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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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