RIAA close down Muxtape
Copyright , Internet / September 2008
USA

COPYRIGHT Internet Despite online mixtape service Muxtape claiming earlier this week that their site was just temporarily closed while they were sorting out a problem the site now appears closed. In a statement, the Recording industry Association of America (RIIAA) said: “For the past several months, we have communicated our legal concerns with the site and repeatedly tried to work with them to have illegal content taken down. Muxtape was hosting copies of copyrighted sound recordings without authorization from the copyright owners. Making these recordings available for streaming playback also requires authorization from the copyright owners. Muxtape has not obtained authorization from our member companies to host or stream copies of their sound recordings”. CMU Daily 22 August 2008 www.cmumusicnetwork.co.uk

Prince v Dancing Baby – First round to Mother in the YouTube case
Copyright , Internet / September 2008
USA

COPYRIGHT Internet Stephanie Lenz, a mother who posted a clip of her baby dancing Prince’s song, ‘Let’s Go Crazy’ has won the first stage of her battle against Universal Music. Ms Lenz’s clip was removed from YouTube after the site received a takedown notice under the Digital Millennium Copyright Act from Universal, the holder of the copyright in the song. The clip was reinstated after a month, but Lenz sued under the DMCA, pointing to the requirement therein that copyright owners can only demand the taking down of a work if they have “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” Universal argued that copyright holders, in making this assessment, did not need to take into account whether the use made by the subject of the notice was fair use, since fair use is a defence, rather than a legal right. Not so, according to Judge Jeremy Fogel, who states: “Even if Universal is correct that fair use only excuses infringement, the fact remains that fair use is a lawful use of a copyright. Accordingly, in order for a copyright owner to…

Pirate Bay to fight Italian ban
Copyright , Internet / September 2008
Italy

COPYRIGHT Internet The BitTorrent tracking website The Pirate Bay has decided to fight the Italian government’s recent move to have it blocked in Italy by all ISPs in the country. The site has filed an appeal against the decree, which was passed by an Italian court earlier this month alongside advice to consumers on how to use technological means to sidestep the ban. The Pirate Bay’s lawyers Giovanni Battista Gallus and Francesco Micozzi told TorrentFreak: “The decree can be defined as ‘original’ or ‘creative’ at best. Even the judge who issued the decree states that no infringing material is hosted on The Pirate Bay, which provides just a tracker search engine. The judge tries to ‘create’ a sort of contributory infringement accusation against The Pirate Bay. We will bring all our arguments before the Tribunal, and we are confident of the Tribunal’s decision”. CMU Daily 22 August 2008 www.cmumusicnetwork.co.uk

Police Licensing Act objections force Moonfest cancellation
Health & Safety , Licensing , Live Events / September 2008
UK

LICENSING / HEALTH & SAFETY Live event industry For the first time in the UK the police have used Section 160 (orders to close premises in an area experiencing disorder) of the Licensing Act 2003 to get a live festival performance stopped. Wiltshire Constabulary applied to the Magistrates to ban a festival appearance by Pete Doherty and his band Babyshambles on the grounds that there could be public disorder and applied to have the whole of the Friday of the Moonfest festival be scrapped due to crowd control issues. A Closure Order may be made by a Magistrates’ Court on application by the Police where the Court is of the opinion that closure is necessary in the interests of public safety because of order or likely disorder on the premises, or in the vicinity and relate to, the premises and/or an order is necessary to ensure no public nuisance is or is likely to be caused by noise coming from the premises. North Wiltshire Magistrates agreed to the police application to cancel the show on the Friday. The Police made no application for Saturday and Sunday which featured The Australian Pink Floyd, Ozric Tentacles, Zenyth, Curiosity Killed the Cat, Shakatak, Heaven 17,…

Police investigate cheeky buttock act in Keswick
Licensing , Live Events / September 2008
UK

LICENSING Live event industry Two street entertainers could face prosecution after the mayor of Keswick accused them of going “beyond public decency” with their act in the Lake District town’s Market Square. Police acted following complaints from councillor Roger Purkiss. The two men, who are from Bristol and who say they are circus trained begin their act in trousers and T-shirts and perform an acrobatic act that ends up with them wearing just thongs and socks, putting lighted torches down their thongs and as a finale sticking lit sparklers between their buttocks and doing hand stands. Their 20-minute act attracted over 100 spectators earlier this week, some of them children, and stunts included blowing up a rubber glove on their heads then bursting it with a torch. Cllr Purkiss claims the act is disgraceful behaviour and very distasteful – it perhaps wouldn’t be out of place in an adult nightclub but not on the streets of the town in frnt of families wit children …. and not what a Lakeland tourist town is all about’. A police spokesman told the Lake District Herald that a decision on whether they were to be charged with a public order offence would be…

Use of Doors name needs all band members to agree – dead or alive
Artists , Contract , Trade Mark / September 2008
USA

TRADE MARK/CONTRACT Artists The Calilfornia Supreme Court has decided that two surviving members of the 70s group, The Doors, Raymond Manzarek And Robert Krieger, who wanted to continue to perform under that name and then under the name Doors of the 21 st Century can use neither name. The original band featured John Densmore, Ray Manzarek, Jim Morrison and Robert Krieger but after the Manzarek/Krieger tour grossed $8 million and used photographs of the original Doors in publicity Densmore and the family of Jim Morrison and his estate joined forces to prevent the use of the name. In reports, Densmore states he is simply fulfilling the wishes of Jim Morrison, having refused other lucrative offers for commercials and other use. The IPKAt reports that this is possible due to a “veto power” common in music contracts of the 1960s which requires all members of The Doors to be unanimous in any business agreements. As a result, each band member has a vote and the Morrison estate the fourth. Densmore and the families claimed that if the pair continued to use the name, The Doors of the 21st Century, it would compromise the band’s legacy. The Los Angeles Superior Court agreed…

EFF urges US Copyright Office to fix digital music mess – but carefully
Copyright , Internet , Music Publishing / September 2008
USA

