Italian DJ receives massive fine for using pirate music files

COPYRIGHT Record Labels, Music Publishers, Artists, Internet, Live Concert Industry An Italian DJ has been fined a record E1.4 million for using hundreds of pirate music files in a well-known local nightclub near Rome. The DJ was discovered with more than 2,000 mp3 music files suspected to be illegal downloads and 500 pirated video clips. The fine, set by the Italian Fiscal Police of Rieti (Rome), is the biggest fine to be imposed on an individual in Europe to date for the unlawful copying and use of copyrighted music in the mp3 format (the fine is subject to administrative recourse). The DJ may be subject to further criminal sanctions. The police operation, targeting radio stations and clubs around the region, was led by the Fiscal Police. In addition to the mp3s and music video clips found, a large quantity of audiovisual material and software were also seized. Source: www.ifpi.org

Korean online music operator guilty of violating copyright laws

COPYRIGHT Record Labels, Music Publishers, Internet A Seoul criminal court has found the operator of an Internet music site guilty of violating copyright laws. Park Sung-hun, chief executive officer of Bugs Co., the country’s most popular online music site, was given a sentence of 18 months in prison with a three-year suspension, and his company was fined 20 million won (US$19,460). Park distributed tens of thousands of music files on the Internet without permission from (musicians and recording companies). Seoul Central District Court judge Lee Han-sup suspended his prison sentence in light of the fact that Park can potentially solve the dispute with the recording companies that filed the lawsuit. The court said Bugs’ free music service violated “copyright neighboring rights,” the right to distribute copyrighted materials owned by musicians and recording companies to the public. The court ruling was another blow to the online music service industry. In January two developers of the free online music file-sharing site Soribada were ordered to pay 19 million won in compensation to the Korea Music Copyright Association, an umbrella organization of recording companies and musicians. The court blamed the online operators for “overlooking” free file sharing between Internet users. Korean has a…

French court imposes heavy fine for uploading

COPYRIGHT Record Labels, Music Publishers, Internet A 28-year-old schoolteacher has been fined €10,200 (approx £7,250) in the biggest legal crackdown to date against file-sharers in France. He was described as one of the biggest serial uploaders in the country, offering an estimated 10,000 tracks for download. The rights holders taking the legal action against him had originally sought €28,400 in compensation. The defendant was ordered by the Tribunal of Pontoise to take out adverts in two newspapers, Liberation and La Parisien detailing the verdict in the case as a deterrent to other uploaders. His Computer was also confiscated. John Kennedy, Chairman and CEO of IFPI said: “We take no pleasure in resorting to lawsuits against illegal file-sharing, but we are encouraged by this French judgement. This sends out a clear message to all those who think they can get away with the illegal mass distribution of music files on a P2P network: you are not immune, you are not anonymous and there are consequences. Music is widely available to buy legitimately online – if you want to avoid the risk of a fine it’s easy, download legally.” Source: http://www.smh.com.au/news/Breaking/Teacher-fined-836410200-for-downloading-music/2005/02/03/1107228807818.html and http://www.nme.com/news/111277.htm andwww.ifpi.org

German court clears ISPs of liability for infringing uses by third parties

COPYRIGHT Record Labels, Internet, Music Publishers, Film & Television The Higher Regional Court of Frankfurt has ruled that an Internet Service Provider (ISP) is not obliged to reveal the name and address of an Internet user who offers downloads of music files on the Internet even though this service violating the copyrights or other rights of third parties The Court overturned a lower court order to have the name of an Internet user who operated a music server via a German provider made known to a music firm (reference no.: 11 U 51/04). The Court noted that the ISP only supplies technical access to the Internet and does not generally have any obligation to inspect the data being sent through its network. Rather, providers are only obligated to block access when they learn of illegal content. Providers do not, however, have to provide information about their customers because the providers have not themselves violated copyrights or aided and abetted. The court noted that whist there is a legal right to obtain information about a person violating copyright by making or disseminating physical copies of copyright works (eg pirate CDS and DVDs) the provisions in the Product Piracy Act only concern the manufacture…

Major International rights owners urge the US Supreme Court to reverse the Grokster decision

COPYRIGHT Record Labels, Internet, Music Publishers, Film & Television Eight major international trade associations, representing hundreds of thousands of copyright and other rights owners in more than 100 countries outside the United States of America filed a ‘friend of the court’ brief yesterday, urging the U.S. Supreme Court to reverse the court of appeals’ decision in the Grokster file-sharing case. These organisations argue that the lower court’s decision not only affects U.S. rights owners, but also denies international rights owners effective protection in the U.S. against copyright infringement on a ‘massive and unprecedented scale’. The lower courts in MGM, Inc. vs Grokster, Ltd. found that two distributors of peer-to-peer software could not be held liable for users’ copyright infringements. The IFPI argue that this puts the United States in breach of its obligations under international treaties which require enforcement measures that are effective in deterring and preventing piracy. The IFPI argues that unless reversed, the court of appeals decision sets bad precedent not only in the U.S. but elsewhere, and risks making the U.S. a piracy haven from which infringing copies of protected material spill over the border via the internet to hurt rights owners in other countries. The international trade associations…

