P Diddy settles with DJ Diddy
Artists , Trade Mark / October 2006
UK

TRADE MARK Artists Sean Combs aka Puff Daddy aka P Diddy has agreed not to shorten his name to just ‘Diddy’ after the threat of a High Court action from Richard ‘Diddy’ Dearlove, a successful music producer who has been using the name since 1992. Mr Dearlove sued Combs after learning that the rap superstar was dropping the ‘P’ from his name. The action was listed for a hearing on the 23 rd October. Combs is meeting £100,000 of Dearlove’s costs (subject to court taxation) and paying £10,000 in agreed damages. Combs will have to re-brand any ‘Diddy’ activities in the United Kingdom. The Guardian 9 th September 2005 p3 http://www.guardian.co.uk/uk_news/story/0,,1868383,00.html

US reality show band have problems with name
Artists , Trade Mark / October 2006
USA

TRADE MARK Artists The makers of the second series of the US reality show Rock Star have run into problems over the name of the supergroup the show is aiming to create. The second series of Rock Star, which was responsible for recruiting a new frontman for INXS in series number one, is looking for a frontman to lead a new supergroup that will also include Motley Crue’s Tommy Lee on drums, former Guns N Roses member Gilby Clarke on guitar and former Metallica member Jason Newsted on bass. The plan was to call the new group Supernova, and as such the show is called Rock Star: Supernova. However, there is already a Californian punk band called Supernova, and they have sued the programme’s makers, Mark Burnett Productions and CBS Broadcasting, over their use of their name. With the TV show reaching its conclusion, a judge in San Diego has issued an injunction which bars the programme’s makers or the band they create from “performing rock and roll music, or recording, or selling rock and roll music recordings under the same [name], pending a trial of this action on its merits, or until otherwise ordered by the court”. It appears that the…

Setback for Love in Beach Boys name dispute
Artists , Trade Mark / October 2006
USA

TRADEMARK Artists Mike Love has suffered a set back in his bid to pursue sole ownership of the ‘Beach Boys’ name after Super Court Judge James R Dunn dismissed part of a $2 million lawsuit against ex-bandmate Al Jardine which says that Jardine illegally used the band’s name. Judge Dunn threw out claims of breach of contract and breach of fiduciary duty but gave Love’s lawyer a chance to amend the case before it goes to trial on Nov. 6. The suit claims that Love is the only person legally allowed to perform under the name “Beach Boys” but that Jardine had toured with “knockoff bands” using names such as “Beach Boys Family & Friends.” http://www.billboard.com/bbcom/news/article_display.jsp?vnu_content_id=1003122397

Russia enacts new copyright laws to fight piracy
Copyright , Internet , Record Labels / October 2006
Russia

COPYRIGHT Record labels, internet The Russian parliament has enacted a tough new copyright law designed to crack down on the Internet piracy of text, music and videos. The new law which took effect at the end of August is part of Russia’s bid to comply with World Trade Organisation conditions – music piracy is rife in Russia, with hard copy piracy possibly running at 90% of all sales. The Russian parliament originally approved the amendment to Russia’s existing copyright protection law in July 2004; it granted website operators that distribute copyright protected content two years to acquire licenses to distribute their MP3 files. The United States has cited notoriously lax protections for intellectual property as the major reason for refusing to endorse Russia’s entry into the WTO. The Russian business daily Kommersant claims that 97 percent of music files exchanged online are illegal with just $1 million of sales reported against estimates of real sales of $25-30 million each year. The new law threatens to sentence violators to up to five years in jail. http://jurist.law.pitt.edu/paperchase/2006/09/russia-implements-tough-illegal.php http://www.allheadlinenews.com/articles/7004724242 and see the excellent article at http://arstechnica.com/news.ars/post/20060906-7676.html

What will Universal do about YouTube now Warners have joined up?
Copyright , Internet , Record Labels / October 2006
EU
UK
USA

COPYRIGHT Internet, broadcasting, record labels The strange honeymoon between record labels and websites such as YouTube seems to be in the balance. Universal Music Group Chief Executive Doug Morris hit out at YouTube and other social networking sites claiming they owed record labels “millions”. Speaking at the annual Merrill Lynch Media & Entertainment Conference, Morris said: “We believe these new businesses are copyright infringers and owe us tens of millions of dollars. How we deal with these companies will be revealed shortly.” The comments were surely aimed primarily at YouTube where large volumes of artist videos and concert footage have been illegally uploaded. Five Eight magazine says that According to ‘insiders’ on both sides, the major labels are in talks with YouTube about how to remove unlicensed content and also implement a workable business model for licensed content and in stark contrast to what seems to be Universal’s position (though it may be a negotiation tactic of course) Warner Music has become the first major label to formally license its content to YouTube. Last month, YouTube announced an advertising deal with Warner Music as the start-up’s first partner for its new Brand Channel advertising to promote the new Paris Hilton…

Record industry keep up the pressure on illegal downloading
Copyright , Internet , Record Labels / October 2006
USA

COPYRIGHT Record labels, internet Five Eight magazine reports another milestone victory for the music industry in its fight against P2P. Its latest scalp is eDonkey which is paying $30M as a settlement. The service had upwards of 3M users last year. This latest ruling now means that five of the seven major P2P providers targetted by the RIAA in 2005 have made significant payments and effectively been closed down – eDonkey, BearShare, i2Hub, WinMX and Grokster. The ruling on August’s legal action against LimeWire is still pending: http://www.wired.com/news/culture/music/0,71771-0.html?tw=wn_index_13 http://www.billboard.biz/bb/biz/newsroom/legal_management/article_display.jsp?vnu_content_id=1003120853

