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…

US Copyright bringing new meaning to ‘long arm of the law’
Copyright , Internet / October 2007
Australia
USA

COPYRIGHT Internet ARTICLE LINK  An Australian man who had never been to the US (or ever even owned a passport) is, thanks to US copyright laws, currently serving a 15-month sentence in a US jail. Hew Griffiths was convicted by a Federal Court in Virginia back in June of this year for being a ring leader of DrinkOrDie (DOD) an underground software piracy network, but the case is interesting because he never actually set foot in the United States nor actually profit from his copyright infringing activities. Seehttp://www.zeropaid.com/news/8973/US+Copyright+Laws+Bringing+New+Meaning+to+’Long+Arm+of+the+Law‘

15 fold increase in nightclub levy heads for Australian courts
Copyright , Live Events , Record Labels / September 2007
Australia

COPYRIGHT Record labels, live industry The hotel and nightclub industries in Australia have launched a Federal Court challenge against The Phonographic Performance Company of Australia , the group that represents Australia’s largest record labels, following a recent decision to increase the cost of music in dance venues by 15 times. Last month the Australian Copyright Tribunal lifted the rate for music played in nightclubs from seven cents per person a night to $1.05. PPC, which represents more than 600 record companies, hailed the decision as a victory for musicians who had been exploited by nightclubs for years http://www.theage.com.au/news/national/hotels-go-to-court-over-cost-of-music/2007/08/06/1186252630068.html Article link: Copyright ruling produces sour note for musos “The recent furore over a rise in recorded music licence fees that nightclubs and commercial dance parties must pay has mostly missed the point. It is not about picking the “good guys” — promoters and venue operators versus record companies and musicians. It is about record companies trying to protect their fading businesses”. This article asks whether musicians are properly protected when labels look to find new revenue streams. http://www.theage.com.au/news/business/copyright-ruling-produces-sour-notes-for-musos/2007/07/30/1185647826553.html

Australia – High Court confirms deep-linking is illegal
Copyright , Internet / July 2007
Australia

COPYRIGHT Internet The High Court of Australia today refused to grant leave to hear an appeal by Stephen Cooper, the operator of the MP3s4free.net website and his Internet Service Provider who had earlier been found guilty of copyright infringement. Mr Cooper’s website was described in an earlier Federal Court decision as a “carefully structured and highly organised site” which included hyperlinks to facilitate the downloading of infringing copies of recorded music. The High Court rejected Mr Cooper’s application stating that it had insufficient prospects of success to warrant a grant of special leave. The refusal reinforces the decision of the trial judge and Full Federal Court who held that Mr Cooper had authorised copyright infringement. The Full Court had also found that the ISP, E-Talk/ Com-Cen, and its director, Liam Bal – labelled the “controlling mind” – had failed to take reasonable steps to prevent copyright infringement and instead had sought to achieve a “commercial advantage” from advertising on MP3s4free.net. Cooper, E-Talk/ Com-Cen and Bal have been ordered to pay the costs of the record companies for both the original proceedings, the appeal and the special leave application in the High Court. www.ifpi.org

Its no knickers – Dame Kiri wins cancellation case
Contract , Live Events / April 2007
Australia

CONTRACT Live event industry Opera star Dame Kiri Te Kanawa has won a court case in Australia after she cancelled a 2005 tour because she feared that she would be bombarded with underwear – as the planned co-headliner with Aussie veteran John (‘the Voice’) Farnham. Dame Kiri had seen a DVD of his shows where he caught underwear thrown by fans. Promoter Leading Edge had sued for A$2m (£815,000), claiming it had lost money on publicity costs and ticket sales but New South Wales Supreme Court Judge Patricia Bergin rejected the claim ruling that while there were emails in which venues, fees and air tickets for the proposed concerts were discussed, no firm commitment was made and no contract was finalized. Leading Edge said it had spent more than A$380,000 (£155,000) on preparations for the concerts, only to find that Dame Kiri’s agent former, Mr Grace, knew the singer was wavering on the performances but had failed to pass on the information. However Judge Bergin ordered Mattane, the company that employed Dame Kiri, to pay Leading Edge A$128,063 (£52,000) for costs incurred as the company had not been entirely honest in its dealings with Leading Edge. Comment: This type of case…

