Mobile television exempt from federal regulation in Canada
Internet , Media / May 2006
Canada

MEDIA Telecommunications, television, internet The Canadian Radio-television and Telecommunications Commission (CRTC) has announced that mobile television broadcasting services operated by Bell Mobility Inc, TELUS Mobility and Rogers Wireless Inc, in conjunction with MobiTV Inc (MobiTV), fall within the Exemption Order for New Media Broadcasting Undertakings (New Media Exemption Order) and are exempt from federal regulation, including content and Canadian ownership rules. All three wireless carriers provide subscribing customers with real-time access to audio-visual content on wireless handsets. The US-based service MobiTV converts video content to a format compatible with mobile browsers and handsets and provides the servers and connections to allow video streams to travel via the Internet. The CRTC found that MobiTV sends the television signals by the Internet to the Internet gateway of the mobile carrier, and they are then routed to an appropriate tower and transmitted wirelessly for the last mile to the user’s handset, where the user connects to the Internet with a web browser to access the television signals. Thus, because they were both “delivered and accessed over the Internet”, the CRTC concluded that the services fell within the New Media Exemption Order From a summary by Nick Wong in E-Tips Volume 4 No 21, a publication…

California tightens up law on low level copyright infringements
Copyright , Record Labels / April 2006
USA

COPYRIGHT  Record labels  California Governor Arnold Schwarzenegger has signed a new law cracking down on the sale of counterfeit CDs. The new law reduces the threshold for felony criminal sales of pirated CDs from 1,000 copies down to 100. “Intellectual property rights and creativity are bedrocks of the California economy,” Schwarzenegger said after signing the bill adding that “This bill makes it easier for authorities to crack down on the rip-off artists who illegally copy and sell music CDs.” Assembly member Cohn’s Recording Crimes bill AB 64 passed out of the Assembly Public Safety Committee with unanimous bipartisan support. The Recording Industry Association of America (RIAA) and the National Association of Recording Merchandisers (NARM) both praised the decision, saying that lowering the threshold to 100 units will make it much more difficult for CD pirates to balance their need for illegal inventory with the risk of being caught and facing serious consequences. “Every time a pirated CD is sold at a flea market, street-side table or retail outlet, the works of many talented artists, record label employees, writers, technicians, designers and producers are stolen,” said Mitch Bainwol, Chairman and CEO of the RIAA. “This law ensures that thieves threatening the livelihoods of those in…

The legality of selling pre-loaded music and video iPods
Copyright , Internet , Record Labels / April 2006
USA

COPYRIGHT Internet, films, television, record labels, technology ARTICLE LINK: As Apple announce the billionth tune sold legally on iTunes the debate about resale of digital rights moves on. Below is a link to a very good article from Playlist magazine which includes analysis from Fred von Lohmann, attorney with the Electronic Frontiers Foundation (EFF), who suggests that even selling iPods loaded with legally downloaded material as a “grey area.” Though the practice would be perfectly legal were we dealing in traditional media, says von Lohmann, digital copies are different and the rules that apply to them remain to be settled. Making a copy of purchased songs and going back and deleting the original doesn’t necessarily fix the problem, von Lohmann tells Playlist. The more interesting question, von Lohmann notes, is does this violate Apple’s terms of service for the iTunes Music Store? Those terms state that customers “shall be authorized to use the Products only for personal, noncommercial use.” The article also looks at pre-loaded films and television programmes on a video iPod. Here von Lohmann says the Digital Millennium Copyright Act (DMCA) comes into play. The DMCA makes it illegal to circumvent encryption, such as the copy protection on a…

Extending the term: should the UK recording industry have new obligations as well as new rights if the copyright term for sound recordings is extended?
Artists , Copyright , Record Labels / April 2006
UK

COPYRIGHT Record labels, Artists ARTICLE: By Ben Challis, Editor of Music Law Updates In this new article Ben Challis looks at the current moves by the UK’s recording industry to push for a Europe wide extension in the term of copyright in sound recordings from fifty years to ninety five years. But Ben asks if this really is in the best interests of consumers and indeed recording artists if the changes were to be made without additional provisions to protect both the customers and creators of recorded music. SEE MUSIC LAW UPDATES ARTICLES For more on the debate about DRM management seehttp://news.zdnet.co.uk/business/0,39020645,39257505,00.htm And http://news.bbc.co.uk/1/hi/technology/4816930.stm

First indictments under the Family Entertainment and Copyright Act
Copyright , Internet , Record Labels / April 2006
USA

COPYRIGHT Record labels, internet Two US men, apparently fans of Ryan Adams fans, are the first two US individuals to fall foul of a new law making it a crime to publish songs before their release to the general public when they made portions of the singer’s latest album available on a Web site. Robert Thomas of Milwaukee and Jared Bowser of Jacksonville were indicted under a provision of the Family Entertainment and Copyright Act (FECA) that makes it a separate federal crime to pirate music and movies before they are released to the public. The men are alleged to have posted portions of Adams’ “Jacksonville City Nights” on a fan Web site about a month before its official release last September. Adams records for Lost Highway Records, whose Universal Music Group parent did not grant authority for the Internet distribution. If convicted on all counts, the defendants each face a potential of 11 years in prison. The case was investigated by FBI agents and is being prosecuted by the Computer Hacking and Intellectual Property Section of the United States Attorney’s Office.

EFF urges consumers to claim SonyBMG Rootkit settlement
Copyright , Record Labels / April 2006
USA

COPYRIGHT Record labels The EFF report that “It’s time for music fans who bought Sony BMG CDs loaded with harmful XCP or MediaMax copy protection to claim their settlement benefits … clean versions of the music, plus (in many cases) additional downloads and cash”. The EFF point out that submitting a claim not only gets fans music that will play on their computers without restriction or security risk, it lets Sony BMG know that consumers care about this issue. EFF guidelines to submitting a Sony BMG settlement claim: http://www.eff.org/sony/ For litigation documents and frequently asked questions: http://www.eff.org/IP/DRM/Sony-BMG/