US Anti-trust chief takes hands off approach to Apple
Competition , Internet , Record Labels / October 2006
USA

COMPETITION Record labels, internet ARTICLE LINK:  As competition and consumer regulators in some European countries prepare to take action against Apple and its DRM software, the US competition chief has a different view. http://www.marketwatch.com/News/Story/Story.aspx?dist=newsfinder&siteid=google&guid=%7B3845BAAA-EA87-45E3-BA14-7756F8619D75%7D&keyword=

European Commission to review copyright levies
EU

COPYRIGHT Record labels, music publishers, film The European Commission has unveiled plans to set up streamlined systems for copyright levies across Europe. The levies exist to compensate artists and other creators for unauthorized copyright by consumers use – essentially giving consumers permission to make private copies, but in return charges a levy on media and devices used to make them – including photocopiers, cassettes, discs, CDRs and MP3 players. These levies are then passed on to the copyright owning community as compensation for the copying that is assumed to take place. The EC’s aim is to make levies more consistent, both across different member states and between different technologies.

MCPS-PRS challenge basis of eMusic’s pan-European licence
Copyright , Internet , Music Publishing / October 2006
EU

COPYRIGHT Music publishing, internet Legal download specialist eMusic has now launched across Europe but a dispute about the validity of their music publishing arrangements has surfaced meaning that Buma/Stemra and the MCPS-PRS are in talks to resolve a contested pan-European licence. eMusic has a licence with Buma/Stemra which it says covers it for Europe but the MCPS-PRS is disputing that Buma/Stemra has the right to offer such a pan-Europe licence: http://www.billboard.biz/bb/biz/newsroom/global/article_display.jsp?vnu_content_id=1003123582

SoundExchange list unpaid artists
Artists , Copyright / October 2006
USA

COPYRIGHT Artists SoundExchange (which is in charge of collecting and distributing broadcast royalties in the US) has published a list of artist it “can’t find” and to whom royalties should be paid. If the monies are not disbursed, SoundExchange retains the monies remaining. It has been reported that SoundExchange worried about publishing the list for fear that “middlemen” would try to swipe a piece of the action by connecting artists with their royalties. Artists listed include Cassandra Wilson, Jeff Buckley, Booker T & the MGs and Public Enemy: http://www.boingboing.net/2006/09/21/exriaa_agency_cant_f.html http://63.236.111.137/jsp/unpaidArtistList.jsp

Islamic Courts ban western music in Somalia
Media / October 2006
Somalia

MEDIA Broadcasting The Union of Islamic Courts, which now govern large parts of Somalia, have extended their influence into Somalia’s media by prohibiting the broadcast of Western love songs in areas of the country that they control. The UIC had previously banned broadcasts of the World Cup and cinemas are now censored, with many closed for showing “un-Islamic movies” such as Bollywood films. Night clubs have been shut down and many aspects of social life have been ‘Islamized’. A wedding party was stopped because beer was being served, women and men were openly socializing together and the wedding band was playing what were deemed “filthy songs”. In September the Union banned the broadcasts of Western pop music and love songs. A radio FM station in Jowhar, an airport town which lies 90 kilometers from the capital of Mogadishu was shut down for airing “music and love songs,” according to an Islamic official Sheik Mohamed Mohamoud Abdirahman. In a statement issued on Saturday, and later read on several radio stations, Abdirahman wrote: “We are here by announcing to suspend temporarily the work of the Radio Jowhar from 9 p.m. local time and forbid releasing all music which is a big crime…

Buckcherry accused of featuring a minor in video
Artists , Media / October 2006
USA

MEDIA Artists, broadcasting US rockers Buckcherry are facing a lawsuit over allegations that they enticed an under aged girl to appear in a raunchy video for their song ‘Crazy Bitch’, which was then posted on their MySpace site. The girl in question, who was under 18 when the video was shot, appears topless, kissing another girl and writhing against a pole. She also appears and is named in a ‘behind the scenes’ video shot on the set. The girl and her mother are now suing the band saying that they plied her with alcohol before enticing her to perform in the pop promo, and that she has suffered “emotional stress”. The band run the risk not only of having to pay compensation if they loose the civil suit but also facing a serious criminal charge of enticement of a minor. The band are not surprisingly disputing the claim pointing out that the girl, known only as Jane Doe, used fake ID to enter the video shoot, that it was made clear in advance that the shoot was strictly for over 18s only and that she voluntarily took part in the scenes seen in the original video. The band’s manager told…

Kazaa settles with major labels, AllofMP3 faces action and Limewire next in line
Copyright , Internet , Record Labels / September 2006
USA

COPYRIGHT Internet, record labels Having been found liable for copyright theft in Australia and following the seminal US Supreme Court decision in MGM v Grokster, Kazza has now reached a global out-of-court settlement with the trade organizations representing the international and US recording industries (IFPI and RIAA) concluding the ongoing legal proceedings brought by the major record companies against the service’s operators in Australia and the United States. Under the terms of the settlement, Kazaa has agreed to pay US$100 million in compensation to the record companies that took the legal action to stop copyright infringement on the Kazaa network.  Kazaa will also introduce filtering technologies ensuring that its users can no longer distribute copyright-infringing files. John Kennedy, chairman and CEO of IFPI said: “Kazaa was an international engine of copyright theft which damaged the whole music sector and hampered our industry’s efforts to grow a legitimate digital business.  It has paid a heavy price for its past activities.  At the same time Kazaa will now be making a transition to a legal model and converting a powerful distribution technology to legitimate use. The settlement follows a landmark ruling in the Federal Court of Australia last year which found the Kazaa…

US Appeal Court to Consider Internet Copyright Infringement Issues in deep-linking case
Copyright , Internet / September 2006
USA