Liability for links site for operator and ISP host upheld in Australia
Copyright , Internet / January 2007
Australia

COPYRIGHT Internet A Federal Judge has said Google could be in breach of Australia’s Copyright Act because of its web links to unauthorised copies of copyright material. The statement that Google’s position was ‘untested’ by Justice Catherine Branson came as a full bench of the Federal Court upheld a finding that Australian website operator Stephen Cooper was liable for “authorising copyright infringement” on his (now defunct) mp3s4free.net. Cooper had argued that his website which provided links to illegal download sites and services was analogous to that run by Google and was therefore lawful. Cooper had noted Google’s victory in a US court case this year against pornography publisher Perfect 10, in which Google’s linking to copyright material was said to be legal “fair use”. In a further legal development, the full bench of the Federal Court also found that the internet service provider that hosted the website was liable for authorising copyright infringement. The internet service provider, E-Talk Communications, did not operate the website, but Justice Branson noted that (a) E-Talk was aware of the copyright problems arising from the website and (b ) E-Talk took no steps to prevent copyright infringements from arising. Justice Branson noted, “Rather than withdrawing…

Australian copyright law limps into the digital age
Copyright , Internet , Record Labels / December 2006
Australia

COPYRIGHT  Recording industry, internet  ARTICLE LINK –  By Nathan Cecil, Norton White A useful article explaining the much criticized provisions of Australia’s new Copyright Amendment (Exceptions, Enforcement and Other Measures) Bill http://www.mondaq.com/article.asp?articleid=43670&email_access=on The bill has caused quite a storm in Australia – with the Government and record labels being openly mocked. Seehttp://radar.smh.com.au/archives/2006/11/copyright_out_o.html and see http://australianit.news.com.au/articles/0,7204,20792269%5E15306,00.html

Intellectual Property licensing issues in bankruptcy or insolvency
Business , Copyright / September 2006
Australia
Canada
UK
USA

INSOLVENCY / COPYRIGHT Artists, record labels, music publishers ARTICLE LINK From the Intellectual Property Institute of Canada This is a link to the very comprehensive 2003 Report by the Intellectual Property Institute of Canada which investigates the thorny issue of ownership and exploitation of intellectual property rights when one party in a contractual relationship is declared bankrupt or insolvent. Whilst primarily looking at Canadian law, relevant laws from the United States, The United Kingdom and Australia are also commented on. The report covers patents, copyrights (including moral rights) and trade marks. Whilst over 170 pages long may be of particular interest to lawyers and managers who represent recording artists and songwriters who sometimes wonder what they can do about unpaid royalties which have disappeared into the ether after the bankruptcy of a recording label or music publisher or find that their A&R manager is now an accountant! For a brief synopsis of UK and Australian law see pp86-87. http://www.ipic.ca/french/member/issues/f_Final_Report_on_Bankruptcy_Sept_16_2003.pdf

Australian Government to allow legal copying of consumer’s own collections of music whilst in the UK NCC lobbies for same right
Copyright , Internet , Record Labels / June 2006
Australia