Application of artist re-sale rights
Artists , Copyright / April 2006
UK

COPYRIGHT Artists ARTICLE: By Emma Stoker, solicitor, Michael Simkins LLP Just a day after the Resale Right for Artists was introduced in the UK, the world record for the highest price paid for a photograph was set when The Pond-Moonlight by Edward Steichen was sold in the US for £1.6 million breaking quite spectacularly the previous record set just last November when Richard Prince’s Untitled (Cowboy) was sold at auction for £720,000.  Emma Stoker comments on how the law would apply to this sale ad the sale of The Pond -Moonlight taken place in the UK. In the UK the purchaser (whose name has not been disclosed) and the seller would have been liable to pay Steichen’s estate a resale royalty of about £9,000 due to the introduction of the Artist’s Resale Right Regulations 2006.  Surely a drop in the ocean for anyone in the market for such a valuable piece? The Regulations are a part of the broader scheme to harmonise EU copyright laws, and they provide that photographers (and other artists) and their successors are entitled to a percentage of the price at which their work is resold, for the life of copyright. The requirements are that the buyer or the seller in…

Internet Trespass: Measuring and Controlling Internet-Distributed Advertiser-Funded Content
Copyright , Internet , Moral Rights / April 2006
UK
USA

COPYRIGHT: TORT Internet ARTICLE: By Nicola McCormick, solicitor, Michael Simkins LLP The idea of branded content is nothing new but the opportunities for delivery over the internet are only beginning to be explored.  Music, video and podcast downloads in particular are poised for an explosion of advertiser exploitation.  The promoter of any funded content whether distributed virally or otherwise over the internet will inevitably wish to track who is consuming its content and may wish to limit how such content is used or passed on.  Enter the concepts of Adware, Spyware and Digital Rights Management, all of which are frequently confused and have been subject to varying degrees of bad press and criticism. Nicola McCormick explains where the law stands on this: Adware, Spyware and DRM Adware and Spyware are terms often used interchangeably which describe software installed on an individual’s computer and used to send back varying kinds of information to a commercial entity’s server either for the purpose of sending targeted pop up advertisements, to report browsing habits or for more nefarious purposes.  Digital Rights Management (“DRM”) software limits the scope of use of downloaded content.  What these measures and controls have in common is that they require…

New US Bill Would Cripple Digital Radio Devices
Copyright / April 2006
USA

COPYRIGHT Radio The Electronic Frontiers Foundation report that Representative Mike Ferguson (Republican, New Jersey) has introduced the Audio Broadcast Flag Licensing Act 2006, H.R. 4861, a House companion bill to the Senate’s broadcast flag bill. This bill would require that all future digital radios (both terrestrial, like HD Radio, and satellite, like XM and Sirius) “include prohibitions on unauthorized copying and redistribution of transmitted content.” The FCC would be tasked with working out the details. This is the culmination of months of lobbying by the RIAA to lock down the “record” button on your next radio. Despite the fact that, under existing copyright law, building and using digital radio recorders is clearly legal, thanks to the Audio Home Recording Act. The EFF say that 4861 is chilling in at least three ways.  First, the bill forces technology creators to get a license from the FCC to build a radio receiver and incorporate DRM if the receiver has a record button. In other words, satisfying the Code of Federal Regulations would come before satisfying customers. Notice that “unauthorized” copying and redistribution will be prohibited, rather than unlawful copying and redistribution. Translation: unless you get permission, it’s forbidden, even if it would be…

Da Vinci Code litigation poses the age old question in copyright – to what extent can an ‘idea’ be protected by copyright law
Copyright , Music Publishing / April 2006
UK
USA

COPYRIGHT Publishing, music publishing, television, film Litigation between Random House, which published the ‘The Da Vinci Code’ written by Dan Brown and authors Michael Baigent and Richard Leigh who wrote ‘The Holy Blood and The HolyGrail’ some twenty years ago. The third co-author of The Holy Blood is not party to the action. Central to both books is a plot line that Jesus married Mary Magdalene and had children. Baigent and Leigh suggest that a bloodline was founded but kept secret by societies such as the Knights Templar. Brown says that Christ did not die on the cross but survived and started a family – and that descendents still live in France today. Baigent and Leigh argue that there are numerous references to their book in the Da Vinci Code including reference to their own names in a character called Leigh Teabing (Teabing being an anagram of Baigent) who owns a copy of The Holy Blood and The Holy Grail in his library. Brown’s own copy of the Holy Blood was produced in court and Brown was questioned about underlining band annotations but Brown gave evidence that whilst the Holy Bloodwas an excellent source of basic facts on early Christian history he came to the Holy Blood after he…

Massive UK police raid results in 31 arrests
Copyright , Record Labels / April 2006
UK

COPYRIGHT Record labels, film and television Bootleg and pirate CDs, DVDS and computer games worth millions of pounds were seized in England in dawn raids across Merseyside and Lancashire on the 16 th March. At least five copying ‘factories’ were raided by Police and thousands of illegal copies, along with duplicating equipment, were seized. More than 90 CD/DVD burners were found in one two bedroom house alone. Pirate DVD copies included new films such as Syriana, Munich, The Pink Panther andTheProposition as well as illegal games for Xbox, Playstation and PSP. The Times 17 March 2005.

Select Committee report damns DCMS role in new licensing regime
Health & Safety , Live Events / April 2006
UK

HEALTH AND SAFETY Live event industry A new Select Committee report damns the Department of Culture Media and Sport’s poor management of the introduction of the new Licensing Act 2003 and warns that this must not be repeated when the UK’s new gambling regime is introduced. The cross-party select committee said that pub landlords, councils and residents were put under “unnecessary stress because of late guidance, inconsistent advice and unclear information from the department”. Committee chair Phyllis Starkey said that the “dilatory” approach of Culture Secretary Teresa Jowell’s department was “completely unacceptable” and concluded it “failed to administer the transition period effectively”. The responsible minister is James Purnell MP. Shadow Secretary of State for Culture, Media and Sport, Hugo Swire MP, added this: “Clearly the Government’s handling of the new licensing laws has been a shambles, and it is local authorities, village halls and community centres who are left to deal with the mess and the bill. Ultimately, council taxpayers will be left paying for the Government’s mistakes. At times, the Department has seemed gripped by inertia and has refused to see the scale of the chaos before them. Most worrying is the admission that some licence applications were granted…

Prince Charles wins High Court action to protect private diaries
Artists , Copyright / April 2006
UK

COPYRIGHT & CONFIDENTIALITY Artists, Newspapers The Prince of Wales has won his High Court action for both the infringement of his copyright and a right to confidentiality in his private journals. The action, against the Mail on Sunday resulted from publication of excerpts from the journals sold to the Mail by a former secretary to the Prince. It is possible the former secretary, Sarah Goodall, may be prosecuted for stealing the journals. However seven more travel journals are still with the Mail and ownership will be decided in a future contested hearing. Mr Justice Blackburn held that with regard to the travel journals the Prince as claimant had established “a reasonable expectation of privacy in their contents”. Ms Goodall has also co-written a book about her time with the Prince, The Palace Diaries. This is due to be published in September 2006 and we can expect another High Court battle as Ms Goodall signed a confidentiality agreement when she joined the Royal Household in 1988. She was dismissed in 2000. The Times March 18 th 2006.

