Canadian study says that illegal downloading promotes music sales
Copyright , Internet , Record Labels / December 2007
Canada

COPYRIGHT Internet, record labels We have a feeling that this might blow up into a big story. Almost all of the justifications for the legal actions taken by record labels and their trade associations – The British Phonographic Industry (BPI), The International Federation of Phonographic Industries (IFPI), the Recording Industry Association of America (RIAA) and their Canadian counterpart (CRIA) – has been that there is a direct negative correlation between illegal downloading and the use of peer-2-peer file swapping sites and the slump in CD sales. But now an independent report sponsored by Industry Canada and undertaken by Birgitte Andersen and Marion Frenz of the University of London ( Birkbeck College) and Decima Research seems to suggest that illegal downloading actually lead to an increase in music purchases. The survey, of 2000 Canadians on their music downloading and purchasing practices  seems to suggest that illegal downloading actually leads to an increase in music purchases and that there is a positive correlation between peer-to-peer downloading and CD purchasing – although Canadian music sales are down 45% since 1999. A recently leaked report from CapGemini for the Value Recognition Strategy (MCPS, AIM International Managers Forum, British Music Rights etc) in October 2007 suggested…

Is ‘value recognition’ on the turntable?
Copyright / December 2007
UK

COPYRIGHT All areas AIM, the Association of Independent Music and others including music publishers, collection societies and artists have been pushing for ‘value recognition’ for their rights for some time – claiming that internet service providers (ISPs) and mobile companies profit from the vast amount of music (mostly) illegally swapped and downloaded on the internet and on mobiles. In the USA the Motion Picture Association have also begun speaking with ISPs as have the International Federation of Photographic Industries (IFPI). With CD sales rapidly shrinking and with no commensurate increase in legal download sales, some say that record labels are fighting for their very existence. Last year EMI’s sales were down 15% and SonyBMG’s down 10.2%. Now Lord Triesman, the parliamentary Under Secretary for Innovation, Universities and Skills in the UK has suggested that the UK government could push through legislation to crack down on illegal file-sharers and to also force ISPs into taking a tougher stance here. Triesman has proposed ISPs sign up to a voluntary agreement to thwart file-sharers, but if they don’t they could be forced to under possible new legislation. The music industry has been in talks with ISPs for several years on this issue and…

Clear Channel to face anti-trust action
Competition , Live Events / December 2007
USA

COMPETITION Live event industry, radio United States District Court Judge Stephen V Wilson has given the green light to a class-action lawsuit that claims that Clear Channel Communications Inc., the USA’s largest media and entertainment company, used its market dominance to illegally inflate ticket prices to live rock concerts across the country. Judge Wilson has granted class-action status to five lawsuits on behalf of concert-goers in regions across the United States which are being lead by the Seattle-based law firm Hagens Berman Sobol Shapiro. The suits claim that Clear Channel used its market dominance in anticompetitive activities that unfairly increased ticket prices for consumers and coerced artists to use Clear Channel for concert promotion. The plaintiffs will claim that Clear Channel uses predatory practices to keep potential competitors from entering regional markets. In some cases, the complaints state, Clear Channel bids up the fees paid to artists so it becomes impossible for other promoters to compete. The complaints also state that Clear Channel’s dominance in FM leads to uncompetitive behaviour. The complaints will also cite a study which indicates that the rate of inflation and Clear Channel’s rise in ticket prices is disproportionate. During the time when Clear Channel’s consolidation…

Just when you thought the Sony-BMG merger debate was all over …
Competition , Record Labels / December 2007
EU

COMPETITION Record labels Having gained approval from the European Commission for the second time, Sony and Bertelsmann AG must be fairly confident that their merger is finally beyond question. But the European independent labels trade body IMPALA is going back to the European Court of Justice and again calling for court’s original Sony BMG merger annulment to be upheld. This annulment of course led to the second EC review. Following a hearing concluded on November 7 th the Advocate General is expected to deliver a non-binding opinion on the appeal on Dec 13th. The case itself will then follow. http://money.cnn.com/news/newsfeeds/articles/newstex/AFX-0013-20805864.htm

OFT explain V2 approval
Competition , Record Labels / December 2007
UK

COMPETITION Record labels The Office Of Fair Trading chaps have published details on their approval of Universal Music’s acquisition of V2 in light of comments from the Association Of Independent Music who have said that the acquisition would stifle competition and narrow consumer choice. OFT says that while it accepts that Universal and V2 were in the same business – that of releasing and marketed recorded music – it does not feel the merger of the two companies’ recorded music operations would have any effect on the wider record industry because the increase in market share of Universal post-V2 purchase was too low to matter – 0.2%-1.4%. saying ” Post-merger, other majors and independents continue to operate as a strong competitive constraint to the merged entity. With the exception of a few third party concerns, which do not lead to any credible theory of harm, third parties generally agree that the increment to Universal’s share of supply is very low and that it will have a negligible (if any) effect on competition. Finally, on the basis of the available evidence, the OFT does not believe that the transaction will give rise to any portfolio effects. Consequently, the OFT does not…

Ukrainian file swap site fined and shut down
Copyright , Internet / December 2007
Ukraine

COPYRIGHT Internet A Ukrainian court has upheld a judgment against music website mp3.ua.  The verdict obliges the site’s operators, Internet Media File Ltd., to pay over US$70,000 in damages and an injunction previously granted against them will now enter into force. The Kiev Court of Appeal rejected Internet Media File’s objections to an earlier verdict from the Kiev Economic Tribunal confirming the injunction granted to IFPI member company HonestMusic, which prohibits mp3.ua from making any of its tracks available without authorisation.  The verdict also enables the company to seize Internet Media File Ltd’s assets to secure the payment of damages if necessary.  The damages were granted because 36 HonestMusic copyright sound recordings were made available without their permission and downloaded by internet users from mp3.ua. The IFPI say that the verdict sets a precedent against Ukrainian websites that try to replicate the business model of Russian site allofmp3.com, which sells music without any permission from artists, composers or record producers. www.ifpi.org