COPYRIGHT Internet, record labels Music fans will be able to legally record their CD collections onto iPods and MP3 players under a raft of proposed changes to Australian Federal Laws. Taping TV and radio programs and using copyright material for parody or satire will also be legalised as part of the reforms. The Australian Government plans to introduce new enforcement measures to combat piracy. The changes are part of a major overhaul of copyright laws announced by Attorney-General Philip Ruddock in response to millions of Australians who effectively break the law every time they reproduce copyright material for personal use. The key changes relate to the recording of copyright material from CDs, audio tapes or vinyl records onto an MP3 player or home computer. Under existing laws, people copying material risked being sued by the copyright owner. The changes include: The legalisation of ‘time-shifting’ of TV and radio broadcasts; The legalisation of ‘format shifting’ e.g. music on CDs to MP3 players. This exemption isn’t limited to musical works, and would cover books and magazines too; New defences allowing schools, universities, libraries and other cultural institutions to use copyright material for non-commercial purposes; Provisions to allow the disabled access to copyright…

Artist re-sale bill introduced in Australia
Copyright / May 2006
Australia

COPYRIGHT Fine art ARTICLE LINK By Orana Swan and Justin Fung The Artist’s Resale Rights Bill 2006 (Cth) is expected to be introduced soon into Parliament. The Bill seeks to grant artists a share of the resale price each time their work is resold. Resale royalties seek to reward artists as the value of their work increases, which usually occurs after the initial sale by the artist http://www.mondaq.com/news.asp?e=1&a=39054 For the UK position see the article application of artist re-sale rights by Emma Stoker, solicitor ( Artist’s Resale Right Regulations 2006 ) in www.musiclawupates.com April 2006 archive.

Liability for ISPs: Bunt v Tilly & Others
Defamation , Internet / April 2006
Australia
Canada
UK
USA

DEFAMATION Internet Five years ago Demon Internet had to settle a claim from Laurence Godfrey who was the subject to defamatory messages on Demon internet message boards which Demon failed to remove promptly when notified. But now AOL, BT and Tiscali have been cleared of any liability for defamation when they successfully applied to have a claim for libel struck out. The claim was over allegedly defamatory messages posted on the Usernet message boards but the court held that ISPs could not be held liable as publishers of defamatory material when their only involvement in the matter was to provide a service through which the defamatory statements were transmitted. However those who had rose tinted aspirations that the internet would be a public realm free of regulatory and legal intervention seem distant dreamers now. The Godfrey case is still good law and indeed those who post defamatory articles in chat rooms and on message boards are clearly liable for their actions in law. And publishers who publish defamatory articles are equally liable; from Gutnick v Dow Jones this seems to be on a multi-territory basis as the article is published ‘worldwide’ although recent cases have limited this to meaningful subscription bases where…

Kazaa executives face contempt of court hearing in Australia
Copyright , Internet , Record Labels / January 2006
Australia

COPYRIGHT Record industry, internet The IFPI has welcomed the move by the Federal Court of Australia to hear contempt of court charges against Kazaa, after its failure to follow the Court’s order to filter its system of copyrighted recordings. The Court today fixed 30th January 2006 for the hearing of contempt charges against the operators of the Kazaa system. Contempt proceedings have been brought against Sharman CEO Nikki Hemming, Altnet CEO Kevin Bermeister, Sharman Networks, LEF Interactive, Altnet Inc and Brilliant Digital Entertainment Inc. The contempt charges have been brought by the recording companies alleging that the operators have failed to comply with Court orders.  A finding of contempt of court could lead to imprisonment and confiscation of corporate assets.  IFPI Chairman and CEO John Kennedy said: “After having said they would implement filters, they have done nothing to prevent the continued copyright infringements on the Kazaa system.  They have left the recording industry with no option but to pursue contempt proceedings against them.  In the meantime Kazaa should stop prevaricating and filter its system now as it has been ordered to do.” Justice Murray Wilcox set the date after hearing that the operators of Kazaa had not implemented music…

The copyright industry tightens the screws on illegal peer-2-peer file swappers, swapping sites and software that facilitates file swapping
Australia
China
Hong Kong
South Korea
Taiwan
UK
USA