COPYRIGHT Internet Article by Tom Feather, Deeth Williams Wall LLP An appeal pending before the US Court of Appeals for the Ninth Circuit (Perfect 10 Inc v GoogleInc) will address important Internet copyright issues including deep-linking of web sites, framing of third party content, and use of copyrighted content for searching. The image search function of Google Inc (Google) provides direct links to images, the copyright to some of which is held by Perfect 10 Inc (Perfect 10).  Such images are often made available on web sites by third parties without the consent of Perfect 10.  Google also caches and displays reduced-resolution versions of those images (thumbnails) to make searching easier.  On user request, a full-resolution image is retrieved directly by the user’s browser from the host web site and is displayed in a frame within the Google search page.  Perfect 10, which provides these images by paid subscription via the Internet, sued Google for direct copyright infringement for use of thumbnails, links and framing of Perfect 10’s images.  It also claimed secondary infringement for inducing users to infringe, as well as for providing an audience to infringing sites and benefiting via its “AdSense” program. In a motion for a preliminary…

Intellectual Property licensing issues in bankruptcy or insolvency
Business , Copyright / September 2006
Australia
Canada
UK
USA

INSOLVENCY / COPYRIGHT Artists, record labels, music publishers ARTICLE LINK From the Intellectual Property Institute of Canada This is a link to the very comprehensive 2003 Report by the Intellectual Property Institute of Canada which investigates the thorny issue of ownership and exploitation of intellectual property rights when one party in a contractual relationship is declared bankrupt or insolvent. Whilst primarily looking at Canadian law, relevant laws from the United States, The United Kingdom and Australia are also commented on. The report covers patents, copyrights (including moral rights) and trade marks. Whilst over 170 pages long may be of particular interest to lawyers and managers who represent recording artists and songwriters who sometimes wonder what they can do about unpaid royalties which have disappeared into the ether after the bankruptcy of a recording label or music publisher or find that their A&R manager is now an accountant! For a brief synopsis of UK and Australian law see pp86-87. http://www.ipic.ca/french/member/issues/f_Final_Report_on_Bankruptcy_Sept_16_2003.pdf

Statutory radio broadcast royalties in the USA
Copyright , Internet / September 2006
USA

COPYRIGHT Internet, radio ARTICLE LINK By Skip Izzi, Radio World This is a useful review of the current state of statutory royalties and royalty free licences which apply to radio broadcasters in the US and the development of new schemes to cover the rapidly changing technological environment as digital satellite radio services such Sirius develop in the USA. http://www.rwonline.com/reference-room/skippizzi-bigpict/2006.08.02-03_rwf_pizzi_aug_2.shtmln

Details of Professor Lawrence Lessig’s presentation on copyright and other intellectual property rights in the digital age
Copyright , Internet / September 2006
USA

COPYRIGHT Internet ARTICLE LINK  Stanford University Law School Professor Lawrence Lessig, a leading authority on intellectual property issues in the digital era presented the case for overhauling copyright law to attendees of the Stanford Breakfast Briefing on August 9th. This is a report on his presentation which was titled “Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity.” http://news-service.stanford.edu/news/2006/august23/lessig-082306.html

Billy’s protests lead to MySpace and Bebo rule changes
Copyright , Internet / September 2006
UK

COPYRIGHT Internet A very public protest by Billy Bragg has led to MySpace promptly changing its standard terms and conditions. Bragg had written a letter to UK music trade magazine Music Week after using his MySpace blog to point out that the site’s small print meant that “ once an artist posts up any content (including songs), it then belongs to MySpace (AKA Rupert Murdoch) and they can do what they want with it, throughout the world, without paying the artist”. MySpace had claimed a ‘non-exclusive, fully-paid and royalty-free, worldwide license’ for all its content. This has now been amended to read: ‘MySpace.com does not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, or any other materials (collectively “Content’”) that you post to the MySpace Services. After posting your Content to the MySpace Services, you continue to retain all ownership rights in such Content, and you continue to have the right to use your Content in any way you choose.’ The new terms and conditions make it clear that the company renounces all ownership rights to musicians’ material and that only a limited licence is granted to the site to use…

Apple settle with Creative over patent use in iPods
Patents / September 2006
USA

PATENTS Technology Apple have agreed to pay Creative Technology $100 million to settle a digital music patent dispute between the two companies with Apple now licensing the technology owned by Creative, allowing them to continue manufacturing iPods. Under the settlement Creative will also now be allowed to produce accessories for iPods, giving it access to a far larger number of consumers than it could have reach with its Zen and Nomad digital music players. Creative’s share price surged 38% after the news, although the long-term competitiveness of their players vs Apple’s is still somewhat uncertain. Added comment from FiveEight magazine http://news.bbc.co.uk/1/hi/business/5280736.stm

The European Court annuls the European Commission’s approval of the Sony BMG merger
EU

COMPETION Record labels, music publishers ARTICLE The European Court annuls the European Commission’s approval of the Sony BMG merger Case T464/04 Independent Music Publishers and Labels Association v Commission of the European Community By Ben Challis Barrister The European Court of First Instance has annulled the European Commission’s approval of the 2004 merger between Sony Music and BMG, which allowed the music industry to shrink from five major companies to four. The case, brought to court by IMPALAon behalf of European independent record labels, has been closely watched by Warner Music and EMI who must now wait and see how Europe’s top antitrust authority will react to the court’s decision. The court considered two pleas brought by IMPALA: The first plea was in regard to the strengthening of a pre-existing collective dominant position in the market for recorded music and the second plea: creation of a collective dominant position on the markets for recorded music. The Court noted the case-law of the Court of Justice regarding an alleged collective dominant position which has held that the Commission must assess, using a prospective analysis of the reference market, whether the concentration which has been referred to it leads to a situation in which effective competition…