COPYRIGHT Internet, music publishing The EFF has joined with other public interest and consumer groups in urging the US Copyright Office to clarify the process for licensing digital music services, but to steer clear of larger digital copyright controversies. The comments were filed in a rulemaking involving the Section 115 compulsory license for “digital phonorecord deliveries” (DPDs) that has been dragging on since 2001 (read the July 16, 2008 “noriced of proposed rulemaking” for a summary of the tortured history of the proceeding). Fred Von Lohmann writes that the current logjam boils down to music publishers against everyone else. Every music recording involves two copyrights: one for the sound recording (i.e., the “master”), which is usually controlled by a record label, and one for the musical work (i.e., the “composition”), which is usually controlled by a music publisher. Different music services need different sorts of licenses (and those that simply host materials uploaded by users or simply distribute software may need no licence at all), and it has been notoriously complicated to figure out who to contact for the relevant licenses. The licensing of sound recordings has been getting easier, not least because the four major labels cover so much of the…

EU proposes a 95 year term for copyright in performers rights and sound recordings
Copyright / August 2008
EU

COPYRIGHT All areas The European Commission has adopted two new copyright initiatives. Firstly the Commission is proposing a new Directive “to align the copyright term for performers with that applicable to authors, in this way bridging the income gap that performers face toward the end of their lives”. Secondly, the Commission proposes to fully harmonise the copyright term that applies to co-written musical compositions. In parallel, the Commission also adopted a Green Paper on Copyright in the Knowledge Economy. The Commission’s press release says “Both of these initiatives comprise a unique mix of social, economic and cultural measures aimed at maintaining Europe as a prime location for cultural creators in the entertainment and knowledge sectors”. Internal Market and Services Commissioner Charlie McCreevy said: “The copyright measures adopted today should underline that we take a holistic approach when it comes to intellectual property. The proposal on term extension has a strong social component and the Green Paper is deeply embedded in the overall societal and knowledge context” adding in relation to sound recordings “I am committed to concentrate all necessary efforts to ensure that performers have a decent income and that there will be a European-based music industry in the years to come. The proposal on term…

Satellite TV case to go to ECJ
Competition , Copyright / August 2008
EU
UK

COPYRIGHT / COMPETITION Television, sport By David Pearce writing for the IP Kat In a judgment of over 45,000 words and 98 pages, handed down this morning in the case of the Football Association Premier League & others v QC Leisure & others [2008] EWHC 1411 (Ch), the Honourable Mr Justice Kitchin has delivered a tentative blow against the rights of satellite broadcasters such as BSkyB to protect their exclusive rights to broadcast football games to subscribers in individual EU countries. The three combined actions involved in this case concerned the use of foreign decoder cards in the UK to access foreign transmissions of live Premier League football matches. The claimants complained that the dealing in and use of such cards in the UK involved an infringement of their rights under s.298 of the CDPA 1988, as amended, and of the copyrights in various artistic and musical works, films and sound recordings embodied in the Premier League match coverage. The defendants argued that the use of copyright law to effectively prevent them from using decoder cards in the UK which had been legitimately bought in other EU states was contrary to EC law. Several Directives were cited, the key one being 98/84/EC, also known…

Competition inquiry delays UK broadcasters’ online platform
Competition / August 2008
UK

COMPETITION Television The combination of BBC, ITV and Channel 4 in the proposed new ‘Kangaroo’ online service which will have more than 10,000 hours of classic TV has led to a referral to the Competition Commission. Rival broadcasters including BSkyB have complained that the launch of Kangaroo would risk ‘skewing the market and the Office of Fair Trading made the referral after not being able to make a judgment on whether or not the new venture would limit consumer alternatives. When the venture was launched last year the head of BBC Worldwide said the development was partially motivated by the need to avoid the mistakes made by the record labels when they allowed Apple to corner the market in online download sales and ITV Chief Sir Michael Grade warns that the delay caused by the referral will allow global rivals to steal a march on domestic broadcasters and that the regulatory framework seems “unable to take the most important interest into account – that of the British viewer” The Guardian July 1 st 2008

Ticketmaster win case against queue jump technology provider
Contract , Copyright , Live Events / August 2008
USA

COPYRIGHT/CONTRACT Live Events Ticketmaster have won a case in the Los Angeles court against a technology company who they claimed had developed software which enabled ticket resellers to circumvent restrictions on their website in order to get priority and repeat access to in-demand tickets where the numbers of tickets offered per sale were limited. The ticketing giant claimed RMG Technologies’ software, sold mainly to ticket brokers and scalpers (touts), infringed their copyrights and interfered with their contractual relations with tour promoters. The court had already issued a temporary injunction stopping the distribution of RMG’s ticket acquiring technology, and last week’s court ruling means they will have to pay Ticketmaster the profits they made from it (about $18K), plus their legal costs. Welcoming the court ruling, Ticketmaster General Counsel Edward Weiss told reporters: “Consumers understand that there often simply are not enough tickets to meet demand, but RMG’s technology was used by some to unfairly cut to the front of the line. Ticketmaster will continue to fight for an equitable ticket distribution process”. Ticketmaster had already secured a preliminary injunction against RMG when U.S. District Court Judge Audrey Collins issued a preliminary order against RMG. The court order stemmed from a…

BPI confirms internet service providers will warn filesharers
Contract , Copyright , Internet / August 2008
UK

CONTRACT/COPYRIGHT Internet Hot on the heels of Virgin promising to contact customers who illegally download films, TV programmes and sound recordings, record label trade body the BPI has confirmed that BT is sending warning letters to customers of its internet service provider packages who the labels believe are acquiring music from illegal sources, telling said customers that uploading or downloading tracks to or from such sources is illegal. It was reported on IT website. Confirming they were now working with both BT and Virgin Media on the warning letter programme, the boss of the BPI, Geoff Taylor, said on Friday: “Establishing partnerships with ISPs is the No 1 issue for the BPI, and we are beginning to form positive working relationships with BT, Virgin Media and most of the other major ISPs”. ISPs had been resistant to taking on a more proactive role, and some still are, but with BT and Virgin Media on board more are now expected to follow. The labels want the ISPs to ultimately cut off persistent copyright infringers. Whether the ISP would do that, or even hand over the contact information of the individual (customer) to allow the labels to take legal action, remains to…