OiNK owner trots out his defences
Copyright , Internet / December 2007
UK

COPYRIGHT Internet In the November Music Law Updates we noted that the IFPI and BPI had managed to close down the OiNK website which specialised in allowing users to swap albums leaked in advance of official release dates. Now OiNK founder, Alan Ellis, who was arrested by UK police for copyright infringement earlier in the week in the raid, has denied that the service he ran contravenes copyright laws, comparing the tracking service to search engines like Google. Speaking to the Daily Telegraph, he said: “I haven’t done anything wrong. I don’t believe my website breaks the law. They [the police] don’t understand how it works. The website is very different from how the police are making it out to be. There is no music sold on the site – I am doing nothing wrong. I don’t sell music to people, I just direct them to it. If somebody wants to illegally download music they are going to do it whether my site is there or not”. Making the Google comparison, he continued: “If this goes to court it is going to set a huge precedent. It will change the internet as we know it. As far as I am…

RIAA file swapper case fails due to insufficient evidence
Copyright , Internet / December 2007
USA

COPYRIGHT Internet A New York Judge has held that an Recording Industry Association of America case against an alleged peer-2-peer file swapper must fail as there was insufficient evidence. Judge David G. Larimer, presiding in Rochester, New York, has denied the RIAA application for default judgment on the ground the claim contained no details of actual downloads or distributions, and no sufficient evidence that defendant was in fact Kazaa user ‘heavyjeffmc@KaZaA.’ The Judge concluded that “there are significant issues of fact regarding the identification of the defendant from his alleged “online media distribution system” username. In August a similar RIAA default judgment motion was denied on the ground that the pleadings failed to allege sufficient factual details supporting a claim of copyright infringement, in a San Diego, California, case Interscope v Rodriguez. http://yro.slashdot.org/article.pl?sid=07/10/28/0257218 http://www.ilrweb.com/viewILRPDF.asp?filename=atlantic_dangler_071023DecisionDenyDefaultJudgmentMotion

France to instigate new penalties agains downloaders
Copyright , Internet / December 2007
France

COPYRIGHT Internet The French government is to issue a new ‘three-strikes-and-you-are-out’ policy against repeat illegal downloaders where repeat offenders will have their Internet access removed by a new independent government body. The proposals, drawn up by an independent review headed by Denis Olivennes – the Chairman of French entertainment retail chain Fnac has led to a Memorandum of Understanding, signed in Paris by music producers, audiovisual producers, internet service providers and public authorities www.ifpi.org

iPhone lock-ins challenged – Vodafone wins round agains iPhine in Germany
Competition / December 2007
Germany

COMPETITION Telecomms ARTICLE LINKS  Last month, Apple was forced by French law to promise that consumers could buy a version of its much-hyped iPhone here without having to be locked into a long-term contract with Orange, the only mobile phone operator offering the new device. Now, the same issue is tripping up Apple’s plans to sell the music-playing cellphone in Germany, the largest European telephone market as Vodafone won a partial victory in the German courts when a temporary injunction granted against T-Mobile under local competition laws. T-mobile had been granted the exclusive right to sell ‘locked’ iPhones in Germany which can only be used on the T-mobile network. In the UK customersw must take out a contract with O2. http://www.iht.com/articles/2007/11/20/business/iphone.php

Japanese trio fined E70 million for tape price fixing cartel
Competition / December 2007
EU
Japan

COMPETITION TV and video Sony, Fuji and Maxell have been fined a combined total of E70 million by European competition regulators for artificially controlling the European videotape market between 1999 and 2002. The three companies control 85% of the professional tape market and in dawn raids in May 2002 the EC discovered evidence of meetings where prices were set and sensitive information swapped as well as three covertly organised price increases during the period. Sony paid a higher fine than the other two companies after employees refused to provide information and one was discovered to have shredded documents during te investigation. The Times 21 November 2007

Music Rights Regime Needs Updated, Should Embrace New technologies
Copyright , Internet , Record Labels / December 2007
USA

COPYRIGHT Internet, record labels ARTICLE LINK:  This Briefing is on “Public Policy Issues Affecting Civil Liberties Online” and is from The Center For Democracy and Technology in the USA.: The Briefing covers four headings (1) Music Rights Regime Needs Updating, & Should Embrace New Technologies; (2) Shortcomings of Existing Music Licensing Law – in particular s114 and 115 of the US Copyright Act; (3) Controversy over Private Copying; (4) Key Principles for Reform Efforts http://www.cdt.org/publications/policyposts/2007/14 

Tarzan yell cannot be registered as a trade mark
Trade Mark / December 2007
EU

TRADE MARK All areas The excellent Out-law site reports on a recent European Decision that Tarzan’s distinctive yell cannot be registered as a trade mark because it is almost impossible to represent graphically. Sounds can be registered as trade marks, but the ruling could limit that to sounds that can be written in standard musical notation. http://www.out-law.com/page-8587 . The mark was submitted as a spectrogram – a graphic representation of Tarzan’s yell – the “aaaahh-ah-ah-aaaaaah-ah-ah-ahhh” (or something like that) with a description of the mark in the application as consisting of ‘five distinct phrases namely sustain, followed by ululation, followed by sustain but at a higher frequency followed by ululation followed by sustain at the starting frequency”. But the OHIM (Office for the Harmonisation of the Internal Market, Trade Marks and Designs) was having none of saying the graphic submitted could not be recognised “from the image as filed whether the sound phenomena depicted is a human voice or something else” … “nobody would be able to hum the Tarzan yell from the spectrogram and nobody reads spectograms for entertainment”. A new application has been filed and the OHIM have issued a release saying that although the sonogram was refused registration, a…