New French law manages to antagonise everyone – consumer groups, online retailers and rights owners
Copyright , Internet , Record Labels / August 2006
France

COPYRIGHT Internet, record labels After a protacted debate The French parliament has finally adopted a law that could force Apple Computer to rethink its digital music business model and move away from its closed system of iPod players and iTunes online music. The controversial law maintains that all electronic devices should be “interoperable”, so that consumers can play legally downloaded music on any type of digital player. This means Apple, which has previously called the law “state-sponsored piracy”, would have to remove the copy protection measures that prevent consumers playing tracks bought at its iTunes store on music devices that rival Apple’s iPod. The final text, a compromise agreed last week, now gives a new regulatory body powers to impose fines of up to 5 per cent of global turnover on companies that refuse demands to publish the source code to their systems. Industry representatives and consumer groups have savaged the outcome. Those who want interoperability to increase consumer choice say the law has watered down the principle by making the regulatory authority, open only to professional claims, its arbitrator. They say the enw law – the so-called “Loi Vivendi Universal” now favours big companies with the capacity to fight…

French court bars Google from selling trade marks as adwords
Internet , Trade Mark / August 2006
France

TRADE MARK Internet The Cour d’appel de Paris found that Google had infringed Vuitton’s trade marks, by selling Vuitton’s marks as adwords that were used by sellers of counterfeit or infringing Louis Vuitton products. The most interesting part of the decision is that  Google is ordered to refrain from using adwords on its websites if they are accessible in France, regardless of their top level domain extension (such as .com or hk). From the IPKat – the most excellent and feline friendly IP weblog athttp://ipkitten.blogspot.com/2006/07/bonjour-from-france.html

Seal ordered to pay commission to ex-manager Wadlow v Samuel pka Seal (2006) By Julian Bentley, solicitor, Swan Turton
Artists , Contract , Restraint of Trade / August 2006
UK

CONTRACT Artists ARTICLE:  Multi-million selling solo artist Seal was managed by John Wadlow under a management agreement signed in 1990. In 1995 Seal wanted out. The two of them signed a settlement agreement that year terminating the management agreement and providing for continuing commission to be paid to Wadlow on Seal’s first two albums, “Seal” and “Seal II”. Seal stopped paying the commission in around 2001. Wadlow issued proceedings. Seal defended the claim alleging amongst other things undue influence and restraint of trade. The judge (Mr Justice Gray) found that Wadlow was entitled to his commission. Under the management agreement Wadlow received commission at the customary rate of 20%. But the agreement was, by today’s standards, unusual in two respects. Firstly, Wadlow’s entitlement to commission after the end of the term of the management agreement went on forever at the full rate. Almost always these days, there is a tapering or “sunset” provision reducing and then extinguishing the former manager’s post-term commission over a period of years. Secondly, Wadlow was entitled to commission on Seal’s income from a publishing deal signed in 1989 between Seal and a Wadlow co-owned company. So Wadlow was receiving management commission on Seal’s publishing income…

New piracy laws come into force in China
Copyright , Internet , Record Labels / August 2006
China

COPYRIGHT Internet, record labels Sony BMG and Warners are among record labels that may use a newly enacted criminal law to fight against Chinese Web sites, including Yahoo China, that allegedly infringe copyright laws according to the International Federation of Phonographic Industries. The new law, effective from July 1 st allows for fines for distributors of illegally copied music, movies and other material over the Internet of up to 100,000 yuan ($12,500). About 90% of all recordings in China are illegal, with sales of pirated music worth about $400 million annually, according to the IFPI. The U.S. has threatened to file a case to the World Trade Organization unless China reduces incidents of intellectual property violation. Last year seven record labels filed a civil case against Baidu.com, China’s most-used search engine. No outcome has been reached yet. In 2005 Baidu lost a civil case brought by Shanghai Bu-sheng Music Culture Media, the local distributor for EMI. Baidu is appealing the case. The new criminal law adopted by the State Council, China’s Cabinet, on May 18 stipulates that a Web site is jointly liable for infringement ”if it knows or should know that the work, performance or sound or video recording…

Music Industry Group proposes digital age copyright reforms
Copyright , Internet , Record Labels / August 2006
UK

COPYRIGHT Internet, record labels, all areas AIM, the PRS-MCPS Alliance, the Musicians Union, the Music Managers Forum (MMF), British Music Rights and the British Academy of Composers and Songwriters (BACS) have launched a new discussion paper at a July 12 th round table meeting chaired by the Smith Institute. The group, representing 85,000 creative and industry members including artists, musicians, independent record labels, publishers and songwriters, say that they posed the question “is copyright law fit for purpose in the digital age?” and came up with a clear and emphatic “No”. The Group say that the current model for monetising sound recordings works neither for producers of music nor for consumers adding that current DRM systems do not work, that litigation doesn’t work but that a way forward can be found which will benefit both the music industry – which wants the widest possible distribution and enjoyment of its creative products but has every right to be paid fairly for use of its rights; and consumers – who needs to be freed from the threat of criminal prosecution for activity they believe is a proper and legitimate use of technology which they are free to buy legal – a “more…

Canadian anti-DRM coalition makes timely debut By Bruce Byfield
Copyright , Internet , Record Labels / August 2006
Canada
USA

COPYRIGHT Record labels, internet ARTICLE LINK:  A very interesting article explaining the resistance to DRM in Canada and explaining the difference in approaches to copyright protection between Canada and its neighbour, the USA. In particular the copyright levy system in Canada coupled with the strong protection of consumer privacy present major hurdles for the major record labels and film companies to get over if they are to convince legislators to support DRM. http://trends.newsforge.com/trends/06/06/16/203238.shtml?tid=136

