Tenenbaum appeals, Bono appeals …… who should pay for what in the digital age … if anyone should pay at all?
Copyright , Internet , Record Labels / February 2010

COPYRIGHT Internet, record labels Joel Tenenbaum, who was ordered to pay $675,000 for illegally downloading 30 sound recordings after his jury trial in the USA, is to ask for a re-trial. Among other claims, lawyers for Tenenbaum say that the verdict was unconstitutionally excessive –  the argument being that a penalty of $22,500 a song is “obviously unreasonable” – although it is (of course) well within statutory limits. Tenebaum’s lawyer, Charles Nesson, the Harvard academic, is using an argument from the ninety year old Supreme Court decision in St. Louis, I.M. & Sou. Ry. Co. v. Williams, 251 U.S. 63 (1919) to support the appeal. The US Copyright Act allows penalties ranging from $750 to $150,000 per infringement at the jury’s discretion. Indeed the jury’s decision in the Tenenbaum case is not without precedent: in the USA’s first major file sharing claim, single mum Jammie Thomas-Rasset was ordered by a Minnesota court to pay $1.92 million for file sharing 24 songs. But remarkably, the Thomas-Rasset’s jury damages have been reduced – by 97%, with US District Judge Michael Davis calling the jury’s penalty “monstrous and shocking” and reducing the $1.92 million to $2,250 per song, or about $54,000 saying “The need…

Are they finally getting it right?
Copyright , Internet / February 2010

COPYRIGHT Internet ARTICLE:  By Cassandra Williams, post-graduate student at the College of Law The Government, Record Companies and the Music Industry as a whole have often been accused of not moving with the times, being unable to monetise the digital age and of attacking fans and music lovers for infringement rather than the system, if events of the last month are anything to go by it looks as though they may be, finally, getting on the right track. The Government has backtracked on Clause 17 of its Digital Economy Bill, a move some have branded a distraction, in order to sidetrack opponents from the controversial issue of “three strikes”,  This Clause would give the Secretary Of State responsible for intellectual property the power to introduce new copyright rules without consulting parliament, an entirely undemocratic right. The uproar over this particular clause has diverted many away from the introduction of a three-strikes anti-piracy programme that could result in persistent illegal file-sharers having their net connections suspended, a move that was struck by France’s highest constitutional authority who ruled that Internet access is a fundamental human right and thereby killed the three-strikes provision (Torrent freak). In a move mirroring the Spanish legislators the…

Despite piracy, digital sales now represent 27% of label’s revenue
Copyright , Internet , Record Labels / February 2010

COPYRIGHT Internet, record labels The IFPI’s Digital Music Report 2010 shows that global digital music trade revenues reach US$4.2 billion, up 12% in 2009 are representing over a quarter of all recorded music revenue worldwide. Over over  400 services are licensed worldwide. The Report outlines how music companies are diversifying their revenue streams, offering new ways for consumers to buy and access music. These include: subscription services; music services bundled with devices and broadband subscriptions; streaming services with applications for mobile devices; advertising-supported services that offer premium services; and online music video services. However the IFPI says that despite the continuing growth of the digital music business –illegal file-sharing and other forms of online piracy are eroding investment and sales of local music in major markets.  In particular, three countries known for the historic vibrancy and influence of their music and musicians – Spain, France, Brazil – are suffering acutely, with local artist album sales or the number of releases plummeting. The IFPI say that governments are gradually moving towards legislation requiring ISPs to curb digital piracy but adds that progress needs to be much quicker.  In 2009, France, South Korea and Taiwan adopted new laws to address the label’s crisis. Other…

UK’s Digital Economy Bill enters committee stage
Copyright / February 2010

COPYRIGHT All areas The Digital Economy Bill has now entered the committee stage following two readings in that the House of Lords. The Lords committee will now spend time considering various aspects of the new legislation including proposals for protecting copyright online and the “three strikes” system that could lead to file sharers having their net connections suspended, the role and responsibilities of media regulator OfCom in the digital domain, “clause seventeen” which would give Secretary Of State powers to amend copyright without recourse to Parliament and the responsibilities of the internet service providers for tracking or stopping any piracy undertaken by ISP’s customers (currently set out in clause four on the Bill).