MTV v MTV – TV stations fight for same name in Hungary
Trade Mark / December 2007
Hungary
USA

TRADE MARK Television Variety reports that youth favourite MTV is facing legal action from national broadcaster MTV – with the latter’s long established name standing for Magyar Televizio. Magyar has survived the Soviet occupation and an insurrection of rioters but has been forced to issue legal proceedings to stop Viacom’s MTV from using the acronym in Hungary where Magyar Televizio’s MTV has been a weighty brand in Hungary for the past 50 years. The 1956, revolution began outside the offices of Magyar Radio, which spawned Magyar Televizio a year later. Pitched battles between Hungarian freedom fighters and Red Army soldiers took place at Szabadsag Square ( Freedom Square), where the broadcaster is now housed. http://www.variety.com/article/VR1117974818.html?categoryId=2523&cs=1 An interesting parallel with the ‘East meets West’ battle of trade marks is Anheuser -Busch’s fight to establish the Budweiser trademark in the face of strong opposition from the Czech Brewery Budejovicky Budvar NP who produce Budweiser Budvar lager. http://www.iht.com/articles/ap/2006/11/09/business/EU_FIN_Czech_Portugal_Budvar.php http://ipkitten.blogspot.com/2004/11/trips-rules-ok-says-ecj-in-latest-bud.html http://www.billingsgazette.com/newdex.php?display=rednews/2004/01/16/build/business/35-bud.inc

Book Titles and Trade Marks
Artists , Trade Mark / December 2007
UK

TRADE MARK Artists ARTICLE: By Nicola McCormick, Solicitor, Simkins Partnership In the search for a pithy, apposite book title it is sometimes appealing to reference or parody a well-known brand, phrase or name but will this cause a problem if that name is a registered trade mark? Conversely, what should your response be if someone complains that the book title you thought so original and snappy is in fact a registered trade mark? There is no new law in this area but we have advised on it several times recently and thought it a topic worth revisiting. We are only concerned here with registered trade marks which are governed by the Trade Marks Act 1994. There have been several cases touching on the topic of book titles and trade marks. The most widely cited of those cases centred around a book about the band Wet Wet Wet. The band name was a trade mark registered in relation to, amongst other things, books. The defendant intended to publish a book entitled “Wet Wet Wet – A Sweet Little Mystery”. This was an unauthorised biography about the band. The band wanted to prevent publication under this title saying it infringed their trade mark….

Upholstery use prompts Britney action
Copyright , Trade Mark / December 2007
USA

COPYRIGHT, TRADE MARK All areas Five Eight reports that Sony BMG and MTV Online have been found guilty of violating counterfeiting laws in a Britney Spears video. Luxury goods manufacturer Louis Vuitton brought forward the case after noticing a similarity between in-car upholstery in the video for ‘Do Something’ and its own cherry blossoms design. A Paris civil court has ordered the two companies to desist from broadcasting or marketing the video and fined them E80,000 apiece. TV stations received the following from Sony BMG: “Good afternoon, In connection with a court proceeding in France brought by Louis Vuitton, a judgment was entered against SONY BMG this week regarding the music video for the Britney Spears track “Do Something. The original video included a short shot of Vuitton fabric contained on the interior of a pink Hummer vehicle. The court held that this video infringed Vuitton’s rights. Please confirm and take down if live on your service the below. Britney video ‘Do Something’ USZM20500003 http://www.billboard.biz/bbbiz/content_display/industry/e3i6ed02f115f5e252e0fc8928bb09f4452

Red hot stuff as Californication dispute heads for the courts
Artists , Trade Mark / December 2007
USA

TRADE MARK Artists, television The IPKat reports on the of the altercation between The Red Hot Chili Peppers and US broadcaster Showtime over the use of the word Californication – this being the name of the band’s 1999 album and a hit single. The band alleges unfair competition, dilution of the value of the name and unjust enrichment, claiming that the title is “inherently distinctive, famous … and immediately associated in the mind of the consumer” with the band. Injunctive relief is sought in a Los Angeles court against the broadcasting of Showtime’s TV series of the same name, as well as an account of profits. The television series features a novelist suffering from writers’ block and a mid-life crisis, together with a character named Dani California – coincidentally the title of another Red Hot Chili Peppers song released in 2006. http://ipkitten.blogspot.com/2007/11/hot-stuff-for-la-courts.html

Four Italian illegal music file-swappers face fines of €12 million
Copyright , Internet / December 2007
Italy

COPYRIGHT Internet The IFPI report that Italian police have arrested and questioned four people for illegally uploading copyright infringing music onto the internet following a raid near Milan.  In addition to pressing criminal charges, the police have issued the uploaders with an administrative fine of €12 million. Officers from the Guardia di Finanza di Milano took part in Operation Genux which saw the arrest of four individuals aged between 30 and 45 in the town of Melgnano.  They had been sharing more than 120,000 files containing copyright infringing music using the DCC++ peer-to-peer network.  The police seized six computers, seven external hard discs and more than 2,300 CD-Roms during the raids.  The products seized included catalogue from artists such as Madonna, Vasco Rossi, U2 and Elisa.  The police also seized copies of software programmes such as Vista and Office, as well as video games. Officers were acting on search warrants issued by the Public Prosecutor of Lodi and were assisted by the Italian anti-piracy federation FPM. The €12 million administrative fine was levied under Article 174 of the Italian Copyright Act although here at Music Law Updates we were not clear how the police could issue a fine of such…

