Apple fails to have US anti-trust suit dismissed and Sony lose interoperability case in France
Competition / February 2007

COMPETITION Technology A US court has denied moves by Apple to dismiss a lawsuit that is being pursued against the computer company alleging that their much reported restrictive business model is anti-competitive. The federal lawsuit, launched last July by a consumer, Melanie Tucker, claims that Apple created an “illegal monopoly” by refusing to make their digital music player or codec interoperable with those of their competitors, so that the only source of DRM music for an iPod is iTunes, and the only portable players that play music bought from iTunes is the iPod. The computer giant had hoped to get the lawsuit dismissed without its digital music business strategy being analysed in court, but judges say the case against Apple deserves proper consideration and so the litigation will now get a full hearing, out of court settlement pending. Given the wider and growing concerns of Apple’s restrictive approach which have already caused the company problems in France and various Scandanavian countries, case should prove interesting. At the same time a French court has ruled that Sony is misleading buyers of its music downloads and digital music players, a reflection of growing discontent among consumers – the case was brought by…

Norway rules that Apple DRM is illegal
Competition , Record Labels / February 2007

COMPETITION Labels, technology As France, Germany and Finland join the growing list of countries looking at iTune’s DRM and lack inter-operability which include Sweden and Denmark, the Norwegian Ombudsman rules the software illegal and the Dutch Consumer Protection Agency joins the protest against Apple in the Netherlands.

CASE LINK: HRH Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ 1776
Artists , Privacy / February 2007

PRIVACY Artists  CASE LINK: HRH Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ 1776 The Prince of Wales’ successful action in preventing the contents of his journals being circulated. Here the protection of an agreed contractual term preventing an ex-employee circulating the journals was held to be of importance by the Court of Appeal adding an new element to the tension between the article 8 (right of privacy) and article 10 (freedom of expression) in the Human Rights Act 1998.

Has Podcasting come of legal age?
Copyright , Internet / February 2007

COPYRIGHT Radio, internet  Hot on the news that SonyBMG has reached an agreement with San Fransisco based Rock River to allow for a series of promotional prodcasts for corporate clients comes news that the commercial radio sector in the UK is close to securing a blanket licence for including music in podcasts from UK recording rights body Phonographic Performance Limited (PPL). The deal will mean radio stations will be able to include music from any of PPL’s member labels in their podcasts for an annual licence fee. However the licence on offer will only allow radio stations to include thirty second clips of songs seriously limiting the podcasts to little more  which than ‘glorified promotional material’ for either the programme, the station or the tracks featured. The Rock River licence apparently allows clients such as Ford and Chrysler to pay Sony a flat fee for the right to use music in podcasts regardless of the number of tracks downloaded by end users. However the UK news is interesting in that PPL, who are responsible for licencing perfomance rights to sound recordings, has not previously been mandated to licence radio stations for onwards podcasting as podcasting was not seen as a ‘broadcast’ or performance. PPL now now…

Dutch Court orders ISP to hand over site owner’s identity
Copyright , Internet / February 2007

COPYRIGHT Internet The Dutch courts have traditionally been keen to protect privacy – even of suspected file-sharers and even the names of people behind websites accused of copyright violation. But the content owner lobby scored a victory last week when ISP KPN was ordered to tell anti-piracy body BREIN the names of the people behind, which offered sign up subscribers access to a whole range of illegal content sources. The owners of that site have managed to remain anonymous, but their server is linked to the net via KPN. The ISP had so far refused to close down the site or to reveal the identity of’s owners, preventing BREIN from taking legal action against them. The latest court ruling means KPN will now have to hand over those owners’ contact details, so direct litigation against the site can begin. The ruling also means KPN will have to close down the site – although by the time the ruling was made the site was already down “due to technical problems”. However, an announcement from the site promised it would return “as soon as the brainstorm is over”, so the courts have ruled KPN must act to block access to…

French labels join majors in suing
Copyright , Internet , Record Labels / February 2007

COPYRIGHT Internet, record labels The French Civil Society of record Producers has filed a lawsuit against two Russian Web sites accused by record companies of illegally selling pirated music. The lawsuit has been filed in the French courts against X-Media Ltd. and Mediaservices, the operators of and Both sites sell entire albums for as little as US$1 (€0.77), but record companies say that they do so without permission. Moscow-based Mediaservices, which owns, maintains that it pays 15 percent royalties to Russian Coollection Societies on the sales in compliance with Russian law. The French suit follows similar moves by U.S., Danish, British record companies. Warner Bros. Records, Capitol Records, UMG Recordings and Arista Records are among a group that filed a suit in New York last month, demanding unspecified damages from Mediaservices.