Music Publishers Settle Suit Against Unlicensed Lyrics Site
Copyright , Internet , Music Publishing / February 2010

COPYRIGHT Internet, Music publishing The USA’s National Music Publishers Association (NMPA) has said that it has successfully settled its copyright infringement suit brought by members Peermusic, Warner Chappell and Bug Music against Motive Force and Sean Colombo, operators of the unlicensed LyricWiki database of song lyrics. Under the terms, Motive Force and Mr. Colombo will be permanently enjoined from further using unlicensed song lyrics on websites or applications, and will “turn over funds associated with the exploitation of the unauthorized content” saying that all unlicensed content had now moved to a licensed lyric website. The NMPA says that it’s continuing with its action against the alleged unlicensed use of lyrics against LiveUniverse and owner Brad Greenspan, the co-founder of MySpace. http://www.dmwmedia.com/news/2010/01/05/music-publishers-settle-suit-against-unlicensed-lyrics-site

BMI test the law on ringbacks
Copyright , Music Publishing / February 2010

COPYRIGHT Music Publishing Who pays the songwriter and for what when you ask your mobile operator to send you back a track – a ringback? US publishing collecting society BMI has launched a lawsuit against T-Mobile for payment for their ringback tones service – but there seems to be some confusion over whether the payment should be mechanical (as a single download) or a performance royalty (as a stream). This is not the first time the courts have been troubled on mobile music; ASCAP recently lost a legal attempt to get a royalty from traditional ringtone sales. They argued that while a mechanical royalty was paid when the ring-tone was first downloaded, they should also get a fee because there was a “public performance” of the track every time a user’s phone went off. The US court hearing the case did not concur. BMI told the Register that “despite extensive BMI efforts spanning several years, T-Mobile has not signed a licence agreement”.

Oink’s Ellis found not guilty

COPYRIGHT Internet, record labels, music publishing The trial of the Alan Ellis, one of the main people behind the infamous ‘Oink’ Peer-2-Peer invite only file swapping site has ended at Teeside Crown Court. The file-sharing community had just under 200,000 users when it was closed down in 2007, who between them had downloaded some 21 million illegal songs. Six men were arrested in raids in the UK and Amsterdam, four of whom pleaded guilty to copyright infringement in late 2008, receiving community service and fines for their crimes. Two cases remained and the first heard was against Ellis, aged 26, who founded the community. He was charged with conspiracy to defraud. Ellis had denied liability for copyright infringement, using the (classic) defence that the Oink website and server did not, in themselves, host any unlicensed content, saying that it merely provided a forum through which others could share music. As the case centered on an accusation of fraud, and prosecutors also had to prove Ellis made a profit and prosecutors moved to show the amount of money made by Ellis by operating the venture. It appeared from evidence given that there wasn’t a subscription fee as such for using Oink,…

Deep linking does not infringe copyright in China
Copyright , Internet / February 2010

COPYRIGHT Internet The Beijing No. 1 Intermediate People’s Court has held that deep linking to sites hosting MP3 files, whether legal or not, does not violate copyright law in China, clearing China’s dominant search engine Baidu of copyright charges brought by the IFPI, the music industry trade group, saying that merely providing search results doesn’t qualify as infringement. The case, launched in February 2008 accused Baidu and a handful of other Chinese companies of supporting piracy. The charge was that Baidu’s results provided links to file sharing sites and, in many cases, direct links to illegally shared MP3s on various servers around the world. The IFPI said it unsuccessfully attempted to negotiate a resolution with Baidu, leaving it with no other choice but to sue over the deep linking practice. The Beijing court disagreed with the definition of copyright infringement. In its ruling, the court said that the IFPI failed to identify any of the sites that were allegedly hosting the illegal music, and Baidu itself was not hosting the songs. The Baidu case actually represents the IFPI’s second go at the search engine—its first case, brought in 2005, was thrown out by the same court saying that the files…

Internet consumer attitudes examined by SABIP
Copyright , Internet / February 2010

COPYRIGHT All areas The UK’s Strategic Advisory Board for Intellectual Property Policy has released details of its research in a paper titledAttitudes and behaviours in the digital age: Implications for IP. SABIP’s website notes that consumers interact with copyright protected works on a daily basis, through their use of content on the internet, on television, in the cinema, when they read a magazine or book, on the radio etc. Due to the increased use of the internet, people’s interaction with content is vastly increased. People’s attitudes and behaviour in relation to their use of content (whether legal or illegal) therefore has implications for relevance of the legal system governing its use. SABIP acknowledge that “We know relatively little about the way large segments of society select and use content or how they view copyright rules. This work stream seeks to explore behavioural and/or attitudinal characteristics and trends of key consumer groups in the use of digital technologies that could have significance for medium and long-term copyright and IP systems.” The project is phased, and began with a systematic literature review on the available evidence regarding the attitudes and behaviour of people in the online (internet) context. The next phase involved a…

