Infringements under US Artist Rights and Theft Prevention Act limited to true distribution
Copyright , Internet , Record Labels / July 2005
USA

COPYRIGHT Record Labels, Internet Federal judge Marilyn Hall Patel presiding over the Napster copyright litigation has clarified that the Artists’ Rights and Theft Prevention Act of 2005 does not establish that the operator of a peer-to-peer Internet file-sharing service who maintains and posts on the Internet an index of downloadable files embodying copyrighted sound recording and musical compositions infringes on the copyright owners’ distribution rights. The Artists’ Rights and Theft Prevention Act of 2005 (the ART Act) was signed into law in April 2005. Section 103(a) of the ART Act creates criminal liability for certain acts of willful copyright infringement, including the willful infringement of a copyrighted work that is “being prepared for commercial distribution.” The ART Act specifically provides at Section 103(a)(1)(C) that “[a]ny person who willfully infringes a copyright shall be punished. .. if the infringement was committed. .. by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.” According to Judge Patel, “if Congress wanted to make clear that the distribution right was broad enough to encompass making…

New OFCOM Broadcasting Code
Regulation / July 2005
UK

BROADCAST REGULATION Television, radio, communications ARTICLE :  by Robin Hilton, solicitor Ofcom, the Office of Communications, yesterday published a revised Broadcasting Code for the television and radio broadcast industries which will come into effect on 25 July 2005. The Code was designed to unify and modernise the codes previously set by the “legacy regulators”: the Independent Television Commission, the Radio Authority and the Broadcasting Standards Commission. It is intended not just to comply with the requirements of legislation such as theCommunications Act 2003, the Broadcasting Act 1996 and the Human Rights Act 1998, but also to deal with the changing broadcasting environment, particularly the growth of digital television, digital radio and the internet. The 89-page Code seeks to balance the interests of those who need protection (in particular those under 18) with broadcasters’ freedom to include more challenging material. It covers areas such as fairness and privacy, protecting the under 18s, harm and offence, and sponsorship and commercial references. Subject to certain exceptions, the Code applies to radio and television content in services licensed by Ofcom, services funded by the BBC licence fee and to Welsh broadcaster S4C. Certain sections dealing with impartiality, elections, sponsorship and commercial references do not apply to BBC services…

Weblisten finally shut down after admission of criminal liability
Copyright , Record Labels / July 2005
Spain

COPYRIGHT Record Labels Weblisten, the Spanish based website Weblisteb, which had offered many thousands of international and local songs for download and streaming through its website has been shut down by a court order. The move follows Weblisten’s admission of criminal copyright infringement in a Spanish court hearing on May 31. Weblisten had been making copyrighted music files available online since 1997, despite successive legal actions against it over six years. Civil and criminal copyright infringement proceedings were taken against it by AGEDI, the Spanish producers’ collecting society, on behalf of the country’s music industry, as well as by seven independent and major record companies. Until now, Weblisten maintained that it was operating legally, even though it had secured licences only from music publishers and not the affected record labels. As part of the final order to be issued in the case, Weblisten will be required to destroy its databases of unauthorised music, pay a fine and refrain from engaging in any similar such activities in the future. Spain has a growing market for online music, with at least ten legitimate online music services operating in the country including iTunes, MSN Music Club, Tiscali, Vitimanic Music Club and Wanadoo. See: http://www.ifpi.org

First Norwegian conviction for file swapping
Copyright , Record Labels / July 2005
Norway

COPYRIGHT Record Labels The Oslo municipal court has sentenced a 36-year-old man for running an illegal file sharing service on the Internet, the first conviction of its type in Norway. The court ruled that the man had willingly and knowingly made a significant number of film and music files available to at least 300 people at a time and had violated copyright law. The Sandefjord man placed material on his employer’s (telecom company NetCom’s) server to facilitate transfer. A police raid revealed more than 60,000 pirated film and music files. It is expected that the Norwegian recording industry will now bring a civil action for damages. See: http://www.aftenposten.no/english/local/article1050773.ece

Welsh pirate caught after test purchase from Ebay
Copyright , Record Labels / July 2005
UK

COPYRIGHT Record Labels James Russell Harley, 26, used his ten year old son’s name to register an Ebay account and sold copied pirate CDs on the worldwide web. He was caught when special investigators made a test purchase. The British Phonographic Institute bought a counterfeit CD and made a complaint to Flintshire public protection department. A search found more than 1,300 CDs and DVDs at Harley’s home in Broughton, North Wales as well as a computer and copying system, which was capable of producing 11 copies from a single CD . Harley admitted 11 trademarks and copyright offences involving various CDs including School of Rock, Elton John Sings the West Coast and Now 86, and asked for 100 similar offences to be taken into consideration. Richard Powell, prosecuting, said investigators found 540 names or email addresses, which showed the defendant had received payments of between £5 and £50. Flintshire magistrates said that they were considering a community punishment order but adjourned sentence for a report from the probation service. See:http://icnorthwales.icnetwork.co.uk/news/regionalnews/tm_objectid=15583096&method=full&siteid=50142&headline=dad-sold-fake-cds-in-name-of-son–10-name_page.html

Waits challenges download royalties based on physical product sales
USA

CONTRACTS AND COPYRIGHT Music Publishers, Internet, Record Labels Third Story Music, a Los Angeles-based music publishing firm and the successor to the production company that managed singer-songwriter Tom Waits early in his career, has filed a federal suit against Warner Music Group, alleging that Waits has been shortchanged on the sale of digital downloads. The action, filed in U.S. District Court for the Central District of California in Los Angeles stems from 1972 and 1977 contracts signed by Third Story principal Herb Cohen and Warner-owned Asylum Records regarding Waits’ services. According to the suit, under the terms of the two contracts, Waits was entitled to royalties of either 25% or 50% from revenues derived from third-party licenses. Third Story maintains that digital music downloads constitute a form of third-party license, and that Waits is entitled to payment at that level. Wait’s 2003 and 2004 royalty statements to Third Story from WMG computed royalties from Waits’ digital download sales at the same (and much lower) rate as royalties from the sale of physical product. – on those calculations Waits would be entitled to either 9% or 13% of the 67 cents received by WMG from each 99-cent download. Third Story seeks…

Trent Reznor wins $2.9 million judgment against former manager
Artists , Copyright / July 2005
USA