COPYRIGHT Record labels, music publishers, internet Following on from the success of the MGM v Grokster case in the USA (Law Updates August2005) and other successes against peer-2-peer websites offering illegal download files (including cases in Australia, Korea and Taiwan) there have been a rash of recent news stories reinforcing the improving position of record labels, music publishers and film companies – although all still against a background of heavy piracy in illegal downloading and file swapping. iMesh has becomes the first of the ‘illegal’ P2P service to go legal (although UK based playlouder.com already offered a legal swapping service to its subscribers). iMesh’s new software blocks any music with a copyright from being downloaded. The service will charge using the subscription model, charging users $6.95 per month. However the real challenge will be to tempt the 5 million users of the old version that allowed free sharing to pay. In the week preceding the announcement the old version of the software was downloaded over 1.5 million times. In Hong Kong a magistrates court has convicted a man of attempting to distribute film content over the BitTorrent P2P network. Chan Nai-ming, from Hong Kong, received a three (3) month jail sentence after being…

Australian courts order Kazaa to filter out copyright works
Copyright , Internet , Record Labels / December 2005
Australia

COPYRIGHT Record labels, internet The Australian Federal Court has issued a order forcing Kazaa to filter copyrighted music from its system within ten days or cease its operation. Under the new order, Kazaa has been told to put in place filters that will stop the swapping of a large number of copyrighted songs, ranging from Madonna and the Beatles to more niche and local artists, by a deadline of 5 December.  The final warning comes two months after Kazaa, until recently the world’s biggest internet peer-2-peer file swapping sitre, was ruled in breach of copyright by the Federal Court of Australia. Kazaa’s operators, Sharman Networks, had previously appealed the September judgment. But the judge in Sydney, Justice Murray Wilcox, said that to avoid complete shutdown, Kazaa must now, as a first step, put in place the new keyword filter system by December 5th. The court order comes within weeks of judgments against unauthorised peer-to-peer services in the US, Australia, Korea and Taiwan. The new filter, involving 3000 keyword to be selected by record companies, will apply to all new versions of the Kazaa software from 5 December 2005.  The filter can be updated if necessary on a fortnightly basis to…

Australian High Court rules that modifying chip is not illegal Stevens v Sony
Copyright , Internet / November 2005
Australia

COPYRIGHT Games, Technology, Television, Radio, Internet ARTICLE: by Campbell Thompson and Genevieve Wilkinson of Freehills  In a set-back for copyright owners, the High Court of Australia (6th October) has ruled that the sale of ‘mod chips’ by Mr Stevens for use with Australian Playstation consoles did not breach the anti-circumvention provisions of the Act even though it meant that Mr Stevens could now play games brought abroad – genuine games albeit purchased perhaps more cheaply than domestic games. Link at : http://www.mondaq.com/article.asp?articleid=35482&email_access=on

Australian Court rules that Kazaa file swapping software is illegal
Australia

COPYRIGHT Record Labels, Music Publishers, Internet Australian Court rules that Kazaa file swapping software is illegal: Universal Music of Australia Pty Ltd vs Sharman License Holdings (2005) whilst other P2P companies review strategies in light of the Grokster decision The Federal Court of Australia has ruled that the internet peer-to-peer operator Kazaa is illegal and the IFPI has called on similar networks throughout the world to stop infringing copyright or face the legal consequences. The judgment, coming just ten weeks after the US Supreme Court ruling against the ‘file-sharing’ operator Grokster, concludes the 18-month trial of the best-known international file-swapping service and helps to lay down the law for the new generation of unauthorised peer-to-peer operators. The Court ruled that Kazaa – until recently the world’s biggest single internet piracy operation with 2.4 million users worldwide – is an illegal business that is liable for copyright infringement. The move is part of a global trend clarifying the rules around internet music distribution. A court ruling in Korea last month required the peer-to-peer service Soribada to stop unauthorised file-swapping on its network or shut down. IFPI Chairman and CEO John Kennedy said: “Within the space of ten weeks, three courts in three different…