Indian Label gets order against YouTube
Copyright , Internet / December 2007
India

COPYRIGHT Internet One of India’s biggest record and movie companies, Mumbai-based Super Cassettes Industries Ltd, has told local media that it has obtained a court order that prohibits YouTube India from carrying any of its music or videos. The order follows legal action taken by SCIL against YouTube and its parent Google earlier in the year. SCIL said in a statement this weekend: “The business model of YouTube allows, encourages and profits from use of copyrighted work uploaded on the website without obtaining any license or permission from the rightful copyright owners and without paying them any royalty”. The company’s MD, Bhushan Kumar, added: “There are websites that encourage unlicensed sharing and distribution of copyright content, which is a new form of piracy in the digital medium. Copyright is the engine of creative output of popular content. We have to ensure that the incentive to create and distribute popular content is protected from these large corporations, which are trying to profit by destroying the value of the hard work of thousands of artists, for whom their creative output is perhaps their only source of livelihood”. CMU Daily 12 November 2007    http://www.thebeatsbar.co.uk

IFPI puts pressure in Yahoo’s China services
Copyright , Internet / December 2007
China

COPYRIGHT Internet The International Federation Of The Phonographic Industry has called on US based Yahoo! Inc to step in and stop Yahoo! China from infringing the copyrights of its members. The call came as Yahoo! China went to court in Beijing in a bid to fight the IFPI’s legal action against its MP3 search service. The IFPI has been in legal dispute with both Yahoo! China and its main competitor in the Chinese search engine market, Baidu.com, for some time over an MP3 search service they both offer which often takes users directly to illegal sources of music content. They claim that while Yahoo! China and Baidu do not actually host the illegal content, by providing such simple access to it they too are guilty of infringing their members’ copyrights. Both Yahoo! China and Baidu have been fighting the IFPI’s legal attempts to stop the MP3 search service, mainly because the service is so popular with their users. While the legal side of the dispute could, to be honest, go either way, the IFPI are hoping they have another route for bringing Yahoo! China inline – by putting pressure on Yahoo! Inc who own 44% of Alibaba Group, the Chinese…

New Bill to make US Universities police net
Copyright , Internet / December 2007
USA

COPYRIGHT Internet ArtsTechnologica have reported on the new bill being put before Congress, the College Opportunity and Affordability Act of 2007. Although the bill is a financial aid bill for US colleges and universities, it contains a number of provisions relating to copyright. Most surprising are the fact that universities will have to investigate technological deterents to their students committing copyright infringement, at pain of losing their financial aid, and will also have to provide legal alternatives to P2P file sharing, such as subscriptions to legitimate file-sharing sites. http://arstechnica.com/news.ars/post/20071111-new-bill-would-turn-colleges-into-copyright-cops.html

Bond girls parties do not fall foul of Licensing Act
Licensing , Live Events / December 2007
UK

LICENSING Live event industry Local villagers hoping to curtail ex-Bond girl Jane Seymour’s use of her mansion for private parties and corporate events have suffered a blow in court. Residents complained that gatherings at St Catherine’s Court, near Bath, have caused noise and traffic problems. and called for restrictions to be imposed on the licence, including a limit of 12 events a year, a ban on fireworks and notification when events were due to take place. The residents have taken legal action to try to get its 24-hour alcohol and entertainment licence amended But Bath magistrates said on Wednesday that traffic could not be considered a nuisance under the Licensing Act 2003 and it was made clear that private parties would not in all events be covered by the Act which only applied when alcohol was sold on the premises. The only issues which can be considered by local authorities (and the courts) when looking at licensable activities (including the sale of alcohol and the provision of regulated entertainment) are the prevention of crime and disorder, public safety, the prevention of public nuisance and the protection of children. It is arguable that traffic could be a public nuisance in certain…

New contract dispute for Hawthorne Heights
Artists , Contract , Record Labels / December 2007
USA

CONTRACT Artists, record labels Emo types Hawthorne Heights are facing another lawsuit while their ongoing and much previously reported legal dispute with Victory Records continues reports the excellent CMU Daily. The new legal run in is with Wild Justice Records who are suing for breach of verbal contract. They claim that in January they reached a verbal agreement to manage the band – and that the band agreed to pay a 16.5% commission on any revenues the company generated for them. That agreement, Wild Justice claim, was put into a written contract which was given to the band, who, they say, didn’t object to any clauses but who never returned a signed copy. However, Wild Justice began working in a management role nevertheless, and the company and the band operated under the terms of the agreement until May when the band changed their mind and, the plaintiffs argue, “improperly terminated” the arrangement. The management firm are now seeking $138,000 in damages plus a percentage of revenue from booked concerts, merchandise sold during those concerts and a Mountain Dew sponsorship, as well as “fees” for band instruments acquired and an $800 loan to the band. The band are yet to comment….

Meatloaf fans seeks compensation for cut-short show
Contract , Live Events / December 2007
UK

CONTRACT Live events A ticket holder at that recent Meat Loaf concert in Newcastle Upon Tyne where the rock legend walked off stage early because he was suffering from what turned out to be a cyst on his vocal cords is planning legal action to force promoters to give ticket refunds, and he is encouraging others to join him.  Promoters have said that Meat Loaf had performed for 70 minutes before ill health forced him to leave the stage, and that as such they do not deem it necessary to refund ticket holders, even though he did not complete the whole planned concert. However, one fan, Mike Fisher, who paid over £50 for his ticket, claims that Meat Loaf actually only performed for 40 minutes and that that is not enough to justify the ticket price. He says his calls to the venue, promoter Kennedy Street and ticket seller Ticketmaster to discuss a refund have not been returned, and now he plans to take the case to the city’s small claims court, and he hopes to persuade other ticket holders to back his action. He told local newspaper The Northern Echo: “I am proposing that since we are not getting…