Norwegian Supreme Court finds link site owner liable for copyright infringements

COPYRIGHT Record Labels, Music Publishers, Internet In another case which shows how finely balanced the arguments for those who ‘facilitate’ (either knowingly or unknowingly, directly or indirectly) others copyright infringements, The Norwegian Supreme Court has ruled that a student who ran a web site linking to free digital music files is liable for copyright infringement even though third parties provided the infringing material. Frank Allan Bruvik was fined 100,000 kroner (£8,000) for ‘abetting’ an illegal act. Bruvik set up the site, Napster.no (which has no connection with the famous Napster site) in 2001 as part of his computer engineering course. The site, which ran from August to November 2001, linked to MP3 formatted music files, but did not host the files itself. The Norwegian music industry, including the Norwegian subsidiaries of Sony Music and Universal Music, sued the student, alleging that his site breached copyright, and in 2003 Bruvik was fined 100,000 kroner by the district court. On appeal, however, the Appeals Court ruled in favour of the student, arguing that any copyright violations were carried out by those who posted the music, and not by simply linking to the postings. The Supreme Court has now upheld the original ruling,…

Norway proposes new digital legislation
Copyright , Internet , Record Labels / March 2005

COPYRIGHT Record Labels, Internet The Norwegian government is proposing new copyright legislation that will make attempts to crack copy-protection illegal. On top of this, it will allow copying of CDs and DVDs for personal use (even if this involves cracking the copy protection) as long as they are copied onto the same medium (i.e. a CD copied onto a CD-R). The biggest – and most controversial – issue is, however, the fact that consumers will not be able to copy CDs onto their portable digital players (as this will mean transferal from one medium to a different one). It is argued, on one side, that this is an important update of copyright law and, on the other, that it is a massive restriction on consumers’ digital usage rights. Source: http://www.bizreport.com/news/8668/ Source: Five Eight Magazine – http://www.fiveeight.net

Moves to reform Australian copyright law

COPYRIGHT Record Labels, Music Publishers There could be a major revision in Australian copyright law, relating specifically to fair use. The Attorney-General is preparing a discussion paper on how copyright law can evolve and one consideration is allowing consumers to transfer music or films from one medium (e.g. a CD) to another (e.g. a portable digital music player) as long as it is for personal use. If passed, a levy could be imposed as a means of compensating rights owners. Australian consumer rights bodies have welcomed this (tentative) legislative step. Source: http://www.zdnet.com.au/news/communications/0,2000061791,39181367,00.htm Source: Five Eight Magazine – http://www.fiveeight.net

Office of Fair Trading reviews ticket pricing
Competition , Live Events / March 2005

COMPETITION Live Event Industry A shake-up in the way concert and theatre tickets are sold was announced yesterday after The Office of Fair Trading said the public are not getting clear information on prices. Even legitimate agents are sometimes charging as much as two-thirds on top of the face value of a ticket according to the OFT research. In future it would like advertisements for events to show the face value of tickets. The OFT uncovered evidence of some ticket sellers breaking the law and employing “potentially unfair” terms and conditions, and mark-ups as high as 600% on some tickets sold over the internet. The watchdog also revealed just how much fees can add to the price of a concert or West End show ticket. A comprehensive mystery shopping exercise, looking at the cost of tickets for everything from West End hit Chicago to a gig by up-and-coming rock band Hope of the States, found that some people using well-known agencies were being asked to pay up to 67% extra to cover booking fees. Among the OFT findings were that some ticket agents were relying on “potentially unfair” terms and conditions buried in the small print, designed to allow them…

ASCAP files actions against bars and restaurants
Copyright , Music Publishing / March 2005

COPYRIGHT Music Publishing The American Society of Composers, Authors and Publishers (ASCAP) has filed 24 separate copyright infringement actions against nightclubs, bars and restaurants in 15 states and the District of Columbia. These establishments have publicly performed the copyrighted musical works of ASCAP’s songwriter, composer and music publisher members without receiving their permission to do so and ASCAP allege that this has resulted in lost income. During 2004, ASCAP achieved a 100% success rate with its copyright infringement litigation, with all concluded cases resulting in either a cash settlement or a judgment in favor of ASCAP members. ASCAP represents over 200,000 member owners who, for the most part, are songwriters and composers who rely heavily on their ASCAP royalties, as well as ASCAP’s enforcement efforts on their behalf. Over 86 cents of every dollar collected is distributed to its members, the music creators. Source: http://www.wlns.com/Global/story.asp?S=2852519