Links site found to infringe copyright in Australian judgment
Copyright , Internet , Record Labels / August 2005
Australia

COPYRIGHT Record Labels, Internet An Australian man and his website has been found guilty of copyright infringement by providing links to infringing websites. Stephan Cooper’s Site “MP3sfor3.net” linked to sites which were offering copy written works for free. Federal Justice Brian Tamberlin ruled that although Cooper didn’t host pirated recordings per se, the court found the resident of the state of Queensland breached the law by creating hyperlinks to sites that had infringing sound recordings. This is the first such judgment against hyperlinking in Australia. Tamberlin found against all other respondents in the case, namely Internet service provider Comcen; Comcen employee Chris Takoushis; Comcen parent company E-Talk Communications; and Comcen and E-Talk director Liam Bal. In October 2003, the applicants, record companies, which included Universal Music, Sony, Warner and EMI, alleged that Cooper cooperated with Bal and Takoushis to increase traffic to the ISP and boost advertising revenue. Subsequently, the court was told Cooper was unaware he may have infringed copyright law, while E-Talk and Comcen asserted that it didn’t know of Cooper’s actions. Judge Tamberlin said: “I am satisfied there has been infringement of copyright and ordered costs against the respondents. Music Industry Piracy Investigations (The Australian trade association…

Moves to reform Australian copyright law
Australia

COPYRIGHT Record Labels, Music Publishers There could be a major revision in Australian copyright law, relating specifically to fair use. The Attorney-General is preparing a discussion paper on how copyright law can evolve and one consideration is allowing consumers to transfer music or films from one medium (e.g. a CD) to another (e.g. a portable digital music player) as long as it is for personal use. If passed, a levy could be imposed as a means of compensating rights owners. Australian consumer rights bodies have welcomed this (tentative) legislative step. Source: http://www.zdnet.com.au/news/communications/0,2000061791,39181367,00.htm Source: Five Eight Magazine – http://www.fiveeight.net

Australian Pirate to be Extradited to US
Copyright , Record Labels / October 2004
Australia
USA

COPYRIGHT Record Labels A ground-breaking ruling against an Australian man accused of pirating, games and music worth over $50 million means that Hew Raymond Griffiths will be tried in a U.S. court after the U.S. won the battle to extradite him. At first instance an Australian magistrate denied the extradition request but after an appeal the U.S. won the right to try Griffiths. Griffiths is accused of being the ring leader of an Internet release group called DrinkOrDie. Eleven members of DrinkOrDie have already been convicted in the United States but Griffith’s infringements all took place on his home computer in Australia. If the extradition and trial go ahead; he is facing up to 10 years in an American prison and a possible fine of $500,000. See : http://www.afterdawn.com/news/archive/5564.cfm

Australian DJs Guilty of Copyright Infringement
Australia

COPYRIGHT Record Labels, Music Publishers Five Australian DJs who used CD burning equipment to create CDs for their own use in clubs but also sold or gave copies of the CDs to the public have been found guilty of copyright infringement and ordered to pay damages of AU$18,000 to Universal Music and other applicants. A sixth respondent was joined in the case for selling the CDs online. The respondents were also ordered to pay additional damages pursuant to section 115 of the Australian Copyright Act when Justice Wilcox found that the respondents had knowledge that their act constituted an infringement and that they benefited from it: additional damages totalled AU$30,500. Justice Wilcox applied an approximate cost of AU$8.50 per CD in determining the loss of income for the copyright holders and the sum of damages to be paid by the respondents. Despite argument from the respondents’ lawyer that many of the CDs were given away, forgoing any financial benefit for the DJs in question, Justice Wilcox found that the infringements were “deliberately made for their ultimate financial gain” and that the respondents were aware that their act constituted an infringement of copyright. Justice Wilcox refused to offer any leniency to…

Australian Federal Court Allows the Use of Anton Piller Orders in Record Company Raids
Australia

