Massive haul of blank CDs in Mexico
Copyright , Record Labels / February 2005
Mexico

COPYRIGHT Record Labels Almost 16 million blank CD-Recordable discs – a worldwide record – have been seized in raids in Mexico. The bulk of the discs are believed to have been destined for the country’s piracy-ridden markets. The raids mark recent stepped-up enforcement efforts by the Mexican authorities to try and stem the overwhelming pirate music trade in the country. Customs agents, with the support of federal investigation agents initially seized ten million blank CD-Rs in raids on two warehouse facilities in the municipalities of Morales and Tacubaya within metropolitan Mexico City. The raids followed eight months of intensive investigation. At the same time, customs authorities, assisted by federal fiscal agents, stopped and appropriated two shipments containing 5.8 million additional blank CD-Rs at the ports of Ciudad Juarez and Manzanillo. The shipments were apparently entering the country without proper documentation. Mexican authorities have said that all the seized products were either owned by or imported by a company which is a major supplier of blank CD-Rs to markets notorious for being centres of piracy such as Tepito in Mexico City. The seizures indicate the increasing enforcement actions by the Mexican authorities to try and stem the pirate trade which has…

Tokyo District Court orders a suspension of service and awards damages in leading Japanese case on file swapping on the Internet
Copyright , Internet , Record Labels / February 2005
Japan

COPYRIGHT Internet, Record Labels The Tokyo District Court has handed down its judgment against MMO Japan Ltd ordering the company to suspend transmission of digital music files. MMO administer a file exchange service called File Rogue which allows exchange of music files free of charge on the Internet. In addition, the court ordered that MMO Japan Ltd and its representative (and co-defendant) Michihito Matsuda pay compensation by way of damages for losses resulting from the copyright infringements. JASRAC (Japanese Society for Rights of Authors, Composers and Publishers) had filed a suit in February 2002 demanding suspension of music file transmission and compensation by way of damages. The Tokyo District Court made an interim ruling on 29 January 2003 acknowledging copyright infringement by the two defendants and also their joint responsibility. Today’s ruling, together with the interim ruling, sets the boundaries for proper usage of copyrighted works in Japan as it clearly affirms copyright infringement resulting from use of File Rogue and as it also acknowledges both an order of suspension of service and compensation for damages as appropriate remedies in a situation where distribution of copyrighted works uses the Internet. The damages were based on the “Tariffs for Use of Musical Works”…

Microsoft ordered to open up windows
Competition / February 2005
EU

COMPETITION Technology Computer giant Microsoft has been ordered to pay a million fine (497 million euros) to the European Commission for anti-competitive activities and abuse of market dominance. This is the biggest fine ever in Europe for a competition case. The company had appealed to the European Court of First Instance in Brussels but the ECJ upheld the European Commission’s ruling in March 2004 that the firm had abused a virtual monopoly. In addition, Microsoft must now make Windows available to consumers without its Media Player software bundled in as part of the package. The European Commission’s aim is to give Media Player’s competitors such as Apple’s Quicktime and RealNetwork a level playing field. The company must also hand over confidential coding information from the Window’s operating system to rivals. Microsoft may still appeal to the full European Court of Justice. The Court of First Instance rejected a suspension of payment of the fine until such appeal. See: www.eubusiness.com/afp/041222193914.qgqu0dis

House Judiciary committee reviews use of band names
Artists , Trade Mark / February 2005
USA

TRADEMARK Artists The United States House Judiciary Committee has reviewed legislation that would prohibit groups from using the name of a well-known band, unless the group has one of the band’s original members. Representative Dwight Wrangham (R-Bismarck) is sponsoring the bill. It says performers may do “tribute” concerts, but only if advertising makes it clear that the group doesn’t have any original members. Evidence before the Committee included the example of ‘the Platters’ where a number of groups bill themselves as The Platters, a doo-wop act that had a number of hits in the 1950s and 1960s. Several of the groups have little or no connection to The Platters, which were inducted into the Rock and Roll Hall of Fame in 1990. The Committee further heard that many group names are owned by someone who was never in the group. That person may sell the rights to the name to other performers. The Committee heard that “There has been a lot of misinformation, and this is an attempt to correct that,” he said. Representative Andrew Maragos (R-Minot) said the bill wouldn’t affect such groups. “If they have the legal right to use the name ‘The Platters,’ then they are not…

Demonstrations by some members of the Sikh community close the theatric presentation of Behzti and raise issues of free speech
Artists , Censorship / February 2005
UK

