Copyright , Internet , Record Labels / October 2003

COPYRIGHT Record Labels, Internet, Film & Television In a case reminiscent of the 1984 ‘Sony Betamax’ case, the Motion Picture Association of America has launched an action in the High Court of England & Wales against 321 Studios which produces software which allows the copying of DVDs by consumers. The MPAA has already filed an action in the US (December 2002) seeking to prohibit the sale of 321 Studios’ software titles DVD X Copy and DVD Copy Plus. It also wants any profits from sales as recovery of damages. 321 Studios says it has sold a total of 150,000 copies of the two software titles. 321 Studios insists that its software does not violate the Digital Millennium Copyright Act in the US which outlaws providing information or tools to circumvent copy-control technology. At the same time, the movie studios are using the Digital Millenium Copyright Act against a software package produced by Tritton Technologies. The studios have filed a suit in a Manhattan court to block the sale of “DVD CopyWare” that allows DVD owners to backup their DVD collection to DVD-R media. Also named in the suit are three website hosts selling the software. Paramount and Twentieth Century Fox…

Copyright , Internet / October 2003

COPYRIGHT Internet Lowry’s Reports Inc v Legg Mason Inc et al In this case, two related financial services companies were found to be vicariously liable for copyright infringement as a result of the acts of an employee. The employee re-distributed e-mail newsletters containing a daily stock market analysis originating from the plaintiff, Lowry’s Reports Inc, by posting these on Legg Mason’s intranet which was available to all brokers and by e-mailing copies of the newsletter to other Legg Mason employees. The Lowry newsletter contains up to date stock market information and valuable predictive data calculated using confidential algorithms. Lowry’s require subscribers, who are limited to individuals and cannot be corporations or organisations, not to make unauthorised copies nor to disseminate the newsletters or their content. An existing Legg Mason policy prohibited copying of such copyrighted materials by employees. The US District Court in Maryland ruled that the activities of the defendant’s employee infringed the plaintiff’s copyright. The defendant was found to be vicariously liable for copyright infringement because it had (a) the right and ability to supervise the infringing activities and (b) it has an obvious and direct financial interest in exploitation of the copyrighted material. The fact that the employee’s actions…

Copyright , Internet , Record Labels / October 2003

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…


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…

Copyright , Internet / October 2003

COPYRIGHT Television, Internet The following comment is from the Electronic Frontiers Foundation newsletter of the 16th August 2003, Vol 16 No 21: Satellite TV giant DirecTV has sent ominous letters to an estimated 100,000 individuals, accusing them of purchasing “pirate access devices” and threatening to haul them into court for stealing television channels. The letters tell the unlucky recipients that the prospect of an expensive legal battle will go away if they pay up, usually to the tune of $3,500. Yet, in too many cases, the targets of the letters never intercepted DTV’s signal; they’re only guilty of owning smart card technology. This dragnet is catching innocent security professionals, hobbyists, and entrepreneurs. Without proof of a violation of law, DTV’s unsubstantiated threats to sue are an abuse of the legal system. As if that’s not bad enough, DirecTV has filed over 9,000 lawsuits against purchasers of smartcard technology, employing an army of lawyers to squeeze even more costly settlements out of individuals nationwide. Ask your Members of Congress to initiate an investigation into DirecTV’s misuse of the law and blatant disregard for the public’s right to use technology. See: The DirecTV Defense website sponsored by EFF and Stanford Law School’s Center…

Copyright , Record Labels / October 2003

COPYRIGHT & PASSING OFF Record Labels A Delhi court has restrained Sony Music Entertainment from marketing its album titled DJ Heart Remix, containing popular Hindi songs, in response to an action brought by claimant Super Cassettes Industries. Super Cassettes claimed that the title, artwork and content of the product produced by Sony were deceptively similar to their Copyrighted albumDJ Hot Remix. Holding that there was phonetic, visual and structural similarity between the title DJ Hot Remix and DJ Heart Remix, Additional Sessions Judge RPS Teji, in an ex-parte interim order, restrained Sony Music from carrying any business to do with or advertising for the Heart Remix album. The court also injuncted Sony from using the artistic work of the inlay card of the album which was allegedly identical to that of Super Cassettes’ DJ Hot Remix. Besides alleging that there was phonetic, visual and structural similarity in the title of the album, Super Cassettes accused Sony of depicting on the inlay card six common songs in a similar style as well as printing the sequence of three songs in an identical manner. Super Cassettes had submitted that the adoption of deceptively similar titles and features by the rival to promote its product was causing…