Hannah Montana fan club member sues over implied ticket promise
Artists , Contract / December 2007
USA

CONTRACT Artists By Mark P Holmes Numerous US websites reported that the fan club of the American teen pop sensation Miley Cyrus, daughter of Billy Ray Cyrus and star of the successful ‘Hannah Montana’ TV show, was being sued by a disgruntled fan after thousands of fan club members failed to secure tickets to see the singer on her latest tour. After certain fans were left empty handed New Jersey resident Kerry Inman filed the suit “on behalf of all members” citing an ‘implied promise’ that membership implied assured access to the tickets. Fans, she says, were “deceptively lured…into purchasing memberships” worth $30 on the basis that members would be granted “priority access” to purchase tickets for Miss Cirus’s tour when they went on sale. The two issues on which the case should turn appear at least on the face of it, pretty straightforward: firstly does ‘priority access’ mean ‘guaranteed access’ to a ticket. The answer is surely that in the context of being given the opportunity to purchase something, it simply suggests a ‘better chance’ than a non-member of purchasing a ticket. Any argument that this somehow constitutes a promise, and that therefore by extension the terms are interchangeable…

BMG-Sony merger re-approved as AIM questions Universal’s label acquisitions
Competition , Record Labels / November 2007
UK

COMPETITION Record labels The European Commission have now formally re-approved their July 2004 merger approval of Sony and BMG’s record labels which was annulled in 2006 by the European Court of First Instance. The EC Competition Commissioner Neelie Kroess said that the “investigation represents one of the most thorough analyses of complex information ever undertaken by the Commission” adding that “It clearly shows that the merger would not raise competition concerns in any of the affected markets.” But in the same week UK independent labels trade body the Association of Independent Music, which is part of IMPALA, the European trade body which first complained about the Sony-BMG merger, responded to a request for information from the Office of Fair Trading (OFT) regarding Universal’s “creeping dominance” of the UK recorded music market. Having already complained about the Sony-BMG merger which put 80% of the recorded music market into the hands of just four companies (Universal, Sony-BMG, Warners and EMI), AIM are now citing Universal’s recent acquisition of two of the UK’s largest independents, V2 and Sanctuary Records as evidence of Universal’s “progressive expansion” which will “further marginalise the independent sector, serving to stifle competition and narrow consumer choice”.  Market consolidation means…

RIAA finally gets a filesharing conviction in the US
Copyright , Internet , Record Labels / November 2007
USA

COPYRIGHT Record labels, internet The Recording Industry Association of America’s much criticised campaign against individuals who take part in illegal filesharing which costs the industry billions of dollars has finally resulted in a high profile conviction when a jury at the Duluth Federal Court ordered Jammie Thomas to pay the labels $222,000, the sum of $9,250 for each of 24 songs for which the companies sought damages. The lawsuit accused Thomas, a single mother of two, of sharing more than 1,700 songs on the peer-to-peer file sharing network Kazaa. The suit contended that Thomas violated the Digital Millennium Copyright Act by distributing songs for free that belonged to the record labels. The labels’ international trade body, the IFPI, estimates that 20 billion tracks are downloaded illegally each year and that only 795 million tracks were legally purchased – a ratio of 25 illegal downloads to each legal one. Over 10,000 people in 18 different countries have been threatened with legal action. The legal download market, worth about £1 billion ($2 billion) is worth about 10% of the total market value in recorded. The Head of Sony-BMG litigation, Jennifer Pariser, who testified during the trial made the industry’s position clear saying “it is important for Sony BMG to…

Radiohead and Charlatans ‘give away’ albums: the end of the label (for some)?
Copyright , Record Labels / November 2007
UK

COPYRIGHT Record labels by Marc P Holmes In the space of a few days, two of the UK’s most enduring rock acts have announced plans to ‘give away’ their latest albums. Radiohead, in a cunning experiment have led fans into a moral maze and will allow consumers to name their own price starting from £0.00, thus either entrapping their fans into admitting that they’ve never paid for a single one of their albums, or else giving those who would have downloaded the music anyway the best possible quality copy of the work. In the ake of the announcement the band’s website crashed as it tried to cope with demand. An Xfm survey pitched up with 40% saying they would pay nothing, 30% plumping for £10 and the rest suggesting other figures. The Charlatans, for their part, are giving their latest efforts away as part of an XFM sponsored free download, accompanied by the hyperbolic language of a ‘revolutionary…groundbreaking first’, with the predictable anti-label (but not anti-copyright) lip service being paid by another band that coincidently happens to no longer have a major record deal. What does it all mean? The moves appear to signify that, once released from the their…

Swiss parliament approves downloading for ‘personal use’.
Copyright , Internet / November 2007
Switzerland

COPYRIGHT Internet By Marc P Holmes Just as Germany makes copying for personal use illegal, Heise have reported that the Swiss Parliament has passed new federal legislation dealing with the sharing of ‘copyright and related intellectual property rights’ over the internet. The effect of this legislation is that, providing files shared are for ‘personal use’, the act of making a copy by downloading will not be illegal. In addition, the Act stresses that ‘access and copy-protection measures must not be circumvented’, which suggests that only files uploaded and shared by the author would conform to this definition. It would seem that over seven years since the explosion of Napster and others, during which time ‘filesharing’ and ‘downloading’ have become popular euphemisms for the mass breach of copyright, legislators still insist on buying into two fallacies: Firstly, that they can actively encourage a watertight, author-endorsed sharing of works without the risk of all sorts of other files being shared via the same platform without the author’s consent, and secondly that by legislating a national policy on filesharing, this somehow excludes (or simply does not take into account) all content being downloaded by fellow countrymen originating from a myriad of different international…