COPYRIGHT Artists Former Nine Inch Nails manager John Malm has been ordered to pay up $2.9 million for allegedly cheating Trent Reznor out of millions of dollars. Reznor filed the lawsuit in 2004 in New York claiming that former manager John Malm mismanaged the bands finances and stole money from them. Allegedly, Malm had tricked Reznor into signing a contract that assigned the manager 20 percent of Gross earnings (rather than Net). The judgment also awarded trademarks back to Reznor. See: http://www.internetdj.com/article.php?storyid=615

George Clinton wins back master tape rights
Artists , Copyright , Record Labels / July 2005
USA

COPYRIGHT Record Labels, Artists Federal Judge Manuel L. Real of Federal District Court of Los Angeles returned ownership of the master recordings of four albums George Clinton made in the 1970’s with his band Funkadelic: In winning possession of the recordings, Mr. Clinton can now control licensing and distribution of the music and lay claim income from past licensing fees. The ruling came as the latest twist in a 12-year legal fight over the rights to the recordings and the copyrights to the songs of Funkadelic and of Parliament, Mr. Clinton’s other funk band. Mr. Clinton may be entitled to income from past licensing fees from record labels whose artists lifted samples, or snippets, from Parliament and Funkadelic albums. Mr. Clinton also has grounds to seek compensation for the re-release of the albums in 2002 by Priority Records, now a unit of the music giant EMI Group. See: http://www.nytimes.com/2005/06/07/arts/music/07funk.html?

Court of Appeals re-affirms Westbound Records and Bridgeport Music v No Limit Films and Dimension Films
Copyright , Record Labels / July 2005
USA

COPYRIGHT Record Labels The U.S. Court of Appeals for the Sixth Circuit today has reaffimed the position that it first announced last year – that there is no “de minimis” rule when looking at the use of sound recordings as samples. Under the court’s latest ruling in even two notes sampled from a sound recording without permission would amount to copyright infringement. (The court acknowledged that taking one note probably would not amount to infringement, since copyright law defines a sound recording as “the fixation of a series of musical, spoken, or other sounds.”) The case involves a two-second, three-note guitar riff sampled from the song “Get Off Your Ass and Jam,” which was changed in pitch and “looped” into another song, “100 Miles.” “100 Miles” was used in the soundtrack of a movie and the moviemakers were the defendants in the case. A federal trial court ruled that the copying was de minimis and therefore not actionable under copyright law. The Sixth Circuit reversed this decision last year, but then agreed to grant “rehearing.” It has decided not to change its stance. For Comment see: http://www.fepproject.org/news/bridgeport.html and see :http://www.musicjournal.org/03thesongremainsthesame.html UPDATE Newton v Diamond and Others (2004) 04-0129  In a similar decision the 9th…

Anti-piracy group broke Swedish data laws
Copyright , Record Labels / July 2005
Sweden

COPYRIGHT Record Labels Sweden’s anti-piracy group, Antipiratbyrån (APB), broke the personal data act in its hunt for illegal file-sharers, the country’s Data Inspection Board has ruled. At the beginning of March, a large number of Swedish citizens reported the film and games industry-backed non-governmental organisation for its method of tracking the downloading of copyright-protected files. APB used new software to record the IP-addresses of file sharers, as well as the alias, the file name and the server through which the connection was made. The Data Inspection Board ruled that if an IP address can be linked to an individual it is classed as personal information and therefore falls under the Personal Data Act and is protected. As a private company the APB has no right to use the information and indeed could be classed as a criminal offence (although it could be held to be a minor infringement). APB have now stopped collecting the data, passing on details of suspected file swappers to the police although APB are entitled to apply for an exemption from the Personal Data Act. See: http://www.thelocal.se/article.php?ID=1581&date=20050610

Experience Hendrix LLC v Purple Haze Record Ltd and Another
Artists , Performer's Rights / July 2005
UK

PERFORMERS’ RIGHTS Artists The Court of Appeal has now given directions for the conduct of the appeal by Purple Haze Records Ltd against the summary judgment obtained by Experience Hendrix LLC. The case alleges infringement of performers’ rights and was brought by Experience Hendrix LLC (the successor in title to the Jimi Hendrix estate) against Purple Haze Records Ltd and Lawrence Miller for the release of an album with a performance by Jimi Hendrix and his band that had been recorded in Stockholm in 1969. At the time of the recording, UK legislation did not protect performers unless the recording itself was unauthorised – performers’ rights in their present form were only introduced in the UK in 1998. However, the High Court found in its summary judgment that later legislation could be applied retrospectively. See Law Updates June 2005

Douglas v Hello (2005) The Court of Appeal has its say
Artists , Privacy / June 2005
UK

PRIVACY Artists, Newspapers, Broadcasting ARTICLE:  By Jonathan Coad, solicitor The long running battle over the publication of Michael Douglas and Catherine Zeta Jones’ wedding photographs has reached the Court of Appeal, which handed down judgment on Wednesday on the various appeals before it. The wide range of issues permitted the court to lay down guidance on a number of principles in the sphere of privacy – the central battleground between the rights of the individual and those of the corporate publisher. After a very hard-fought trial Mr Justice Lindsay had found both for Douglas/Zeta-Jones and OK! magazine, awarding OK! approximately £1 million in damages for its commercial loss by the Hello! spoiler, and the Douglases £14,750 for distress and inconvenience. Hello! were also faced with a bill for around £1 million in costs. Hello! appealed the award in favour of OK! both as to liability and the amount. This appeal was upheld. The court found that the economic torts relied on by OK! magazine concerned activity which had actually been directed at the claimant (the Douglases), and that the purpose of the conduct must be the causing of economic loss to the claimant. The court found that this was not…

Harrisongs alleges late payment of royalties by Sony ATV
Copyright , Music Publishing / June 2005
UK

COPYRIGHT Music Publishing George Harrison’s music publisher is suing Sony ATV Music publishing, the Michael Jackson/Sony joint venture, alleging $1.8 million in royalties is owed. The legal action was filed in High Court by Harrisongs, which is owned by Harrison’s estate. George’s widow, Olivia Harrison, serves on the board. Harrisongs owns the rights to the late Beatle’s songs. The current legal action made public for the first time that unpaid royalties of $1.77 million earned between 1991 and June 1999 on 35 songs composed between 1965 and 1968 by Harrison were paid by the Jackson/Sony joint venture last November, three years after the former Beatle died. The current lawsuit is seeking an alleged underpayment of royalties from July 1999 to the present, and seeks to settle a payment structure until the songs’ copyrights expire in 2081. See: http://www.stereoboard.com/artistnews/news-1035.html

