British ONiK users arrested for illegal downloading
Copyright , Internet / July 2008
Netherlands
UK

COPYRIGHT Internet By Cassandra Williams, postgraduate student, The College of Law In 2007 British and Dutch police shut down ‘ONiK’, the member’s only BitTorrent tracker site. OiNK was championed by many filesharers as the internet’s most complete music source (of illegal music). ONiK focused on high quality files and featured trackers for pre-release material, which of course drew it special attention from record industry’s anti-piracy investigators. As a result a, flat on Teesside and several properties in Amsterdam were raided as part of the Interpol investigation – and there was a widely-publicised raid at the Middlesbrough home of OiNKs adminstrator, 24-year old IT worker Alan Ellis. Ellis remains on police bail for the charge of conspiracy to defraud and infringement of copyright law. His bail has been repeatedly extended, with the next deadline set for 1st July. According to the IFPI (the international organisation representing the major record labels), t he UK-run site leaked 60 major pre-release albums in that year alone. The site’s servers, which were based in Amsterdam, were also seized in a series of raids in October 2007. Now OiNK users who have allegedly uploaded material are being targeted by the police in Cleveland who have confirmed that…

Court of Appeal calls time in Quo battle: Lancaster and another v Handle Artists Management Ltd[2008] All ER (D) 308 (Apr)
Artists , Contract / June 2008
UK

CONTRACT Artists by Cassandra Williams, postgraduate student at the College of Law In the case of Lancaster and another v Handle Artists Management Limited and others [ 2005] All ER (D) 128 (Nov) a claim was made by two former Status Quo band members Alan Lancaster and John Coghlan for payment of back catalogue royalties primarily against the two continuing band members Rick Parfitt and Francis Rossi who continued with others as status Quo (seehttp://www.musiclawupdates.com/06Januarylawupdates.htm) and initially resulted in a victor for Lancaster and Coghlan, The claim centred on certain ‘Pye’ royalties (going back to the sixties) and other Phonogram royalties (going back to the seventies). As was normal at the time, the Pye contracts were made directly with individual band members but as Status Quo became more successful the contractual arrangements “merged” with contracts made with the band’s corporate vehicles. At the end of the trial the Pye royalty claims were upheld and it was declared that the royalty shares belonging to the Claimants, Coghlan and Lancaster, were held by the continuing band members on constructive trust despite the fact that they had signed a deed relinquishing their rights to further – the trial judge constructed the deed of release signed by the…

RIAA sues Project Playlist / record labels take aim at “clever” sharing operation
Copyright , Internet , Record Labels / June 2008
USA

COPYRIGHT Internet, record labels ARTICLE LINK:  Is Project Playlist legal? The site allows users to build playlists of music found on other websites (whether they got there legally or not the site claims disinterest) and then streams them to listeners. They pay the relevant performance royalties. In what could be a precedent-setting case, recording companies are alleging that the Project Playlist Web site is guilty of infringement by enabling its own members to give other users access to unlicensed music files hosted by other sites . http://government.zdnet.com/?p=3779 http://www.betanews.com/article/Record_labels_take_aim_at_a_clever_playlist_sharing_operation/1209423726

IFPI launch copyright education project
Copyright , Internet / June 2008
UK

COPYRIGHT Internet The IFPI have launched a global information campaign to explain the world of music downloading to teachers and parents worldwide. A new pocket-sized guide, published by children’s internet charity Childnet International and supported by Pro-music, the international alliance of music sector groups, will be distributed through schools and colleges, libraries, record stores, teaching portals and websites in 21 countries. The simple, concise guide, “Young People, Music and the Internet” aims to help young people use the Internet and mobile phones safely and legally to download music. The guide will be available on http://87.84.226.198/Content/GuidesAndResources/advice_for_parents.phpas well as on www.childnet.com/music , where parents, teachers and young people will be able to access more information on a music microsite. www.ifpi.org

Arizona court takes a narrow view on P2P file swapping (Atlantic v Howell)
Copyright , Internet , Record Labels / June 2008
USA

COPYRIGHT Internet, record labels The CMU Daily reports on an interesting technicality was raised in a US court hearing relating to one of the Record Industry Association Of America’s P2P lawsuits this week. It’s a technicality that has been raised before, but it was the court’s ruling on the matter that was interesting, because in theory it reduces the scope of the RIAA’s lawsuits a little. The case was against Pamela and Jeffrey Howell who are accused of illegally sharing music via the Kazaa file sharing network. The labels are suing them for copyright infringement. The technicality is as to whether merely placing music files into a Kazaa folder on your PC in itself amounts to copyright infringement. Generally speaking courts have been willing to say “yes” in the past – so that if a defendant puts music in a Kazaa folder, and a label’s agent is to download a track or two from it, then infringement has been assumed in relation to all tracks put in that folder. However, the court in Arizona hearing the Howell’s case wasn’t keen to extend the definition of infringement that far. It said that a copyright was only infringed if there was “actual…

Jammie Thomas conviction to go back to court
Copyright , Internet , Record Labels / June 2008
USA

COPYRIGHT Internet, record labels The judge in the Jammie Thomas case – the first case where the US record labels secured a criminal conviction for illegal file sharing has notified attorneys for both sides that he’s considering granting a new trial on the grounds that he improperly instructed the jury about what constitutes illegal file-sharing on the internet. U.S. District Judge Michael Davis said in an order filed  in Minneapolis that he may have made a “manifest error of law” last October when he instructed a Duluth jury that simply uploading songs to a music file-sharing network could be considered illegal distribution, even in the absence of proof that anyone received them. The jury found Thomas, 30, willfully violated the copyrights of six recording companies and that Thomas, operating on her home computer under the user name “tereastarr” on the Kazaa file-sharing network, copied or distributed 24 songs, and it set damages at $9,250 for each alleged infringement. Thomas’ s attorney said the award (totaling $222,000) was excessive and had already filed a motion asking Davis to reduce it. But Davis, in today’s order, wrote that he’ll consider granting a new trial on different grounds. “The Court is concerned that Jury…

Myspace domain can be kept by original owner
Internet , Trade Mark / June 2008
UK