UK Trade Mark Law Changes
Trade Mark / November 2007
UK

TRADE MARK All Areas By Tom Frederikse, Clintons UK trade mark law has changed so that the UK Registry will no longer block applications for being identical or similar to existing registrations. From 1 October 2007 under the Trade Mark (Relative Grounds) Order 2007, existing trade mark holders will carry the burden of trying to oppose (or negotiate around) any application that may threaten their registrations, without assistance from the government beyond a single alert notifying them of a possible threat. This is good news for new applicants and bad news for existing owners of UK trade marks. Until today, a new UK trade mark application had to overcome the twin hurdles of being both a registrable mark (i.e. distinctive, not descriptive or generic, not offensive or deceptive – known as “Absolute Grounds”) and being not identical or confusingly-similar to an existing mark in identical or similar classes of goods and services (known as “Relative Grounds”). The UK government, wishing to harmonise with the EU’s “Community Trade Mark” process (and, presumably, also to save costs), will now no longer refuse to register a mark on Relative Grounds unless a successful “opposition” is raised by the owner of an earlier mark. Each…

The most illegal album ever?
Artists , Copyright , Record Labels / November 2007
USA

COPYRIGHT Artists, record labels ARTICLE Link –  One artist’s take on the ‘fair use’ doctrine and sampling in the USA https://www.azcentral.com/my/zage.php?referer=http://www.azcentral.com/ent/music/articles/1015girltalk.html

PRS bring lawsuit over garage radios
Copyright , Music Publishing / November 2007
UK

COPYRIGHT Music publishing The Performing Rights Society is to bring an action against the tyre and exhaust fitting chain KwikFit as apparently staff play radios which can be overheard by colleagues and customers and the chain doesn’t have a licence for the public performance of songs from the PRS. At a procedural hearing at the Court of Session in Edinburgh a judge refused to dismiss the £200,000 damages claim. In PRSvHarlequinRecord. Shops Ltd (1979) 1 WLR 851 It was held that music played over loud speakers in a record shop was a public performance and in Ernest Turner Electrical Instruments Ltd v PRS ([1943]1 Ch 167 the playing of music to workers in a factory was held to be a performance although here of course the sound recordings and songs are performed at least initially via the (very loud?) fitter’s radios. http://news.bbc.co.uk/1/hi/scotland/edinburgh_and_east/7029892.stm http://www.musicforlondon.co.uk/MusicContractsSite/copyright_uk_second_part.htm see also Australian PRA v Commonwealth Bank (1992) 25 IPR 157 and PRS v RangersClub (1975) RPC 626.   The IP Kat adds this: According to PRS, Kwik-Fit employees “routinely use personal radios at work in such a way as to make copyright works audible to colleagues and customers alike. This, it is said, constitutes the “playing” or “performance” of such works “in public” for the…

Wu Tang Clan get Beatle’s ‘sample’
Artists , Copyright / November 2007
UK
USA

COPYRIGHT Artists, sound recordings The Wu Tang Clan have been given permission to sample a Beatles track having been given clearance to use the George Harrison composition ‘My Guitar Gently Weeps’ off the ‘White Album’ (famously illegally sampled on Dangermouse’s‘Grey Album’). However the band make it clear on their website that the use is a ‘replay’ – a re-recording and then INTERPOLATION of the classic George Harrison composition. Dhani Harrison, son of George, through his friendship with the RZA, played guitar on the song and he himself helped secure the reuse license of the song. The sample forms part of the Wu song ‘Gently Weeps’, off the rap collective’s new album, ‘8 Diagrams’. The Beatles, through Apple Corp, have been famously reluctant in granting any master tape licences for sound recordings by the Band. CMU Daily 4 th October 2007 http://www.thebeatsbar.co.uk http://www.mtv.com/news/articles/1571487/20071009/wu_tang_clan.jhtml

Genuwine litigates to get out of ‘fraudulent’ contract
Artists , Contract / November 2007
USA

CONTRACT Artists Ginuwine has filed a lawsuit filed in Manhattan’s state Supreme Court saying that he was duped into signing a contract in May 2007 with a company, the King Music Group Inc., which doesn’t exist. The King Misic Group was allegedly owned by a personal acquaintance of Genuwine’s, Michael Bourne and t he terms of the contract gave Ginuwine (real name is Elgin Baylor Lumpkin) $1.75 million to record his first album a $500,000 advance. In nearly five months the singer hasn’t made any records and hasn’t been paid a cent, the lawsuit said. The lawsuit further alleges that there are no corporate records for King Music Group Inc. anywhere in New York, California, Florida or Tennessee. The lawsuit accuses King Music and Bourne of breach of contract, fraud and negligent misrepresentation. It asks for a total of $4 million in damages. Genuwine was previously signed to Epic. http://www.billboard.com/bbcom/news/article_display.jsp?vnu_content_id=1003653658

Does Diddy owe on a Biggie debt?
Artists , Contract / November 2007
USA

CONTRACT Artists Blimey, another rap suit. P Diddy is being sued by a former colleague who claims he is owed monies relating to a Notorious BIG recording from in 1994. The plaintiff is James Sabatino who previously worked as a consultant for Diddy’s Bad Boy, and who personally paid for Biggie, to fly to Miami to perform live and record songs back in 1994. Because he paid for the trip, Sabatino had a deal with Wallace that he would own the recordings made that day. Enter Diddy who allegedly agreed to buy the recordings in 1997 after Biggies untimely death in for $200,000 of which $25,000 was paid. Then Sabatino was declared to be “of interest” to LA police investigating Biggie’s murder and so Diddy promptly put his deal with Sabatino on ice. Since then Sabatino has since been cleared of any involvement in Biggie’s murder although he was jailed over a totally unrelated matter. And now he wants his $175,000 for those 1994 recordings. CMU Daily 8 October 2007 http://www.thebeatsbar.co.uk