New German laws criticized by consumer groups
Copyright , Internet , Record Labels / April 2006
Germany

COPYRIGHT Internet, film & television, record labels   Germany has passed tough new anti-piracy laws which provide for prison sentences of up to two years for downloading for private use and five years for commercial use. German Consumer Groups have criticized the law for sending out the ‘wrong signals’. But German ministers have responded by pointing out that most downloaders clearly know what they are doing is illegal and that illegal downloading of films is theft. The law allows consumers to copy a legitimately purchased DVD for limited private use. The German music industry also claims to be suffering from piracy and in 2005 suffered its seventh annual fall in turnover in a row to E1.7 billion (£1.2 billion). The German record industry estimates that the equivalent of 439 million CDs were illegally copied or downloaded in Germany in 2005. http://www.timesonline.co.uk/article/0,,13509-2100973,00.html The Recording Industry in Numbers (IFPI) www.ifpi.org

Liability for ISPs: Bunt v Tilly & Others
Defamation , Internet / April 2006
Australia
Canada
UK
USA

DEFAMATION Internet Five years ago Demon Internet had to settle a claim from Laurence Godfrey who was the subject to defamatory messages on Demon internet message boards which Demon failed to remove promptly when notified. But now AOL, BT and Tiscali have been cleared of any liability for defamation when they successfully applied to have a claim for libel struck out. The claim was over allegedly defamatory messages posted on the Usernet message boards but the court held that ISPs could not be held liable as publishers of defamatory material when their only involvement in the matter was to provide a service through which the defamatory statements were transmitted. However those who had rose tinted aspirations that the internet would be a public realm free of regulatory and legal intervention seem distant dreamers now. The Godfrey case is still good law and indeed those who post defamatory articles in chat rooms and on message boards are clearly liable for their actions in law. And publishers who publish defamatory articles are equally liable; from Gutnick v Dow Jones this seems to be on a multi-territory basis as the article is published ‘worldwide’ although recent cases have limited this to meaningful subscription bases where…

Scottish pirate jailed for three years
Copyright , Record Labels / April 2006
UK

COPYRIGHT Record labels, film & television, software And finally …. running a shop named after the pirate’s skull and crossbone flag (the ‘Jolly Rodger’) might have been a bit of a clue to the police but one of Scotland’s biggest music, film and software pirates has been jailed for three years for selling fake goods – a record sentence. But Martin Reid’s brother Stephen walked free after making a deal with prosecutors. The Jolly Rodger, in Glasgow’s Argyle Street, openly sells pirated copies of albums, computer software and movies. Critics argue Glasgow City Council should not rent one of their properties to a criminal gang. Two years ago Stephen was jailed for five months on similar charges. The shop was raided in August 2005 and thousands of fakes were seized – but it was business as usual soon afterwards. It was raided again in December 2005 and the courts remanded the brothers in custody until trial. http://www.sundaymail.co.uk/news/tm_objectid=16864938&method=full&siteid=64736&headline=pirate-jailed–name_page.html

Is selling your pre-loaded iPod on E-bay illegal?
UK
USA

COPYRIGHT Internet, technology, record labels, music publishing There is a major market in second hand vinyl and I would be personally very upset if I was to be stopped from selling either my vinyl or CD collection (not that I want to). But the Recording Industry Association of America seems to be adamant that selling pre-loaded iPods is illegal. A number of members of the public in America have sought to sell their iPods on Ebay loaded with content – no doubt for numerous valid reasons – they don’t want the device anymore or they got a better iPod for Christmas or Valentines day. But the new practice has stirred up a fierce debate about the legality of reselling the music content. Ebay lawyer Andrew Bridges has said that “It really depends on the individual circumstances … I’m not sure the law is settled. If I’m a college student and I want to supplement my income by buying 100 iPods and taking my CD collection and putting it on those iPods and selling them at a significant premium, that’s probably not going to fly. But if I’ve had my iPod Shuffle for two years and I’m tired of it and I go…

Moral Rights Extended To Performers in UK
Artists , Copyright / March 2006
UK

COPYRIGHT LAW Artists New UK copyright law has come into force extending “Moral Rights” to performers. Since 1 February 2006, performers have the legal right (with exceptions) to be identified as the performer and to object to derogatory treatment of their recorded or broadcast performances. The new laws have been inserted into the existing Copyright, Designs and Patents Act 1988, by way of the ThePerformances (Moral Rights, etc) Regulations 2006. In the UK, copyright law is divided generally into three types: the best-known “copyright” laws which protect the works of authors, the lesser-known “rights in performances” laws which protect the live performances of musicians and other performers, and the little-known “Moral Rights” which protect the reputations of authors (and, now, also performers). This new extension of “Moral Rights” to performers includes the right to be identified as the performer when his performance is broadcast or when a recording of his performance is communicated to the public. He (or his stage name or the name of his group) must be identified in a manner likely to be noticed by the audience. Exceptions include where identification is “not reasonably practical” and where the performance is given for reasons relating to advertising or news reporting. No…

AIM invited to air views on DRM to UK government as indie labels distance themselves form RIAA actions
Copyright , Internet , Record Labels / March 2006
UK