New independent publishing company set up in India
Copyright , Music Publishing / June 2005
India

COPYRIGHT Music Publishing A French national, Achille Forler, who has been living in India since 1969, has set up the country’s first independent music publishing house after paying $3m to buy or administer rights to compositions which include some by leading Bollywood composers and lyricists like KL Saigal, RD Burman, Javed Akhtar and Anu Malik. He has also bought the music to films such as Satyajit Ray’s period classic Shatranj Ke Khiladi and Basu Chatterjee’s Rajnigandha. Deep Emotions Publishing has also signed an agreement with BMG Music Publishing and a further $12 million has been set aside for catalogue acquisitions. He says Sacem, the French society of authors, composers and publishers of music, collected $400,000 in royalties between 1990 and 1995 for Indian music used in France but that no one knew whom to pay this money because most of the works of music were not registered. Eventually, the money was sunk into creating an organisation to promote budding French songwriters. Mr Forler also found that no-one had been collecting royalties for music played in Israel. There had been some 2,000 Indian songs on radio and films on television there in the last two years alone. Even the 36-year-old Indian Performing Rights Society…

Hyperion lose appeal over musicologist’s editions of ‘out of copyright’ works. Hyperion Records v Sawkins
Copyright , Music Publishing / June 2005
UK

COPYRIGHT Music Publishing Hyperion Records has failed in its attempt to overturn last year’s High Court ruling that copyright royalties were payable to a musicologist for the use of his editions of the 18th-century French composer Lalande on a CD. The Court of Appeal awarded Dr Lionel Sawkins legal costs for both the initial case and the appeal. He has also been awarded damages, the amount of which are yet to be determined (although only 3300 copies of the CD were sold). The case arose out of a recording that Hyperion made in 2001 of four works by Lalande for a CD called ‘Music for the Sun King’. Sawkins prepared new editions of three pieces for the recording, which also used an existing edition by him. Hyperion paid Sawkins a fee for using the editions but did not pay copyright royalties as this was the label’s then policy towards editions of works by out-of-copyright composers. The disc was released in 2002. In July last year the High Court found that Sawkins’s (original) contribution was sufficient to give him copyright in three of the editions. The judge also found that Sawkins had told Hyperion prior to the disc being recorded and…

Canadian Appeal Court maintains privacy right for file-sharers
Canada

COPYRIGHT Record Labels, Music Publishers, Internet The Federal Court of Appeal in Canada has upheld an earlier ruling that prevents record companies from forcing ISPs to hand over the names of suspected file-sharers without detailed consideration of privacy issues and substantial evidence. However the judgment is something of a mixed ruling, as the door is now open for record companies to launch new rounds of litigation. Labels have, in the ruling, been given a 27-page document that can be used as a set of guidelines for legal actions against file-swapper. It is described as a “roadmap of how to present file-sharing evidence in future”. The court ruled that the Canadian Recording Industry Association (CRIA) would require additional evidence to proceed against 29 suspected sharers who are said to have collectively made 43,541 tracks available for download. Federal Court Judge Konrad von Finckenstein ruled last year that the music companies had failed to make a clear case of infringement and a case that public interest outweighed privacy concerns. However the Court of Appeal have qualified this ruling and also did not agree with Justice Finkenstien’s rulings on the legality of downloading in Canada. See: http://www.reuters.com/newsArticle.jhtml?type=topNews&storyID=8554843 and Law Updates May 2004 IFPI COMMENT…

Austrian ISP’s must reveal personal details of file sharers
Copyright , Internet , Record Labels / June 2005
Austria

COPYRIGHT Internet, Record Labels A performing right society has won a suit filed with the Intermediate Court of Appeals in Vienna to have the identity of a file-sharing user revealed. The court upheld the original judge’s ruling which had been overturned at first appeal. The Council Chamber of the first-instance district criminal court of Vienna had overruled this ruling on December 01, 2004. The provider has been ordered to reveal the name and address of a customer charged with offering 3,864 music files as downloads for 21 minutes on October 07, 2004. The plaintiff, a performing right society, only knows the person’s dynamic IP address. The first instance district criminal court rejected the plaintiff’s demand to have the data revealed, arguing that a dynamic IP address is not master data (unlike names, addresses, etc.) and therefore is call data pursuant to Section 149a of the Austrian Code of Criminal Procedure and therefore only available if crimes with penalties exceeding one year in prison were committed intentionally The Appeals Court thus had to rule that an IP address was equivalent to a telephone number, thus making both master data. Master data is not subject to privacy of telecommunications, but rather only…

Hamburg Court refuses labels to allow access to private data
Copyright , Internet , Record Labels / June 2005
Germany

COPYRIGHT Internet, Record Labels Internet Service Providers in the state of Hamburg can’t be forced to provide customer data to record companies, even when illegal copying is suspected, at least for now. The Higher Regional Court in Hamburg has ruled that there is no legal basis for demanding customer data as ISP merely provide access to the internet and do not facilitate or undertake a criminal act. The Higher Regional Court overruled a earlier decision by the Hamburg District Court, which had granted record companies access to customer data after they discovered an FTP server where numbers by German band Rammstein could be downloaded for free. The District Court based its ruling on the German Copyright Act. The Higher Regional Court in Hamburg, however, followed a similar ruling by judges of the federal state of Hesse. Here too the court rejected the claim by a music group to hand over the name of a customer who ran an illegal music server. Experts believe that the setback for the record industry is only temporary as legislators in Germany are drafting a newTelemedia Act, granting the recording industry more freedom in obtaining data from internet service providers. See: http://www.theregister.co.uk/2005/05/17/hamburg_isp_ruling/

EFF support efforts to revise US Digital Millennium Copyright Act
Copyright , Internet / June 2005
USA