TRADE MARK Internet The Nominet Dispute Resolution Service Appeals Panel has ruled that the myspace.co.uk domain – which was registered by Total Web Solutions before the now very popular MySpace service came into existence did not after all have to be turned over to MySpace Inc, owners of the social networking site. Total Web Solutions registered myspace.co.uk in August 1997 in order to provide its clients with a cheap and easy homepage and email. On or before July 2004 myspace.co.uk, which was no longer in demand for its original purpose , was “parked” with Sedo, a company that targets advertising links on unused domains which In 2005, following the growing popularity of MySpace, began serving Total Web Solutions’ domain with advertisements for services such as “MySpace Friend Adder”. The appeal panel dismissed the assertion by MySpace Inc that it was entitled to the disputed site on the ground that it was entirely descriptive of its business. Nor did it consider the earlier registration to be abusive. The panel added: “To date experts and Appeal panels have reasonably consistently taken the view that if a registrant acquires a domain name in advance of the coming into existence of the complainant’s rights,…

MySpace wins $230 million from spammers
Copyright , Internet , Privacy / June 2008
USA

COPYRIGHT / PRIVACY Internet MySpace has won a record $230 million (approx £118 million) legal judgment against ‘spam king’ Stamford Wallace and business partner Walter Rines over junk messages sent to Myspace customers which directed them to online gambling and porn sites. District Judge Audrey Collins in Los Angeles made the order after hearing how 700,000 messages were sent to MySpace users and bolted on an prohibition against Wallace and Rimes similar activities in the future. http://digg.com/security/MySpace_Wins_230_Million_Judgement_Against_Spammers

AOL, Real, Yahoo must pay millions in outstanding music royalties
Copyright , Internet / June 2008
USA

COPYRIGHT Internet ARTICLE link  By Scott M. Fulton, III, BetaNews The artists’ rights organization ASCAP will be receiving tens of millions in back royalties from 2006, from the leading Web radio broadcasters. But it’s much less than what it had proposed, and way less than what royalties groups wanted last year. http://www.betanews.com/article/AOL_Real_Yahoo_must_pay_millions_in_outstanding_music_royalties/1209661061   The CMU Daily adds: A US District Court has ruled on a long running dispute between three of the US’s big net outfits – AOL, Real and Yahoo – and publishing rights body ASCAP, regarding how much the web firms should pay the collecting society for the rights to play songs on their online music services – now decided at 2.5% of “music-use-adjusted revenue” which could be according to US commentators a payment to ASCAP of a combined $100 million. ASCAP chief Marilyn Bergman says said “The Court’s finding represents a major step toward proper valuation of the music contributions of songwriters, composers and publishers to these types of online businesses – many of which have built much of their success on the foundation of the creative works of others. It is critical that these organisations share a reasonable portion of their sizable revenues with those of us…

The cat is out of the bag – so Max Mosley fails to gag News of the World
Artists , Privacy / June 2008
UK

PRIVACY / CONFIDENCE Artists The IPKat has come across a case in which Max Mosley attempted to enjoin the News of the World from showing video footage of his allegedly Nazi-themed orgy with five prostitutes. The footage was posted on the News of the World’s website at the end of March. It was then voluntarily taken down on 31 March, by which time other websites had copied and posted the footage. On 3 April the News of the World gave notice that it intended to repost the footage. Mosley applied to the court for an injunction to stop this. According to Eady J, Mosley’s Art.8 right to privacy was in conflict with the News of the World’s Art.10 right to freedom of expression. In balancing the two, the court has to take the following into account:   i) No Convention right has, as such, precedence over another; ii) Where conflict arises between the values safeguarded under Articles 8 and 10, an “intense focus” is necessary upon the comparative importance of the specific rights being claimed in the individual case; iii) The Court must take into account the justification for interfering with or restricting each right; iv) So too, the proportionality…

David Murray (by his litigation friends Neil Murray and Joanne Murray) v Big Pictures (UK) Ltd [2008] EWCA Civ 446
Privacy / June 2008
UK

PRIVACY All areas Again from the IP Kat, news of JK Rowling’s son David Murray’s action for privacy. David when 20 months old, was photographed by Big Pictures, using a telescopic lens, while he was being pushed along the street in a buggy by his parents. The photograph, published without the family’s knowledge or consent, subsequently appeared in The Sunday Express magazine with accompanying text – attributed to JK Rowling – setting out some thoughts on her approach to motherhood and family life. The quote was genuine but out of context, having been made in relation to David’s big half-sister Jessica. The Express having compromised the Murrays’ claim, the action proceeded only against Big Pictures. On behalf of David it was argued that Big Pictures had acted in breach of the European Convention on Human Rights Article 8 and in breach of confidence; it was also claimed that the company was in breach of the Data Protection Act 1998 since it held photographic data about David while unregistered as a data controller. Suing via his parents as best friends, David sought damages and an injunction against further publication of the piccie. Big Pictures moved for summary judgment or a strike-out of David’s…

A novel way to produce a promo video
Artists , Internet / June 2008
UK

FREEDOM OF INFORMATION Artists, internet This is a very interesting story and a heading we have never used before- although here at Music Law Updates we wonder about the copyright implications. Anyway, CMU Daily report that Manchester trio The Get Out Clause have hit on a novel way of making videos. Instead of forking out thousands to make a proper video for their new single ‘Paper’, they performed the song in front of 80 different CCTV cameras in their home city and then applied for copies of the footage under the Freedom Of Information Act. Guitarist Tony Churnside told Sky News: “We wanted to produce something that looked good and that wasn’t too expensive to do”. Check out the video here: http://www.youtube.com/watch?v=W2iuZMEEs_A

AIM launch manifesto for copyright in the digital age
Copyright , Internet / June 2008
UK

COPYRIGHT Internet AIM have published Copyright In the Digital Age, their manifesto for a copyright infrastructure “fit for purpose” in the 21st Century. Within it, AIM sets out the case that: Digital is fundamentally a format shift which has changed everything in the value chain for recorded music – creation, production, distribution and consumption. Government should take account of this, to support the growth of a world class creative industry through copyright law which is fit for purpose in the always technologically evolving digital age New monetisation methods are needed for new usages and new consumer models of consumption. It makes sense to recognise the benefits to commercial providers whose businesses depend greatly on facilitating consumers access to, and ability to copy and share, copyright music. At present these businesses and consumers enjoy their respective benefits while copyright owners cannot claim a fair share of this value chain. AIM’s original 2006 Copyright in the Digital Age paper built on the view that the value chain from the creators and investors in music through to ISPs to the consumer is currently dysfunctional, and proposed a range of solutions.  This was the basis for the 2006 all-industry Round Table (facilitated by the Smith…