COPYRIGHT Record labels, internet AIM, the UK association representing independent labels, has been asked to give evidence at the House of Commons to the All Party Internet Group on DRM. AIM will be represented by Alison Wenham, Chairman and CEO of AIM and newly-elected President of WIN (Worldwide Independent Network), Simon Wheeler, Director of Digital at Beggars Group/Chairman of AIM’s New Media Committee and Paul Sanders, founder of state51. AIM will be addressing MPs and Peers who form the membership of the Parliamentary/New Media Industries Forum, a body established to consider Internet issues as they affect society and inform Parliamentary debate. The APIG inquiry is looking at DRM issues to establish how consumers, artists and the distribution companies should be protected in a continually evolving market place. AIM was chosen from among 50 bodies who sent in evidence, to speak on behalf of its constituency, 95% of the British independent record industry.  Other attendees of the hearing will include British Music Rights, EMusic.com, Snocap, the British Library, BBC and AOL, National Consumer Council, Open Rights Group, PACT and The Film Council. AIM’s written submission outlined the differences between independent labels’ varying attitudes to DRM and those of the music majors and…

SonyBMG Rootkit case still rumbles on as SunnComm agrees to the terms of the Electronic Frontiers Foundation Open Letter
Copyright , Record Labels / March 2006
USA

COPYRIGHT Record labels In response to an open letter written by the Electronic Frontier Foundation (EFF), SunnComm Technologies, Inc., has outlined what it has done and will do to address potential security problems caused by its MediaMax CD copy-protection software and to help protect against future vulnerabilities. Use of the software on CDs released by Sony BMG has received significant media attention, but many consumers are unaware that the software was also used by several independent music labels. SunnComm says it will ensure that future versions of MediaMax will not install when the user declines the end user license agreement (EULA) that appears when a CD is first inserted in a computer CD or DVD drive. SunnComm has also agreed to include uninstallers in all versions of MediaMax software, to submit all future versions to an independent security-testing firm for review, and to release to the public the results of the independent security testing. SunnComm and EFF are discussing how to ensure that legitimate security researchers who have been, are, or will be working to identify security problems with MediaMax will not be accused of copyright violations under theDigital Millennium Copyright Act (DMCA). In January, SunnComm published a complete list of…

Copyright in a video game: Nova Productions v Mazooma (and Bell Fruit)
Copyright / March 2006
UK

COPYRIGHT Games industry ARTICLE:  By Tom Frederikse, solicitor, Clintons A video games design and manufacture company has lost its copyright claims against two rivals in a case which sheds considerable light on the extent of legal protection of a video game. Tom Frederikse explains: In Nova Productions Limited v Mazooma Games Limited (and the parallel Nova v Bell Fruit Games Limited), Nova claimed that both companies had copied its skill-based coin-operated arcade video game “Pocket Money” in which players could win cash prizes. The court found that, although there had been copying, the copying was not “substantial” enough to constitute infringement. Nova had claimed that its game had copyright protection in four ways by virtue of being four different types of work at the same time: an “Artistic work” (the graphics and displays), a “Literary work” (the software program itself and the original design notes), a “Dramatic work” (the game itself as “an ordered sequence of events within an overall framework”) and a “Film” (the series of images). The court agreed that the graphics in the game made it a protectable Artistic work (“similar to that of a painting or drawing”) and that both the programming code and the design notes made the game…

French court protects a TV programme format using passing off laws: Saranga Production v Canal Plus
Copyright , Trade Mark / March 2006
France

TRADE MARK, COPYRIGHT Television, radio, film ARTICLE: Jonathan Coad, solicitor and Eleanor Adams, solicitor, of Swan Turton After Simons Cowell and Fuller backed away from a full out battle over the format rights to Pop Idol and X-Factor, Jonathan Coad and Eleanor Adams look at a French decision which shows how a programme format can be protected even where no copyright is found to subsist in a format, here by using the laws of passing off. The Paris High Court has given protection for a television programme format under the law of passing off. The claimants, Saranga Production, produced a format for a political docu-drama show entitled Crise en direct. The broadcaster, Canal Plus, one of the defendants, sought proposals from production companies for a new politically themed programme. The claimants met with the defendants and presented their ideas. Canal Plus then commissioned a different production company to produce programmes using themes and characteristics in the claimants’ format. The defendants, Canal Plus, a production company and two journalists involved in production, were then responsible for producing and broadcasting a programme entitled C’est déjà demain.  The claimants brought an action for passing off in respect of the programme C’est déjà demain….

French parliament continues moves to legalise file sharing
France

COPYRIGHT Internet, film, television, record labels, music publishers After opposition members and some members of the ruling party hijacked a bill meant to strengthen anti-piracy laws, the French parliament is resisting heavy pressure from the major record labels and pressing on with plans to legalise the sharing of music and movie files. Parliamentary deputies will question the country’s culture minister Renaud Donnedieu de Vabres about the draft legislation that proposes to allow unlimited file sharing in return for the payment of a monthly fee of ‘several euros’ – a ‘P2P tax in effect. Consumer groups back the move, but the record industry is staunchly opposed. ‘If France continues down this road, it could jeopardise the promising growth we’re now seeing in the legitimate online market,’ said EMI chairman Eric Nicoli. ‘Many French artists, authors, indies, majors, film producers and entertainment retailers have expressed their strong opposition to the proposed “global licence” and to other detrimental proposal.’ And a French court has ruled that using P2Ps is legal providing it is for personal use rather than for commercial reasons. The French record producer association, SCPP (Société Civile des Producteurs Phonographiques) sued a French national for downloading and uploading 1,212 music tracks. The District…

Spyware and cookies can trespass: Thomas Kerrins v. Intermix Media, Inc.
Copyright , Internet / March 2006
Canada
EU
UK

COPYRIGHT Internet Legislation is always struggling to keep up with technology and in this age of digitization and the internet this has never been truer. But sometimes existing laws can be adapted to solve a new problem area. Recently a federal court in Los Angeles just held that trespass was a viable legal theory to address the alleged distribution of spyware and adware programs. More recently the UK Culture Secretary pointed out that the UK Government did not want more EC legislation applied to the internet to protect children as existing criminal law was more than sufficient to deal with new forms of criminal behaviour facilitated by the internet. A recent Canadian (Ontario) decision has held that invasion of privacy is a common law tort and other Canadian provinces such as Quebec already have a statutory tort for invasion of privacy – again laws which could be applied to privacy invasion in and by digital media. See: http://www.sinrodlaw.com See Law Updates Archive February 2006 See: http://news.com.com/Beware+of+Internet+trespass/2010-1071_3-6033581.html See: http://practice.findlaw.com/tooltalk-013106.html Invasion of privacy is a tort see http://www.canlii.org/on/cas/onsc/2006/2006onsc10045.html Somwar v McDonald’s Restaurants of Canada Ltd , 2006 CanLII 202 Ontario Supreme Court.