Unauthorised use of model’s photograph results in massive damages against Nestlé
Artists , Image Rights , Trade Mark / March 2005

TRADEMARK/IMAGE RIGHTS Artists In 1986 Russell Christoff (58), now a nursery school teacher but then a male model, sat for a two hour session for Nestlé for which he was paid $250 (about £130). Over fifteen years later in 2002 he discovered that, unbeknown to him, his face had been adorning Nestlé’s ‘Tasters Choice’ for over a decade. Having checked his original contract Mr Christoff found that as a minimum payment he was due $2,000 if his image was used. But this right, coupled with a Californian state law which is designed to protect celebrities image rights, led to a claim for over $8.6 million which eventually resulted in a Jury in the Los Angeles County Superior Court awarding damages of $15.6 million. This was based on a fee payment of $330,000 for use of his image plus 5% of the profits from the Tasters Choice brand. His face had been used on labels in the US, Israel, Japan, Kuwait and South Korea and had even been used as a screen saver. Nestlé will appeal the award. Source: The Times, 2 February 2005

US 5th Circuit Court Of Appeals finds no copying in “Back That Azz Up”

COPYRIGHT Record Labels, Music Publishers, Artists In February 2002, Louisiana rapper DJ Jubilee (Jerome Temple) registered a song entitled “Back That Ass Up” with the U.S. Copyright Office and filed a copyright infringement suit against rapper Juvenile (Terius Gray) in Louisiana’s U.S. District Court on the same day. Juvenille immediately denied the allegations and contended that the two songs featured no true similarities. To win the suit in US law Jubilee had to prove that his song was (a) copyrighted and (b) that Juvenille’s version was “substantially similar” to his recording. According to Judge Carolyn Dineen King’s opinion, both songs were recorded in 1997 with slight differences in the title’s spelling. While Jubilee dubbed his effort, “Back That Ass Up,” Juvenile titled his cut, “Back That Azz Up.” Juvenile’s single turned out to be a big. His 400 Degreez LP sold 4 million copies.Jubilee’s song never took off. Following a 2003 trial, a jury ruled in favor of Juvenile on grounds that Jubilee couldn’t establish significant similarities between the two songs. Jubilee, who still works as a special education teacher, later appealed the verdict to the 5th Circuit Court claiming that the jury should have examined specific sections of both…

Two new decisions on trademarks in colours and shapes: Heidelberger Bauchemie Gmbh (ECJ C-49/02 )
Trade Mark / March 2005

TRADEMARK Merchandising For many years, traders have used colours or combinations of colours to distinguish their goods and services from those of other traders but European Union trade mark registries and courts have struggled to define the circumstances in which colours will be allowed registration as trade marks. The ECJ’s 2003 decision in Libertel answered many of the issues in relation to single colour marks per se, confirming that such marks are registerable in limited circumstances. However the ECJ’s recent decision in Heidelberger Bauchemie GmbH has significantly raised the hurdle for registration of colours per se meaning that many existing registrations may not be valid. In this case German company Heidelberger applied to the German Patent Office for trade mark registration of the colours blue and yellow: the applicant’s corporate colours were used “in every conceivable form, in particular on packaging and labels”. The German Patent Office rejected the application on the grounds of lack of distinctive character. Heidelberger appealed to the Bundespatentgericht, which referred two questions to the ECJ, asking, in short, whether combinations of colours per se are registerable as trade marks, and, if so, in what circumstances. The ECJ started with a three-step test for registerability for combinations of colours: 1….

Court of Appeal takes a robust view of abusive libel actions: Jameel v Dow Jones
Artists , Defamation , Internet / March 2005

DEFAMATION Artists, Radio and Television, Internet ARTICLE: Jonathan Coad, Solicitor England’s libel laws make London a favorite destination for foreign claimants. But actions do not always succeed and the Court of Appeal have thrown out a claim brought by a Saudi businessman against the US published Wall Street Journal online on the grounds that practically no-one in England had read the offending article – only five people had clicked on the link. This action arose from an article which was posted by the defendant in the United States via a subscriber service to the Wall St Journal. The claimant sued on the basis that the material bore the defamatory meaning that he provided financial support to Al Osama Bin Laden and Al Qaeda. It was assumed for the purposes of the appeal that only five UK subscribers had accessed the posting. It was asserted by the defendant that of those five two did not know Mr Jameel, and that the other three were his solicitor, a director of an associated company and a consultant to Mr Jameel’s group of companies. In its judgment, the Court of Appeal affirmed the presumption of damage on the part of someone defamed without the…