Chinese search engine fined
Copyright , Internet / June 2008
China

COPYRIGHT Internet Zhongsou, one of China’s top five internet search engines, has been found guilty of infringing record companies’ copyrights by the Copyright Bureau of Hebei province and Cangzhou city.  The authorities have ordered the internet company to stop infringing immediately and pay the maximum penalty of RMB 100,000.  Three computer servers belonging to Zhongsou have also been forfeited. This is the first time that administrative penalties have been levied on a company running a music delivery service. In September 2007, IFPI lodged a complaint with the Hebei Provincial Copyright Bureau.  Further investigations by Cangzhou Copyright Bureau, Cangzhou Cultural Task Force and RenQiu Cultural Task Force revealed that copyright infringing files accessed by the delivery service were hosted on servers owned by Zhongsou in Cangzhou city in Hebei province.  With the assistance of the ISP Cangzhou Netcom, the authorities raided and seized the servers on 11th March 2008. The administrative fine of RMB 100,000 imposed on Zhongsou in May 2008 is the largest fine for copyright infringement in the history of Hebei province. www.ifpi.org (from press release)

Criminal conviction for Brooklyn music infringer
Copyright , Internet / June 2008
USA

COPYRIGHT Internet Barry Gitarts, a 25-year-old Brooklyn man, has been found guilty of conspiracy to commit criminal copyright infringement by a federal jury in Virginia. Under the pseudonym “Dextro,” Gitarts was charged with administering a server in Texas for an underground file sharing group called Apocalypse Production Crew – APC members traded music, games, movies and software amongst themselves but trial testimony from the Recording Industry Association of America portrayed APC as a “first provider” or “release group” of pirated content, often pre-release material, sometimes months before retail release. Evidence presented in the case showed that he received payment from the leader of the group in return for this work. Gitarts appears to be the 15th APC member to be convicted for criminal copyright infringement as part of U.S. Department of Justice’s long-running Operation Fastlink but this was the first case that has gone to a trial. U.S. District Court Judge Liam O’Grady will sentence Gitarts on August 8 th and penalties extend to a maximum of five years in prison, a fine of up to $250,000 and three years of supervised release. In addition, he must “make full restitution” to the record labels affected. Mark Shumaker, a co-conspirator who…

Court of Appeal allow appeal against Procul Harum organist Brooker Onward Music v Fisher [2008] EWCA Civ 287
UK

COPYRIGHT Music publishing The Court of Appeal (Lord Justice Mummery, Mr Justice David Richards and Sir Paul Kennedy) has partially allowed the appeal by Procul Harum frontman Gary Brooker against former keyboard player Matthew Fisher. The appeal was against the 2006 decision of Mr Justice Blackburne which awarded Fisher 40% of the music writing royalties of the classic pop song ‘A Whiter Shade of Pale’, the UK’s most popular radio track ever. Whilst the Court of Appeal agreed With Blackburn J that Fisher was a co-author of the work, they held that Fisher’s delay in bringing the case in 2006, 38 years after the track was released, was fatal to his claim for royalties. The Court agreed that Fisher’s ‘Bach inspired’ Hammond organ solo at the beginning of the track was intrinsic to the song’s melody and indeed that Fisher was a co-author of the work and had made a significant contribution – but The Court of Appeal held that by silently standing by and acquiescing in the commercial exploitation of the Work without taking action, Fisher “led [Brooker] to act for a very long period on the basis that the entire copyright in the Work was theirs”.  Mummery LJ said that…

The new PACT-MCPS Independent Production Company (IPC) Licence
UK

COPYRIGHT Television, internet, publishing The MCPS launched its Independent Production Company licence as a mandatory scheme for television producers on 1st August 2007 and has now accepted a number of changes proposed by Pact, the trade association representing independent film and television producers. However Pact advise that the licence does have some elements that may not be entirely welcome to certain producers, and members are advised to consider the licence and the Guidance Note carefully in coming to a decision about taking up a licence.  In particular, the IPC licence contains a clause that requires users to pay licence fees even if the material used is covered by the “fair dealing” copyright rules.  Pact had tried to persuade MCPS to remove this requirement but MCPS has stated that its members insist that such payments are essential if producers wish to have the benefit of automatic clearance for the entire MCSP repertoire. The MCPS scheme is mandatory – MCPS publishers will no longer be in a position to grant music rights individually to producers.  The only alternatives to licensing through the MCPS IPC licence are for a producer to use their own commissioned music, use public domain music or use other…

Warner Music’s Tune of Folly
EU
UK
USA

COPYRIGHT Internet, record labels How will record labels monetise copyright in the future? ARTICLE LINK  C/Net News Editor’s note: Music attorney Chris Castle is all for finding a way to boost the music industry out of its current nosedive. But bundling music charges into ISP bills is not the way to go, he says. http://www.news.com/8301-10784_3-9905661-7.html?tag=nefd.lede   And from the glorious IP Kat an update in this area: It looked like Internet service provider and telecom company Virgin Media was going to become the first UK internet company to crack down on subscribers who download music illegally. While record labels are lobbying for a “three strikes” regime that would see those who collect pirated material disconnected from the internet, Virgin has been working with music trade body BPI on a pilot project which could see “dozens of customers” sent warning letters. This trial will go live within months, with the threat (or “option”) of disconnecting customers who ignore the warnings. The trial is also open to film and television studios. Says the Sunday Telegraph (30/03/08): “This would be the first time a British internet company has publicly moved to share responsibility for curbing piracy. Two years of negotiations between record labels and internet service…

New data law could benefit music pirates
Germany

COPYRIGHT Internet, record labels ARTICLE Germany ‘s music industry fears that a new telephone data law could become a carte blanche for Internet users, who download tunes illegally. Until now, they’ve traced music pirates with the help of phone records – this Deutsche Welle article explores the ‘privacy vs property’ tension.  http://www.dw-world.de/dw/article/0,2144,3220471,00.html 

Universal brief says throwing away promotional CDs is “piracy”
Copyright , Record Labels / May 2008
USA