CENSORSHIP & DISCRIMINATION Artists, Theatre, Live Concerts, Film, Television A desire to stamp out religious, sexual and other hatred often clashes with the desire to retain a right of free speech for all members of a community. In our December 2004 Law Updates we briefly covered the story of Jamaican reggae star Sizzla Kalomji being barred from the UK by the then Home Secretary as police investigated claims that his lyrics were homophobic and anti-white. Of course the counter argument is that Sizzla Kalomi is an artist who should have the right to free expression (which is now provided for in the Human Rights Act 1998 and the European Convention for Human Rights). In a widely reported story, violent demonstrations by members of the Sikh community have caused the temporary closure of the play Behzti at the Birmingham Repertory Theatre. The play included scenes of sexual abuse and murder in a Sikh Temple. Along with the Sizzla case it is quite possible that the play could fall foul of existing laws against stirring up racial hatred. Under the Public Order Act 1986 it is an offence to use threatening, abusive or insulting words or behaviour within the hearing of a person likely to be caused…

Three new tax cases are to be heard by the European Court of Justice
Artists , Taxation / February 2005
EU

TAXATION Artists After a success for the live music industry in the case of the 2003 Arnoud Gerriste in Germany there are now three new tax cases pending before the European Court of Justice (ECJ) regarding the taxation of non-resident artists. The industry has long argued that German withholding tax laws are unfair to non-resident touring and performing artists, particularly where these artists are EC citizens. In all three cases, the German Bundesfinanzhof (Federal Fiscal Court) has raised preliminary questions to the ECJ as to whether German taxation of non-resident artists is in accordance with the EC Treaty. The Geriste case held that Article 49 and 50 of the EC Treaty (previously articles 59 and 60) precluded a national provision which, as a general rule, taxed non-residents on gross income without allowing for the deduction of business expenses whilst allowing residents to deduct such expenses before a tax on net income. The case also held that a fixed rate of 25% was allowable on non-residents provided this would not be a different taxation rate to residents taxed on a progressive scale but on net income. However the decision has only been partially applied by Germany in its legislation while other countries, such as France, Spain, Italy,…

Bridgeport Music Inc & Westbound Records Inc v Dimension Films and No Limit Films (2004)
Artists , Copyright , Record Labels / February 2005
USA

COPYRIGHT Record Labels, Artists It is understood at the time of writing that the US Court of Appeals Sixth Circuit is to review its decision. This three judge panel held that whilst a de-minimis test (substantial use) might apply to the use of a song (the musical and lyrical copyrights) the use of any part of a sound recording without permission would be an infringement of copyright. The original appeal judgment can be found at: http://fsnews.findlaw.com/cases/6th/04a0297p.html

Civil rights era icon Rosa Parks and Jerry Garcia’s estate fight to protect their names
Artists , Trade Mark / February 2005
USA

TRADE MARK Artists Rosa Parks, who famously refused to give up her seat on a bus for a white man in Montgomery, Alabama in 1955 is close to reaching a settlement with hip-hop duo Outkast over the use of her name. Mrs Parks was arrested for the act and her action prompted a 381 day boycott of the city’s buses by the black population. The dispute relates to a 1998 song Rosa Parks released by Outkast which makes little reference to the Mrs Parks save for the lyric ‘Aha, hush the fuss, everybody move to the back of the bus’. However the title, lyric and reference to sex in the song prompted lawyers for Mrs Parks to bring an action in 1999 against Outkast for failing to secure permission to use Mrs Park’s name and false advertising. Outkast claimed the right to freedom of speech under the First Amendment to the US Constitution and the case was dismissed in the District Court. The case was reinstated in the superior court along with a second claim against stores which sold the album was due to go ahead in the summer but both parties agreed to settlement talks with a mediator. In…

Delhi hotels charged with violating music copyright
Copyright , Record Labels / February 2005
India

COPYRIGHT Record Labels The Delhi High Court has restrained 14 hotels and pubs in Delhi from playing music for which Phonographic Performance Ltd (PPL) holds the copyright. PPL is the collection society formed by more than 100 audio firms including the global majors Universal, Warners, EMI Virgin and Sony BMG. The dispute revolves around whether or not special licences are needed from PPL. PPL issues two types of licences – the annual licence required for playing background music, and secondly the event licence which is needed for special events such as fashion shows, film awards, Christmas or New Year celebrations. The controversy is over how an ‘event’ is defined. The fee for a single event can sometimes be almost equal to the cost of an annual licence for the hotel and the hotels claim that many events where PPL are asking for special licences are nothing more than normal nights in a restaurant or room. The cost of event licences are based on factors such as the type of event, number of guests and duration: the Federation of Hotels and Restaurant Association contend that the annual fee includes the fee for the event also. The matter will be heard in…