BPI release new revenue statistics
Copyright , Record Labels / August 2008
UK

COPYRIGHT Record labels The BPI has, for the first time, released statistics showing growth in non-traditional revenue streams at the record which now account for 11.4% of UK record companies’ income. The data offers some hope that labels can weather the threat from illegal; downloading as alternative revenues rose 13.8% in 2007 to £121.6 million. A big part of that rise comes from licensing which is an increasingly important revenue source. Revenues from so called 360 degree deals (“multiple-rights revenues”) where labels secure their investment in new talent on more than recording revenues – in particular touring, merchandising and sponsorship revenue were up 16.2% in 2007, though the total amount of such revenues probably weren’t very significant to start with, so actually that increase is probably quite small. Commenting on the stats, BPI boss Geoff Taylor said this: “The core business of record companies is investing in talent, working in partnership with artists to create great music and to help to find it an audience. Selling CDs and digital downloads remains the main way in which we recoup that investment, but increasingly new streams of revenue are coming into the picture. As consumption patterns change, music companies are finding new…

Consultation on copyright exemptions for public performance of music
Copyright / August 2008
UK

COPYRIGHT All Areas A consultation on exemptions to copyright law for certain charitable and not-for-profit organisations was launched today by the UK Intellectual Property Office. The Music Licensing Review consultation will seek views from music rights holders, representative bodies of users and rights holders and users on two exemptions which allow charitable organisations to pay for only one of two licences normally required for playing music. There are three options for amending the exemptions: (a) Recasting the exemptions so that they apply only to smaller charities (b)Introduction of an alternative scheme requiring payment of equitable remuneration for playing music (c) repeal of the exemptions. Ian Fletcher, Chief Executive of the UK-IPO, said “It is important that we carefully consider the use of exemptions within copyright law. We need to ensure we find the correct balance between the fair application of exemptions for the benefit of society and the need to ensure a fair reward to the creators of the music we enjoy in a way which is consistent with European and international law.” The UK-IPO has worked closely with the Office of the Third Sector to ensure the third sector is involved in the consultation. Key areas of the consultation…

McFly DIY – is there now a new way forward?
Copyright / August 2008
EU
UK
USA

COPYRIGHT All areas By Cassandra Williams postgraduate student at the College of Law No one can have missed the constant criticism levelled at record companies and their approach to selling music in the digital age and there is a suggestion that recorded music is now vaguely irrelevant to artists – and should no longer be the main product. Some commentators see recorded music as a marketing tool – for example to promote ticket sales and live concerts, to sell other merchandise, or even to sell drinks, newspapers or burgers According to Bob Stanley from St Etienne the answer is to give downloads away, or to make them cost no more than sending a text. Radiohead famously allowed fans to self price ‘In Ranibows’ but clearly will garner huge revenues from their touring activitoes.. Matador, once home to Cat Power, provides a free download when you buy vinyl copies of its records. With technology allowing music to be produced and distributed cheaply artists no longer need a major label. It is now possible for DIY labels, run out of bedrooms and shacks, to finally challenge the majors. A recent example of the DIY system is the new self-released album from McFly…

European Commissioners look at business practices and consumer rights
EU

COMPETITION / COPYRIGHT Music publishing, record labels The Guardian has reported on a draft decision from the European Commission which, if adopted, would lead to major reforms of Europe’s music collecting societies. According to the report, the draft, which has not yet been signed by EU Competition Commissioner Neelie Kroes, berates the fact that the collecting societies operate as monopolies within their national borders, partitioning the EU market on national lines. It gives the collecting societies 90 days to terminate their agreements and calls on them to cross-license. The draft has been criticised for not going far enough to break down national monopolies. The IPKat notes that, from what little information is available, it seems that the Commission isn’t too worried about the notion of collecting societies, but rather about the way in which they operate territorially. This territoriality is understandable, since copyright has grown up as a system of national rights with a slightly different focus in the different Member States. http://ipkitten.blogspot.com/2008_06_01_archive.html http://www.ip-watch.org/weblog/index.php?p=1156 http://www.mcps-prs-alliance.co.uk/monline/news/Pages/EuropeanCommission.aspx Here are edited highlights of what NeelieKroes said at the OpenForum European Breakfast seminar,‘Being Open About standards’ : “It is simplistic to assume that because some intellectual property protection is good, that such protection should therefore be…

European Court overrules Court of First instance on annulment of Sony-BMG merger
Competition , Record Labels / August 2008
EU

COMPETITION Record labels Bertelsmann and Sony Corporation of America v Impala C-413/06 P The European Union’s highest court has set aside the Court of First Instances ruling that annulled the European Commission’s approval of a merger between the Sony Music and BMG record labels. The European Court of Justice also ordered that the lower court to reconsider its decision in order to review three of five pleas it had not dealt with. The court said that “since the Court of First Instance examined only two of the five pleas relied on by Impala, the Court of Justice considers that it is not in a position to give a ruling itself on the dispute. It is accordingly referring the case back to the Court of First Instance”. In July 2006, the lower Court of First Instance threw out the Commission decision at the request of Impala, an independent group of music producers. The lower court said the Commission had taken insufficient care in giving its approval. It should have looked more carefully at whether collective market dominance existed in the music industry and could grow after the merger, the court said. There has been no practical effect of a flurry of…

Big Life Music sale cleared
Competition , Music Publishing / August 2008
UK

COMPETITION Music publishing The UK’s Competition Commission has now formally approved Universal Music Publishing Group’s purchase of Big Life Music bringing the publishing of artists such as Snow Patrol, Futureheads and Badly Drawn Boy into the Universal stable. http://www.billboard.biz/bbbiz/content_display/industry/e3i3a02b4b8960ca28a756947e739f852b2

Loud reggae nights lead to criminal conviction
Licensing , Live Events / August 2008
UK