COPYRIGHT Record Labels, Music Publishers, Internet The record industry in Australia has retained the right to use Anton Piller court orders to seize evidence in cases of alleged illegal file swapping and piracy. Sharman Networks, the owner and distributor of the Kazaa file-sharing application, is considering appealing the Federal Court’s decision (04/03/04) which upheld a ruling allowing the record industry to conduct raids on its premises last month. Justice Murray Wilcox upheld the validity of use of Anton Piller orders by which a court empowers a party, that has alleged wrongdoing, the opportunity to enter premises and search for evidence. In his ruling, Justice Wilcox acknowledged that Sharman has complied with legal proceedings in the past and that the company would conduct itself in the same manner in Australia. COMMENT: In accepting that Sharman had complied with court directions and orders in the past, Justice Wilcox went some way further than the classic test when allowing the Anton Piller order to be used. In Anton Piller KG v Manufacturing Processes (1975) Ormrod J held that the claimant must be able to show (a) a strong prima-facie case and, (b) very serious actual or potential damage and (c) that there must be…

EMI Admits CD Copy Protection Compatibility Problems
Copyright , Record Labels / March 2004
Australia

COPYRIGHT Record Labels EMI’s Australia has admitted that its CD copy protection system has resulted in “compatibility issues” since it began using the technology in November 2002. The confession came in an email sent to an Australian music buyer, Michael Ellerman, The Melbourne Age reported. Ellerman complained when his copy of Massive Attack’s 100th Window album wouldn’t play on his CD player at home or – crucially – his Linux box. It would only play on a Windows PC, he said. EMI’s system is believed to introduce errors in the music encoded as a data on the disc. A regular CD player should have a good enough error correction mechanism – and there are a lot of errors, even on a non-copy protected disc – to generate the sound quality we’ve come to expect from the medium. PC-based CD drives are supposed to balk at these artificially induced errors and refuse to play or RIP the discs. Many portable players also use the error correction mechanism as the basis for their anti-skip systems. So do in-car CD players, which is why copy protected discs are causing such a problems with UK motorists. ‘Borked’ CDs that won’t play on many CD drives, including car players,…

Australian Internet Service Provider Faces Claim For Copyright Infringement
Australia

COPYRIGHT Record Labels, Music Publishers, Internet The Australian music industry has listed an internet service provider (ISP) as a respondent in a court case involving alleged music piracy. E-Talk Communications, trading as Comcen Internet Services, has been served with a law suit in Federal Court (Justice Brian Tamberlin) charged with making money from the provision of copyright-infringing music files. This is the first time the music industry has accused an ISP of being directly involved in piracy by allowing its infrastructure to be used for file-trading activities according to Music Industry Piracy Investigations (MIPI), who led the industry’s investigation. The tactic marks the escalation in the simmering battle between the music industry and the ISPs over how much responsibility the latter should take for any copyright infringing behaviour of their subscribers. The charge is the result of an 11-month investigation into the web site MP3s4Free.net. The registrant of the domain name, Australian Stephen Cooper, was also charged. The MIPI claimed that the website was highly organised and allowed and assisted users to find and download music files. The site received 7 million unique visits in the previous 12 months and MIPI claim that E-Talk economically benefited by hosting the website….

Judgement For Damages In Holly Valance Management Dispute
Artists , Contract / December 2003
Australia

CONTRACTS Artists Holly Valance’s Australian ex-manager, Scott Michaelson, has been awarded AU$350,000 (approx £160,000) in damages after the singer wrongly terminated his management contract. Justice Clifford Einstein found that the artist had breached the contract and awarded the damages for loss of earnings and management commission. Ms Valance will also have to pay costs. Mr Michaelson’s damages were limited to Holly Valance’s first album and he will not receive commissions from her yet to be released second album. See: http://www.theage.com.au/articles/2003/11/06/1068013328625.html

Ex-manager wins case against Holly Valance
Artists , Contract / November 2003
Australia