Van sues over little Van story
Artists , Defamation / February 2010

DEFAMATION Artists Van Morrison has announced that he is launching legal action against the Mail On Sunday after the paper claimed the singer had recently fathered a child with an alleged business associate Gigi Lee. Contrary to what his own website announced, Van Morrison is apparently NOT the father of a newborn child. It seems hackers got into the Irish singer’s website and inserted the (admittedly rather amusing) story that 64-year old Van had sired a child called George Ivan Morrison III with Lee, named as his business manager,  who was not his long-term partner. John Saunders, a family friend, said that the singer had told him that hackers had taken over the website to make the announcement. A statement from Morrison released by Mr Saunders said that the claims made on his website were “completely and utterly without foundation”, adding that he was “very happily married to Michelle Morrison” and that he had asked his management team to carry out an “immediate investigation”. It’s all a bit of a muddle though with The Times reporting that twenty-four hours before the denial one of Morrison’s management team had said that he was the source of the statement, with Phil Lobel, who has worked as the…

New government proposals aim to liberalise live music laws in small venues
Licensing , Live Events / February 2010

LICENSING Live events industry New proposals are being put forward by the Government to relax its laws on licensing for live music in small venues. Live music performances for 100 people or less will no longer need to be licensed under plans announced on December 31 by licensing Minister Gerry Sutcliffe. Under the proposals, an exemption from the Licensing Act 2003 for small live music events would make it easier for a wide range of venues to put on live music, and help musicians who want to play to a live audience. Mr Sutcliffe said that “Going to see a band, musician or singer is a very important part of many people’s lives and we’re keen to do what we can to support audiences and musicians” adding “an exemption for venues with 100 people or less would benefit many small venues, particularly unlicensed premises such as village halls and cafes, which may currently be put off by licensing requirements. Under current laws, anyone wanting to put on live music must have a premises licence, a club premises certificate or a temporary event notice (TEN), although there are some exceptions for incidental and background music recently highlighted in a Musicians Union campaign. The new exemption…

US appellate court applies assumption of risk in dismissing mosh pit case
Health & Safety , Live Events / February 2010

HEALTH AND SAFETY Live events industry A New York appellate court has, for the first time, applied the doctrine of primary assumption of the risk to a claim of injury sustained in or in the vicinity of a mosh pit. In Schoneboom v. BB King Blues Club, 2009 NY Slip Op 08160 (November 12, 2009), the Appellate Division, First Department held that a club patron was barred by the doctrine of primary assumption of the risk from seeking damages for injuries suffered when an identified person in a group of slam dancers slammed into him. The First Department decision affirmed the order of Justice Marcy Friedman, sitting in Supreme Court, New York County, granting summary judgment. Justice Friedman had noted that the 36-year-old plaintiff testified that he was standing in the vicinity of “a lot of people bouncing around, bouncing off each other,” but that he did not participate in the fun. Notwithstanding this rather interesting claim, Justice Friedman held that the plaintiff, an experienced concertgoer, assumed the risk of being struck by a fellow concertgoer when, although conscious that an aggressive type of moshing was in progress, he deliberately placed himself in proximity to it. Justice Friedman had also rejected…

US Court dismisses claim for hearing damage from the iPod
Health & Safety / February 2010

HEALTH & SAFETY Electronic equipment In a separate case, a lawsuit that blamed Apple’s iPod music player for causing hearing loss has failed before a US federal appeals court (Ninth Circuit Court of Appeals) which upheld a 2008 San Francisco District Court judgment that Apple was not liable for hearing damage despite consumers being able to crank up the volume to a potentially dangerous 115 dB. The appeal argued that consumers couldn’t know what damage was done to their hearing because the device doesn’t come with a decibel meter. It was also claimed that the earbuds that come with the iPod increase the risk that damage could occur because they are designed to be placed inside the ear. In dismissing an appeal a three-judge panel from the Ninth Circuit Court of Appeals called the claims “obvious” and said that a reasonable person could easily avoid hearing loss by turning the volume down – and that the iPod did come with a warning saying . The Court said “the plaintiffs do not allege the iPods failed to do anything they were designed to do nor do they allege that they, or any others, have suffered or are substantially certain to suffer…

Live Nation and Ticketmaster merger given green light by US and Canadian regulators
Competition , Live Events / February 2010