COPYRIGHT Internet The Digital Millennium Copyright Act 1998 (DMCA) has, in the words of the Electronic Frontiers Foundatoin “been wreaking havoc on consumers’ fair use rights for the past seven years”. Now Congress is considering the Digital Media Consumers’ Rights Act (DMCRA, HR 1201), a bill that would reform part of the DMCA and formally protect the “Betamax defense” relied on by technology innovators from Sony, who created the Betamax videocassette recorder (VCR) and Amstrad who manufactured a dual cassette tape recorder/player along internet service providers and software manufacturers whose services are used for both legal and infringing activities. HR 1201 would give citizens the right to circumvent copy-protection measures as long as what they’re doing is otherwise legal. For example, it would make sure that when you buy a CD, whether it is copy-protected or not, you can record it onto your computer and move the songs to an MP3 player. It would also protect a computer science professor who needs to bypass copy-protection to evaluate encryption technology. In addition, the bill would codify the Betamax defense, which has been under attack by the entertainment industry through the US “Induce Act” last year and the MGM v. Grokster case currently before the Supreme…

US Family Entertainment and Copyright Act passed
Copyright / June 2005
USA

COPYRIGHT All Areas The Family Entertainment and Copyright Act has been approved the House of Representatives and signed by President Bush into law on April 25th 2005. The Statute represents the entertainment industry’s latest attempt to thwart rampant piracy on file-swapping networks. The law had drawn some controversy because it broadly says that anyone who has even one copy of an unreleased film, software program or music file in a shared folder could be subjected to prison terms and fines of up to three years. Penalties would apply regardless of whether or not that file was downloaded. The statute also includes sections criminalizing the use of camcorders to record a movie in a theater, and authorizing the use of technologies that can delete offensive content from a film. “The protection of intellectual property rights is vital to the movie industry,” said Rep. Lamar Smith, a Texas Republican who joined Bush for the signing ceremony. “This bill is necessary to ensure that all those involved in the production of a film, from the director to the set carpenter, are not cheated”. See: http://news.com.com/Bush+signs+law+targeting+P2P+pirates/2100-1028_3-5687495.html

Sweden looks to protect both IP and consumer rights
Sweden

COPYRIGHT Record Labels, Music Publishers Sweden’s justice minister, has called for record companies to stop issuing copy-protected CDs, arguing that consumers should be able to make copies of CDs they bought for personal use. This comes at a time when the Swedish government is looking to push through tougher laws to clamp down on file-sharing. Thomas Bodström argues that IP needs to be protected, but not at the expense of restricting consumers’ rights. He has threatened that the government could consider making it illegal if labels continue to put anti-copying software on discs. See: FiveEight Magazine – http://www.fiveeight.net

In a pre Douglas v Hello! case the Beckhams lose right to gag ex-nanny on grounds of public interest
Artists , Privacy / June 2005
UK

PRIVACY Artists David and Victoria Beckham failed in a legal attempt to gag the UK’s News of the World. The Beckhams launched a court bid to prevent the paper from publishing revelations from their former nanny Abbie Gibson, 27. Lawyers of the couple applied for an emergency injunction from High Court judge Mr Justice Langley on the grounds of confidentiality. They argued that Abbie had signed a contract guaranteeing that she would not speak out about their lives. But lawyers acting for Abbie and the News of the World convinced the judge that the story was in the public interest. The court decided the News of the World was entitled to publish Abbie’s account about the state of the Beckhams’ marriage and David’s affairs on Sunday April 24th. The News of the World, represented by Richard Spearman QC, was given the green light to publish at 8:30pm in the evening on Saturday 24th April following a 90 minute hearing. The newspaper’s Legal Manager Tom Crone said: ‘The Beckhams have spent a lot of their lives basking in a warm glow of publicity which they have created for themselves. For the first time the world can now read an insider’s detailed…

Linkin Park seek to exit Warners deal
Artists , Contract , Record Labels / June 2005
USA

CONTRACT Artists, Record Labels Just as Warner Music geared up for its $2.6 billion IPO (flotation), one of its biggest acts has said that it would like to get out of its contract with the label. Nu-metal genre leaders Linkin Park allege that cost-cutting across the company has diminished its strength, leaving it “unable to compete in today’s global music marketplace” and that senior executives are taking profit at the expense of musicians. The band has threatened to stop work on its new album, believing the company will not be able to market it sufficiently. The band has sold over 35M albums globally and says that it makes up 10% of the company’s US sales. Warner Music has stated that it is closer to 3%. The band still has a further four albums to deliver under its current contract and Warner Music has dismissed this outburst as a “negotiating tactic” built on “baseless charges”. It has been suggested that the band had asked for $60M in advances to release their new album through a JV deal in exchange for a split of profits. Warner Music is said to have offered substantially less and a profit split. The band is said…

Westlife lose battle over name in European Court of Justice
Artists , Trade Mark / June 2005
EU

TRADEMARK Artists, Merchandising Judges in Luxembourg ruled that “Westlife” cannot be registered as an EU trademark – because it is too similar to the word “West”. A German tobacco firm has already trademarked that name and judges said the fact that Germans say “vest” and not “west” did not lessen the confusion with the merchandise of the pop group. Westlife can still go on using their name as well as on merchandise, but it means they cannot protect it as an exclusive trademark. The band applied for an EU trademark in 1999, but the Germany company claimed there was potential confusion because the two sell similar types of merchandise (not least because of West’s involvement in motor racing as a team sponsor selling branded clothing etc). During a five-year legal tussle, lawyers for Westlife argued that there was a clear distinction between the group’s name and the single word West. See: http://www.itv.com/news/entertainment_1535352.html

Cuba and St Lucia sign copyright pact
Copyright , Music Publishing / June 2005
Cuba

COPYRIGHT Music Publishers The Cuban Musical Society and its St. Lucia counterpart Hewanorra Musical Society (HMS) have signed a reciprocal agreement for the protection of copyright material. The St. Lucian organization will protect intellectual property rights and collect royalties on behalf of members of its Cuban counterparts, while the Cuban will do the same for the local society. In the past, the HMS conducted business with Cuba through the UK’s Performing Right Society that dealt directly with the Cuban Agency for Musical Authors Rights (CAMAAR). Similar agreements have also been signed with HMS Societies in Jamaica, Trinidad and Tobago and Barbados. See: http://www.plenglish.com/article.asp?ID=%7BF3D3A825-FF15-4F53-B0B2-5CF5CEACA006%7D&language=EN

Hendrix Estate wins infringement action for 1969 recording: Experience Hendrix LLC v Purple Haze Record Ltd and Another
Artists , Performer's Rights / June 2005
UK