Italian police take fileshare action
Copyright , Internet , Record Labels / November 2007
Italy

COPYRIGHT Internet, record labels By Marc P Holmes Italian police have shut down the Discotequezone file-sharing network with raids in Rome, Milan and Brescia. A total of 11 computers and 110,000 illegal MP3 music files were seized in the action. Police in the Italian city of Bergamo have reportedly arrested the administrators of a P2P network, along with seven filesharers who are accused of illegally uploading copyright materials including in excess of 110, 000 MP3 files. These raids constitute another episode in the continuing global ‘war on illegal filesharing’ waged on illicit downloaders. Under Italian law, the IFPI reports, these individuals could now “…face fines of up to 8.5 million euros in each case” and form part of a group of 170 file-sharers and P2P network administrators who have so far been hauled up before the country’s courts on similar charges. It is interesting to note that many of the new prosecutions being faced by such filesharers in their respective countries are now being brought by state authorities. This marks a subtle, yet significant shift in the nature of the battle against internet-based copyright infringement. Whereas initially the music industry itself brought private prosecutions against such individuals, with the result…

New neighbours object to live music venue
Health & Safety , Licensing , Live Events / November 2007
UK

HEALTH & SAFETY / LICENSING  Live events industry  By Marc P Holmes The Birmingham Mail has reported a dispute concerning noise levels between the residents of a newly built housing development and a long-standing drinking hole in the traditionally vibrant Irish Quarter of Digbeth. The Spotted Dog public house now finds itself in a neighbourhood being regenerated with new residential buyers and tenants and has been served with a noise abatement order. The case raises interesting issues concerning the regulation of noise emanating from social and live music venues – if less tolerant new neighbours move into close proximity to boisterous neighbours, exactly what should the cost of harmony between the two parties amount to: the death of another live music venue or the daily donning of ear muffs for those unhappy residents? The answer is hopefully neither, with the soundproofing of new properties the most obvious solution. However, this then raises the critical issue – who is to bear the cost? In Australia, under the ‘agent of change’ doctrine, residential developers building city centre apartments are obliged by law to soundproof developments themselves: The owner of one live music venue objected to a three-storey apartment block being built in a warehouse shell behind his venue. The…

Brooker to appeal Whiter Shade of Pale judgment
Copyright , Music Publishing / November 2007
UK

COPYRIGHT Music publishing Gary Brooker, the lead singer of Procol Harum, is appealing the judgment awarding the group’s former organist (Matthew Fisher) 40% of the royalties from the 1967 hit ‘A Whiter Shade of Pale‘. Brooker’s lawyers will question Fisher’s 40 year delay in making and claim that the case sets the “dangerous precedent” of allowing any musician who had played on any recording in the past four decades to claim joint authorship. For more in this area see the article Battle of The Bards at http://www.davidwineman.co.uk/press17.htm

Ticketmaster seek to block automated access by secondary retailer
Competition , Live Events / November 2007
EU
UK
USA

COMPETITION Live event industry The furor over the state of the secondary ticket marketing in the is moving to the courts. Ticketmaster is seeking a preliminary injunction to stop RMG Technologies from accessing the Ticketmaster system through automated programmes (a tactic which provides resellers with repeated access to Ticketmaster.com via a proxy server). www.billboard.biz

Indian religious festival falls foul of Potter magic
Copyright / November 2007
India

COPYRIGHT Film & TV The Delhi High Court has partially dismissed a claim from Harry Potter author JK Rowling and film producers Warner Bros against organisers of a religious event who constructed a replica of the fictional Hogwarts School complete with a marble staircase and stone flagged hall, all lit with flaming torches.  The writer had brought a claim in copyright law seeking 2 million rupees (£25,000) in damages. The Scholl replica will be remain standing until the end of the festivities in what appears to be a common sense judgment. However the Court took a dim view over adverts featuring ‘Potteresque’ characters used to promote the event and banned the use of these by organisers of the Durga Pjua festivities in Calcutta. The festivities begin on October 16th and last for four days. Event organisers were told that any future use of any material from Harry Potter would need the permission of the author. See http://spicyipindia.blogspot.com/2007/10/potter-troubles-over-for-puja.html

An inconvenient judgment against Al Gore
Education / November 2007
UK
USA

EDUCATION Film & TV We were not quite sure what heading to put this story under, but, a High Court judge in London had agreed with a complaint made by a school teacher that Al Gore’s film,  An Inconvenient Truth was not entirely accurate and contains certain unsubstantiated data. Mr Justice Barton said schools could screen the film but must make available balancing materials. For example Gore claimed that sea levels could rise twenty feet in the ‘future’ whereas the respected Intergovernmental Panel on Climate Change (IPCC) suggests less than a tenth of this figure (18 inches) over the next 100 years. The judge also found no evidence that polar bears were drowning because of melting ice and that the film was guilty of ‘alarmism and exaggeration’. However the judge also commented that there was good support for the four main hypotheses of Gore’s film – that climate change is mainly caused by human created emissions; that global temperatures are rising and will continue to so do; that unchecked climate change will cause serious damage; that government and individuals can reduce the impact of climate change. The case was brought by Stewart Dimmock, a school governor from Kent, with funding from a…

Record labels clamp down on student downloading in USA and Taiwan
Copyright , Internet , Record Labels / November 2007
Taiwan
USA

