BPI TARGET UNIVERSITIES OVER ILLEGAL DOWNLOADS
Copyright , Internet , Record Labels / April 2003
UK

COPYRIGHT Internet, Record Labels The BPI (British Phonographic Industry) has today (March 27th) sent out a letter to every University in the United Kingdom warning them that they face criminal sanctions if they collude in the illegal downloading of music files. This action follows similar actions by record company associations in Australia and the USA, the latter resulting in in the US Navy Acadamy warning nearly 100 students about downloading music files illegally. See www.timesonline.co.uk/student University News and Views. COMMENT : The BPI’s action follows on from similar actions by the RIAA and other industry associations, targeting internet service providers (ISPs), telecommunication companies and cable companies. The leading case at the moment is the ‘Verizon’ case currently in the appeal courts in the USA (see Law Updates March 2003). The UK courts held in the BPI’s case against easyinternetcafes Ltd that providing and facilitating the downloading of illegally copied files was actionable and the first instance decision in the Verizon case and the decisions in the RIAA’s cases against Napster and Aimster clearly supports this position. However, the Verizon appeal will certainly be of interest and the Dutch decision in Buma/Stemra -v- KaZaA (see Law Updates December 2002) means that this issue…

WILL THE VICTORY FOR THE RIAA IN ITS CASE AGAINST VERIZON OPEN THE FLOODGATES FOR LEGAL ACTIONS AGAINST CABLE COMPANIES AND ISPs?
USA

COPYRIGHT Record Labels, Music Publishers, Internet The legal battle between the Recording Industry Association of America (RIAA) and Verizon Communications over the pursuit of alleged internet music pirates could have a major impact on cable operators, telecom companies and internet service providers. If the RIAA wins the case, record labels and music publishers wielding broad federal subpoena power could force operators to divulge the names of high-speed data subscribers each time one is suspected of breaking a copyright. RIAA also want operators with high-speed data operations to pay copyright use fees into a new industry-wide ISP pool. The RIAA has proposed that the fund should compensate music companies for the copyright violations which they can’t track down. The case places the right to fair remuneration for use of copyright in direct conflict with individuals right to privacy, and further, would put an obligation on ISPs to take responsibility for subscribers unauthorised copyright infringements. The cable industry is carefully watching the case. The case also highlights the conflicts within major media conglomerates – AOL Time Warner owns two major ISPs, cable channels and of course a major record label and major music publishing house. The legal action arose when Verizon refused…

ROD STEWART FACES “MAGGIE MAY” ACTION FROM MANDOLIN PLAYER
UK

COPYRIGHT Record Labels, Music Publishers A folk musician says he is to take legal action against Rod Stewart over his contribution to the 1970s hit song “Maggie May”. Ray Jackson, a member of folk/rock band Lindisfarne, says he was paid just in 1971 for his contribution of a distinctive mandolin section in the recording. Mr Jackson believes he may have lost at least because he was not credited for the track’s distinctive “hook”. Mr Jackson is basing his claim on the Court of Appeal ruling that held that session musician Bobby Valentino should be recognised for his part in writing the distinctive violin riff on the Bluebells’ 1983 hit and subsequent 1993 number one hit “Young At Heart”. Stewart’s defence is that Jackson was engaged on a ‘work for hire’ basis and that all and any copyright which might have subsisted in the mandolin recording was assigned to Stewart absolutely and the was ‘full and final settlement’ for his services and any contribution. It is accepted that Mr Jackson had played on the song but not that he had any part in writing it. Stewart’s argument is that the recording and song were from the inception of their creation “the…