PERFORMERS’ RIGHTS Artists A performance by the late Jimi Hendrix with his band the Jimi Hendrix Experience in Stockholm in 1969 has been found to be subject to the retrospective provisions of the Copyright Designs & Patents Act 1988 and the later Copyright & Related Rights Regulations 1996. The High Court upheld an infringement claim by Experience Hendrix LLC (successors in title to Jimi Hendrix’s estate) against defendants Purple Haze Records Ltd and Lawrence Miller who had released the recording as an album. At the time of the Stockholm recording, UK law only offered criminal sanctions against unauthorised recordings. The so called ‘performers right’ was introduced in 1988 but was conferred retrospectively. Even though held in Stockholm in 1969 the High Court held that Hendrix’s personal performer’s right could be asserted as Stockholm was a country designated as receiving reciprocal protection in 1969 and in 1995 became a EU member. Mr Justice Hart held that both the performance itself (which could be individually owned by Mr Hendrix even if part of a band performance) and the place of performance fell within the scope of the Act. Summary judgement was given against Purple Haze Records Limited and Mr Miller. Source: The Times Law Report…

UK hackers jailed for software Piracy R v Bell (and others) 2005
Copyright , Internet / June 2005
UK

COPYRIGHT Technology, Software, Internet Four internet hackers who spent their time cracking codes for fun and releasing pirated software onto the internet were jailed at the Old Bailey (London’s senior criminal court). The four, members of the ‘DrinkorDie’ group, caused mayhem by cracking protection on software programmes to enable games and other programmes to be downloaded without payment. Judge Paul Focke told the four that their activities ‘struck at the heart of the software trade’ and that the loss to software owners through piracy was staggering. The Judge said that he estimated that a third of all software used in the UK is pirated. Alex Bell (29) and Steven Dowd (39) were jailed for two and a half years and two years respectively for conspiracy to defraud after a five month trial. Andrew Eardley (35) and Mark Vent (31) were jailed for eighteen months each after pleading guilty. DrinkorDie was closed down after a global investigation involving the police from the UK, America, Australia and other countries. Source: The Times May 7th 2005

US Appeals Court rejects FCC’s attempts to control digital piracy: ALA v FCC
Copyright , Internet / June 2005
USA

COPYRIGHT Television, Internet The US Court of Appeals for the DC Circuit has rejected the US broadcast regulator’s attempts to control the copying of digital TV with an anti-piracy technology. The Court has ruled that the Federal Communications Commission (FCC) overstepped its authority in its attempt to control how electronic devices work in the US. The “broadcast flag” system the FCC proposed is a technology that is a piece of code attached to programmes which tells devices that receive digital signals the level of copy protection on that programme. “We can find nothing in the statute, its legislative history, the applicable case law, or agency practice indicating that Congress meant to provide the sweeping authority the FCC now claims over receiver apparatus,” said the appeals court panel. Supporters of the flag had argued it would combat the illegal copying and distribution of TV programmes but critics said it would strop people making legitimate copies or copies for educational, teaching, criticism or review purposes. It was also feared that the rule would set a precedent, meaning the FCC would have the right to say how future TVs, computers, and other devices which can receive digital signals, are made See: http://news.bbc.co.uk/1/hi/technology/4523597.stm The Electronic…

The Right Way to Fight Spyware
Internet , Privacy / June 2005
USA

PRIVACY Internet ARTICLE: By Wendy Seltzer, Electronic Frontiers Foundation Special Projects Coordinator The New York State Attorney General’s office has filed suit against Intermix Media for deceiving people into installing and using spyware. The lawsuit is a step forward for users’ rights to control their own computers. It also demonstrates the right way to address the spyware problem: with lawsuits, not new laws. The New York complaint runs through a veritable catalogue of deceptive acts and practices: interception of web requests; installation of hidden programs, unrequested toolbars, mechanisms that report user activity back to Intermix and display advertising, etc. All of this was done with minimal notice and no genuine consent from users. Attorney General Eliot Spitzer charges Intermix with violating New York state’s prohibitions on “deceptive acts or practices” and “false advertising,” provisions common to state and federal law. He also charges the company with “trespass to chattels” for interfering with the use of personal computers onto which the software was downloaded. The complaint is only the beginning of a lawsuit, of course, but the screenshots and descriptions leave little doubt that promoting spyware in the guise of a screensaver or game is indeed a “deceptive act.” If the company…

Jerry Springer opera did not break TV rules
Artists , Censorship / June 2005
UK

CENSORSHIP Artists, Television, Theatre The UK’s communications regulator Ofcom has said that Jerry Springer: The Opera did not breach broadcasting guidelines. The decision to screen the musical on BBC2 sparked accusations of blasphemy from Christian groups who launched the largest ever number of complaints against a programme. Ofcom accepted that the portrayal of religious figures could have been offensive to some people but said it understood that the show’s effect was to “satirise modern fame and the culture of celebrity”. Ofcom also noted that the programme was preceded by a programme designed to put the Opera in context. The BBC Board of Governors have also supported the broadcast saying that it was justified because the outstanding artistic significance outweighed the offence which might be caused to some people and that the show was a satire preceded by clear warnings. Source: The Guardian 10 May 2005 and see Law Updates February 2005 Demonstrations by some members of the Sikh community close the theatric presentation of Behzti and raise issues of free speech

Beckhams kidnap case shows the difficulties of ‘no-win no-fee’ litigation
Artists , Defamation , Internet / June 2005
UK

DEFAMATION Artists, Newspapers, Television, Internet Mr Justice Eady has thrown out a claim by Mr Bogdan Maris, a 24 year old Romanian (who initially sued under a false name) against the News of the World who ‘caught’ Mr Maris in a sting designed to uncover a plot to kidnap Victoria Beckham. The story was published in 2003 and Mr Maris obtained counsel on a no-win no-fee basis (a conditional fee arrangement or CFA). Mr Maris was arrested and charged but the trial collapsed when the Crown Prosecution Service offered no evidence. Whilst during the trial Eady J found that there were a number of inaccuracies in the News of The World’s story, he found the case all the more unusual as Mr Maris was not presently in the UK and had not even produced a witness statement outlining his side of the story. His counsel had continued proceedings based on past instructions. This of course meant that the newspaper could not cross examine Mr Maris or see any evidence from him. The judge pointed out that a ‘ransom factor underpin CFAs as costs build up for the defending newspaper with no likelihood of recovery if the newspaper wins but significant…