LICENSING  Live event industry  A Bradford businessman has been given a conditional discharge and ordered to pay costs of £2,291.60 over noise complaints. Nirmal Singh MBE, who owns Marlborough Hall, a former cinema in Carlisle Road, Manningham, was charged with failing to comply with a noise abatement order which Bradford Council served in June 2006 after reggae nights led to complaints from a number of residents that the loud drum beats were making it “impossible” for them to sleep and in one case, left the householder’s floor thumping. Magistrates heard that Singh, 56, had been repeatedly warned about the complaints and that the Council would take action if he did nothing to prevent the noise nuisance continuing. It was accepted that Singh did not promote the reggae nights but as the venue owner had failed to rake action to prevent the nuisance. Singh pleased guilty to three charges. The reggae nights have now been stopped. http://www.thetelegraphandargus.co.uk/news/3202086.Community_stalwart_admits_noise_breaches/

New Licensing Act simply extends trouble later into the night
Licensing , Live Events / August 2008
UK

LICENSING Live events The relaxation of the licensing laws has failed to reduce drunken violence while costing taxpayers £100m, a report from the Local Government Association (LGA) says. The survey found that around seven in 10 police authorities, primary care trusts and councils had seen either no change or an increase in alcohol-related disorder. At the same time the cost to council taxpayers have stretched resources, with 86% of health authorities and 94% of councils reporting increased pressure. The findings were based on responses from 51 local authorities, 49 primary care trusts and 20 police forces. Around a third of primary care trusts said they had experienced a rise in alcohol-related incidents. Meanwhile, half of police authorities reported that the 2003 Licensing Act had simply led to alcohol-related disorder occurring later at night than prior to the new rules. The LGA claimed that administering the Act, which involved more than 190,000 pubs, restaurants and clubs being issued with new licences, and monitoring it had cost local authorities more than £100m. Sir Simon Milton, chairman of the LGA, said the new drinks laws had made “no impact whatsoever on reducing the alcohol-related violence that blights town centres” adding that “The vast…

High Court refuses to review Magistrates’ decision to refuse a lapdance licence
Licensing , Live Events / August 2008
UK

LICENSING Live industry A bid to open Durham’s first lap-dancing bar has failed after the High Court refused to overturn the decision of a Magistrates Court which itself overturned a decisionn allowing a licence for the club by the Local Authority. South Tyneside firm Vimac Leisure went to the High Court to overturn the rejection of its controversial application to start a lap-dancing club in the centre of Durham. The company sought the Judicial Review after magistrates overruled the city council’s approval for the controversial planning application following objections from residents. The decision was welcomed by Durham City MP Roberta Blackman-Woods who has led a campaign to make it easier for local authorities to turn down attempts to open lap-dancing clubs. For licensing purposes, she wants them to be treated as “sexual encounter venues” not just pub and club entertainments – a move backed by Government Minister Gerry Sutcliffe. Dr Blackman-Woods said: “This shows what I have always said – that local councils do have the authority and the duty to turn down applications for these clubs where having one would be inappropriate. “Local people put an awful lot of hard work into showing that having a lap-dancing club on…

Select Committee announce Licensing Act inquiry
Licensing , Live Events / August 2008
UK

LICENSING Live events An inquiry into the impact of the Licensing Act 2003 is to be launched by the Select Committee for Culture, Media and Sport. The Committee is seeking views from interested parties on whether the legislation, which allows for 24 hour opening, has had any effect on the levels of public nuisance, the number of night-time offences or perception of public safety. It also wants to establish the impact the act has had on live music, sporting and social clubs, if it has led to financial savings for relevant industries and whether it has reduced bureaucracy for those applying for and administering licences. Details of how to make a submission can be found athttp://www.parliament.uk/parliamentary_committees/culture__media_and_sport.cfm http://www.thestage.co.uk/news/newsstory.php/21317/licensing-act-inquiry-announced

Facebook party forces potential alcohol ban at beach resort
Licensing , Live Events / August 2008
UK

LICENSING Live events It was planned to stop every shop and pub in a seaside resort from selling alcohol after it was targeted as the venue for a “night of mayhem” beach party for 10,000 people organised on the social networking site Facebook. Police officers in Torbay, Devon, say that thousands of revellers were expected to gather at one of five possible beaches for the mass party at the weekend. The event had been advertised on Facebook with organisers hailing it as “the biggest ever beach party” with alcohol, loud music and barbecues. Described as a “night of mayhem” between the 4 th and 6 th July the exact location and time would not be posted until hours beforehand and police, fearing a health and safety risk, were desperate to stop the party taking place. Officers claimed the mass beach party was planned to be held next to one of five beaches – in Torquay, Paignton, Preston, Goodrington or Broadsands and planned to use powers under the Licensing Act 2003 to introduce an emergency blanket ban on the sale of any alcohol in the five areas. Police said as soon as they know the location every retailer and pub in…

Drifters victory over former band members, tour, tour manager and agent
Artists , Trade Mark / August 2008
UK

TRADE MARK Artists The Treadwell family, who have owned the Drifters name since 1953, have succeeded in a High Court action against a group of former band members using the band’s name. The Treadwell family, who have legally controlled the Drifters since 1953, served a writ in December accusing four musicians, their former UK tour manager Philip Luderman and their former agent Mark Lundquist of “passing off” a UK group as the real thing and thus infringing the Drifters’ trademark. The action ended with a settlement but representatives of the band say that the legal victory confirms the ownership of the UK and European trademarks of The Drifters name, as well as removing the ambiguity surrounding the band’s identity. This court order prohibits former Luderman and Lundquist, plus four former employees, from using the Drifters name again and the settlement has been agreed over prior unauthorised use of the name. Tom Frederikse from Clintons solicitors, a regular contributor to this site who represented the Treadwells said “The Drifters’ history is as interesting as it is unique, but there is one theme that’s constant – the name Treadwell. This is a moral victory for the Treadwells and we are delighted that…

Google ordered to hand over YouTube logs in Viacom litigation
Copyright , Internet , Privacy / August 2008
USA