COPYRIGHT Record labels A brief filed by Universal Music Group (UMG) in federal court says that giving away or even throwing out a promotional CD is piracy. The brief was filed in the case of UMG against Troy Augusto (Roast Beast Music Collectibles), an eBay based service that sells collectible promo CDs which are brought at used record stores around Los Angeles and resells them on eBay. Although the CDs have “promotional use only” labels, both he and the EFF (who took his case after UMG sued him) feel that he is covered by the “First Sale” doctrine in US law which allows purchasers of copyrighted material to sell that which they have purchased without violating the copyright laws as the copyright owner has derived all revenue from the so-called first sale, and cannot control the future disposition of the article originally sold. the copyright owner only has right to prevent others from copying and distributing (for free or for profit) copies of a work covered by a valid copyright. UMG argue that each promotional item is a copyrighted work and when they initially are distributed they are not sold – so they technically remain the property of the record…

Bollywood filmmaker pays up for plagiarised song
India

COPYRIGHT Music publishing A Bollywood filmmaker has been ordered to pay 20 million rupees ($5 million) to a songwriter after the Bombay High Court ruled that Mumbai-based Rakesh Roshan’s film production company Filmkraft had copied fromm a sing by composer Ram Sampath. Sampath claimed two tracks and two remixes from Roshan’s latest film “Krazzy 4” were lifted from a jingle Sampath composed last year for a commercial for Sony Ericsson mobiles. Mr Justice D. G. Karnik ruled that Rakesh and his composer brother, Rajesh Roshan (who composed the “Krazzy 4” soundtrack), were “prima facie guilty of copyright violations and plagiarism,” adding that “to my untrained ear, the music (in the two works) appeared to be similar.” Initially the the court had passed a stay order (injunction) blocking the film’s release until the disputed songs were removed. But that order was lifted and the case dismissed after Filmkraft agreed to pay Sampath damages and give due credit. http://www.billboard.biz/bbbiz/content_display/industry/e3i841febf193b81360fcda7b5de73a7250

The music industry responds to the Gowers report
UK

COPYRIGHT Record labels, music publishing The Music Business Group – which represents a number of music industry associations – including the BPI, AIM (independent labels), MU (Musicians Union), MMF (Music Managers), PPL, BMR (British Music Rights) and the MCPS/PRS – is putting together a united response the Gowers Review of UK copyright law which they will present to the UK Intellectual Property Office today. The document will give the collected music industry’s viewpoint on six recommendations made by Gowers in his 2006 review including the suggestion that consumers should be given the right to make private copies of copyright material they have already legally purchased (the private copying exception) which Gowers supports. The various members of the Group seem to have differing views on this although the possibility of a levy to compensate songwriters, music publishers, record labels and recording artists has been forwarded as one solution. BMR, which lobbies on behalf of composers, songwriters and music publishers, has recently commissioned research that shows s that 95% of the 1,158 UK sample group have engaged in some form of illegal copying and amongst 16-24 year olds home copying – transferring tracks from borrowed CDs to a hard drive, CDR or MP3 player, is the…

Australian police bust music piracy ring
Copyright , Record Labels / May 2008
Australia
New Zealand

COPYRIGHT Record labels The Australian Federal Police have busted an international piracy ring that produced and sold pirated music in a clandestine manufacture and export operation from Sydney. In a two day operation that involved executing 11 search warrants across Sydney, the police raided private residences, an optical disc manufacturing plant and several retailers. The police seized thousands of pirated CDs and album covers and charged a 36-year-old man with copyright infringement. He was bailed and will appear before the Central Local Court on May 13. The retailers were selling pirate compilations made by “Fresh off the Boat Entertainment”, which included illegally reproduced songs by artists such as Justin Timberlake, UB40 and Gnarls Barkley. The anti-piracy arm of the Australian music industry, Music Industry Piracy Investigations (MIPI ) helped the police with its investigation, said the pirate compilations uncovered in the Sydney raids had also been found in New Zealand and Pacific Island territories such as Fiji. MIPI and the Recording Industry Association of New Zealand, have begun enforcement action against an importer and CD manufacturing plant that are allegedly stocking and distributing the pirate compilations Criminal penalties for copyright infringement in Australia are up to $60,500 and 5 years…

Zappa Estate take on Zappanale Festival
Live Events , Trade Mark / May 2008
Germany

TRADE MARK  Live events  The future of a music festival set up in honour of Frank Zappa is in doubt following a lawsuit brought against the organisers by Zappa’s widow Gail. The Zappanale festival has been running in the German village of Bad Doberan since 1990 as a way of celebrating the records of the avant-garde musician whose records had previously been illegal under the East German Communist regime. Gail Zappa, who formed the Zappa Family Trust in 2002, is demanding that she has a say in which Zappa tribute acts play the event, that the festival’s logo – Frank Zappa’s trademark moustache and goatee – be scrapped, that a statue of the musician in the village be pulled down and that the organizers pay £200,000 for the right to use the Zappa name. Festival organisers counter by saying that they registered the Zappanale mark almost 20 years ago. The Dusseldorf court will consider the dispute. From CMU Daily  http://www.cmumusicnetwork.co.uk

“Mr Spicy” trade mark case clarifies law on keyword advertising
Trade Mark / May 2008
UK

TRADE MARK All areas ARTICLE  By Laurie Kaye & Yasmin Joomraty, Laurence Kaye Solicitors Trade mark law is really beginning to get its head around the workings of search engine and the Internet. As you’ll read, a search engine isn’t regarded – at least for UK trade mark law purposes – as “using” (and so infringing) a trade mark when a trade marked term is displayed by a search engine as a sponsored link. The case only concerned the position of the search engine. It didn’t look at the position of the advertiser who bought the search term. Here’s the detail. A recent UK High Court decision, Wilson v Yahoo! UK Ltd, has clarified the law on keyword advertising. The use of keywords for sponsored search results does not amount to trade mark infringement. As such, advertisers who sponsor links prompted by search terms are not at risk of infringing a third party’s trade mark, even if the search terms entered (and subsequent keywords displayed) form all or part of that third party’s trade mark. The claimant in this case, Mr Wilson, owned a community trade mark (CTM) for “Mr Spicy.” When users of Yahoo!’s search engine entered the search terms…

Four guilty of CD piracy
Copyright , Record Labels / April 2008
Czech Republic
UK