Buena Vista dispute reaches High Court
UK

COPYRIGHT Music Publishing, Artists The copyright dispute over ownership of Cuba’s Buena Vista Social Club’s music has reached the High Court in the UK. The dispute concerns who actually owns the rights to the songs, some of which relate to songs written in the 1930s and how and if writers and composers have been paid. Peer International Corporation claims that the Cuban government unlawfully took control of its copyrights (some of which date back to the 1930s) via its company Editora Musical de Cuba (EMC). These rights in turn were passed to Termidor Music Publishing which has sought to register the songs in the UK. EMC counters saying that it is trying to “salvage” royalties for the writers who were either paid nothing or “a few pesos and maybe a drink of rum” and that the original contracts with the writers were void as they “unconscionable bargains”. Peer has stated that it did pay royalties until 1959, but, after the revolution, US trade embargoes stopped payments to composers based in Cuba. Payments were made to writers situated outside of Cuba whereas payments to those in Cuba were placed in bank accounts. This changed somewhat in 1994 when the US relaxed…

Nine Inch Nails’ Reznor sues ex-manager
Artists , Contract / June 2005
USA

CONTRACT Artists Trent Reznor has now testified against his longtime manager, saying he was stunned to learn in 2003 that despite millions of dollars in earnings by his band, Nine Inch Nails, he was left with as little as $400,000 in cash and $3 million in assets. The New York federal civil lawsuit is against John Malm. Reznor contends that his former friend duped him into signing a contract that allowed Malm to collect 20 percent of the singer’s gross earnings rather than net earnings. A lawyer for Malm, said in an opening statement that his client worked many years for no salary and kept nothing secret from Reznor. Reznor said that pair created their own production company and managed sales of merchandise but the expenses piled up, draining large portions of the millions of dollars the band earned with its albums and concert tours. Reznor said he began to grow worried about finances when he was told during a meeting with Malm in 2002 that there was “cause for alarm.” See: http://www.billboard.com

Holland to implement iPod Tax
Netherlands

COPYRIGHT Record Labels, Music Publishing, Internet, Technology Holland has passed legislation to implement a point of sale surcharge on any device capable of storing illegally downloaded or “pirated” music. The recently passed Dutch legislation will become law within the next three months, with reports suggesting the levy could be around 3.28 per gigabyte. On Apple’s 60gb iPod that would add over 190 to the price. The levy would be paid to copyright holders, to compensate for profits lost to illegal filesharing. In a recent article (see reference below) Doug D’Arcy, the former head of Chrysalis and BMG, thinks Britain should follow suit. “The illegal digital download market is in danger of crippling the British music industry and unless something is done to address this quickly, it will spell disaster for thousands of artists and independent record labels. Unlike other territories, the UK never implemented a blank tape levy on cassette tapes. One of the most persuasive arguments against this is of course that those who copy legally (and who now download legally) are in effect being penalised as they are paying twice for a copyright. See:http://tech.monstersandcritics.com/news/article_8068.php/Former_music_industry_boss_calls_for_British_%93iPod_tax%94

Ringtone advertising raises consumer protests worldwide
Copyright , Internet / June 2005
UK
USA

CONTRACTS Telecommunications, Internet Mobile phone ringtones have prompted complaints to Trading Standards Offices and the Advertising Standards Authority in the UK. Often subscribers think they are paying a one-off or a ringtone only to find themselves (or if children, their parents) locked into a contract for a weekly payment. Jamster, one of the accused companies, has been the target of four complaints upheld by the Advertising Standards Authority (ASA). The ASA ruled that the small print racing across the bottom of the television screen during an advert for a Crazy Frog ringtone and mobile phone wallpaper was not prominent enough. In the US where Jamster is advertised on MTV and Nickleodeon, a San Diego parent has brought a lawsuit against a number of ringtone service providers alleging that their advertising was misleading and unclear. See: http://new.edp24.co.uk/content/news/story.aspx?brand=EDPOnline&category=News&tBrand=edponline&tCategory=news&itemid=NOED27%20Apr%202005%2019%3A06%3A47%3A337and http://www.smh.com.au/news/Technology/Ringtones-play-out-in-a-50m-market/2005/05/18/1116361617683.html?oneclick=true andhttp://news.com.com/Teens+dialing+up+ring+tone+trouble/2100-1039_3-5692489.html

Pakistan to fight piracy
Pakistan

COPYRIGHT Film, Television, Record Labels, Music Publishers, Computer Software The Pakistan government is taking urgently-needed actions to curb the mass-scale violation of copyright. “Pakistan is showing that it takes seriously the need to address its severe levels of copyright piracy,” said a joint press statement issued the International Federation of Phonographic Industry (IFPI), Business Software Alliance (BSA) and Motion Picture Association (MPA). The response follows administrative reforms and strict enforcement actions announced by the Government in recent weeks. The Pakistan Intellectual Property Rights Organization (PIPRO) has been created to oversee copyright, trademark and patent protection issues. The Federal Investigation Agency (FIA) arrested nine people and confiscated more than 400,000 pirate CDs, DVDs and audio cassettes, along with 10,000 Master Discs (stampers) in the course of closing down six illegal optical disc plants around Karachi. Pakistan has become one of the largest manufacturers of pirate discs in the world – producing over 230 million discs in 2004, of which the vast majority was exported to at least 46 countries worldwide. See: http://www.ifpi.org and http://www.pro-music.org

Universal and Warners file infringement file in China
Copyright , Record Labels / June 2005
China

COPYRIGHT Record Labels The Huangpu District People’s Court in Shanghai has accepted two copyright cases filed by Universal Music and Warner Music against the Shanghai Book City and several Chinese music producers. The plaintiffs said in their lawsuits that the Book City sold pirated MP3 discs that contain songs from pop stars Daniel Chen and Sammi Cheng. Universal Music and Warner Music hold the copyrights associated with the songs. The suit also alleges that Beijing Yuncheng Laser Disc Co Ltd, Beijing Weidi Electric Publishing House, Hebei Jiyuan Photoelectricity Co Ltd, Anhui Culture and Music Publishing House and Beijing Zhengpu Scientific Development Co Ltd issued MP3 discs containing the songs without authorization. Universal Music and Warner Music have asked the court to order the defendants to stop sales immediately and make a public apology. The plaintiffs are also seeking unspecified financial compensation. Book City said it performed its obligation as a retailer to stock products from authorized suppliers. If the suppliers produce pirated books or music products, they should be held responsible. Book City also said it is impossible to check whether all its goods are properly licensed since it sells tens of thousands of music and video products and books….

