders complain nothing happens. A meeting between Cumbria County Council, Allerdale Borough Council, the Lake District National Park Authority and local police has been arranged for October 3 rd 2008.
Lake District Herald Saturday 23 rd August 2008
http://www.newsandstar.co.uk/news/1.227448
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TRADE MARK/CONTRACT
Artists
Use of Doors name needs all band members to agree – dead or alive
The Calilfornia Supreme Court has decided that two surviving members of the 70s group, The Doors, Raymond Manzarek And Robert Krieger, who wanted to continue to perform under that name and then under the name Doors of the 21 st Century can use neither name. The original band featured John Densmore, Ray Manzarek, Jim Morrison and Robert Krieger but after the Manzarek/Krieger tour grossed $8 million and used photographs of the original Doors in publicity Densmore and the family of Jim Morrison and his estate joined forces to prevent the use of the name. In reports, Densmore states he is simply fulfilling the wishes of Jim Morrison, having refused other lucrative offers for commercials and other use. The IPKAt reports that this is possible due to a "veto power" common in music contracts of the 1960s which requires all members of The Doors to be unanimous in any business agreements. As a result, each band member has a vote and the Morrison estate the fourth. Densmore and the families claimed that if the pair continued to use the name, The Doors of the 21st Century, it would compromise the band's legacy. The Los Angeles Superior Court agreed and the Court of Appeal upheld this decision. The pair were subsequently prevented from performing, touring, promoting or otherwise holding themselves out to be The Doors, The Doors of the 21st Century, or any other name that includes the words The Doors without prior written consent of all partners of the Doors partnership (although Manzarek/Krieger used the name D21C. Manzarek/Krieger went on to petition the California Supreme Court but review was denied 13 August. The Supreme Court agreed. The pair have been ordered to pay damages and costs estimated at US$5 million. They will now be touring as Riders of the Storm.
http://ipkitten.blogspot.com/2008/08/out-of-doors-supreme-court-rejects-21st.html
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COPYRIGHT
Internet, music publishing
EFF urges US Copyright Office to fix digital music mess – but carefully
The EFF has joined with other public interest and consumer groups in urging the US Copyright Office to clarify the process for licensing digital music services, but to steer clear of larger digital copyright controversies. The comments were filed in a rulemaking involving the Section 115 compulsory license for "digital phonorecord deliveries" (DPDs) that has been dragging on since 2001 (read the July 16, 2008 "noriced of proposed rulemaking" for a summary of the tortured history of the proceeding). Fred Von Lohmann writes that the current logjam boils down to music publishers against everyone else. Every music recording involves two copyrights: one for the sound recording (i.e., the "master"), which is usually controlled by a record label, and one for the musical work (i.e., the "composition"), which is usually controlled by a music publisher. Different music services need different sorts of licenses (and those that simply host materials uploaded by users or simply distribute software may need no licence at all), and it has been notoriously complicated to figure out who to contact for the relevant licenses. The licensing of sound recordings has been getting easier, not least because the four major labels cover so much of the waterfront, and because licensing aggregators are consolidating the independent labels. It's the music publishers that represent the last great obstacle to streamlined licensing, in large part because there are so many of them. The good news here is that Congress in 1995 created a compulsory license in Section 115 of the Copyright Act, which means that so long as you pay a set rate, you can get a license to any and all musical works that you need. The bad news is that the interpretation of what the compulsory license covers, as well as the rate setting, has been trapped in regulatory limbo for years, creating uncertainty for everyone. The Copyright Office has been trying to break the logjam with respect to digital music services by issuing regulations clarifying the scope of the DPD compulsory license. In particular, the Copyright Office is aiming to cut through some of the complexity by saying that the compulsory license is broad enough to cover any and all copies (whether server-side or client-side, whether on a hard drive or in a RAM buffer) made in the course of any kind of digital music service (whether downloading, streaming, or time-limited subscription). So far, so good. The DPD compulsory license was created by Congress to prevent music services from having to find and negotiate one-by-one with every music publisher for every song. If some incidental copy is left hanging outside the 115 license, that goal would be frustrated. But, as discussed in the EFF comments, the Copyright Office's proposal goes a bit too far by trying to resolve a number of other, unnecessary, copyright controversies that should be resolved by the courts or Congress. In particular, the proposed regulations took the position that temporary RAM buffer copies made in the course of streaming should qualify as copies under copyright law, precisely the issue that the Cablevision DVD opinion decided the other way just a few weeks ago. The proposed regulations also unnecessarily weigh in on the question of whether the distribution right reaches digital transmissions, an issue EFF has addressed in several court cases. There is no need for the Copyright Office to get entangled in these continuing controversies in order to clarify the DPD compulsory license. It is enough for the regulations to clarify that all of the activities of digital music services can be licensed under the compulsory license, without coming to any conclusions about whether any particular activities must be licensed. Rather than issuing broad statements that will only spawn more litigation, the Copyright Office should stay out of these extraneous controversies and focus instead on clarifying the Section 115 compulsory license.
http://www.eff.org/deeplinks/2008/08/eff-urges-copyright-office-fix-digital-music-mess-
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© 2008, Ben Challis