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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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…