Hilary Rosen: Singing a new Song? By Eliot Van Buskirk
Copyright , Internet , Record Labels / August 2006
USA

COPYRIGHT Record labsl, internet ARTICLE LINK:  This article explores the views of ex RIAA boss Hilary Rosen (“the bogeywoman who brought the law down on Napster”) and ask interesting questions about the former label association executive’s views on the effectiveness of the RIAA’s policy of suing individuals, the usefulness of DRM and how XM radio (Rosen’s new client) is dealing with the major labels and the RIAA. http://www.wired.com/news/columns/0,71338-0.html?tw=wn_index_4  ARTICLE LINK “Why the music industry’s new piracy tactics will fail” by Bernhard Warner athttp://technology.timesonline.co.uk/article/0,,20411-2277187,00.html

BPI asks broadband operators to police file swapping
Copyright , Internet , Record Labels / August 2006
UK

COPYRIGHT Record labels, internet The British Phonographic Industry has written to Tiscali and Cable & Wireless asking them to shut down the accounts of 59 internet users which the BPI alleges are used for widespread illegal file-sharing activities. BPI chairman Peter Jamison said that the record labels trade association had provided “unequivocal evidence” of illegal file swapping on an “industrial scale”. In a separate matter ten British Internet Service Providers including BT and NTL have been ordered by the High Court to hand over details of 150 customers suspected of illegally sharing computer software. The action here was brought by FACT, the Federation Against Copyright Theft . www.bpi.co.uk

Russian court find in favour of labels in piracy case
Copyright , Record Labels / August 2006
Russia

COPYRIGHT Record labels The Arbitration Court of the Moscow Region has ruled that Russobit-Soft, a Moscow-based optical disc plant, had manufactured counterfeit CDs by artists including Depeche Mode, Destiny’s Child, Enrique Iglesias, Macy Gray, Michael Jackson, Radiohead, Whitney Houston and Westlife. The company has been ordered to pay four million roubles (US$148,000) in statutory damages. Russobit-Soft will also have to pay compensation for costs, including state duties and experts’ fees in full as well as a substantial proportion of the claimant’s attorney’s fees.  The court also issued an injunction preventing Russobit-Soft from manufacturing any of the 30 albums involved in the case. The International Federation of Phonographic Industries (IFPI) acting on behalf of record label members filed eight claims against Russobit-Soft in December 2003. www.ifpi.org

RIAA loose infringement case as defendant requires details of alleged infringements
Copyright , Internet , Record Labels / August 2006
USA

COPYRIGHT Record labels, internet As AIM and others lobby for a new approach to copyright in Europe the RIAA’s reliance on litigation has hit the buffers in one case in the US. During a court hearing on infringement matters brought by the RIAA, defendant Debbie Foster requested that the RIAA provide specifics such as the dates of the alleged downloading and the names of the files involved. The RIAA was unable to do so and the case was dismissed. It had been seeking $5,000 in settlement but Foster decided to take the case to court. To date some 18,000 alleged file-sharers have been targeted by the RIAA but only 4,500 of them have reached settlement (with around $4,000 being the average paid out). Whilst the RIAA now say they are embracing education, former RIAA head Hilary Rosen (who initiated the litigation approach in the first place) has said that legal action has gone too far (see link above). http://arstechnica.com/news.ars/post/20060713-7257.html

Grateful Dead photographs were covered by fair use doctrine
Copyright / August 2006
USA

COPYRIGHT Book publishing ARTICLE LINK By Irena A Kushner In a recent fair use case, the U.S. Court of Appeals for the Second Circuit affirmed the district court’s grant of summary judgment in favor of the defendants, agreeing that their reproduction of copyrighted Grateful Dead images in its book,Grateful Dead: The Illustrated Trip, was “protected by the fair use exception to copyright infringement.” Bill Graham Archives v. Dorling Kindersley Limited, Case No. 05-2514-cv (2nd Cir. May 9, 2005) (Restani, J.). http://www.mondaq.com/article.asp?articleid=41178&email_access=on

Commercial Censorship Meets Copyright
Censorship , Copyright / August 2006
USA

COPYRIGHT / CENSORSHIP Film and televison On July 6, 2006, the US District Court for the District of Colorado ruled that companies that produce sanitized copies of Hollywood films on DVD are violating copyright law and must stop editing out the content they find offensive. The defendants (by counterclaim) included CleanFlicks, a Utah-based company which creates and publicly distributes copies of the plaintiffs’ movies that have been altered by deleting “sex, nudity, profanity and gory violence”.  CleanFlicks sells directly to video stores and to consumers online through its web site.  Purchasers are required to buy both the authorized and edited copies. The plaintiffs (by counterclaim) included major movie studios, such as MGM, Paramount, and Twentieth Century Fox, and a number of high-profile directors such as Robert Altman, Steven Soderbergh and Steven Spielberg.  The studios sell and distribute movies to the public on DVD and VHS for purchase and rental.  They also sell and distribute edited versions of the movies for use by airlines and network television. The plaintiffs argued that the defendants were violating their right to create derivative works, or edited versions of their films.  They did not seek damages but rather an injunction preventing the defendants from copying…

New noise penalties are proposed in UK
Health & Safety , Live Events / August 2006
UK