CD PIRACY IN SOUTH AMERICA ESCALATES
USA

COPYRIGHT Record Labels, Music Publishers CD pirates and street vendors in Ecuador are decimating the legitimate music industry as copied CDs featuring tropical salsa, hard rock and even Christmas carols are retailing for just $1 each – a price even the citizens of this poverty-stricken nation can afford (the minimum wage is just $138 a month). More worryingly for record labels and music publishers is the statistic that pirates sold an estimated 13 million compact discs in 2002 – compared to just 650,000 sold legitimately. The pirates are now exporting copied CDs, and pirate CDs made in Ecuador have been found in Peru and Columbia. Ecuador is a prime spot for all types of pirated goods. Weak police intervention compounds the problem. As the pirating industry grows, local shops suffer. Just 80 record stores are still in business in Ecuador, compared with 300 shops four years ago. Even with the US dollar adopted as currency, two of the ‘big five’ majors (BMG and EMI) have left Ecuador after they were unable to compete with counterfeiters. Sony Music Entertainment and Universal still operate in Ecuador. See www.mercurynews.com

NAPSTER: BMG FACES LAWSUIT
Germany

COPYRIGHT Record Labels, Music Publishers The parent company of ‘major’ record label BMG are the latest recipient of a lawsuit in the Napster saga. The German media giant Bertelsmann has received a $17 billion lawsuit from a group of songwriters, composers and music publishers alleging that by funding the file swapping service BMG had been involved in the widespread infringement of copyrighted music works and had deprived the claimants of millions of dollars of revenues. Bertlesmann invested in Napster in the hope of turning Napster into a subscription service. Bertlesmann argue that their investment is only a loan and deny any legal liability. Ironically Bertlesmann owns a major publishing catalogue through BMG which would benefit from any successful action. See www.newsvote.bbc.co.uk

AOL LAUNCHES SUBSCRIPTION INTERNET SERVICE
Copyright , Record Labels / March 2003
USA

COPYRIGHT Record Labels AOL’s 27 million subscribers will be offered legitimate access to record company catalogues from $3.95 (0) per month. Subscribers will be given access to the 250,000 strong recording catalogue of download service MusicNet, one of the music industry’s answers to the hugely popular but unauthorised sites like Aimster, KazaA and Morpheus. The New York Times has welcomed the move as the strongest attempt yet to beat unauthorised downloading of music. The music industry has blamed internet piracy for contributing to a slump in CD sales, with sales dropping 9% in the US in 2002. But legal sites from the industry have so far struggled to persuade fans to use legitimate (paid for) services – MusicNet has 500,000 subscribers, compared with 100 million users of the free song-swapping services. The basic AOL $3.95 deal will give users 20 streamed songs and 20 downloads per month. Fans can sign up for more access for up to $17.95 (40) per month, which buys unlimited streams and downloads, and the ability to burn – or copy – 10 songs to blank CDs per month. AOL Director of Music Evan Harrison said “A music subscription service is not going to make sense…

OWNER OF SAMPLED SONG WINS COURT INJUNCTION
USA

COPYRIGHT Record Labels, Music Publishing, Artists Indian composer Bappi Lahiri has won a court injunction halting the sale of Dr. Dre protéguth Hurts’ debut album and single based on claims that the hit song, “Addictive,” sampled more than four minutes of one of his compositions, without credit. A federal judge in Los Angeles ruled that “Addictive” must be removed from shelves unless the composer Bappi Lahiri’s name is added to the credits. Lahiri filed suit against Dre, his Aftermath Records label, and parent company Interscope/Universal Music Group, citing uncredited use of the Hindi song “Thoda Resham Lagta Hai,” composed by Lahiri for the 1987 Indian film “Jhoothi.” Lahiri is seeking compensatory damages in excess of $1 million as a result of the failure to give credit and the loss of his ability to properly promote his music in the United States. The figure represents a combination of the profits Lahiri’s attorneys said the sales of Truth Hurts’ music has reaped for Universal along with the losses suffered by their client. The album has sold in excess of 300,000 units. Universal had the choice of pulling all product from the shelves or affixing a sticker with Lahiri’s credit on copies of…