COPYRIGHT Record labels Four pirate CD traders have been convicted for running a £5 million illegal operation that imported discs from the Czech Republic and sold them in shops and stalls across South East England.  The recording industry’s UK and international trade bodies, the BPI and the IFPI welcomed the verdict at Snaresbrook Crown Court finding the four guilty of conspiracy to infringe copyright.  The case was brought by the Fraud Prosecution Service acting on information from the two music industry organisations.  A jury found two of the defendants guilty, while the other two had previously pleaded guilty in January 2008. Farhat Nissa and Mohammed Shaikh were found guilty after an eight-week trial. The court heard that Nissa’s company, SFH, one of the largest independent brokers, based in Hatfield, Hertfordshire, was commissioned by Waseem Mir, a market trader, and others to import the CDs.  Waseem Mir admitted supplying market stalls and shops throughout the South East. The operation involved the manufacture and distribution of unlicensed pirate urban music compilations. Some of these became brands in their own right with the “In The Club” series running for more than 15 editions.  BPI made a test purchase of a CD which was…

Irish labels take on Eircom
Copyright , Internet , Record Labels / April 2008
France
Germany
Italy
Japan
Spain
Sweden
UK

COPYRIGHT Record labels, internet The Irish recorded music sector’s four major companies – EMI, Sony BMG, Universal Music, and Warner Music (together as the Irish Recorded Music Association) have decided to take Irish Internet Service Provider (ISP) Eircom to court in order to force them to implement countermeasures against piracy. Willie Kavanagh, Chairman of the Irish Recorded Music Association and Managing Director of EMI Ireland, blamed the action on a “dramatic and accelerating decline” in the Irish music industry’s income: 30% over the past six years, up to 2007. Kavanagh attributed a “substantial portion” of that decline to the increasing use of broadband, facilitating a sharp increase in the use of download services, like BitTorrent or LimeWire. Sales dropped from €146m ($224m USD, not counting inflation) in 2001 to €102m ($157m USD) in 2007, said Kavanagh. The case represents the first of its kind in Eire with record labels taking the ISP to court instead of individual file swappers and attempts to compel Eircom, under the Irish Copyrights and Related Rights Act of 2000, to implement specific countermeasures to prevent its network from being exploited for piracy. Last October Eircomm said that it was in no position to consider monitoring users and was under no…

Market owners prosecuted for allowing the sale of counterfeit goods
Copyright , Record Labels / April 2008
China
UK

COPYRIGHT Record labels Following in from our top story physical piracy, the owners of an open air market in Bovingdon, Hertfordshire have been ordered to pay over a total of £300,000 after being found guilty of allowing and profiting from the sale of counterfeit goods at their market. Wendy Fair Markets Ltd and its directors Nicholas Hobday and Sally Ward were ordered to pay back the £250,000 in rent money it was estimated they had taken off the owners of market stalls that sold pirated goods, and pay it, in addition to £50,000 in legal fees, back to the intellectual property industries that had lost out because of the bootlegger in the first time the owners of a market that enables bootleggers to reach their customers have been successfully prosecuted for IP crimes. It is hoped the ruling will make other market owners more vigilant in ensuring the stalls they host do not violate any intellectual property rights. Elsewhere in anti-piracy news, two Scottish music pirates have been ordered to pay £400,000 under the Proceeds Of Crime Act, a verdict which labels hope will deter others from getting involved in the illegal distribution and sale of bootleg CDs. The two men,…

Baidu faces fresh legal challenge in China
Copyright , Internet , Record Labels / April 2008
China

COPYRIGHT Record labels, internet   China ‘s leading search engine, Baidu is facing a new lawsuit just a month after it won a similar court challenge which freed Baidu from responsibility for illegal download sites linked too. An action against Yahoo at the same time was more successful as the action held that Yahoo was guilty of contributory infringement after failing to act on take down notices targeting links to illegal sites – sent from the labels. China ‘s music rights organization, the Music Copyright Society of China (MCSC) and a leading Chinese digital music distributor, R2G announced the anti-piracy action against Baidu. MCSC have filed a lawsuit, citing infringement of at least 50 songs and is seeking compensation totaling one million yuan ($140,619) and an end to alleged violations. R2G has also issued a letter threatening legal action against Baidu requesting the de-linking of all its unlicensed content. Baidu asserts it has placed great importance on intellectual property rights protection and formulated measures to safeguard the rights of intellectual property right holders and the search engine claims that it has been exploring new types of commercial models to tackle copyright disputes, such as disc promotions and advertisements. In December, the People’s High…

Beach Boys settle dispute over name
Artists , Trade Mark / April 2008
USA

TRADE MARK Artists The surviving members of the beach boys (Brian Wilson, Al Jardine and Mike Love) have settled a decade long dispute over the use of the “Beach Boys” mark which the original members joint company (Brothers Records) granted to Love in 1998. The agreement was reached after two days of talks mediated by a Los Angeles superior court judge and covers the payment of Love’s outstanding estimated $2 million legal bills following his successful claims and the use of the band’s name in the live environment. The Guardian 22 March 2008 See past details of Love’s action against Wilson in Music Law Updates December 2005 below: Beach Boy Mike Love has filed a law suit against cousin and former Beach Boy Brian Wilson over the latter’s release of the concept album Smile which Wilson released in 2004 and a free CD giveway. The suit alleges the misappropriation of Love’s songs, likeness and the Beach Boys trademark. Smile was first recorded in 1967 but was disowned by Love and the album was, in effect, a Wilson solo project. However album was never completed and Wilson suffered a breakdown and withdrew from public life. Wilson was the Beach Boys main songwriter and although most…

Copyright Tribunal reforms proposed
Copyright / April 2008
UK

COPYRIGHT All Areas The UK’s Parliament’s Innovation, Universities and Skills Select Committee has called for reform of the UK Copyright Tribunal in light of recent comments that the UK’s copyright court was “antiquated” and “in urgent need of reform”. Given the increasing complexity of copyright issues in the digital age the Committee suggested a paid Tribunal chair and called for more expertise among those who offer independent advice to that chief. The recent Gowers Review also suggested an easier to use fast-track service for copyright disputes involving smaller parties – say a pub or café – which would give them better access to the Tribunal in their royalty disputes (with eg the PPL or PRS). The UK Intellectual Property Office has also reviewed the Tribunal although its proposals have not as yet been made.