HEALTH & SAFETY Live event industry Pubs that cause late-night noise will face the threat of a £500 on-the-spot fine under new government plans. If the matter goes to court the penalty for licensees could rise to £5,000 on conviction. Under the proposals, which are part of theClean Neighbourhoods and EnvironmentAct, councils will be given extra powers to deal with one-off incidents of noise. The changes, which come into effect in October, have been prompted by residents’ fears over later pub opening under the new licensing laws. Ben Bradshaw, local environment minister, explained that the new law will allow for penalties for one off incidents of noise rather than ongoing noise saying “With the new powers, local authorities can deal with one-off incidents of excessive noise from licensed premises in the same way they can from households: quickly and effectively.” Licensed premises could be fined for a one-off offence if they are creating excess noise between 11pm and 7am. Licensees have reacted angrily to the new rules. The Publican reports that James Harris (I think I went to school with him, Ed) licensee at the Half Moon in Putney, South London, said: “It’s another piece of legislation we could do without. The government…

Tunbridge Forum fights off moshpit claim
Health & Safety , Live Events / August 2006
UK

HEALTH & SAFETY Live event industry The Forum venue in Tunbridge Wells has won a legal battle after a judge threw out a claim brought by a member of the audience who was injured whilst ‘moshing’ at a Raging Speedhorn concert. The claim was brought on a “no win, no fee” basis. The venue received massive support from loyal music fans who raised over £10,000 from their own pockets towards legal costs estimated at over £20,000 and also generated a petition with over 15,000 signatures supporting the venue. Spokesman Mark Davyd pointed out that the Forum successfully argued that the venue had a disclaimer about mosh pits on all of their tickets, they had disclaimers on venue walls saying that customers shouldn’t get involved in moshing and a very heavily advertised policy that mosh pits were allowed but were by their very nature likely to cause injury. Davyd added that “it’s been extremely expensive to defend – but we were left with no choice ….. the other option was to accept that we would regularly have to fork out thousands of pounds to anybody that asked for it on the grounds that we were responsible for whatever they did to themselves. We…

Door staff ‘liability nightmare’ after Court of Appeal’s decision in Hawley v Luminar
UK

HEALTH & SAFETY / LICENSING Live event industry The Court of Appeal has followed the recent trend in extending vicarious liability for employees in the case of Hawley v Luminar (2006). It now seems that pubs and clubs may be responsible for the actions of door supervisors even if they do not directly employ them. It is already established law that if an employee, acting in the course of their employment, injures another, even if that employee’s actions go well beyond what they are trained or employed for for, their employers may well be held vicariously liable for their acts and will have to meet any consequential award of damages (see Mattis v Pollock t/a Flamingos Nightclub Times Law Report 16th July 2003 and archive Music Law Updates December 2003). In Hawley v Luminar the door supervisor was employed by an outside contractor but the court upheld the original judgment that as he had been seconded to club owner Luminar, Luminar had responsibility for his actions even though his immediate employer had the right to hire and fire and also paid his wages. In reaching this conclusion the court carefully considered who had control – and therefore responsibility for – the doorman’s actions. It…

West and Ludacris wrap up victory in plagiarism trial
Copyright , Music Publishing / July 2006
USA

COPYRIGHT Music publishing Rappers Kanye West and Ludacris have won a copyright infringement case when a jury concluded their 2003 hit ” Stand Up” did not copy Straight Like That by New Jersey musicians IOF. Ten jurors returned the verdict after less than a day of deliberations in the two-week trial in U.S. District Court in Manhattan. Ludacris said he never doubted the jury would agree that the song he and West created did not sound like ” Straight Like That”. IOF’s (It’s Only Family) ” Straight Like That” never made it beyond some air time on college radio after copies of it were released in September 2001. ” Stand Up” was released in the fall of 2003 on Ludacris’ album ” Chicken and Beer” and became a huge hit. At the trial West had told the court that it was not unusual for both songs to use the phrase “like that” and that phrases such as “yo, whats up”, “throw your hands high” and “like that” woud be found in a lot of rap and hip-hop songs. The cliamants lawyer, Mel Sachs, had said that the words “like that” were used more than 50 times in each song. Jeff Billingsley, a plaintiff and owner of…

AllofMP3.com is illegal says music industry
Copyright , Internet , Record Labels / July 2006
Russia

COPYRIGHT Record labels, internet ARTICLE LINK:  A hugely popular seller of music downloads is illegal, according to the music industry, and prosecutions are underway. AllofMP3.com, a Moscow-based service that undercuts iTunes by enormous margins, was accused today of paying nothing to artists. But the website claims everything on the site is licensed by the Russian Multimedia and Internet Society (ROMS) and the Rightholders Federation for Collective Copyright Management of Works Used Interactively (FAIR). Site owner MediaServices says that it pays licence fees “subject to the Law of the Russian Federation.” It adds that it is not responsible for the actions of foreign users – though the site is in the English Language! This article is on the Pinsent Mason’s OutLaw website at http://www.out-law.com/page-6956 Also see http://money.independent.co.uk/personal_finance/invest_save/article754352.ece Would a UK court victory help? See further details on this athttp://www.theregister.co.uk/2006/06/08/allofmp3_lawsuit/ See also the ARTICLE AllofMP3 Running Out of Time? By Eric Bangeman athttp://arstechnica.com/news.ars/post/20060530-6943.html

The end of peer to peer file swapping
Copyright , Internet , Record Labels / July 2006
EU
UK
USA

COPYRIGHT Record labels, internet ARTICLE LINK:  A useful article by Paul Devinsky and Robert H. Rotstein who review the recent MGM v Grokster litigation and analyse the how this decision and the 1984 Sony Betamax case can sit together. http://www.mondaq.com/article.asp?articleid=40126&email_access=on

China begins to clamp down on file swapping
Copyright , Internet , Record Labels / July 2006
China