Google caches are fair use of copyrighted material: Field v Google
Copyright , Internet / March 2006
USA

COPYRIGHT Internet A federal district court in Nevada has ruled that Google does not violate copyright law when it copies websites, stores the copies, and transmits them to Internet users as part of its Google Cache feature. The ruling clarifies the legal status of several common search engine practices and could influence future court cases, including the lawsuits brought by book publishers against the Google Library Project. The ruling clarifies the position that fair use (fair dealing in the UK) covers new digital uses of copyrighted materials. Blake Field, an author and attorney, brought the copyright infringement lawsuit against Google after the search engine automatically copied and cached a story he posted on his website. Google responded that its Google Cache feature, which allows Google users to link to an archival copy of websites indexed by Google, does not violate copyright law. The court agreed, holding that the Cache qualifies as a fair use of copyrighted material. “This ruling makes it clear that the Google Cache is legal and clears away copyright questions that have troubled the entire search engine industry,” said Fred von Lohmann, Electronic Frontiers Foundation senior staff attorney. “The ruling should also help Google in defending against…

Google image search can infringe
Copyright , Internet / March 2006
USA

COPYRIGHT Internet, publishing  In spite of its win in Field v Google the search engine Google has lost a Californian copyright case at the preliminary injunction stage. At issue were the thumbnail images that Google provides as part of its “image search” service. The thumbnails in question were images from Perfect 10, a pornographic magazine. US District Court Judge Howard Matz held that displaying these images could be classed as infringement. However, the Judge held that Perfect 10’s claim that Google was also liable for secondary infringement if users clicked on the thumbnail images, which took users to the full-sized image as hosted on the copyright owner’s website did not have a sufficient likelihood of success at trial to serve as the basis of a preliminary injunction. Judge Matz said that based on evidence submitted at a preliminary injunction hearing, Google could not be held responsible when viewers click on the images and are directed to third-party sites that contain full-size images stolen from Perfect 10’s Web site. Matz ordered both sides to craft a narrow preliminary injunction that would respect Perfect 10’s copyrights but not curtail Google’s broader right to catalogue and display online images. The case will go…

Search Engine Marketing & The Law – an Update
Copyright , Internet , Trade Mark / March 2006
UK
USA

COPYRIGHT, TRADE MARKS Internet ARTICLE: By Nicola McCormick, solicitor, Michael Simkins LLP Search advertising is presently estimated to account for around 40% of US/UK online marketing spend and the total spend will almost certainly continue to increase. The purchase of key words to trigger banner ads or sponsored listings is hugely important- although crawler listings cannot be bought and rankings cannot be guaranteed.  The public understand this and largely trust organic search results to point them to the most relevant content-rich sites. For this reason a good search result ranking is a hugely significant means of driving traffic to a website.   No matter what ingenious new marketing techniques are developed, online ranking manipulation will remain popular, so in what way does UK law apply to search engine optimisation (“SEO”)? Solicitor Nicola McCormick explains   More than just Meta-tagging A couple of years ago much was written about the legality of using a competitor’s trade marks in meta-tagging as a form of SEO.  The reported UK and US cases did not give a definitive statement as to when such use was permissible; cases rarely do.  However, the broad principle was that such use was permitted when it was justified.  US cases in particular were more…

Crackberry addicts face their darkest hour as patent war moves towards a conclusion
Patents / March 2006
USA

PATENT LAW Technology Blackberry addicts are facing their darkest fears as Blackberry manufacturers, Research in Motion (RIM) try to overturn a court decision they lost five years ago to NTP who hold a patent which NTP say (and a court upheld) had been infringed in the Blackberry hand held mobile/computer device. RIM received good news last week when the US Patent Office ruled that the patent owned by NTP was not relevant to RIM’s invention and should be cancelled. But simultaneously on the 24 th February the US District Court in Richmond, Virginia, will decide whether NTP’s 2003 injunction against RIM should stand. RIM are contesting the injunction not least because they believe that in the event of a decision against RIM, NTOP could be fully compensated by financial recompense. A tentative £235 million settlement between the parties failed and the US Supreme Court has refused to intervene, leaving the decision to the District Court (Judge James Spencer). ADDENDUM: Judge Spencer has now issued his judgement (24th February 2006) and has not ordered the immediate shut down of RIM’s service although he did not accept that the Blackbery service was a ‘vital telecommunications service’.  The judge expressed disapointment that BTP and…

EFF challenge ‘dangerous’ patent precedent
Internet , Patents / March 2006
USA

PATENT LAW Technology, internet The Electronic Frontier Foundation (EFF) filed a friend-of-the-court brief with the United States Supreme Court asking justices to overturn a court ruling in a patent case with ‘dangerous implications for free speech and consumers’ rights’. The Public Patent Foundation, the American Library Association, the American Association of Law Libraries, and the Special Library Association joined EFF on the brief. At issue is a case involving online auctioneer eBay and a company called MercExchange. Last year, the Federal Circuit Court of Appeals ruled that eBay violated MercExchange’s online auction patents and that eBay could be permanently enjoined, or prohibited, from using the patented technology. But as part of the ruling, the court came to a perilous conclusion, holding that patentees who prove their case have a right to permanent injunctions under all but “exceptional circumstances,” like a major public health crisis. This radical rule created an “automatic injunction” standard that ignored the traditional balancing and discretion used by judges to consider how such a decision might affect other public interests–including free speech online. The EFF suggest the lower court’s ruling stems in part from a misperception that patents are just like other forms of property, with the…

Kate Moss fails in bid to have recent allegations excluded from trial
Artists , Defamation / March 2006
UK
USA