CONTRACTS Artists Holly Valance’s ex-manager, sacked by the star when her pop career began to take off, has won his action against the star in an Australian court. The Court held that Vallance had unfairly terminated the contract of Scott Michaelson in January 2002. Lawyers for Valance claimed Michaelson – like Valance, a former Neighbours actor – had been ill-equipped to manage the star’s burgeoning music career. Michaelson is seeking £160,000 in lost income, a 20% cut of sales of Valance’s second album and exemplary damages. The Court will now assess damages. Valance first found fame in Neighbours. She released her first album, Footprints, in October last year. See: http://news.bbc.co.uk/1/hi/entertainment/showbiz/3161392.stm

AUSTRALIAN TRIO FACE CRIMINAL SANCTIONS FOR ONLINE MUSIC PIRACY
Copyright , Internet , Record Labels / October 2003
Australia

COPYRIGHT Internet, Record Labels Three Australian men face jail after pleading guilty last week to infringing copyright in what the Australian recording industry believes is the world’s first criminal prosecution for online music piracy. Until now, legal actions against music websites such as Napster, KaZaA and Aimster have relied on civil law (see Law Updates above). The three defendants, all twenty years of age or under, last week pleaded guilty to infringing the copyright of music giants Universal Music, Sony, Warner, BMG , EMI and Festival Mushroom Records. Police arrested the defendants in April after raiding their homes in Sydney following a joint investigation with Music Industry Piracy Investigations (MIPI), a record industry-funded watchdog. They face up to five years’ jail and $60,500 in fines for illegally distributing up to $60 million worth of music on a website called “MP3 WMA land”. In the UK, the Copyright Designs & Patents Act 1988 and Trade Mark Act 1994 both provide for civil and criminal sanctions. Jail sentences can extend to five years in the Crown Court with unlimited fines (see September 2003 Law Updates and April 2003 Law Updates for examples). Whilst traditional piracy such as bootlegging and distributing illegally copied CDs has resulted in…

MOBILE PHONE RINGTONE PIRACY BOOMS IN ASIA
Australia
Singapore

COPYRIGHT Record Labels, Music Publishers, Internet, Telecommunications The phenomenal growth of Asia’s mobile phone market has spawned widespread ringtone download piracy. Copyright owners are battling to claim royalties in Asia – a region which has long been problematical with widespread traditional forms of music piracy, such as the organised distribution of counterfeit and bootleg CDs and cassettes. The International Confederation of Societies of Authors and Composers have said that the problem is prevelant in most South-East Asia territories. Whilst territories such as Japan, Korea, Singapore and Malaysia have systems in place to govern ringtone copyright, and owners are compensated for use, ringtone downloads in countries like Thailand and Phillipines are almost entirely unlicensed with little legal revenue. The ringtone market is now big business (see Law Updates September 2003). In Japan, music publisher collection society JASRAC receives multi-million dollar royalties from ringtone operators. In Singapore, one of the biggest cellular phone markets in Asia (with an ownership rate of 80 per cent) ringtones cost about $S2 ($1.79) on average in the legitimate market. Whilst a number of favourite downloads are mainstream western artists such as Norah Jones and Britney Spears, Asian composers are also being hurt because local hits are…

AUSTRALIAN COURT FACES UP TO THE PROBLEM OF A WORLD WIDE WEB
Copyright , Internet , Trade Mark / October 2003
Australia

TRADEMARK, COPYRIGHT Internet Australian Competition and Consumer Commission v. Chen [2003] FCA 897  The Federal Court of Australia recently had to consider whether or not to issue injunctive relief against a US resident given that there was apparently no mechanism available for the enforcement or registration of the Australian injunction in the US courts. The Court heard that the respondent had operated a website which purported to be an official website for the Sydney Opera House and included a mechanism for ‘ordering tickets’. In fact the website had nothing whatsoever to do with the Sydney Opera House and the site contravened Australia’s Trade Practices Act, 1952 (TPA). The court accepted that in reality it could NOT enforce the injunction. However, the court DID make a formal declaration to mark its disapproval of the respondent’s activities, in part because it felt that such might carry some weight with US domestic law enforcement and trade authorities such as the US Federal Trade Commission. The Australian Court also felt that a formal declaration might act as a warning to consumers. See: http://www.austlii.edu.au/au/cases/cth/federal_ct/2003/897.html