Pepsi claim that new film’s title infringes their advertising slogan
India

COPYRIGHT/TRADE MARK Record Labels, Artists, Music Publishers Pepsi has brought an action in the Delhi High Court against the makers of the film ‘Dil Maange More’ alleging that the film title is an infringement of copyright, as it closely resembles Pepsi’s previous ad tagline, ‘Yeh Dil Maange More’. The film include a sequence by actor Actor Shahid Kapoor crooning ‘ Dil Maange More’ . The Delhi High Court has issued notices to the producer, director, music distributor and owner of the website promoting the film, `Dil Maange More’. Pepsi has alleged that the film title is an infringement of the copyright, as Pepsi had earlier used the phrase, ‘Yeh Dil Maange More’ as the tagline for all its advertising. The film’s producer Nikhil Panchamiva has said that Pepsi are too late in serving the notice as the film has been released and the promos for the film have been on air since November 1. In its application, Pepsi also appealed for an order restraining the defendants from using the film title for overseas audio and video distribution. However, the film has been released overseas through Mumbai-based distributor Neptune and producers claim that the notice will have no impact on the…

US court quashes subpoenas to produce personal details of file sharers
Copyright , Record Labels / February 2005
USA

COPYRIGHT Record Labels Just as Justice Konrad von Finckenstein turned down a Canadian Recording Industry Association (CRIA) request that would have forced five Canadian ISPs to hand over the names of 29 people the CRIA alleged were distributing hundreds if not thousands of music copyright files to millions of others, the Recording Industry Association of America (RIAA) have failed in an effort to force ISP Charter Communications Inc. to turn over the names and addresses of Internet subscribers suspected of illegally sharing copyrighted music after a U.S. appeals court ruled against them. “A three-judge panel of the U.S. 8th Circuit Court of Appeals in St. Louis quashed subpoenas issued in 2003 by a federal judge. The appeals court said the Digital Millennium Copyright Act doesn’t allow the RIAA to subpoena Charter for user information because the files at issue aren’t stored in the company’s computers. U.S. Circuit Judge Diana Murphy issued a dissenting opinion in which she said the other two judges defined the copyright act too narrowly: She argues that ‘to interpret the statute in the way Charter urges, and the court adopts, is to block copyright holders from obtaining effective protection against infringement through conduit service providers’. See: http://p2pnet.net/story/3463 Law Updates…

Court of Appeal rule on unlawful discrimination: Ross v Ryan Air & Stanstead Airport (2004)
Health & Safety , Live Events / February 2005
UK

HEALTH & SAFETY/DISCRIMINATION Live Events Industry The Court of Appeal held that the policy of the Disability Discrimination Act 1995 was to provide disabled persons with access to services as close as it was reasonably possible to get to the standard normally offered to the able bodied. Here the Court ruled that Ryanair had discriminated against the appellant, Mr Ross, who suffers from cerebral palsy and arthritis, contrary to part III of the Act. Ryanair insisted on charging for the use of a wheelchair to get from check in to the aircraft each time the service was used. Ryanair accepted that Mr Ross had been the victim of unlawful discrimination but contended that Stanstead Airport should also be liable. Mr Ross appealed on those grounds and the Court found that the Airport could not escape liability and was guilty of unlawful discrimination contrary to section 19(1)(b) of the 1995 Act. Source: Times Law Reports 11 January 2005

German court find promoter liable for damaged hearing
Health & Safety , Live Events / February 2005
Germany

HEALTH & SAFETY Live Events Industry Leading German concert promoter Marek Lieberberg Konzertagentur (MLK) has been ordered to pay four thousand Euros (E4,000, approx 00) to a woman who claimed her hearing was damaged at a Bon Jovi concert four years ago. The company must also pay medical expenses and loss of income. The Court said that MLK had failed to take sufficient precautions to limit the volume of the outdoor concert in 2000. The injured woman said she was standing 2.5 metres from a speaker and now suffered from tinnitus. This case contrasts to an earlier US ruling which held that a promoter could not be liable for the alleged damaged hearing of a plaintiff lawyer who should have realised that loud music was played at rock concerts. In a separate report, the UK’s Royal National Institute for the Deaf (RNID) and Trades Union Council, have said that over 500,000 bar and club workers in the UK are at risk from loud music played at their places of work. The report, ‘Noise Overload’, states that the noise in some nightclubs is comparable to being next to an aircraft taking off and that not enough is being done to protect…