COURT GRANTS MUSIC INDUSTRY SECOND MAJOR VICTORY IN AIMSTER CASE
USA

COPYRIGHT Record Labels, Music Publishing, Internet In a major victory in the fight against the unauthorised uploading and downloading of music and other copyrighted works, a U.S. District Court Judge granted an all-encompassing preliminary injunction against the file swapping site Aimster (Madster). The Court’s decision follows its ruling on September 4th granting the record companies’ request for a preliminary injunction. In that prior ruling, the Court described the Aimster system as “a service whose very raison d’etre appears to be the facilitation of and contribution to copyright infringement on a massive scale.” After issuing that opinion, the Court asked for proposals from the parties for the language of the Injunction. The record companies and music publishers submitted a proposal that the Defendants opposed; however, the Defendants did not submit their own proposal, arguing that it was impossible to filter out infringing recordings. The Court adopted the record companies’ and music publishers’ proposed Injunction in full, outlining the roadmap by which Aimster must act immediately to halt the massive copyright infringement it facilitates. U.S. District Court Judge Marvin Aspen of the Northern District of Illinois ordered that Aimster implement filtering technologies now available so that it does not directly, indirectly, contributorily,…

EU UNVEILS NEW ANTI-PIRACY LAWS
EU

COPYRIGHT Record Labels, Music Publishing The European Union Justice & Home Affairs Commissioner Antonio Vitorino unveiled a tough new draft anti-piracy code on Thursday January 30th designed to standardise the approach to piracy throughout the European Community. The new legislation would direct all member states to treat large scale piracy and counterfeiting as a criminal offence as well as a civil offence meaning that offenders would be liable for damages, fines and possible imprisonment. Rights owners could sue for damages and ancillary remedies such as accounts for profits and destruction orders whilst the authorities could shut down infringing companies and seize assets. The legislation would work alongside revised border controls allowing for the seizure of counterfeit and pirate goods. www.reuters.com

JAPANESE COURT RULING FOLLOWS USA APPROACH AS PEER TO PEER FILE SWOPPING SERVICE IS SHUT DOWN
Japan

COPYRIGHT Record Labels, Music Publishing, Internet The Tokyo District Court, in an interim ruling on Wednesday January 29th 2003, decided that the online music file-sharing service provided by MMO Japan Ltd has violated copyright law, thus supporting the Japanese music industry’s stance. The decision follows the Court’s April 2002 injunction, which prohibited Tokyo-based MMO’s Internet file-swapping service in an action brought by the Japanese Society for Rights of Authors, Composers and Publishers (JASRAC) and 19 record labels. Damages have yet to be assessed. This ruling, the first such suit filed in Japan, follows on from actions brought in the US against Napster, Aimster and KazaA. The service, which was provided by MMO Japan, automatically sent files over the Internet enabling online users to swap music and other files stored on their hard drives. The presiding Judge Toshiaki Iimura held that MMO had financially benefited and was responsible for the service. www.japantoday.com Also see “NEW ACTIONS IN CYBERSPACE” – DECEMBER 2002 LAW UPDATES

UK INTERNET CAFÉ DOWNLOADS INFRINGE MUSIC COPYRIGHT
UK

COPYRIGHT Record Labels, Music Publishing, Internet Sony Music Entertainment (UK) Ltd. & Others -v- Easyinternetcafe Ltd. (2003) Mr Justice Smith held that Easy-internetcafes were guilty of copyright infringement by allowing customers to download music and burn CDs at their chain of internet cafes. Investigators for the BPI (British Phonographic Industry) found that hundreds of tracks had been downloaded in the cafes. Users paid £2.50 (approx US $4) for the download and a further £2.50 to buy each CDR. Mr Stellios Haji-Ionannou, owner of the chain of internet cafes, said that he will appeal the High Court decision and that the music industry was itself guilty of ‘extortion’ for overcharging for CDs and that ‘copying music over the internet is no different to videotaping a programme to watch later’. In the UK ‘time shifting’ by copying TV programmes onto a VHS is legal (under the Copyright Designs & Patents Act 1988) for personal use but copying records and films otherwise unavailable is a copyright infringement. In the US case of RIAA -v- Napster (US, 2000) the so called ‘VCR defense’ failed to protect Napster against claims from the Recording Industry Association of America which shut the service down. Damages in the Easy-internet case have yet to be determined. [See…