COPYRIGHT Record labels, internet China has announced a new law banning the uploading and downloading of pirated material over the Internet as well as the production, import and supply of any technology that aids piracy. Under the new regulation, those who infringe copyrights may be fined up to RMB 100,000 and the computer equipment involved may be confiscated. Internet companies will also be required by the government to provide contact information for owners of sites that distribute pirated material. The move is part of China’s efforts to curb rising piracy rates in the country according to Chinaknowledge.com and will put pressure on online companies such as Baidu.com, China’s leading search engine. Baidu has been sued by the major record labels because its search function violated their copyrights by allowing users to find MP3 files on the Internet. The EU Trade Commissioner Peter Mandelson has warned China that the EU expects it to improve its IP enforcement measures, to improve access to the market for European products and to ‘apply rather than circumvent the rules’. Although improvements have been made, the EU argues that China is still not meeting its TRIPs obligations and that if things don’t change, the European market…

Dutch courts hold deeplink search engine illegal
Copyright , Internet , Record Labels / July 2006
Netherlands

COPYRIGHT Internet, record labels The music industry’s global fight against websites offering links to illegal downloads has been boosted by an action against a ’deeplinks’ site in the Netherlands. The ruling against Techno Design “Internet Programming” BV, the operator of www.zoekmp3.nl, clarifies that making available a searchable website of deep links to unlicensed mp3 files for download is illegal in the Netherlands.  The judgement by the Dutch Court of Appeal, in favour of the anti-piracy organisation BREIN, overturns a June 2004 decision of the Haarlem District Court.  Similar websites have been found to be illegal in Australia (mp3s4free.net ) and China (Baidu).  The Dutch Court of Appeal ruled that Techno Design was aware that its mp3 search service referred systematically to infringing files and that it benefited commercially from this without taking into account the interests of content owners. Techno Design has been ordered to stop offering deep links to infringing mp3 files through zoekmp3.nl or any other website, and to pay costs and damages (to be assessed).  Failure to comply with this injunction will lead to fines of E10,000 per day, E1,000 per infringing file. The Court held that Making mp3 files available on the internet is illegal “publication” under…

BPI to tolerate private copying
Copyright , Record Labels / July 2006
UK

COPYRIGHT Record labels Under UK copyright law it is an infringement to make ANY copy of a protected work – even if you are copying your own CDs for your own use – except in strictly defined exceptions (such as fair dealing). The only other exception to this is copying or ‘time shifting’ broadcasts to watch later. However the practice of copying for personal is so widespread (and accepted as ‘legal’ by many music industry professionals) and the British Phonographic Industry (BPI) has now said it won’t pursue consumers who copy music from their CDs to listen to on portable music players. Giving evidence to the House of Commons Select Committee for Culture, Media & Sport inquiry into New Media and the Creative Industries yesterday, the trade body said it didn’t consider copying to different devices a problem as long as it was solely for personal use. The Chairman of the BPI, Peter Jamieson said that “traditionally the recording industry has turned a blind eye to private copying and has used the strength of the law to pursue commercial pirates” and added that “We [the BPI] believe that we now need to make a clear and public distinction between copying…

Live music and internet downloads face anti-trust scrutiny in the USA
USA

COMPETITION / COPYRIGHT Live Event Industry, record labels Clear Channel (Live Nation) has been accused of violating anti-trust laws by impinging on concert competition and pushing up ticket prices in the USA. The class action in Denver comes three months after the US Justice Department probe into similar accusations saw no action being taken against Clear Channel. In a separate action the major labels are being sued by a group of consumers in the US for allegedly fixing the price of digital downloads. According to the suit, the major labels, having failed to delay the online market with their own (failed) joint ventures, are now conspiring to keep the wholesale price of individual tracks at $0.70. It is also claimed that, as a result of this activity, the digital music retailers have squeezed the wholesale price offered to independent labels. The labels are alleged to have inserted anti-competitive clauses into their contracts with online music providers, forcing the providers to pay all the labels the same amount for their songs. http://business.timesonline.co.uk/article/0,,9071-2211881,00.html

APIG announces findings of its public inquiry into Digital Rights Management
UK

COMPETITION / COPYRIGHT Record labels, film & television, technology The United Kingdom’s All Party Parliamentary Internet Group (APIG) has released its report into Digital Rights Management (DRM). The Inquiry received over 90 written submissions from consumers, think-tanks, libraries, print media publishers, the film and music industries and lawyers. An oral evidence session was organised at the House of Commons in February when a cross selection of the respondents were invited to give evidence to APIG officers. Key points of the report were: A recommendation   that   the   Office   of   Fair   Trading   (OFT)   bring   forward appropriate   labelling   regulations   so   that   it   will   become   crystal   clear   to consumers what they will and will not be able to do with digital content that they purchase. A recommendation that OFCOM publish guidance to make it clear that companies distributing Technical Protection Measures systems in the UK would, if they have features such as those in Sony-BMG’s  MediaMax  and  XCP  systems,  run  a  significant  risk  of  being prosecuted for criminal actions. A recommendation that the Department of Trade and Industry investigate the single-market issues that were raised during the Inquiry, with a view to addressing the issue at the European level. A recommendation  that  the  government …

SIRA bill set to shake up royalty systems
USA

COPYRIGHT Internet, record labels, music publishing A US House of Representatives panel has approved a digital copyright bill that critics say could criminalise home-use copying of music and video recording devices like TiVo. The Section 115 Reform Act (SIRA) attempts to overhaul the complex US system of mechanical royalties for rights owners (artists, songwriters, labels, publishers). SIRA proposes establishing a “blanket licensing” system in which those entities would apply for and receive licenses through a one-stop shop. Established by the Copyright Office, that body would act as a representative for music publishing companies with the greatest share of the market. Supporters of the bill argue that such an approach would make it easier for online music services to secure speedier approval for vast libraries of music, opening up the possibility for new market entrants, greater selection and lower prices. In a joint statement, the Recording Industry Association of America, the Digital Media Association and the National Music Publishers Association said they had “much to gain” from the legislation but still hadn’t reached “complete agreement on all aspects” of it. On the other hand the Electronic Frontier Foundation, for its part, encouraged its visitors to call their elected representatives and make their dissatisfaction…