COPYRIGHT / PRIVACY Internet Google has been told to hand over logs of every video ever watched on its YouTube video sharing platform, plus details of the user names and/or IP addresses of the people who have watched them. Google have been told to make the logs available by District Judge Louis L Stanton as part of its ongoing legal fight with MTV owners Viacom. As previously reported, Viacom are suing the video site for copyright infringement, because of the amount of content from its channels available on YouTube without their permission. YouTube have put forward the standard defence – that they do not personally make unlicensed content available, and that they remove any unlicensed content uploaded by punters if and when content owners make them aware of it. YouTube say that under current US copyright laws that policy means they are not guilty of infringement – though that interpretation of the law is so far untested in court, and this case could be the first to do so. Unlike other record companies and broadcasters, Viacom have not seemed interested in doing a licencing deal with YouTube – something that the video site has managed to do when most other…

Mum turns on Prince over YouTube takedown
Copyright , Internet , Record Labels / August 2008
USA

COPYRIGHT Internet, record labels A mother who uploaded a video of her son dancing to a Prince track is taking the artist and his label to court over their efforts to have the video taken off YouTube. Stephanie Lenz of Pennsylvania made a video of her 13-month-old boy dancing to an almost inaudible song, and posted it on YouTube as thousands of parents do world wide. In the background “Let’s go Crazy” is the “barely distinguishable song” in the background – it is by Pirnce and the copyright is owned by Universal Music’s copyright and they issued a “take down notice”. YouTube initially took it down but Lenz fought back and he sent a letter to YouTube, demanding her video be reinstated. They in turn sent a letter to Universal Music, which represents Prince. Eventually YouTube posted the video back up because Universal Music never answered. And that’s where it would have ended, except Lenz decided to file a lawsuit against Universal Music with the legal help of the Electronic Frontier Foundation in San Francisco. A federal judge in San Jose will hear arguments in a lawsuit filed by Lenz. She claims Universal Music misused the takedown notice, are abusing…

US court finds that eBay is not liable for counterfeits sold on it’s site
Trade Mark / August 2008
USA

TRADE MARK All areas A US District Court has decided that the internet auctioneer eBay had not infringed Tiffany’s trade marks in failing to prevent fake Tiffany goods to be sold through its site. According to the New York Times, the court found that it was the responsibility of trade mark owners, and not online retailers, to police the online sites for infringers. The US decision runs counter to the emerging trend it Europe, where eBay has been found to have infringed in both France and Germany. Judge Richard J Sullivan in the Manhatten Federal District Court said “Tiffany has failed to demonstrate that eBay knowingly encouraged others to dilute Tiffany’s trademarks,” in his 66-page decision. “Rather, to the extent that eBay may have possessed general knowledge of infringement and dilution by sellers on its Web site, eBay did not possess knowledge or a reason to know of specific instances of trademark infringement or dilution as required under the law.” http://www.nytimes.com/2008/07/15/technology/15ebay.html?em&ex=1216267200&en=4dcc0c8323ecf63b&ei=5087%0A See Music Law Updates July 2008 for a report on the position in France – French courts holds eBay liable for sale of counterfeit goods

Court throws out Janet Jackson wardrobe malfunction fine
Media / August 2008
USA

BROADCASTING Television This is a tad embarrassing for the US’s Federal Communications Commission. Their $550,000 fine against broadcaster CBS for broadcasting Janet Jackson’s ‘wardrobe malfunction’ at the 2004 Super Bowl halftime show when she performed with Justin Timberlake has been ruled to have been made “arbitrarily and capriciously” by a three judge panel of the 3 rd US Circuit Court of Appeals. The 90 million people watching the Super Bowl, many of them children, heard Justin Timberlake sing, “Gonna have you naked by the end of this song,” as he reached for Jackson’s bustier and then saw fleeting nudity. The court found that the FCC deviated from its nearly 30-year practice of fining indecent broadcast programming only when it was so “pervasive as to amount to ‘shock treatment’ for the audience.” “Like any agency, the FCC may change its policies without judicial second-guessing,” the court said. “But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure http://www.billboard.com/bbcom/news/article_display.jsp?vnu_content_id=1003829656

FBI Interview Guns n Roses blogger
Copyright , Internet , Record Labels / August 2008
USA

COPYRIGHT Internet, record labels The blogger who allegedly leaked nine tracks from the long awaited album from Guns ‘n’ Roses ‘Chinese Democracy’, has reportedly been interviewed by the Federal Bureau of Investigation in the US. According to reports Kevin Skwerl was visited by two FBI agents yesterday and questioned about his source of the files, which were taken down almost as soon as they were posted after GNR issued a cease and desist order. But the take down was too late to stop some file swappers getting their hands on the tracks and digital files are already in circulation Skwerl is a former Universal Music employee and Guns N Roses were signed to Universal’s Geffen label. Speaking about the whole episode to Rolling Stone magazine, Skwerl stressed that GNR weren’t threatening when they got in touch to request the removal of the tracks off his website, and he adds that he’s hopeful he will avoid any further legal action regarding the leak – civil or criminal. He told the magazine: “A really cool guy from the GNR camp that was a middle man between someone who was very angry and me. He was trying to reach out and see if I’d…

Mosley beats the World! Max Mosley wins record damages in privacy case
Artists , Privacy / August 2008
UK

PRIVACY Newpaper publishing, Artists Mosley beats the World! Max Mosley wins record damages in privacy case: Mosley v News Group Newspapers Ltd (2008) EWHC 1777 (QB) From the IPKat Max Mosely, President of the Fédération Internationale de l’Automobile (FIA) since 1993 and a trustee of its charitable arm, the FIA Foundation, objected to the publication of an article in the News of the World newspaper. This article, headed ‘F1 BOSS HAS SICK NAZI ORGY WITH 5 HOOKERS’, was billed as an exclusive and ran under the subheading “Son of Hitler loving fascist in sex shame”. The article in question concerned an event, described as a party by Mosley and as an orgy by the newspaper. The text was accompanied by images taken from clandestine video footage and a concealed camera at the event itself. A sequel, published the following month under the banner “EXCLUSIVE: MOSLEY HOOKER TELLS ALL: MY NAZI ORGY WITH F1 BOSS”, was mainly a purported interview with one of the women who participated in the event, who had filmed it with a camera supplied by the newspaper and concealed in her brassiere. Mosley alleged breach of his of privacy under Article 8 of the European Convention on…

High Court awards £22,000 for victim of Facebook slur
Defamation , Internet , Privacy / August 2008
UK