Website disclaimer fails to protect infringement but liability for chat room activities may be limited
Artists , Defamation , Internet / March 2005

DEFAMATION Artists, Internet -ARTICLE: Newsgroup Newspapers Ltd v Douglass Consultancy Services Ltd (2005) – Tom Frederikse, solicitor A website that relied on an informal disclaimer, appealing to copyright holders to forgive its obvious copyright infringement, has been forced to withdraw the infringing pictures. On 15 October 2004, News Group (owners of The Sun and News of the World) obtained an interim injunction to prohibit publication of its pictures by the offending site. The website referred to as “robscelebs” (controlled by Douglass) provides access to photographs of celebrities – many taken from other publications and posted on the site. The site apparently offers over 100,000 photos and, as the court noted, the most popular images are those in which “the subject of the picture is exposing the most flesh”. In January 2004, News Group complained that photographs in which it owned the copyright or which were under an exclusive licence appeared on the website. The infringements were easily proved as many of the images bore the banner of The Sun or the logo of “page3.com”. Douglass had earlier admitted that News Group did own the rights to certain photos posted within the site and had offered an undertaking to remove those images. The site,…

Fugitive granted right to give evidence via a video link: Polanski v Conde Nast
Artists , Defamation / March 2005

DEFAMATION Artists ARTICLE: Jonathan Coad, Solicitor This decision of the House of Lords handed down on 10 February overturned the decision of the Court of Appeal refusing the film director Roman Polanski leave to give evidence at the trial of his libel action via video link. The Court of Appeal had in turn overturned the decision of Mr Justice Eady granting the application. The decisions of the various Law Lords show clearly the legal and moral dilemma which is reflected in the 3 to 2 majority by which the House of Lords overturned the Court of Appeal judgment. Roman Polanski had pleaded guilty to unlawful sexual intercourse with a 13 year old girl in 1977. He fled the United States in 1978 and since then he has resided in France from which he cannot be extradited as he is a French citizen. If he were to come to this country he would be liable to be extradited under the terms of the extradition treaty with the United States. In 2002 Mr Polanski began proceedings against the publishers of Vanity Fair over allegations that on the way to attending the burial of his wife (Sharon Tate), who had been viciously murdered,…

McLibel case ends in victory for campaigning duo. Steel & Morris v United Kingdom Times Law Reports 16 February 2005 ECHR Application no 6841/01
Artists , Defamation / March 2005

DEFAMATION Artists McDonalds have finally lost one of the longest running sagas in UK defamation history to Helen Steel and David Morris, two anti-McDonalds Greenpeace activists when the European Court of Human Rights ruled that the pair did not get a fair trial and the UK Government was wrong not to award the pair legal aid to fight their case in breach of Article 6 of theEuropean Convention on Human Rights. The two activists were found liable for libeling the U.S. fast food chain McDonald’s after the longest court case in English legal history did not get a fair trial, the European Court of Human Rights ruled on Tuesday. Steel and Morris produced a 1984 pamphlet which accused McDonald’s of starving the Third World, destroying rainforests and selling unhealthy food, were also deprived of their freedom of expression by their 1997 conviction, it said. The Strasbourg-based court ordered Britain to pay Steel E20,000 and Morris E15,000 for non-pecuniary damages and E47,311 costs and expenses and offer them a retrial. The United Kingdom has three months to appeal the decision. In its ruling, the court said the denial of state legal aid to the defendants, a part-time barmaid or unemployed single person and…

Article: The Digital Dilemma: How Do We Pay The Piper?
Articles / March 2005

Click here to download this article as a PDF file (.pdf) by Ben Challis Music Industry Lawyer March, 2005   In this article summarising recent developments in digital downloading and Internet copyright, the author argues that in the digital future it will not be ‘who pays the piper’ that matters, but ‘how the piper is paid’.   TRADE associations representing record labels, films companies, software manufacturers and music publishers have for some time been making noisy protests about Internet copyright theft.  As copyright owners seek to protect their intellectual property rights (and maintain profit margins), there have been numerous legal actions worldwide against peer-2-peer file swappers, uploaders, downloaders, file swapping software providers and Internet service providers.  But is the current model of ‘paid for’ legal downloads the true business model that copyright owners want – or even need?  Moves are now afoot to develop new systems to protect intellectual property, but these systems may have long-lasting ramifications for civil liberties and personal privacy. There are, at last, a reasonable range of music files available for legal downloading – with Apple’s i-Tunes online music store leading the way. However, the more one looks at legal downloading, the more one sees this as possibly a…