COPYRIGHT Internet, record labels US Universities have been counting the cost of policing illegal music downloading by students after being contacted by a U.S. House of Representatives subcommittee on intellectual property. The University of Winconsin at Madison (UW) said that it had spent more than US $300,000 responding to cease and desist leters from the Recording Industry Association of America (RIAA) and to a lesser extent the Motion Picture Association of America (MPAA). Staff have to deal with cease and desist letters, follow up with students, notify the RIAA when the music is deleted and secure the student’s agreement not to copy again. The University also spends time and money publicising the implications of copyright theft. Last year UW received 1,158 cease and desist letters from the RIAA. Purdue University, which made the top 10 lists of both the RIAA and MPAA for unauthorized use of copyrighted materials, says tracking down alleged offenders and verifying identities has been a “significant cost to the university” with each case taking 3 – 4 hours to properly deal with at an estimated $50 per hour cost. Last year Purdue received 1,068 notices form the RIAA and 873 from the MPAA. In mid-September, the RIAA issued…

Canadian Copyright Board rule on download royalties
Copyright , Internet / November 2007
Canada

COPYRIGHT Internet Canada’s Copyright Board has ruled on what publishing royalties should be paid to the Society Of Composers, Authors And Music Publishers (Socan) on download sales made between 1996 and 2006, bringing to an end a decade long dispute between the recording and publishing sectors. Socan had been pushing for a higher rate than physical royalties, at one point 25%, though during the Copyright Board hearing they gave clear indications they would settle for a royalty much lower than that, though not as low as the 3.4% awarded by the Board this week. But the record labels were looking for something much less than even the 3.4% that was awarded. They already pay a 7.9% royalty to mechanical rights body the Canadian Musical Reproduction Rights Agency, and were hoping to keep the total publishing royalty – ie the amount paid to CMRRA and Socan – within the 8% figure, to keep the royalty inline with that due elsewhere (Japan is 7.7%, UK 8% and US 9.1%). The Board ruling means they will have to pay a total publishing royalty of 11.3%. The Board now needs to consider the royalty rates for this year, which have not been set pending…

Football fans may face claim
Defamation , Internet / November 2007
UK

DEFAMATION Internet Disgruntled Sheffield Wednesday Football Club fans who vented their anger about club directors in acrimonious blogs may face defamation clams after the High Court ruled that the owner of a blog must reveal the identities of three fans who had made allegations of ‘greed, selfishness, untrustworthiness and dishonest behaviour’. Mere abuse or where the post was likely to be understood as a ‘joke’ was not enough and eight fans were allowed to retain their anonymity. In an earlier case in October a Sunderland property developer called John Finn admitted in court that he was the owner of a website which had criticised a rival firm, Gentoo on a website set up to campaign for father’s rights. The Guardian 22 October 2007 & see Music Law Updates April 2006 Liability for ISPs: Bunt v Tilly & Others

Pirates board IFPI
Internet , Trade Mark / November 2007
EU
USA

TRADE MARK Internet Pirate Bay, the ongoing thorn in the side of the record and film industries, has launched a new website at …. on no you guessed it, the seemingly vacant www.ifpi.com. The International Federation of Phonographic Industries whose main website is at www.ifpi.org have said they will bring a WIPO (World Intellectual Property Organisation) action to regain the ‘cyber squatted’ domain.

Google missing from copyright pact
Copyright , Internet / November 2007
EU
USA

COPYRIGHT Internet A coalition of nine of the world’s biggest media companies have signed a pact aiming at cracking down on copyright abuse on the internet. The group, which includes Viacom, Microsoft, Disney and Fox have pledged to use filtering technology to stop the use of copyright materials without permission on file sharing sites. But Google, which owns the biggest file sharing website YouTube, is a notable absentee despite the fact that YouTube publicly launched new copyright filtering technology on the site this month. All nine companies have offered each other an amnesty against legal action for copyright abuse provided the new guidelines are adhered to. The Guardian October 19 2007.

FACT close down tv-links wesbite
Copyright , Internet / November 2007
UK

COPYRIGHT Internet The Federation Against Copyright Theft (FACT), Gloucestershire trading standards officers and Gloucestershire police have raided the offices of tv-links.co.uk and closed the site down.  According to police reports, the website’s owner and some of its moderation staff were arrested. FACT says that this is just the first of a series of planned moves to combat the illegal, unauthorised distribution of video content online here in the UK. The website, www.tv-links.co.uk, listed hundreds of TVseries and movies and provided links to video sharing sites – YouTube, Veoh, stage6, Guba and others, many of which host illegally uploaded content. However the website itself contained no illegal uploads nor offered illegal content and it will be interesting to see if the UK Courts decide that the mere linking to illegal sites and material constitutes copyright infringement especially as the wesbite did not support illegal links with advertising. source CMU Daily 22 October 2007 http://www.thebeatsbar.co.uk

Nugent loses appeal over concert cancellation
Contract , Live Events / November 2007
USA

CONTRACT Live events industry The Michigan Court Of Appeal has rejected an appeal by rocker type Ted Nugent who sued music festival Muskegon Summer Celebration after they cancelled a 2003 booking with his band Amboy Dukes after he made allegedly racist remarks in a radio interview. Promoters of MSC cancelled the planned Amboy Dukes set at their 2003 event after a local newspaper reported on the radio interview, comments Nugent had made, and opposition by some local residents to what he had said. They said at the time of the cancellation that “any use of potentially offensive racial terms such as those attributed recently to Ted Nugent do not reflect the spirit of Muskegon nor the Summer Celebration”. Nugent sued the MSC not only for breach of contract over the cancellation but also for libel, slander, “detrimental reliance”, unfair competition and unjust enrichment. The breach of contract claim, heard by a jury, was successful, but a Muskegon County Circuit Court judge dismissed all the other allegations. Nugent appealed that decision, but the Court Of Appeals upheld the dismissals last week. Not only that, but they reduced the compensation awarded to the rocker over the breach of contract claim. At first…