DEFAMATION / PRIVACY Internet A fake Facebook site set up about businessman Mathew Firsht has resulted in an award of £22,000 in damages against instigator Grant Raphael, an estranged friend of Mr Firsht. Using real details about Mr Firsht Mt Raphael then put in false details about his sexual orientation and political beliefs ending with a company profile with was titled ‘Has Mathhew Firsht lied to you too?”. The High Court damages break down at £15,000 for libel against Mr Firsht, £2,000 for invasion of his privacy and £5,000 for libel against his company, Applause Store Productions. http://technology.timesonline.co.uk/tol/news/tech_and_web/article4389538.ece

European Commissioner calls for debate on format shifting
Copyright / July 2008
Belgium
EU

COPYRIGHT All areas Most consumers are under the misapprehension that they can make a private copy of a CD and put that onto a cassette, hard drive of their computer or other format – or make a back up copy of computer software – and this is perfectly legal. Well under UK law it most certainly is not – which is perhaps why The Gowers’ Report into IP law in the UK called for this area of copyright law to be revisited and indeed called for the legalising of private copying without compensation for copyright owners. The European Union Copyright Directive allows an exception for consumer private copying on condition that the right holder receives ‘fair compensation’ and many European countries achieve this by way of a levy on either blank discs or tapes or on copying technology. In all events supporters of the format shifting exception say that as there’s no harm to rights holders from the format shift, any compensation should be “zero”. But that is not currently accepted by some parts of the music, software and computer games industries. The Music Business Group, the umbrella group of trade bodies representing music managers, songwriters, publishers and performers responded…

Belgian newspapers bring second action against Google
Copyright , Internet / July 2008
Belgium

COPYRIGHT Internet Codiepresse, the copyright collecting society for Belgian newspapers, has announced that they are suing Google for publishing and storing their content in the main Google search engine and its news aggregator, claiming damages of between 32.8 million Euros (£25.9 million) and 49.2 million Euros (£38.8 million). The organisation said that the losses were calculated by a professor at the University Libre de Bruxelles, based on articles stored by Google since the 13th April 2001 and Google News since it launched in Belgium in 2006. Copiepresse have already successfully sued Google once. In 2006 a Belgian court ruled in favour of a claim to have content removed from Google.be and Google News. Following that ruling, Google said: “It is important to remember that both Google Web Search and Google News only ever show a few snippets of text. If people want to read the entire story they have to click through to the web publisher’s site where the information resides. We believe search engines are of real benefit to publishers because they drive valuable traffic to their websites”. Here Google tried to put copyright owners on the backfoot saying “If publishers do not want their websites to appear in…

French courts holds eBay liable for sale of counterfeit goods
Internet , Trade Mark / July 2008
France

TRADE MARK Internet Two court decisions in France have left eBay reeling and the online commercial community nervous of further actions. Firstly a French court ruled that eBay must pay Hermes 20,000 euros for allowing counterfeit Hermes bags on its site. The court found that “By selling Hermes bags and branded accessories on the eBay.fr site, and by failing to act within their powers to prevent reprehensible use of the site… [both eBay and the seller] committed acts of counterfeiting and imitation of French brand names … to the detriment of Hermes international.” The court ordered that eBay must also publish the ruling on its homepage. Counsel for Hermes argued that eBay was more than a mere passive intermediary, instead: “eBay is an active player in the transaction because not only does it offer a number of services to improve the sale, but when it does not work well enough or fast enough, they intervene with the client…They are perfectly informed of the transactions since they take a percentage cut.” The IPKat adds that that it isn’t sure about the ruling adding that it “doubts whether someone at eBay really has knowledge of every transaction that is taking place” and that “forcing someone to…

Canada launches new copyright bill
Copyright / July 2008
Canada

COPYRIGHT All areas Canada , currently out of favour with its North American neighbours over its failure to implement what US considers to be acceptable copyright legislation, now has a new bill on that very matter. Industry Minister Jim Prentice is set to table a bill that will allow users to be fined up to $500 for each “personal use download” that they partake in through peer-to-peer file-sharing. The bill will also make it illegal to unlock cellphones, copy music-protected CDs to iPods, and copy time-shifted TV shows to PVRs. http://www.exclaim.ca/articles/generalarticlesynopsfullart.aspx?csid1=122&csid2=844&fid1=31719 http://network.nationalpost.com/np/blogs/fullcomment/archive/2008/06/05/peter-shawn-taylor-on-canadian-copyright-pirates-past-and-present.aspx New provisions against anti circumnavigation – see New legislation to crackdown on digital copyright infringement athttp://www.canada.com/topics/news/national/story.html?id=20467975-e1cc-4064-aceb-63796da84b48 and see http://www.thestar.com/comment/article/442594 http://www.canada.com/ottawacitizen/news/bustech/story.html?id=ab0d606b-2371-444b-bba0-2172d45ac6b6

“Fair Use” of Unlicensed Film Music: Premise Media v Lennon
Copyright / July 2008
USA

COPYRIGHT Film & television By Tom Frederikse, solicitor, Clintons An unauthorised use of the song “Imagine” in a recent feature film has been approved by a US court as “Fair Use”. InPremise Media Corp LP (et al) v Yoko Ono Lennon (et al) [2008] No 08 Civ. 3813 (dated 2 June 2008), the US District Court of Southern New York denied the Lennon family’s request for an injunction to stop use of the song in a US film produced by Premise Media. The film, “EXPELLED: No Intelligence Allowed” which concerns the theory of “intelligent design” (aka creationism) plays a short excerpt of the well-known John Lennon track “Imagine” over “Cold War-era images of marching soldiers” and an “image of Stalin”. The film features several other well-known songs and the filmmakers obtained permission to include all tracks, other than “Imagine”. Yoko Ono and Lennon’s children, together with EMI Blackwood Music Inc, sought an injunction to stop distribution of the film and to recall existing copies. The filmmakers defended the copyright infringement allegation by claiming their placement of the song in the film was “Fair Use”, which the Court supported in refusing to grant the injunction. The US “Fair Use” defence is similar…