City employees sue Dr Dre after ‘secretly’ filmed footage appears on DVD
USA

IMAGE RIGHTS/COPYRIGHT/PRIVACY Film & Televison, Artists Lawyers for US rapper Dr Dre (Andre Young) have asked a judge in Flint, Michigan to dismiss a legal action concerning video footage filmed at a concert in July 2000. Three former Detroit City employees were filmed arguing boisterously with some of Dr Dre’s representatives. The trio are suing Dr Dre, Time Warner Inc and Best Buy Co claiming they were unaware that the footage would be used in a documentary released in 2002. The action is centered on a concert at Detroit’s Joe Louis Arena on 6 July 2000 which formed part of Dr Dre’s “Up in Smoke” tour. The footage in question records a conversation between tour organisers and Detroit city officials that took place after Dr Dre was forced to drop two sexually explicit videos from his act. Former Mayoral spokesman Greg Bowens, Paula Bridges and Gary Brown claim a camera and a microphone was used to record the meeting without their knowledge and claim that they did not authorise their subsequent appearance in the 2002 documentary “Detroit Controversy”. But the defendant’s legal team claim that all involved knew that cameras were rolling. Time Warner is being named in the action…

RIAA drops download infringement action against ‘students’
Copyright , Record Labels / May 2005
USA

COPYRIGHT Record Labels The Recording Industry Association of America decided to drop its case against two anonymous individuals identified only by their Internet protocol addresses in a December 16th lawsuit. The case has been dismissed without prejudice meaning the case could be brought up again. The decision comes in response to the University of Pennsylvania announcement that it had been unable to match the IP addresses to any specific users. The addresses are numbers assigned to uniquely identify users but insufficient records made it impossible to match the addresses to a name. The University refused to provide any detailed information regarding its inability to find the two downloaders leading to speculation that it was trying to thwart the RIAA but the University denies such allegations. The lawsuits against students put college administrators in a difficult position, wanting to protect their students but still having to uphold the law. Issues of privacy have also been used to challenge RIAA actions. See: http://www.dailypennsylvanian.com/vnews/display.v/ART/2005/03/30/424a59cb4c32b

Xzibit and Dr Dre defeat songwriter’s claim
USA

COPYRIGHT Music Publishing An aspiring Philadelphia songwriter faces a stiff penalty for filing a lawsuit in which he claimed that he created the beat for the track ‘X’ on rap star Xzibit’s platinum-selling album “Restless.” A federal appeals court on Wednesday ruled that music business hopeful Michael Lowe’s copyright infringement suit against the rapper, several record companies and one of the song’s credited authors – Dr. Dre – was frivolous. The judges also upheld a lower-court’s order that Lowe pay Dr. Dre’s legal fees and court costs, which amounted to about $35,000. The 3rd U.S. Circuit Court of Appeals ruled that Lowe’s legal claim was doomed from the start, even if it was true that he laid down the beats underpinning the song “X.” Lowe’s story was that he recorded the beat first, then presented it to rap producer Scott Storch in the hopes that he would pass it along to Dr. Dre for use in song. In a legal deposition, Lowe said he never expected any compensation in return for the beat. The court said that if Lowe indeed gave away the track freely, he couldn’t sue over it now. Storch consistently maintained that Lowe had nothing to do…

Google sued over reproducing news extracts from AFP
Copyright , Internet / May 2005
France
USA

COPYRIGHT Press, Internet Agence France Presse (AFP) has issued legal proceedings against Google in the Us District Court for the District of Columbia alleging the Web search engine includes AFP’s photos, news headlines and stories on its news site without permission. The French news service is seeking damages of at least US$17.5 million and an order barring Google News from displaying AFP photographs, news headlines or story leads. AFP provides material by subscription and does not provide free content. Google News gathers photos and news stories from around the Web and posts them on its news site, which is free to users. AFP claim that Google is, without authorisation, continuously and willfully reproducing and publicly displaying AFP’s photographs, headlines and story leads on its Google News web pages.AFP said it has informed Google that it is not authorised to use AFP’s copyrighted material as it does and has asked Google to cease and desist from infringing its copyrighted work. AFP alleged that Google has ignored such requests and as of the filing date of the lawsuit “continues in an unabated manner to violate AFP’s copyrights.” See: http://xtramsn.co.nz/news/0,,11965-4212100,00.html

Real Madrid and players sue over unauthorised use of images
Artists , Image Rights / May 2005
Spain

IMAGE RIGHTS Artists Spanish giants Real Madrid and several of its top players, including Raul and David Beckham, are taking legal action against online betting firms over what the club claims to be the unauthorised use of its name and players’ images. Five star players – Ronaldo, Beckham, Raul, Zinedine Zidane and Figo – are joining the club in the legal actions. They are taking action against Ladbrokes, William Hill, Sportingbet, Sporting Exchange, BAW International of Gibraltar and Malta-based Mr.Bookmaker. Legal steps had already been launched in France, Belgium and Germany against these companies. The club wants the companies to stop using the images and to “repair the harm caused”.” It is alleged that the companies used the name of Real Madrid and the majority of its players without authorisation and that they often used photographs and drawings of these footballers wearing the kit and badge of Real Madrid. See: http://www.timesofmalta.com/core/article.php?id=179091

Nugent claim limited to concert fee and direct loss
Artists , Contract , Live Events / May 2005
USA

CONTRACT Artists, Live Music Industry Ted Nugent has had his claim against the Musekegon Summer Festival limited to the alleged concert fee and direct loss of profit from merchandise after a cancelled show in June 2003. Muskegon Country Circuit Judge Timothy G Hicks refused to allow claims of more than $1 million for future lost income. If Nugent wins his suit, the most that the 56-year-old musician would be eligible to receive is $80,000 plus an estimate of lost merchandising income. Nugent sued the festival in August 2003. He claims his reputation and career were damaged by the cancellation of his June 2003 show and a subsequent news release from the festival that, he says, wrongly accused him of making racist remarks during a live interview on Denver radio station KRFX-FM in May 2003. Nugent’s denies making such remarks. His longtime personal manager, Doug Banker testified this week that he negotiated with festival officials for an $80,000 performance fee for Nugent but there was no signed agreement. Banker said oral agreements were the norm in the concert business. See: http://www.detnews.com/2005/metro/0503/27/metro-129413.htm andhttp://www.myplainview.com/APTexas/parsed/stories/D89285MO0.shtml