AUSTRALIAN RECORD INDUSTRY SECURES ORDER TO ALLOW ACCESS TO UNIVERSITY COMPUTERS
Copyright , Internet , Record Labels / August 2003
Australia
USA

COPYRIGHT Internet, Record Labels Three of Australia’s largest Universities today lost the battle to block the music industry from gaining access to their computer infrastructure, with the Federal Court ordering them to allow the industry’s experts to gain access. Federal Court Justice Brian Tamberlin ordered the Universities of Sydney, Melbourne and Tasmania to allow the music industry access to the infrastructure to seek information regarding alleged breaches of copyright, such as file-sharing, by University staff or students. The music industry had been seeking access to information on the Universities’ network it claims contains evidence of copyright infringement, but the Universities refused, citing privacy concerns. Justice Tamberlin previously stated he would order the Universities to hand over the relevant information but had allowed time for both parties to provide arguments appealing the decision. This story is from: http://www.zdnet.com.au/newstech/security/story/0,2000048600,20276375,00.htm COMMENT : This Australian case follows on from the Recording Industry Association of America’s successful action against Verizon. There, the US Courts granted the RIAA access to the cable provider’s subscriber details so that the RIAA could identify those who infringed copyright on the internet. In both cases the right to privacy was held to be inferior to the right of copyright owners to seek…

MELBOURNE VENUE OWNERS OBJECT TO RESIDENTIAL DEVELOPMENTS NEAR EXISTING CLUBS
Licensing , Live Events / July 2003
Australia

LICENSING Live concert Industry The live music industry in Melbourne, Australia is pushing for a change in the law to put an obligation on builders and owners of new apartments built near live music venues to soundproof new buildings against the existing levels of noise. Venue owners say that as house and apartment prices in the inner city have soared, home owners’ expectations have changed and that new, more affluent residents don’t want to be kept awake at night by live music. Their complaints about noise to local authorities and liquor-licensing bodies are increasingly being taken seriously. The owner of one live music venue objected to a three-storey apartment block being built in a warehouse shell behind his venue. The owner says one wall of the block will be just metres from venue’s back door and beer garden, and that plans show that windows from two bedrooms will be “directly adjacent” to the rear of the venue. The venue currently hosts live bands six nights a week, playing until 1am. The venue told the Victorian Civil and Administrative Tribunal that builders should incorporate soundproofing into the new development but on March 31, VCAT ruled that the development could proceed although…

HARRODS v DOW JONES
Australia
UK
USA

DEFAMATION Artists, Record Labels, Music Publishers, Internet In December 2002 the Australian decision of Gutnick v Dow Jones established the principle that where a newspaper or magazine was published on the internet, a claimant could bring an action in ANY jurisdiction where that magazine could be received, in this case in the state of Victoria in Australia even though the newspaper was published in the US. In this case (with the same defendant) Mr Justice Eady was presented with the following case. On 31 March 2002 Harrods issued a spoof press release proposing a “first-come-first-served share option offer” by way of an April Fool’s joke. The Wall Street Journal picked up the press release with a story headed “The Enron of Britain?” The article suggested that “If Harrods, the British luxury retailer, ever goes public, investors would be wise to question its every disclosure.” The evidence before the court was that only ten copies of the Wall Street Journal are distributed in this country from the United States. There was evidence of only a very small number of hits on the article as published on the web. By contrast, the Wall Street Journal has a national distribution within the United…