DEFAMATION Artists Kate Moss has failed in a High Court attempt to block recent allegations of drug abuse being used in her forthcoming libel trial. Moss alleges that Channel 5 defamed her by saying that she had taken a ‘vast’ quantity of cocaine in Barcelona in 2001 and had to be revived from a coma. The more recent allegations stem from the period of Moss’s relationship with Babyshambles frontman Pete Doherty when she was photographed allegedly using cocaine at one of the band’s recording sessions. On September 22 nd Moss issued a public apology and said that she was taking steps to address her ‘personal issues’. She has since attended a rehabilitation clinic in the US. Moss has subsequently returned to the UK and has, on January 31 st, been interviewed by police under caution but she was not arrested and no charges have been brought against her. In a pre-trial ruling Mr Justice Eady gave defence lawyers permission to use the more recent allegations of cocaine use in their defence against the action for defamation for the alleged Barcelona incident in 2001 (these allegations being pre the winter 2005 new allegations and apology). Channel 5’s case at trial will…

High Court ruling to protect Canadian folk singer follows Von Hannover v Germany
Artists , Privacy / March 2006
Canada
EU
UK

PRIVACY Artists, publishers In the clearest statement yet that the UK courts will follow the precedents of the European Court of Human Rights when looking at the right to individual privacy under Article 8 of the HumanRights Act 1998 (and the European Convention for Human Rights) Mr Justice Eady issued an injunction against publication of a book about Canadian folk singer Loreena McKennitt and awarded damages of £5,000 against Neima Ash, the author of Loreena McKennit, My Life as a Friend. Ash had been a close friend and confidante of McKnnitt for over 20 years but following the precedents set in the ‘Princess Caroline’ case Mr Justice Eady made it clear that even celebrities has ‘the legitimate expectation to have their private lives protected’ and just because events could have been witnessed in a public place does not make them any less private. There would need to be a high level of misbehaviour before the courts would apply the ‘public interest’ defence for publishers showing how far the law has moved to protect privacy at the expense of press freedom to publish in the last few years. The Guardian 13 February 2006 (from an article by Rupert Elliott) Von Hannover v Germany see Music…

Diana paparazzi convicted of invasion of privacy but must only pay nomimal damages
Artists , Privacy / March 2006
France

PRIVACY Artists, broadcasters, press Three paparazzi photographers who took pictures of Princess Diana and Dodi Fayed leaving the Ritz Hotel and at the scene of the fatal car crash in Paris where the couple died must pay nominal damages of E1 each as well as the cost of advertisements announcing the verdict in newspapers. The French Appeals Court found that the couple’s privacy had been invaded on both occasions – at the hotel and at the scene of the crash. The convictions of Jacques Langevin, Christian Martinez and Fabrice Chassey, based on unpublished photographs, are thought to be very unusual in France. The Telegraph, 23 February 2006

New book looks at the taxation of international performing artists
Live Events , Taxation / March 2006
EU

TAXATION Live Music Industry A new book, Taxation of International Performing Artists by Dick Molenaar, investigates the taxation of international performing artists in Europe. Published by the International Bureau for Fiscal Documentation, the book makes it clear that the tax rules for international performing artistes are very different from normal tax rules. For instance, taxation occurs in the country of performance, regardless of whether an artiste is self-employed or an employee. The book considers the problems regarding, for example, the determination of taxable income and the non-deductibility of expenses and tax credits in the country of residence, and gives current examples of excessive taxation. Recent cases before the European Court of Justice have led to awareness of some fairly dubious practices promulgated by fiscal authorities and the author is active in campaigning against restrictive (and often illegal) taxes on the music industry in European Union member states such as Germany.  www.ibfd.org/portal/Product_tipa.html Published by IBFD Publications BV. See Music Law Updates News Archive December 2004 for details of three recent cases at the European Court of Justice: FKP Scorpio Konzertproduktion (C-290/04), Centro Equestro de Leziria Grande Lda. (C-345/04) and Centro di Musicologia Walter Stauffer (C-386/04)http://www.musiclawupdates.com/news/04Decembernewsupdates.htm . Also see IQ magazine

Spitzer targets radio stations
Competition , Record Labels / March 2006
USA

COMPETITION Record labels New York Attorney General Eliot Spitzer has subpoenaed some of the USA’s largest radio conglomerates in his “payola” investigation of major artists and songs that he claims got air time because of payoffs by recording companies. Payola, or ‘pay for play’ breaches a 1960 federal law prohibiting record companies paying ton get airtime for records on the radio. “A lot of the major songs have been implicated in this and it showed how pervasive the payola infrastructure had become,” Spitzer told Associated Press. “Probably many of the songs that were beneficiaries of the payola scheme would have succeeded without it, but certainly payola became part of the promotional structure and was integral to the game to get songs to the top. Major artists, major songs were sent up the charts through improper payments to buy spins on the air that translated into sales.” Warner Music Group Corp. agreed last year to pay $5 million to settle its part of the investigation, and Sony BMG Music Entertainment agreed to pay $10 million .http://abcnews.go.com/Business/wireStory?id=1594741

European competition regulators to look at music collection societies again
Competition , Internet / March 2006
EU

COMPETITION Internet In October 2005 The European Commission adopted a recommendation on the management of online rights in musical works. The recommendation puts forward measures for improving the EU-wide licensing of copyright for online services. Improvements were deemed necessary because new Internet-based services such as webcasting or on on-demand music downloads needed a license that covers their activities throughout the EU. The absence of EU wide copyright licenses were held to have been one factor that has made it difficult for new Internet-based music services to develop their full potential. Internal Market and Services Commissioner Charlie McCreevy said at the time : “Today we have made workable proposals on how licensing of musical work for the Internet can be improved. I want to foster a climate where EU-wide licenses are more readily available for legitimate online music service providers. These licenses will make it easier for new European-based online services to take off. I believe that this recommendation strikes the right balance between ease of licensing and maintaining the value of copyright protected works so that content is not available on the cheap. In the interests of better regulation, for the time being and as a first step, I am…

Avon and Somerset Police go on a ‘pub crawl’
Health & Safety , Live Events / March 2006
UK

HEALTH & SAFETY Live concert Industry Police officers have been visiting pubs and clubs in the Bath area in the early part of February as part of a drive to ensure that venues were complying with the new regulations for licensing and accredited door staff. Officers spoke to door staff to check they were Security Industry Authority- approved and what policy the venue had on drugs and underage alcohol sales. A force spokesman said it was pleased with the results but some needed to review their drugs search policy. Staff were also reminded of their obligations under the Licensing Act. Bar staff could face a maximum fine of £20,000 if they breach licence conditions or be imprisoned for up six months under new regulations introduced as part of the Licensing Act 2003. http://www.avonandsomerset.police.uk/LocalPages/NewsDetails.aspx?nsid=4103&t=1&lid=3 And see this link for details of a recent study by Kate O’Brien, a Durham University sociology lecturer, who found that that the percentage of female door staff is rising sharply to deal with violence caused by female binge drinking at nightclubs. O’Brien says that fighting between drunk women can be particularly vicious because they attempt to inflict disfiguring injuries. The British Journal of Sociology is to publish…