EMI drop Chinese appeal and agree to work with Baidu
Copyright , Internet , Record Labels / February 2007

COPYRIGHT Internet, record labels EMI Group, which lost a copyright infringement lawsuit against at first instance when a Chinese court held that simply by linking to infringing sites Baidu was not committing any offence, has now said that it will drop its appeal and work with the Chinese Internet search site to win advertising by offering free online samples of its music. Baidu will sell online advertisements for a section of its Web site featuring streaming samples of EMI’s Chinese-language music. EMI and Baidu will share the ad revenue, they said, without providing details. Baidu has triple the market share of its closest rival, Google, in its home market although that market being home to rampant piracy.

ECHR says TM applications are “property”
Artists , Trade Mark / February 2007

TRADE MARK Artists ARTICLE LINK:  In an important decision ( Anheuser-Busch v Portugal) the European Court of Human Rights have held that trade marks are a possession and therefore qualify for the purposes of the right to peaceful enjoyment of property (Article 1, Protocol 1, European Convention on Human Rights) saying the Court takes due note of the bundle of financial rights and interests that arise upon an application for the registration of a trade mark. It agrees with the Chamber that such applications may give rise to a variety of legal transactions, such as a sale or licence agreement for consideration, and possess – or are capable of possessing – a substantial financial value. See the IPKat at

PERFORM Act reintroduced in US to implement widespread DRM broadcast obligations
Copyright / February 2007

COPYRIGHT All areas In a move welcomed by the Recording Industry Association of America, U.S. senators have reintroduced legislation that would require some digital and streaming Internet radio stations to use digital-rights management (DRM) technology if they acquire licenses through U.S. government-mandated copyright plans. According to opponents, the legislation would jeopardize TiVo-like audio recording devices, such as the Inno from XM Radio, as well as businesses like Live365 and ShoutCast, which stream radio over the Internet using the open MP3 format. The Perform Act, which died in Congress last year, was reintroduced Jan. 11 by Senators. Dianne Feinstein, Lindsey Graham, Joseph Biden, and Lamar Alexander. It requires satellite, cable TV, and Internet broadcasters to pay “fair market value” for digital music performances. It also requires “the use of readily available and cost-effective technology to prevent music theft,” according to a press release from Senator Feinstien. The law would apply to stations that license music from the government program created by Section 114 of the U.S Copyright Act. Copyright law and the assault on innovation ( on the Liberty Papers blog)  Also in the US District Judge Deborah A Batts has ruled that the music industry is free to go ahead…

Victory Records expand Hawthorne Heights litigation
Artists , Contract , Record Labels / February 2007

CONTRACT Artists, record labels Independent rock label Victory Records has extended its Hawthorne Heights litigation by now suing the record company established by frontman JT Woodruff called Carbon Copy Media. The US band fell out with Victory Records, the label they were signed to, last year, and sued the record company and its boss Tony Brummel for breach of contract, seemingly in a bid to release themselves from their contractual commitments to the independent. The band subsequently signed a new recording deal with EMI’s Virgin Records division. But a court ruled back in September that the band remained bound by its exclusive recording contract with Victory, in theory barring them from entering into their new deal with EMI. Band members have pledged to appeal that ruling but Victory have begun legal proceedings against EMI, claiming EMI persuaded band members to launch the original breach of contract lawsuit in a bid to free them from their Victory commitments . The new litigation against Carbon Copy Media follows on from a distribution deal between Victory and Carbon Copy with Victory distributing releases from bands Ellison and Signal Home, and Woodruff’s pre-Hawthorne H eights band A Day In The Life. Victory claim they spent more than $200,000…

IFPI Digital Music Report 2007 published
Copyright , Internet , Record Labels / February 2007

COPYRIGHT Record labels, internet Record labels have sold an estimated US$2 billion worth of music online or through mobile phones in 2006 (trade revenues), almost doubling the market in the last year according to latest figures form the International federation of Phonographic Industries. Digital sales now account for around 10% of the music market as record companies experiment and innovate with an array of business models and digital music products, involving hundreds of licensing partners. Among new developments in 2006, the number of songs available online doubled to four million, thousands of albums were released across many digital formats and platforms, classical music saw a “digital dividend” and advertising-funded services became a revenue stream for record companies. However, despite this success, digital music has not yet achieved the “holy grail” of compensating for the decline in CD sales. Meanwhile, digital piracy and the “devaluation of music content” (IFPI wording) are a “real threat to the emerging digital music business”. IFPI Research suggests legal actions against large-scale P2P uploaders – some 10,000 of which were announced in 18 countries in 2006 – have helped contain piracy, reducing the proportion of internet users frequently file-sharing in key European markets. The IFPI say…