Apple Corp to take action over Hamburg tapes
USA

COPYRIGHT / CONTRACT Artists, record labels The Beatles company, Apple Corps, has confirmed that it is planning legal action against Miami based Fuego Entertainment, Inc., which is planning on releasing live recordings of the Beatles singing various cover version during their pre-fame residency days in Hamburg. Apple have filed a suit in the Miami Federal Court. Fuego say they acquired the rights to the recordings from Jeffrey Collins, a producer and promoter who says he represented the DJ who actually recorded the live Beatles show at Hamburg’s Star Club back in 1962. Collins says the DJ who recorded the gig had permission to do so from the venue and it appears the permission of the band. Under UK copyright law the copyright would be owned by the person who facilitated the recordings – here the DJ. Ben Challis adds “in the UK, S9 of the Copyright Designs & Patents Act 1988 does provide that, in the absence of any contractual provisions to the contrary, the person who makes the arrangements necessary for the making of the recording (eg makes the arrangements, pays for and/or facilitates a sound recording) will be the owner. The case of Bassey v Icon limits this to the…

Pumpkins to sue EMI/Virgin over Pepsi Stuff promotion
Artists , Contract , Record Labels / April 2008
USA

CONTRACT Artists, record labels The Smashing Pumpkins are suing Virgin Records alleging that the label has breached its contract with the band by using the band’s name and music in promotional deals without their permission. The band allege that this has hurt the band’s image credibility with fans. The lawsuit has been filed in Los Angeles Superior Court and the group say they have “worked hard for over two decades to accumulate a considerable amount of goodwill in the eyes of the public,” and that Virgin’s use of the band in a “Pepsi Stuff” promotion with Amazon.com and Pepsi Co. threatens their reputation for “artistic integrity.” Pepsi Stuff was an MP3 giveaway promotion in the US which was designed to promote the launch of Amazon’s DRM-free download service. Three of the majors made tracks available for the promotion, which music fans could download for free in return for vouchers from Pepsi bottles and the like. The band claim that their agreement with Virgin does not give Virgin the right to use the band in promotional campaigns to sell outside products. The lawsuit demands that Virgin pay with the profits earned in the promotion and asks for an injunction against using the Pumpkins’ name or music in the future. http://www.billboard.com/bbcom/news/article_display.jsp?vnu_content_id=1003732670

Has Italy legalised P2P file sharing?
Copyright , Internet / March 2008
Italy

COPYRIGHT Internet The Italian parliament may have unwittingly legalized sharing music over P2P networks. A new copyright law, passed by both houses of parliament, would allow Italians to freely share music over the Internet as long as it was noncommercial and the music “degraded”. Italian copyright attorney Andrea Monti told Italian paper La Republica that whoever authored the law failed to take into account that the word “degraded” has a very precise meaning when it comes to computer files. Slashdot points out that all music sold on the major music download sites is degraded in some form or another so in theory music fans would be able to freely share their music libraries over P2P networks although the law does limit such sharing to “educational or scientific” use. The legislation still needs to be published in the Italian Official Journal to pass into law. The Recording Industry in Europe has already suffered a number of setbacks including last months ruling by the European Court of Justice (Promusicae v Telefonica, see below) setting out guidelines that domestic courts must use when balancing the rights of copyright owners against the privacy rights of consumers in civil cases and German prosecutors have refused…

Productores de Música de España (Promusicae) v Telefónica de España C275/06
Copyright , Internet , Record Labels / March 2008
EU

COPYRIGHT Internet, record labels Music and film companies suffered a partial setback in their fight against internet piracy after the European Court of Justice ruled that European countries do not have to compel telecoms companies and other internet service providers to disclose information about customers suspected of illegally sharing music files online, the region’s top court ruled yesterday. However, the Court said member states did need to ensure that a “fair balance” was struck between the privacy rights of individuals and the rights of intellectual property owners – such as music and film producers – seeking to pursue civil legal claims over copyright infringement. But IP rights holders insisted the decision was not discouraging. “The court has provided a welcome reminder that there is a balance in law between the rights to privacy and other fundamental rights,” said Christopher Marcich at the Motion Picture Association and the IFPI, which represents the recording industry, put a positive spin on the decision saying “The judgment means that music rights holders can still take actions to enforce their rights, and it has sent out a clear signal that member states have to get the right balance between privacy and enforcement of IP rights.”…

Good news for the labels as the UK follows France in looking to ISPs
Copyright , Internet , Record Labels / March 2008
France
UK

COPYRIGHT Record labels, internet But whilst in Spain, Italy, Germany and Switzerland the record labels faced up to bad news in their ongoing battle against internet piracy and illegal downloading, in The United Kingdom the Department of Culture Media and Sport (DCMS) launched a green paper on the creative industries and one new suggestion was a “three strikes and you’re out law” to combat illegal downloads. Under the proposal, UK internet users will be monitored by their ISP’s for illegal downloads, and those caught will receive an e-mail warning in the first instance, internet suspension the second time, and then termination of their contract on the third strike. A similar law was proposed in France in November 2007 and Australian legislators are considering the idea too. In the UK, broadband firms which fail to enforce the rules could be prosecuted, and the details of customers suspected of making illegal downloads would be made available to the courts. I n Denmark, the Danish Courts have barred internet access to The Pirate Bay download site (although it seems the publicity has generated new traffic to the site). The organisers of the site are already facing criminal prosecution in Sweden (on both stories…

The Recording Industry steps up their campaign against piracy in China
Copyright , Internet , Record Labels / March 2008
China

COPYRIGHT Record labels, internet ***We have become a bit concerned about the accuracy of some of the IFPI’s reports recently and would like to point readers to an article on the Music 2.0 website regarding the background to the IFPI’s actions against Baidu and Yahoo! China: http://www.music2dot0.com/archives/95*** With that in mind, we should make it clear that the following is taken from an IFPI press release The IFPI has announced a series of new steps to “try to develop a music business in China based on respect rather than blatant violation of copyright laws” saying that legal proceedings have been filed today against the country’s biggest internet company, Baidu. Separate actions have also been brought against Sohu and its associate company Sogou.  Meanwhile, Yahoo! China faces fresh proceedings following its refusal to comply with the court ruling in December confirming it violated Chinese law by committing mass copyright infringement.  All of the Chinese companies involved operate similar services based on delivering music to their users via “deep links” to hundreds of thousands of infringing tracks on third party sites, with the aim of driving their own advertising revenue.  Such services have been confirmed as in breach of copyright by the December…