Violent alcohol related crime rate allegedly drops by 20% as Licensing Act provisions come into force
Health & Safety , Live Events / March 2006
UK

HEALTH & SAFETY Live Event Industry Serious violent crime has dropped by more than a fifth since the new Licensing Act was introduced, according to official figures. The Home Office statistics challenge the popular press concerns that the new laws would mean drink-fuelled chaos on Britain’s streets. The figures show that serious violent crime was 21 per cent lower in the last three months of 2005, while total violent crime was down 11 per cent. The number of woundings fell by 14 per cent. This included a six-week period when the police were given £2.5m to target alcohol-related crime. However these are Home Office figures and it might be prudent to take these with a ‘pinch of salt’ as UK Government statistics are currently difficult to rely on, particularly when used to justify Government policy. http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2006/02/09/ndrink09.xml&sSheet=/news/2006/02/09/ixhome.html http://www.thepublican.com/cgi-bin/item.cgi?id=19758&d=32&h=24&f=23&dateformat=%25o%20%25B%20%25Y And see MusicLaw Updates Archive January 2006

Delhi court hold PPL levy illegal
Copyright , Live Events / March 2006
India

COPYRIGHT Live Concert Industry The Delhi High Court has restrained the Phonographic Performance Limited (PPL) from collecting more than 15 per cent of the special licence fee it planned to levy for playing recorded music. The bench comprising Justice Mukul Mudgal and Justice H.R. Malhotra issued the interim order based on writ petitions filed by various hotel owners through the National Restaurants Association of India (NRAI), which challenged the enhanced special fees and annual fees imposed by PPL and the Indian Performing Rights’ Society (IPRS). Counsel for NRAI Anip Sach, they challenged the imposition of the special licence fee and annual licence fee by the two organisations as ‘‘illegal and arbitrary’’. http://cities.expressindia.com/fullstory.php?newsid=169283

Whose On-line is it anyway?
Internet , Trade Mark / March 2006
UK

TRADE MARK Internet ARTICLE Article by Matthew Dick A recent appeal from the UK Trade Marks Registry to the High Court has emphasised the need for trade mark owners to file evidence correctly, particularly when seeking to establish a reputation in a mark. E! Entertainment Television Inc applied to register the mark E! ONLINE in relation to a broad range of goods and services in the field of telecommunications…. LINK TO http://www.mondaq.com/article.asp?articleid=37622&email_access=on

UK Artists’ Creativity ‘Rewarded’
Copyright / March 2006
UK

COPYRIGHT Fine Art, design British artists will receive well-deserved reward for their creativity through the introduction of regulations giving them the right to a royalty on the re-sale of their works, Minister for Science and Innovation Lord Sainsbury has said. From the 14 th February, when an artist’s work is re-sold on the UK art market for the equivalent of €1,000 or more, he or she will receive a royalty of up to four per cent of the sale price. Lord Sainsbury said: “The artists’’ re-sale right regulations ensure a just reward for living British artists’ creativity while protecting the valuable UK art market.” The regulations have been introduced to comply with the EU Artist’s Re-sale Right Directive (2001/84/EC). The directive required the Government to set the threshold at which the royalty is paid at between €0 and €3,000. Eighty-eight per cent of works by living artists sold in the UK in the €1,000 to €3,000 price range in 2003-2004 were by British artists. The UK Government successfully negotiated a delay in the application of the royalty to works by deceased artists until 2010, with a possible extension to 2012, and will seek to extend it indefinitely. The Statutory Instrument…

Danish courts require ISP’s to cut off infringers access
Copyright , Internet , Record Labels / March 2006
Denmark

COPYRIGHT Record labels, internet The Danish Supreme Court confirming that Internet Service Providers (ISPs) can be obliged to terminate the internet connections of customers engaged in internet piracy. The case, involving two individuals operating illegal FTP servers, will set an important precedent for the responsibilities of ISPs in cases involving illegal filesharing.  ISPs may now face action by copyright owners, requiring them to stop providing internet services to customers that use those services to distribute copyright material over peer-to-peer networks.  The ruling ends a long-running legal battle between telecommunications company TDC and Denmark’s AntiPiracyGroup , representing copyright owners from the Danish music and film industries. The ruling will oblige TDC, and other ISPs, to act immediately when they are notified that one of their customers is using their internet account to infringe copyright. In the event of non-compliance, copyright owners will be able to ask the court for an injunction against the service provider . The AntiPiracyGroup consists of the members of IFPI Denmark, Danish Video Distributors Association, Danish Film Distributors Association, KODA (Composers, Publishers and Songwriters in Denmark), Nordic Copyright Bureau, the Danish Musicians’ Union and the Danish Artists Association. Source: IFPI www.ifpi.org

Solomon Linda’s estate heirs rewarded for ‘The Lion Sleeps Tonight’
Copyright , Music Publishing / March 2006
South Africa

COPYRIGHT Music publishing The family of South African composer Solomon Linda has reached a settlement with Abilene Music in the lawsuit over his world-famous song The Lion Sleeps Tonight. The financial terms of the deal were not disclosed. Linda composed the song, originally called Mbube (or Lion, in Zulu) in 1939 in Johannesburg. It became a hit throughout South Africa. But Linda and his wife had sold the rights to his song to a local company that year and never properly benefited from the song’s popularity. Linda died in poverty in 1962 and his wife could not even afford a headstone for his grave. In a recent action lawyers for the Linda family had argued that according to copyright law in the British Commonwealth at the time (Imperial Copyright Act 1911) the rights to the song were to revert back to the composer’s heirs 25 years after his death – in 1987. In the 1950s Mbube was adapted and covered by American folk singer Pete Seeger and his group the Weavers. Seeger heard Mbube and transcribed its Zulu lyrics completely (but inaccurately) and the song becameWimoweh, a 1952 hit which subsequently sold four million copies in various recordings. It has been covered at least…

eDonkey server siezed
Copyright , Internet , Record Labels / March 2006
Belgium
Switzerland