RAID ON SCOTTISH COUNTERFEITERS REVEALS A MAJOR OPERATION
UK

COPYRIGHT INFRINGEMENT Record Labels, Music Publishing A man and a woman are being questioned after a raid on their Airdrie home in North Lanarkshire uncovered what is believed to be the biggest CD counterfeiting operation ever found in Scotland. Thousands of illegally copied CDs, DVDs and videos were discovered in the raid along with nineteen CD writers, 11 DVD writers and 15 video recorders. This MCPS-led raid (along with Strathclyde Police and Trading Standards officers) was designed to get to the root of the counterfeit problem in Scotland. It follows recent raids by other anti-piracy units that have focused on removing product from the market stalls themselves. Nick Kounoupias of the MCPS Anti-Piracy Unit said: “Getting to the source of significant counterfeiting operations like this one is the real key to stopping the proliferation of counterfeit product. You can strip a market of illegal goods but within a few days, the illegal product is back.” The two who were questioned could then face charges under theCopyright, Designs & Patents Act (1988), the Trade Marks Act (1994) and the Trade Descriptions Act (1968). The maximum penalty for counterfeiting and trade marks offences in the UK is ten years imprisonment. Late in 2002 Norwich Crown…

US SUPREME COURT UPHOLDS COPYRIGHT EXTENSION
USA

COPYRIGHT  TV, Film, Artists and Composers, Record Labels, Music Publishing, Internet Eldred -v- Ashcroft (2003) In this case, the US Supreme Court finally confirmed the provisions of the US Copyright Extension Act 1998. This Act, known as the ‘Sonny Bono’ Act after the late recording artist and congressman, extends US copyright protection to life of author plus 70 years (up from 50 years) and 95 years (up from 75 years) for works owned by corporations. The Act, passed after lobbying from Walt Disney and other media corporations (worried about older works falling into the public domain) returns certain works to copyright and gives extended protection to other works. It could be argued it is the end of public domain as hundreds of thousands of works which would have become freely available are now protected by copyright laws. (John Naughton, The Networker, Observer Newspaper 19/01/03). See : www.observer.co.uk/business See : www.briefhistory.com/footnotes

NEW ACTIONS IN CYBERSPACE
EU
USA

COPYRIGHT Record Labels, Music Publishing, Internet Following on from the Recording Industry Association of America’s successful action against Napster (RIAA -v- Napster, Judge Marilyn Patel, July 2000) where a preliminary injunction was granted Effectively shutting Napster down, further cases have now reached the courts. In April 2001 Aimster applied to the US District Court requesting that it declare that its service was legal. A number of organisations including the RIAA reacted by filing lawsuits against Aimster alleging contributory and vicarious copyright infringements. The District Court agreed that Aimster had clear knowledge of the infringements taking place using its service and that Aimster materially contributed to these infringements, could supervise them if Aimster wanted and Aimster financially benefitted from the (infringements) on its service. A preliminary injunction was granted. A decision of the activities of KaZaA in the USA is expected soon. BUT in a Dutch decision, the activities of KaZaA were held NOT to infringe copyright in an action between KaZaA BV and the Dutch collection societies BUMA/STEMRA. The Court held that as KaZaA BV could not prevent the exchange of copyright material between its users the service itself was not unlawful although the acts carried out by some users were certainly…

NEW COUNTRIES SIGN UP TO INTERNATIONAL TREATIES PROTECTING INTELLECUAL PROPERTY RIGHTS
EU
USA

COPYRIGHT Record Labels, Music Publishing, Artists and Composers The World Intellectual Property Organisation (WIPO) has announced that the total number of contracting states for the Berne Convention (which sets out and defines minimum standards of protection for economic and moral rights for authors of literary and artistic works) is now 149 nations and that the total number of contracting states to the Geneva Convention (protecting phonographic copyrights) has reached 69. Email: Publicinf@wipo.int for further information.