Culture Secretary open to “extending the term”
Copyright , Record Labels / July 2008
UK

COPYRIGHT  Record labels  UK Culture Secretary Andy Burnham has said he would keep an “open mind” when it came to the copyright term for sound recordings, currently protected for 50 years in the UK and Europe, when speaking at the Annual General Meeting of UK recording royalty collecting society PPL. The record label’s campaign to extend the term has had produced a mixed reaction from Government. The UK government’s Gowers Review of intellectual property laws recommended that the copyright term for recorded music stay at the current 50 years, despite calls from across the record industry to increase it – either by bring it closer to the 95 years awarded to recordings in the US or to run parallel with the rights of composers and songwriters whose works are protected for their life plus 70 years. But EU Commissioner Charlie McCreevy has been more supportive of proposals for a term extension and Burnham said that he would “take a close look at McCreevy’s details when they are revealed later in the summer. I understand the issues and will engage constructively in the process and join in the debate with my European counterparts”. During a Q&A session that Burnham added that…

Virgin warns internet users to respect copyright
Copyright , Internet , Record Labels / July 2008
UK

COPYRIGHT Internet, record labels Virgin Media will send letters to thousands of its own customers in households where music is either being downloaded or illegally shared as part of a joint approach to online piracy with the British Phonographic Industry (BPI). The BPI ultimately wants internet companies to implement a “three strikes and out” rule to warn and ultimately disconnect the estimated 6.5 million customers whose accounts are used for regular criminal activity (a procedure already in the process of being introduced in France). This news prompted a response from journalist Bill Thompson on the BBC website, calling continued attempts by traditional content owners to curb online piracy a “doomed enterprise as the growth of a fast internet coupled with the ability to make perfect copies of digital content means that all of the assumptions that underpin film studios, TV broadcasters and record companies have been stripped away, leaving them flailing around, threatening and suing the people who should be their best customers and hoping to persuade politicians to pass new laws to give them special privileges online. He did, however, acknowledge that the situation was changing saying “As more licensed download services become available, many offering songs without usage…

UK collection society extends remit to commissioned music
Copyright / July 2008
UK

COPYRIGHT Film, TV PPL, the London based collection society that that licences recorded music on behalf of over 6,750 UK and international record companies and over 47,000 performers around the world has said that it will extend its remit to commissioned film and TV music. PPL collects over £100 million in domestic and global broadcast/new media revenues and public performance income which is then distributed and paid to record company and performer members. PPL has now advised The producers Alliance for Cinema and TV (Pact) that they are also able to act on behalf of the owners of music that has been commissioned for e.g. television or film productions.  Such music must exist in a recorded form, but it does not have to be issued as a commercial release – indeed, the sound master can constitute a sound recording. This means that television and film producers who have commissioned music and who own the copyright in the sound master should consider registering the music with PPL.  This will enable PPL to licence others to use the recording and to pay royalties to the owner when the recording is used. For more information contact member.info@ppluk.com.

China sets up karaoke copyright collection system
Copyright / July 2008
China

COPYRIGHT All areas China ’s Audio and Video Copyright Collective Management Association has finally been set up in Beijing after a gestation period of 10 years to implement China’s “Copyright Collective Management Rule”. The association will manage audio- and video-related issues as well as assuming the duty of collecting karaoke copyright fees, previously discharged by the China Audio and Video Association. The new organisation will have power to take civil, administrative and even criminal measures against copyright infringers. However, this month also saw the news that BeeGee Robin Gibb, President of CISAC, the worldwide consortium of trade associations that represent songwriters and other creators, has called on the Chinese government to end all the copyright violations in China. Using the upcoming Olympics as a reason for focusing attention on the creative industries in the country, Gibb says that it’s not only the country’s mass pirated CD market that is a problem, questioning why Chinese broadcasters still do not pay royalties for music they use. Speaking at the CISAC General Assembly in Rome, the Bee Gee said: “How is it and how can it be that in China, the most populated country in the world and the organiser of the 2008…

London DJ arrested over leaked albums
Copyright , Record Labels / July 2008
UK

COPYRIGHT Record labels The international recording industry today welcomed the arrest by UK police of a man suspected of selling a over 150 pre-release albums on eBay, weeks before their official release. The man, a DJ and music reviewer based in London, was arrested on suspicion of theft and money laundering.  The case centres on the alleged sale of pre-release copies of albums by artists including Foals, Delays, Grand National and Kelly Rowland and it is believed that he used his position to obtain promotional copies of albums from record companies which he then sold on. If charges are brought, it is thought this would be the first ever prosecution involving the sale of pre-release music in the UK.  www.ifpi.org

US first sale doctrine does apply to promo copies
Copyright , Record Labels / July 2008
USA

COPYRIGHT Record labels Music giant Universal Music Group has lost its court battle to stop an eBay trader from reselling promotional CDs he had bought from second hand stores after a US court found in favour of Troy Augusto who makes money by snapping up rare albums circulated as promotional copied by Universal and selling them on the online auction site. Universal accused Augusto of copyright infringement, saying that promotional copies were not authorised for sale to the public. Specialist music shops often sell promo albums or review copies that record labels send out to journalists and radio stations before the regular editions go on sale. Record companies have long maintained that they continue to own these items and can ask for them back at any time. They can be recognised by markings such as “For promotional use only” or “Not for resale”, visible on the record or CD artwork and sometimes on the disc label itself. US District Court Judge S James Otero dismissed the case and said that Mr Augusto was protected by the “first sale” doctrine in copyright law. This says that once a copyright owner gives away a copy of a CD, DVD or book, the recipient is entitled…

The Continuing Vitality of Music Performance Rights Organizations
Copyright / July 2008
USA

COPYRIGHT All areas LINK Paper:  Presented by University of California, Berkeley Law Professor Robert P.Merges. In the document, Professor Merges warns that proposals to change the existing music IP rights system could stunt creativity in the United States and around the world. Merges warns that the more radical proposals would eviscerate or eliminate performing rights organizations, which could weaken all of the gains songwriters have made over the past century. A copy of Merges’ paper will be available online by Monday, June 16, at: www.law.gwu.edu/ciec and atwww.newcopyrightera.org