Pirate Bay blocked in Denmark
Copyright , Internet / March 2008
Denmark

COPYRIGHT Internet There was more good news for the record labels in Denmark. Following the news Swedish prosecutors last week charged four men behind The Pirate Bay, a Danish court has now ordered Internet Service Provider Tele2 to block access to the BitTorrent tracker, meaning anyone accessing the internet in Denmark via Tele2 will no longer be able access the Bay. It is believed that the ISP may appeal the order as, like many ISPs, it does not feel it is right for ISPs to police their members’ activities. Whilst Tele2 is only one of several ISPs in Denmark, the legal precedent could be extended to other internet providers, and beyond the Danish jurisdiction also – the Finnish division of the IFPI is reportedly already considering pursuing a similar order through the courts there.

Microsoft survey on copyright theft points to need to educate
Copyright / March 2008
UK
USA

COPYRIGHT All areas Microsoft has announced the results of a new survey which has prompted the software company to launch a campaign to teach teens about intellectual property rights and the risks they face when breaking the law. The survey showed that teens appear to be willing to curtail illegal downloading when told they face fines or jail time. Microsoft’s survey found that about half of the teenagers surveyed (49%) said they are not familiar with the rules and guidelines for downloading content from the Internet. Only 11% understood the rules well, and of those, 82% said downloading content illegally merits punishment. Among those unfamiliar with the law, only 57% supported punishment for intellectual property violations. More worryingly for the music industry, The Microsoft survey also found that many teens believe online music is overpriced. It found that 41% of teens believe the cost to download a song should be between $0.50 and $1. Twenty-six percent of respondents said digital songs should cost less than $0.50 and 21% said online music should be free. The Company has turned to Topics Education, a developer of custom curricula, to create a curriculum called Intellectual Property Rights Education for US middle and high school teachers….

The future’s bright, the future’s free
Copyright , Internet , Record Labels / March 2008
UK

COPYRIGHT Record labels, internet ARTICLE:  Cassandra Williams, postgraduate law student, The College of Law Radiohead kicked off the new trend that is now seemingly sweeping the music industry, allowing fans to choose what price to pay for the download of their new album ‘In Rainbows’ – effectively in many cases giving it away for free. To many this may have seemed like a hollow gesture as the album was then released on a physical format as well as part of a box set. And many argued that the majority of artists will not be able to survive without a record company behind them. In fact some commentators added that rather than helping make music more accessible there is a possibility that Radiohead’s model would actually deter record companies from developing new artists and actually have a detrimental effect upon the industry. But now both The Futureheads and the Guillemots have announced that they shall be ‘giving’ their music away for free. The Futureheads, who are now on their own record label, emailed a free new track to fans on December 25 th to wish them a Merry Christmas. The track was sent to the email of anyone who has signed…

France backs term extension for sound recordings
Artists , Copyright , Record Labels / March 2008
France

COPYRIGHT Record labels, artists It seems that the show’s not over for an extension to the copyright term of sound recordings. According to an article in the Times, France is due to make the extension a priority of its upcoming six-month presidency of the EU, despite opposition from the UK and Germany. According to the French Culture Minister, Christine Albanel. “Today, whole swaths of the recording catalogue of the 1950s and 1960s, representing a significant part of the national pop heritage, are falling progressively into the public domain…That creates an obvious problem of fairness. Artists who began their careers very young are being stripped today of all remuneration from their first recordings.” The illustrious IPKat says it cannot quite share Ms Albanel’s indignation adding that “there aren’t many other industries where success in your youth guarantees you an income for life”. See more on this from the EC and Scotland below.http://ipkitten.blogspot.com/2008/02/french-connections.html

Now Scotland pushes for term extension independence
Artists , Copyright , Record Labels / March 2008
UK

COPYRIGHT Record labels, artists The wonderful IPKat reports that The IPKat that a Scottish MSP has put forward a Private Members’ Bill titled “Sound Recordings (Copyright Term Extension) Bill 2007-08“, with the apparent aim of “extend[ing] beyond 50 years the copyright term of sound recordings; and for connected purposes“. What exactly this would entail is not yet clear, as the bill has not been published. It is, however, due for its second reading in the UK Parliament on 7 March 2008, when we should be able to find out more. This seems to be in line with European Commissioner Charlie McCreevy who says that he wants the same thing Europe. The MP in question is Peter Wisehart who just happens to be an ex-member of Scottish folk-rock group Runrig as well as being SNP Member of Parliament for the Perth and Perthshire North constituency. On the latest update of the House of Commons Register of members Interests he states, “I receive royalty payments from EMI/Ridge Records [Runrig’s record company] for my recorded works with Runrig, with whom I serve as an unremunerated director. I receive payments for my published works from the Performing Rights Society.” The IPKat adds that “whilst…

EU proposes extending the term for sound recordings
EU

COPYRIGHT Record labels, artists, internet Having been knocked back in the UK in the Gowers Report, record labels and artists will be delighted with the news that European Commissioner Charlie McCreevy feels that performing artists should no longer be the ‘poor cousins’ of the music business, and is proposing an increase in the term of copyright for sound recordings from 50 to 95 years across Europe saying “I strongly believe that copyright protection for Europe’s performers represents a moral right to control the use of their work and earn a living from their performances. I have not seen a convincing reason why a composer of music should benefit from a term of copyright which extends to the composer’s life and 70 years beyond, while the performer should only enjoy 50 years, often not even covering his lifetime It is the performer who gives life to the composition and while most of us have no idea who wrote our favourite song – we can usually name the performer“. The proposal is set against the copyright term for music copyright (songs and lyrics are protected for the life of author plus 70 years), the position in the USA (where copyright in sound…

Clear Channel in multi million dollar settlement over Great White Tragedy
Health & Safety , Live Events / March 2008
USA