COPYRIGHT Internet, record labels Swiss and Belgian authorities have closed down Razorback 2 which is seen as the biggest index server on the eDonkey P2P network. The server’s operator was arrested in his home in Switzerland while the server itself was seized at an Internet hosting centre close to Brussels. There are said to be somewhere between 100 and 200 other index servers on the network, but the closing down of Razorback 2 has been taken as a significant coup. Razorback 2 had an estimated 1.3M simultaneous users with around 170M files being traded via it. Across the whole of eDonkey there were an estimated 3M users. John Kennedy of IFPI said of the raids: “This is a very significant breakthrough in the fight against internet piracy internationally, removing one of the biggest and most well-known sources of illegal music files on the internet. This is an excellent example of good cooperation between law enforcement agencies across borders and among the copyright industries in addressing the problem worldwide”. www.ifpi.org

DVD piracy in the headlines: R v Malone
Copyright / March 2006
UK

COPYRIGHT Film and television A police unit dedicated to combating movie piracy and those responsible for the manufacture and distribution of pirated films has launched in London. In partnership with the Federation Against Copyright Theft (Fact), the new unit will pursue individuals and groups profiting from the sale of fake DVDs. In Scotland, a counterfeiter who sold thousands of fake DVDs and CDs in the run up to Christmas has been jailed. Airdrie Sheriff Court heard George Malone, 48, had built up his black market operation over two years at his home in Cumbernauld. Malone admitted producing the illegal copies and selling them at industrial estates across west central Scotland. He was sentenced to nine months in prison, despite claims he had only made £900 from the venture. Goods seized in a raid on Malone’s house had a black market street value of £18,385 and caused a loss to trade of an estimated £50,000. http://news.bbc.co.uk/1/hi/entertainment/4740668.stm http://news.bbc.co.uk/1/hi/scotland/4741212.stm

Killers litigation with ex-manager anticipated
Artists , Contract / March 2006
USA

CONTRACT Artists The Killers’ former manager is suing the band for ‘breach of contract’. Braden Merrick says his contract with the band was to run through 2007, but he was sacked last May. He is seeking $16M in settlement according to FiveEight magazine. http://www.usatoday.com/life/people/2006-02-22-killers-lawsuit_x.htm?POE=LIFISVA http://news.bbc.co.uk/1/hi/entertainment/4742334.stm

Article: EXTENDING THE TERM
Articles / March 2006

Click here to download this article as a PDF file (.pdf) Should the UK recording industry have new obligations as well as new rights if the copyright term for sound recordings is extended? Ben Challis, LLB MA MA(law) FRSA Barrister-at-law In this article Ben looks at the current moves by the UK’s recording industry to push for a Europe wide extension in the term of copyright for sound recordings – from fifty years to ninety five years. But Ben asks if this is the time for a complete overhaul in the way copyrights are owned and suggests that any change in term should only be made with additional provisions to protect both the customers and the creators of recorded music. Front page news in the UK trade magazine Music Week on the 4 th March 2006 was the headline ‘Timefor Action’ launching a major campaign under the ‘Extend The Term!’ banner, calling on the UK Government to take action over extending the term of copyright for sound recordings. Currently the term of copyright protection for original literary, dramatic, musical and artistic works along with Films is seventy (70) years from the death of the author or last surviving author pursuant to the…

Court of Appeal decision clarifies occupier’s liability for unforeseeable accidents
Health & Safety , Live Events / February 2006
UK

 HEALTH & SAFETY Live concert industry Lewis v Six Continents Plc January 20 th 2006 In a decision reminiscent of the common sense approach taken by the House of Lords in Tomlinson v Congleton Borough Council & Others . The UK’s Court of Appeal have held that a hotel operator had no duty of care to fit bars or blocks inhibiting the opening of bedroom windows in a hotel so as to prevent injury from a fall. The case may give some comfort to venue operators and promoters who face liability claims from visitors to their premises and events. The appellant, Christian Lewis, had fallen from a second floor window in 2000 and suffered serious injuries. Whilst he had been drinking it was accepted that he was not drunk at the time and the fall was unexplained. The aperture was 68cm. Lewis relied on S2 of the Occupiers Liability Act 1957 and that the hotel had failed in its duty to take reasonable care. The trial judge (Mr Roger Ter Harr QC) held that it was not reasonably foreseeable that an adult occupying the hotel room leaning forward would fall from the window and the court held that there was…

Diabetic pens cause angst for venue management
Health & Safety , Live Events / February 2006
UK

HEALTH & SAFETY Live Concert Industry A diabetic clubber’s anger at being refused permission to keep her pre-loaded insulin pen on her at a nightclub has opened up a debate about whether or not door staff are right to take medication from customers before they enter a club. Lisa Morris, 27, first wrote about her November 2005 experiences at London’s The End nightclub in the Balancemagazine. She explained how she was told that she could not take her insulin pens into the club and had to give these to door staff for ‘safe keeping’. Lisa had previously taken the pens into the club. Lisa was unhappy about handing over her pens – in case they were tampered with and because of hygiene issues. Lisa was attending as a VIP to write a review on the Club but was asked to leave by door suprvisors. In Balance magazine Lisa admitted that she realised the issue of hightened security post 9/11 and the London bombings and that insulin pens have needles. The End banned all syringes and knives but Lisa countered by pointing out that they were allowed on aeroplanes and that in a club and at  events bottles and glasses posed far more of a risk….

Scottish woman jailed for noise breaches
Health & Safety , Live Events / February 2006
UK

HEALTH & SAFETY Live Music Industry A warning to promoters – Noise Annoys! Marion Beresford , a 48 woman has been sentenced to 40 days in prison by Glasgow Sheriff Court for flouting an anti-social behaviour order (Asbo). Beresford was first served with the order in June 2004 after complaints about loud music blaring from her flat. She was finally taken to court in October this year and has now been sentenced. She will spend Christmas and New Year behind bars. In court, the Sheriff said that she had rendered the Asbo meaningless and the court was left with little alternative but to imprison. In a statement, the Glasgow Housing Association said it would use any legal means to ensure tenants could enjoy a peaceful life in their homes. See the Article Noise Annoys by Ben Challis on this site (click on articles)