Norway takes a bite out of Apple
Norway

COPYRIGHT / COMPETITION Internet, record labels Norwegian consumers were already up in arms about iTunes’ digital rights management (DRM) system and the lack of interoperability between Apple and other platforms. But then some brave Norwegian souls read the iTune’s end user licence agreement (EULA). The Norwegian Consumer Council called the EULA “grossly unreasonable” pointing out that (amongst other complaints) it required Norwegian consumers to consent to English law while the music store reserves the ability to change the rights to the downloaded music even while disclaiming all liability for possible damage their software may cause. The Norwegian Consumer Ombudsman ruled that certain of Apple’s terms were illegal under Norwegian law and the Company has been given to June 21 st to amend its rules. Consumer Agency officials in Denmark and in Sweden have taken the same line. Apple has also been told in Norway that it must defend its DRM system, Fairplay, which restricts downloaded songs to being played on the consumer’s iPod. To be fair, its not just Apple – most EULA’s are wholly unreasonable and most online users ‘click to consent’ without ever reading the draconian terms they are agreeing to. But Norway has strong consumer protection rules…

French legislators to compromise on iTunes
France

COPYRIGHT / COMPETITION Record labels, internet The French National Assembly’s draft copyright bill which included the demand that companies such as iTunes and Napster share their copy-protection technology has been watered down. Currently tunes purchased at Apple’s iTunes Music Store won’t play on music players sold by Apple rivals. Likewise, an Apple iPod can’t play songs bought on Napster Inc. or other rival music stores. French consumer groups have called the restrictions anti-competitive and anti-consumer. But the compromise, approved by a committee of legislators from both houses, maintains a Senate loophole that could allow Apple and others to sidestep that requirement by striking new deals with record labels and artists. A new regulatory authority will be given the power to resolve disputes by ordering companies to license their exclusive file formats to rivals – but only if the restrictions they impose are “additional to, or independent of, those explicitly decided by the copyright holders.” This means that Apple, Napster and Sony could avoid having to share their protection formats such as FairPlay and ATRAC3 if they obtained permission from the artists whose music they sell. Apple had earlier indicated that it would close its French iTunes store rather than comply…

UK ’s Special Commissioner extends relief for agent’s fees
Artists , Taxation / July 2006
UK

TAXATION Artists In the United Kingdom the Inland Revenue has traditionally allowed tax relief for agents fees up to 17.5% of annual income for actors, musicians, singers, dancersand theatrical performers. But the Revenue argued that relief did not extend to television presenters who did not fall into any of the categories allowed. Channel 4 husband and wife presenters Richard Madeley and Judy Finnegan claimed this was wrong and the Special Commissioner agreed with them as he felt that they were theatrical performers. However the decision has left a rather large grey area over vwho is and who isn’t an entertainer – Chris Tarrant, presenter of Who Wants To be A Millionaire is said to be ‘borderline’ as he merely reads out questions and gives answers – perhaps he is not ‘entertaining enough’ – whereas Anne Robinson, acerbic presenter of the Weakest Link is ‘theatrical’ (and so can claim relief’) as can Jeremy Paxman when presentingUniversity Challenge. However the extent of the relief on the cost of agents for those not named as ‘actors, musicians, singers, dancers and theatrical performers’ in an employed situation (which could include DJs and sportsmen and women) is still unclear. The Times June 10 th 2006

US composers to get tax relief on catalogue sales
Artists , Taxation / July 2006
USA

TAXATION Artists. Composers Starting next year, composers will be able to claim capital-gains treatment when they sell a catalogue of their work. Current tax law treats such a sale as income and therefore liable to ordinary income-tax rates. This brings writers and composers into line with producers who already had the more favoured tax treatment. Originally called the Songwriters Capital Gains Tax Equity Act, later dovetailed into the Tax Reconciliation Act, the bill was passed after unusual lobbying from musicians who would take their guitars to Washington and sing songs to members of Congress and the US Senate. Buyers of catalogues are also now able to write off the song more quickly. The Bill is expected only to cost US $33 million over ten years. Tax on royalty payments remains unchanged by the new Act. http://www.delawareonline.com/apps/pbcs.dll/article?AID=/20060611/BUSINESS04/606110317/-1/NEWS01

Bush signs new decency legislation in the USA
Media / July 2006
USA

MEDIA Television broadcast, radio broadcast President Bush has signed legislation that will cost US broadcasters dearly when raunchy programming exceeds “the bounds of decency. The Federal Communications Commission can now fine a broadcaster up to $325,000 per incident of indecency. Approval of the bill culminates a two-year effort to get tough on sexually explicit material and offensive language on radio and television following Janet Jackson’s 2004 Super Bowl “wardrobe malfunction.” The FCC recently denied a petition of reconsideration from CBS owned stations facing $550,000 in fines over the Jackson incident, in which she briefly revealed a breast during a halftime concert. The agency recently handed down its biggest fine, $3.3 million, against more than 100 CBS affiliates that aired an episode of the series “Without a Trace” that simulated an orgy scene. That fine is now under review. The FCC has received increasing complaints about lewd material over the airwaves, and has responded with fines jumping from $440,000 in 2003 to almost $8 million in 2004. In an age of emailing just a few organized protestors can generate huge numbers of ‘complaints’. In the UK the BBC screening of Jerry Springer – The Opera sparked off a massive email protest to the…