HEALTH & SAFETY Live event industry (From The CMU Daily) Now here’s a warning to any US media entering into co-promotion deals with live music companies. American radio major Clear Channel may pay out $22 million in relation to that much previously reported 2003 fire at a Great White gig in Rhode Island where 100 people died. As previously reported, 100 people were killed and double that injured when The Station nightclub in West Warwick burned down during the 2003 gig by the LA rock band. The fire was caused by pyrotechnics used during the gig, and there was much dispute between the owners of the venue and the band’s management as to whether permission had been granted by the former to the latter to use the pyros in a venue that, it transpired, had very flammable sound proofing. Club owners Jeffrey and Michael Derderian and Great White tour manager Dan Biechele all received criminal convictions: Biechele received a four year prison term with a further eleven years suspended in relation to 100 counts of involuntary manslaughter. After a bitterly contested plea bargain, Michael Derderian, who purchased the foam for the venue, received a four year prison term and both…

French love attracts labour laws
Artists , Employment Law / March 2008
France

EMPLOYMENT Artists, television Contestants on the French equivalent of Temptation Island, I’lle de la Tentation, have been awarded substantial payouts by the Paris Appeal Court which found their activities on the island were subject to full French Employment laws. Production company Glem, the reality division of broadcaster TF1, had contracted to pay each contestant E1,525 (about £1,200) as an advance payment against Image/merchandising rights. But the court decided that during the twelve day ordeal the contestants were employed as production staff and they worked 24 hors a day, 7 days a week. The French maximum working week is 35 hours and Glem were ordered to pay the three claimant contestants E8,176 in overtime, E817 for holiday pay, E500 for unfair dismissal and E1,500 for wrongful termination of contract with a further E16,000 awarded for illegal employment. Glem had said the contestants were engaged in entertainment, not work. In the UK we have not heard about any claims against the contracts contestants enter into with the producers of programmes like Big Brother and Castaway – but a number of contestants most notably Jade Goody have become national celebrities and have made substantial sums from a variety of new revenues streams after…

Universal faces royalty dispute
Artists , Contract , Record Labels / March 2008
UK

CONTRACTS Record labels, artists CMU Daily report that Universal Music and one of its subsidiaries have “pervasively and systematically breached” artist agreements since at least 1998 by employing devious accounting tricks that conned artists out of royalties they were due” in a claim brought by high profile classic artists in a lawsuit launched against the major record company in the New York courts last week. Among the artists making the claim (or the estates of artists in the case of the dead ones) were Patti Page, Count Basie, Benny Goodman, Les Brown, Richard Hayman, Dick Hyman, Woody Herman, Kitty Kallen, Frankie Laine, Tony Martin, John Mills, Jerry Murad, Sister Rosetta Tharpe, and Sarah Vaughn. The litigation claims Universal provided false information in its biannual royalty reports to artists between May 1999 and February 2007. It says: “Despite a relationship based on trust and manifold contractual obligations, and despite the fact that defendants realised an overwhelming windfall to both its finances and reputation as a result of this relationship” the major “utterly failed” to meet its contractual obligations. The lawsuit is seeking $6.07 million in allegedly lost royalties plus legal costs and punitive damages. However, Universal has denied any wrong doing,…

Busted case finally makes it to court
Artists , Contract / March 2008
UK

CONTRACT Artists The claim by two original members of boy band Busted, Ki McPhail and an Owen Doyle, that they were forced out of the band and made to sign away lucrative intellectual property rights in songs has finally reached court. The action, dating back to the early days of Busted in 2002, has come about as McPhail and Doyle say that before being pushed out they co-wrote some of the hit songs that appeared on Busted’s eponymous and very successful debut album. As a result they want a cut of the royalties those songs have generated. Both claimants signed an agreement on their departure giving up all claim to the band’s intellectual property, but both now claim that agreement should be set aside for various reasons, including the fact that they allegedly weren’t told of Universal’s interest in the band and their music before entering into the agreement and that their management owed them a duty as their managers to not let them sign such a foolish contract. It appears that their then managers not only let them sign the agreement but actually wrote it too. There is a further allegation that the contract was signed under duress. McPhail…

Medianet repond to publisher’s lawsuit
USA

COPYRIGHT, LICENSING Music publishing, internet Digital music provider MediaNet – formerly MusicNet – has hit out at the US’s National Music Publisher Association who have begun legal action against them. The NMPA have accused MediaNet of reneging on past commitments to pay publishing royalties – both ‘performing’ and ‘mechanical’ kind – on their on-demand and limited play download services. There is an ongoing dispute over what publishing royalties such MediaNet services should pay – especially with mechanical royalties – but the publishers argue that MediaNet have changed their position regarding paying some royalties for past services once an agreement is finally reached. MediaNet has denied any wrongdoing, and criticised the legal action arguing it is one of the few organisations that actually has a long history of working with music companies to properly licence digital music services, in a domain dominated by illegal unlicensed music operations. MediaNet provides the back-end to digital music services operated by a number of other brands and retailers. From the CMU Daily www.cmumusicnetwork.co.uk

Fleetwood loses claim for BBC masters
Contract , Record Labels / March 2008
UK
USA

CONTRACT Record labels Mick Fleetwood of Fleetwood Mac has lost his long-running legal battle against the Beeb in relation to the distribution rights of session recordings from the BBC’s archives. The dispute was between Fleetwood’s company Bee Load Ltd and the BBC’s commercial division BBC Worldwide. The former entered into a contract with the latter back in 2001 giving Fleetwood’s company the right to release CDs featuring various BBC recordings of artists like Bruce Springsteen, U2, The Who, The Stones, The Beatles, Elton John, Santana and Led Zeppelin. The relationship fell apart in 2003, though, and Fleetwood claimed the Beeb were in breach of contract for refusing to work with his company, and sued through the US courts for damages (Bee Load being primarily based in the US). However, a judge in Maine last week ruled in favour of the BBC, concluding that it was Fleetwood’s business partner, Joseph McNulty, who caused the business deal to fault, because he became “obsessed” with gaining exclusivity rights for distributing the BBC recordings, even though such rights were not part of the 2001 deal. BBC Worldwide, the judge ruled, did everything they could do to make the deal work despite McNulty’s obsession with…

Visions of an online cartel
USA

COMPETITION Record labels, internet ARTICLE LINK  An interesting blog by Greg Sandoval linking US anti-trust law to the possibility of the major labels jointly participating in an online music subscription service http://www.news.com/8301-10784_3-9867814-7.html?tag=newsmap