First Vietnamese copyright licence for music since Berne Convention became effective
Vietnam

COPYRIGHT Music Publishers, Record Labels, Artists Singer My Tam has become the first Vietnamese singer to purchase recording and performing rights to an international song since the Berne Convention took effect in VietNam in October 2005. Cancao Do Mar, a Spanish pop song performed by singer Sarah Brightman, and Japanese ballad My Lover are two new singles that will appear on My Tam’s Album Vol 4, to be released next month. See: http://vietnamnews.vnagency.com.vn/showarticle.php?num=01MUS220305

Grokster and Morpheus case reaches US Supreme Court
USA

COPYRIGHT Record Labels, Music Publishers, Artists, Internet The US Supreme Court will be the final arbiter as to whether producers of file-sharing software can ultimately be held responsible for copyright infringement. The lawsuit, brought by MGM and 27 of the world’s largest entertainment firms, has raged for several years. If the Supreme Court finds in favour of the music and movie industry they would be able to sue file-trading firms into bankruptcy. But if the judge rules that Grokster and Morpheus – the file-sharers at the centre of the case – are merely providers of technology that can have legitimate as well as illegitimate uses, then the music and movie industry would be forced to abandon its pursuit of lawsuits against file-sharing providers (and probably internet service providers. Instead, they would have to pursue individuals who use peer-to-peer networks to get their hands on free music and movies. The hi-tech and entertainment industries have been divided on the issue. Intel filed a document with the Supreme Court earlier this month in defence of Grokster and others, despite misgivings about some aspects of the file-sharing community. It summed up the attitude of many tech firms in its submission which states that…

MMO appeal fails in Tokyo’s High Court
Japan

COPYRIGHT Record Labels, Internet Tokyo’s High Court dismissed an appeal against the earlier ruling by the District Court against Japan’s MMO and its boss Michihito Matsuda who were offering file-sharing services on the Internet, called FILEROGUE. On December 17, 2003, the Tokyo District Court issued its judgment and ordered Japan MMO and Michihito Matsuda to cease their service and jointly pay 36.89 million Japanese yen (close to $344,000) in total for damages to JASRAC and 19 plaintiffs (members of the Recording Industry Association of Japan). See: http://p2pnet.net/story/4417 and see Law Updates February 2005

Common law used to protect pre 1972 copyrights in US
USA

COPYRIGHT Record Labels, Artists A ruling in a New York court is expected to have a major impact on the recording industry. Capitol Records had sued another New York-based recording company, Naxos of America, for copyright infringement of recordings of classical music it owns which were originally made by the Gramophone Company Limited (now EMI, parent of Capitol) and which had fallen into the public domain in Europe. In the United Kingdom and Europe copyright in sound recordings expires fifty (years) after the year of recording or first release. Naxos had begun to distribute its own restorations of the recordings. The District Court dismissed Capitol’s lawsuit, saying the UK copyrights had expired 50 years after the records were made and that US copyright laws don’t apply to recordings made before 1972, when federal laws were enacted. On appeal the Second Circuit noted that it was entirely up to New York to determine the scope of its common law copyright protection for pre-1972 sound recordings. New York State’s Court of Appeals ruled that common law in New York protects ownership interests in sound recordings made before 1972 that aren’t covered by the Federal Copyright Act. An attorney for Capitol suggested the…

Does European decision herald true pan-European tax accounting?
Artists , Live Events , Taxation / May 2005
EU

TAXATION Artists, Live Concert Industry Marks & Spencer Plc v Halsey (Inspector of Taxes) European Court of Justice C446-03- The Advocate General of the European Court of Justice had held that UK tax law, which allows group tax relief for losses in the UK only and does not allow a firm to deduct the losses of foreign subsidiaries, is in breach of EU law. Miguel Poiares Maduro, recommended that Marks and Spencer be allowed to offset losses made at its foreign subsidiaries against its tax burden in Britain. He said British tax law was in breach of EU law by refusing to allow companies to offset tax losses from overseas subsidiaries against British profits. “The principle of territoriality cannot justify the current restriction” he said adding that a blanket restriction on this practice far exceeds what is necessary to protect the cohesion of the British tax system. The advocate general said the only condition should be that losses from foreign units would not also receive fiscal benefits in the states abroad. Germany, France, the Netherland, Greece, Finland and Sweden all backed the UK Government’s position fearing they will have to repay billions of Euros if the court finds in favour of Marks &…

Hallayday loses appeal and masters
France

COPYRIGHT Record labels, Artists French rock singer Johnny Hallyday has lost his bid to gain control of some 1,000 master copies of his songs after an appeal from Universal was accepted by a Paris appeals court. The appeal court overturned an earlier decision that ordered Universal to hand back the valuable original recordings. Hallayday will now be bound to Universal until the end of 2005, producing one more album but will not be able to produce another album for any other label until 2007 – this is to ensure Universal has enough time to promote the album before Hallyday releases another one. There was originally an agreement to record six albums with Universal until relations broke down. Hallayday plans to tour again and under the new decision, Hallyday will be able to record new versions of his past recordings for another record label from 2007, but a fee would have to paid to Universal. See: http://news.bbc.co.uk/1/hi/entertainment/music/4437563.stm

Links to piracy tools ruled illegal in Germany
Copyright , Internet / May 2005
Germany

COPYRIGHT Internet A German district court has ruled that German website Heise.de has violated the country’s copyright legislation by linking to SlySoft’s website. SlySoft is the maker of ANYDVD, a software product that allows cracking the copyright protection found on most DVD-Video discs, and CloneCD, a tool that allows backing up virtually all of the copy protected audio CDs. The website defended itself by pointing out to the freedom of speech that is defined in German constitution, but the first-instance district court of Munich ruled that the protection of intellectual property goes before the freedom of speech. The Court decided that direct linking made finding the product much easier and thus increased the danger of copyright violations significantly. However the court also ruled that articles about tools that allow breaking copy protection mechanisms can be published legally, it is just the linking to such tools that can’t be done legally in Germany. The court ruled that Heise Zeitschriften Verlag, the owner company of the website pay 500,000 euros in damages to the music industry. See: http://www.heise.de/english/newsticker/news/58315