COMPETITION Live events industry Live Nation and Ticketmaster Entertainment have announced that they have reached agreements with the U.S. Department of Justice (DOJ) and with the Canadian Commissioner of Competition, clearing the way for the merger of the companies.  The company will be renamed Live Nation Entertainment, Inc. and will combine Live Nation’s concert promotions expertise with Ticketmaster’s ticketing and artist management businesses. Under the terms of the proposed final judgment filed today in U.S. District Court for the District of Columbia, the companies have agreed to divest Ticketmaster’s self-ticketing subsidiary, Paciolan, to Comcast-Spectacor and to license the Ticketmaster Host technology to Anschutz Entertainment Group, Inc. (“AEG”), as well as to other terms that protect competitive conditions in ticketing and promotions. Seventeen State Attorney Generals also participated in the matter and have joined in the U.S. consent decree. The parties’ consent agreement with the Canadian Commissioner of Competition is on substantially equivalent terms. Michael Rapino, CEO of Live Nation, said, “This is a good and exciting day for the music business, and we are close to finalizing the creation of a new company that will seek to transform the way artists distribute their content and fans can access that content.  The Department of…

Venues and promoters voice concerns over Ticketmaster and Live Nation merger
Competition , Live Events / February 2010

COMPETITION Live events Industry Prior to the US DOJ approval of the Live Nation – Ticketmaster merger, but after the rather unusual U-turn by the UK’s Competition Commission which also allowed the Live Nation-Ticketmaster merger, a number of consumer protection groups and the National Association of Ticket Brokers expressed concern about the merger and these concerns were repeated by several of the US’s prominent independent venue operators and concert promoters who banded together to oppose the planned merger. In an email being circulated to fans and industry organisations, titled “Concert Fans Beware!”, the group of venue operators and promoters urged people and fellow industry members to oppose the proposed deal because it could severely affect the concert landscape.; The venues and promotion companies that signed the email are Minnesota’s First Avenue, Washington DC area stalwarts The 9:30 Club, Merriweather Post Pavilion and The Black Cat; Jam Productions, Metropolitan Talent; Another Planet; Frank Productions; Stone City Attractions and Rams Head Live. It has been interesting that the main focus of regulators looking at the merger seems to have been on the ticketing market – whereas many commentators say that the ‘bigger picture’ is the effect a merged company might have on…

Court Reinstates Music Antitrust Suit
Competition , Internet , Record Labels / February 2010

COMPETETITON Record labels, internet An appeals court has reinstated a lawsuit that accused major record labels of price fixing and trying to cut competitors out of the digital market – a ploy that spectacularly backfired and allowed internet piracy to run rampant over other fledgling business models.  The suit had been previously dismissed by a federal judge. The US Second Circuit Court of Appeals decision to reinstate the antitrust case could affect millions who download music over the Internet. Filed on behalf of internet user who (legally) download music over the Internet, the plaintiffs accused the record labels of violating the Sherman Antitrust Act. The defendants include Bertelsmann AG (owners of BMG), EMI Group, Sony, Vivendi SA (owners of Universal), and Warner Music Group, as well as some of their affiliated units.In October 2008 the lawsuit –Starr et al v SonyBMG et al – was dismissed by a lower court who said the plaintiffs didn’t have a case against the major music companies for the litigation to go to a full court hearing. The lawsuit centred on the music industry’s first forays into the digital market – Pressplay and MusicNet, the first backed by Sony and Universal, the latter by EMI,…

Article: WELCOME TO THE JUNGLE
Articles / February 2010

Click here to download this article as a PDF file (.pdf) IS THERE AN UNWARRANTED FEAR OF LIABILITY FOR MOSHING, CROWD SURFING AND STAGE DIVING? Ben Challis JP FRSA LLB(Hons) MA MA(Law) Barrister  Visiting professor of law at Buckinghamshire New University February 2010 When I was a teenage punk rocker in the late seventies, one of the joys of going to gigs was being able to pogo in some venues – bounce around with wanton abandon and then immediately as the music stopped, look down to see what badges you could collect – to replace the ones that had fallen off in the heat of the moment. Then along came grunge and the word ‘mosh pit’ was coined and groups of (mostly) male fans would indulge in often physical, aggressive and violent mass dancing (see Upton, 2004 and Marshall, 2004). In the nineties promoters, venues, event organisers and show security all had to get used to crowd surfing and stage diving – as well as moshing – and face up to the fact that at some events the audience and sometimes the performers voluntarily took part in potentially dangerous – if not lethal  – activities. Unsurprisingly this is when the…