Doyle and McPhail lose boy band Busted battle
UK

CONTRACT Artists, music publishing Ki McPhail and Owen Doyle, who claimed claimed that they had been forced to sign away royalty rights worth £10 million (E12.4 million) after “threats” and “undue pressure” when they were sacked from the band in 2001 have lost their claim in the High Court in London. The pair claimed that they were owed the money for songs they had co-written with James Bourne and Matt Willis when the group formed earlier that year including the massive Year 3000 and That’s What I Go To School For. Mr Justice Morgan dismissed all their claims and criticised the evidence they gave in court saying of McPhail “If he did believe the evidence he gave to the court, it can only be because he has indulged in very extensive self-serving reconstruction in the period between the relevant events and the time of the trial and has now convinced himself that his reconstructed version of events really happened” adding that Doyle was “not a reliable witness” who “manifested a high degree of confusion and a failure to grasp the detail in relation to many of the significant events.” McPhail and Doyle then issued a statement that they were “disappointed” with the High Court ruling, but that they…

Hawthorne Heights agree to Victory album
Artists , Contract , Record Labels / July 2008
USA

CONTRACT Artists, record labels US emo band Hawthorne Heights have agreed to drop their previously reported 2006 lawsuit against Victory Records and will release their new studio album through the US independent. Hawthorne Heights had sued Victory for breach of contract, copyright and trademark infringement, fraud and abuse. The label countersued claiming the band were simply trying to get out of their record deal so they could sign to EMI’s Virgin Records and subsequently sued Virgin, too, claiming that the major had paid the band an advance while they were still under contract and helped them to fight their legal battle.Tragedy struck last year when guitarist and vocalist Casey Calvert died suddenly of accidental ‘combined drug intoxication’ while the band were on tour. In a final chapter, last week, Victory Records announced that they will release Hawthorne Heights’ third studio album ‘Fragile Future’ on 5 August. Hawthorne Heights’ Drummer Eron Bucciarelli said “We now regret having begun the lawsuit we filed in 2006. We should not have listened to those, who, for whatever reasons, were then advising us to pursue this strategy. We are sorry for having put Victory Records and Tony Brummel through this ordeal, and regret any negative…

Crue sue manager number two
Artists , Contract / July 2008
USA

CONTRACT Artists Motley Crue have issued legal proceedings against their former manager Burt Stein, and his companies B Entertainment and Gold Mountain Entertainment, alleging that he cost the band large sums of money by putting his own interests, and/or the interests of a specific band member who he also managed on an individual basis, ahead of the general interests of the group. The lawsuit, filed in the LA Superior Court on Wednesday is seeking both damages from Stein, and also court backing to their claim that Stein’s activities put him in breach of contract, thus rendering the manager/band agreement void and removing any obligations for the Crue to pay a cut of their income to him. This is seemingly a separate action to the dispute between the band and another former co-manager Carl Stubner, who was accused of damaging the band’s career and reputation, in the main by prioritising the career of Tommy Lee, who he had a separate individual management relationship with. The band and Stubner settled that dispute last month. Also from CMU Daily.

Atlantic and the Stone Temple Pilots go to court
Artists , Contract , Record Labels / July 2008
USA

CONTRACT Artists, record labels Atlantic Records has issued legal proceedings in the US District Court in Manhattan against two members of Stone Temple Pilots accusing them of trying to prematurely end their recording contract with the Warner Music Group label. The suit against lead singer Scott Weiland and drummer Eric Kretz says the pair have threatened to stop performing under their contract and have indicated they would like to end the agreement unless Atlantic makes significant changes. The record company said in the suit it wants the group to record a seventh album and deliver up to two more if Atlantic decides to option these. The group, whose momentum was often curtailed by Weiland’s drug problems, had fallen apart shortly after a 2002 tour. In late 2003, the other two members of the group, guitarist Dean DeLeo and bassist Robert DeLeo, were released by Atlantic from their recording contract as they said they wanted to pursue separate careers. Atlantic said in the lawsuit that the group, Weiland, Kretz and a returned DeLeos were now touring successfully and had indicated its intention to record together again. The record company said its contract with Stone Temple Pilots was written under New York…

Licensing concerns expressed at public meeting
Licensing , Live Events / July 2008
UK

LICENSING Live events The impact of temporary alcohol licences (Temporary Event Notices) for one-off events on policing are to be debated at a public meeting in Lewes, Sussex. The Sussex Police Authority – the body that holds the police’s purse strings – is expected to agree to lobby the government to make improvements to the system by which small scale events for less than 500 people (including staff and performers) gain temporary licences. In a joint report Chief Constable Martin Richards and authority Chief Executive John Godfrey said the events that don’t need permission under the Licensing Act 2003 can cause policing problems and considerable use of resources. Only the police can object to the grant of the licence but they are only given 48 hours (not working hours) to comment on the plans which they say often falls over the weekend when licensing officers may be involved on operations and unable to assess the impact of each individual application. If the police do object then a hearing must be held at least 24 hours before the event unless agreement can be reached. The officers are recommending that the authority press the government to make improvements to the system to…

Change of use allowed despite noise concerns
Licensing , Live Events / July 2008
UK

LICENSING / PLANNING Live events and venues From www.planningresource.co.uk The change of use of a former cinema in Cheltenham into ground-floor restaurants with a 1400 ncapacity nightclub above has been allowed after an inspector found that it would not harm residents’ living conditions, public order or highway and pedestrian safety. The council’s main concerns focused on the impact arising from people, some likely to be under the influence of alcohol, arriving at or leaving the club well into the early hours. However, the inspector noted that there were very few residential properties in the street and its immediate vicinity other than flats above ground-floor commercial uses. In her view, this gave some separation from noise and disturbance in the street below. She also held that some late-night noise and disturbance was to be expected in this central location. While recognising that a nightclub of the size proposed would almost certainly have some negative impact as a result of noise, disturbance and antisocial behaviour, she remarked that national and local policy directs such uses to town centre locations. The inspector observed that the appellant’s projections for arrivals and departures at the club reflected the more gradual dispersal pattern that has emerged since…