New guidelines on licensing live music published
Licensing , Live Events / February 2007

LICENSING Live event industry Local authorities will have to take into account the volume at which a band plays and whether or not a venue advertises them as the main attraction when deciding if live entertainment needs to be licensed, according to new guidelines. The Department for Culture Media and Sport has published draft guidance to help local authorities interpret the Licensing Act, including an expanded section on how to determine whether music is “incidental” and therefore not licensable under the law. Pubs and clubs could run into trouble if authorities decide that live music is the “main reason for people attending the premises” and if it “predominates over other activities”.

The Competition Commission’s final report into the London venue market is published
Competition , Live Events / February 2007

COMPETITION Live event industry The UK Competition Commission’s report into the proposed Hamsard 2786 Ltd / Academy Music Holdings Ltd deal has now been published. The Competition Commission has formally decided that the proposed acquisition of a controlling interest in Academy Music Holdings Limited (Academy) by Hamsard 2786 Limited (Hamsard) would lead to a substantial lessening of competition in relation to certain live music venues in London, resulting, in particular, in rentals at the venues concerned being higher than would otherwise be the case. If the acquisition of the controlling interest is to proceed, the merging companies will first be required to sell one of either the Brixton Academy or the Hammersmith Apollo and one of either the Shepherd’s Bush Empire or the Forum. These venues represent the closest alternatives to each other in London for artists, agents and promoters of popular live music events and would come under common ownership following the acquisition. Hamsard will not be permitted to acquire a controlling interest in Academy until there is a binding sale/purchase commitment for the venues in question. The sale will need to be approved by the Commission so that it is made to a suitable purchaser(s) and is likely to include venue management and booking teams, contracts with…

Entercom settles with Spitzer
Competition , Record Labels / February 2007

COMPETITION Broadcasting, record labels Radio broadcast group Entercom has reached a settlement with the New York Attorney General. Eliot Spitzer over payola charges. Spitzer targeted the US media conglomerate after reaching a settlement with all four major record companies for. Entercom had denied any wrong doing, claiming their business relationships with music companies were within US broadcasting regulations. The Company says that it only settled to avoid fighting a lengthy and costly lawsuit. In a statement the company said: “In the interests of the company, our employees and our shareholders, we have chosen to resolve this matter immediately and without extensive and costly litigation. The court did not find any liability, nor are we admitting liability with this settlement. Rather, we are taking the opportunity to put the investigation behind us and move forward.” As part of the deal the radio firm will pay a $4.25 million fine, of which $3.5 million will go to music education programmes. Entercom also pledged to introduce internal measures to ensure any practices considered as payola by the New York Attorney General’s office could no longer take place. Entercom is the second radio firm to settle with Spitzer over the issue of payola after…

Italian Court rules that P2P is not a crime if not for profit
Copyright , Internet , Record Labels / February 2007

COPYRIGHT Record labels, internet Italy ’s courts have ruled that peer-2-peer file swapping can only be a crime if undertaken for profit. Italy’s senior criminal court heard an appeal from two former students of Turin Polytechnic Institute, both prolific file swappers, who ran a P2P network for a short time in the mid 90s. After authorities closed down their P2P operation a lower Italian court found them guilty of the crime of ‘illegal duplication’, passing a one year jail sentence. But that conviction has been overturned on the grounds that file sharing of copyright content can only be considered a crime according to current Italian law if the people doing the sharing are profiting from the activity, which the defendants in the current case did not. It should be noted that this is a criminal case and potentially has no direct relevance to any civil suit brought against the defendants.

Court Holds That ISPs Are Not Liable For Objectionable User Content, Even When Criminal Laws Are Violated
Defamation , Internet / February 2007

DEFAMATION Internet ARTICLE LINK By Eric Sinrod Attorney Internet Service Providers (ISPs) naturally are concerned about circumstances under which they potentially could be liable for content posted by users. ISPs can breath a sigh of relief after a recent decision by a Texas federal judge who just dismissed an ISP as a defendant in the case of Doe v. Bates, even though the offending conduct at issue was alleged to be in violation of criminal law.