South Korean find no ISP liability for infringing use
Copyright , Internet , Record Labels / February 2005
South Korea

COPYRIGHT Record Labels, Internet The Seoul Central District Court (Appellate) has ruled that the two brothers – Yang Jung-hwan and Il-hwan – behind the South Korean P2P Soribada cannot be held responsible for any copyright violations by the service’s users. The P2P launched in 2000, attracting up to 8M users. The brothers were indicted the following year on charges of contributory infringement of copyrights. The free service closed in 2001 but quickly re-launched as a paid service. South Korea was listed as a ‘priority watch’ country by the US last year following growing concerns over lax piracy enforcement. The Music Industry Association of Korea may appeal the decision. The court accepted that those who use the service are infringing copyrights. But in a separate ruling on the same day, the Seoul High Court said Soribada helped site users infringe on copyright and ordered it to shut down its file-sharing software and its three computer servers, upholding a lower court’s decision. Eleven record companies had filed charges against the P2P music exchange website. See: http://english.chosun.com/w21data/html/news/200501/200501120032.html

IFPI Digital Music Report 2005
EU
USA

COPYRIGHT Record Labels, Artists, Music Publishers Music on the internet and mobile phones is moving into the mainstream of consumer life, with legal download sites spreading internationally, more users buying songs in digital format and record companies achieving their first significant revenues from online sales. These are the conclusions of the IFPI Digital Music Report 2005, a comprehensive review of the music industry’s digital strategies and of the fast-emerging market for online and mobile music distribution. The report is published by the IFPI. Music fans downloaded well over 200 million tracks in 2004 in the US and Europe – up from about 20 million in 2003. This helped bring record companies their first year of significant revenues from digital sales, running into several hundred million dollars. Analyst Jupiter estimates that the digital music market was worth US$330 million in 2004, and is expecting it to double in value in 2005. The supply of music available digitally is proliferating. The number of online sites where consumers can buy music legally has now hit more than 230, up from 50 a year ago, with record companies licensing the bulk of their active catalogue for download, totalling over one million songs – more than…

Bertlesmann settle first claim over actions resulting from its financial support of Napster’s file sharing service
Copyright , Record Labels / February 2005
USA

COPYRIGHT Record Labels Bertelsmann has agreed to pay about $50,000 to settle accusations from Bridgeport Music that it had contributed to copyright infringement by lending millions of dollars to Napster in 2000 and 2001. The settlement, which covers the small label’s legal fees, is the first sign of a break in a battle that has taken shape amid the fallout from the collapse of Napster. Napster was forced to file for bankruptcy protection Bridgeport is the smallest of the music companies pursuing copyright-infringement claims, and Bertelsmann may still face a protracted battle with the industry’s bigger and wealthier players including the EMI Group and the Universal Music Group. Bertelsmann owns 50 percent of the newly merged music giant Sony BMG Music Entertainment. The companies contend that Bertelsmann, which lent Napster about $85 million to develop a new service that would compensate labels and songwriters, in essence controlled the online company and should be held responsible for the theft of songs. Bertelsmann’s lawyers say the company did not hold an equity stake or seats on Napster’s board, and lacked the sort of control needed to be found liable. The federal judge overseeing the case recently denied Bertelsmann’s motion to dismiss the…

RIAA secure first convictions
Copyright , Record Labels / February 2005
USA

COPYRIGHT Record Labels Two men have pleaded guilty to copyright-infringement for distributing music, software and movies over the Internet in the first U.S. convictions for piracy over “peer to peer” networks, the Justice Department has said. William Trowbridge, 50, of Johnson City, New York, and Michael Chicoine, 47, of San Antonio, face up to five years in prison and a fine of $250,000 in the criminal convictions stemming from an August raid, the department said late on Tuesday. Trowbridge and Chicoine operated hubs in a file-sharing network that required members to share between one gigabyte and 100 gigabytes of material, the equivalent of 250,000 songs Attorney General John Ashcroft said when the raid was announced. investigators downloaded material worth $25,000 from the two hubs. Sentencing is set for 29 April in the U.S. District Court for the District of Columbia. See: www.reuters.com/newsArticle.jhtml?type=topNews&storyID=7371590