Copyright , Internet , Record Labels / October 2003

COPYRIGHT Record Labels, Internet Having fought to obtain subscriber and user details from the likes of Verizon and Universities, The Recording Industry Association of America (RIAA) filed 261 lawsuits against individuals who are ‘chronic’ abusers of internet download services on the 9th September 2003. US Copyright law allows for damages of up to $150,000 per track infringed, although the RIAA have said they are open to offers of settlement from the individuals concerned. report on the story of twelve-year-old Brianna Lahara’s love for TV theme songs, Christina Aguilera and the nursery song If You’re Happy and You Know It which made made her a target of the multibillion-dollar U.S. recording industry. Yesterday Brianna, a user of KaZaA, promised never again to share songs over the Internet and her mother agreed to pay $2,000 (U.S.). The RIAA issued a statement announcing that Brianna’s mother had settled for $2,000 and quoting the little girl as saying: “I am sorry for what I have done. I love music and don’t want to hurt the artists I love.” The release also quoted Ms. Torres as saying: “We understand now that file-sharing the music was illegal. You can be sure Brianna won’t be doing it any more.” The RIAA has…

Copyright , Internet , Trade Mark / October 2003

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:

Artists , Internet , Record Labels , Trade Mark / October 2003

TRADEMARK Record labels, artists, internet Apple’s new and successful online music store, iTunes, which recently sold its ten millionth download at 99cents, and the Apple iPod, face a legal challenge from Apple Corp, the management company and record label behind the Beatles which was set up in 1968. Apple Corp, based in London, have served papers in the High Court seeking injunctive relief and damages to prevent Apple Computers using the word “Apple” and the Apple Computer’s logo in relation to iTunes and the iPod. It seems that now the Computer company’s activities have spread into the ‘music’ business, Apple Corp is seeking to protect its own business reputation, goodwill and name and is relying on an earlier 1991 agreement it reached with Apple Computers which purportedly prevented Apple Computers using the name Apple or an Apple mark in the music business. Apple Computers were set up in 1977 and the name is allegedly Steve Job’s tribute to the Beatles. The 1991 agreement (which itself was a result of previous litigation over a previous agreement) resulted in Apple Computers agreeing that their use of the Apple name and logo would be restricted to use with computers and never with music….

Artists , Copyright , Record Labels / October 2003

COPYRIGHT Artists, Record Labels A California judge has dismissed part of Michael Jackson’s lawsuit against Universal Music in which he claimed he was owed royalties for songs he recorded before 1979 (see Law Updates, June 2003). In a January 1980 settlement with Motown, Jackson gave up rights to songs released before 1979, giving the record label exclusive rights to the name the Jackson 5, the group of Jackson-family members that first put the star on the map. Jackson contends he should be paid for any songs he recorded alone or with his brothers that were re-released after the 1980 agreement. Jackson is seeking payment of royalties he claimed are owed and recission of the 1980 agreement. Los Angeles Superior Court Judge Emilie Elias found on Friday that Universal had not breached any fiduciary duty, since Jackson gave up the rights to the pre-1980 tunes.

Copyright , Trade Mark / October 2003

COPYRIGHT, TRADEMARK Book publishing, merchandising Beatrix Potter’s Peter Rabbit books have featured in a recent Chinese court decision where the state-owned Chinese Academy of Social Science Press was fined £30,000 by a district court in Beijing over its translations of Peter Rabbit and three of Potter’s other animal stories without permission. The case was brought by Frederick Warne & Co, which originally published the story in 1902 and is now a subsidiary of Penguin. The case is not a simple copyright case as under Chinese copyright law the literary copyright expired in 1993. Frederick Warne and Co then registered the Chinese characters used in the translation of Peter Rabbit along with all of Potter’s original drawings as trademarks. In Chinese law, copyright subsists for 50 years. In the UK, Potter’s work went briefly out of copyright at the same time, 50 years after Potter’s death in 1943, only to come back into copyright in 1995 when copyright protection for literary works was extended to life of author plus seventy years under the European Directive on Copyright Duration (Directive 93/98). The case is interesting in that the Court accepted that a new IP right was created by use of the drawings…

Trade Mark / October 2003

Trade Mark MERCHANDISING A charity set up in 1994 to refurbish the decaying replica of the famous schooner Bluenose, called Bluenose II, has launched a legal action to protect what it claims are valid and subsisting trade marks and copyrights to the ship and its image. The original Bluenose was a famous Nova Scotia-based sailing ship of the early 20th Century. It appears on Canadian dimes and on Nova Scotia vehicle licence plates. Although the original ship foundered in 1946, a replica was built and purchased by the Nova Scotia Government. Bluenose II has been maintained and operated since 1994 by Bluenose II Preservation Trust Society , funded partly by the Nova Scotia Government. The Society has now begun to assert rights to Bluenose marks and images, on the basis of copyright in design of the ship, acquired from the family of the original ship designer, and on the basis of a number of official marks under registered under federal and province trade mark legislation in Canada. A small souvenir company, Tall Ship Art Productions Ltd. is defending claims by the Society that it has infringed the Society’s trademarks and copyright. Tall Ships has been marketing Bluenose products for 27 years, clearly well before the Society…

Artists , Privacy / October 2003

PRIVACY Artists It is a common problem for celebrities to find themselves beset by unwanted attention, harassment or worse because details have made their way into the public domain about where they live. An application in June 2001 by Heather Mills McCartney for an order preventing publication of details of a new property she had bought was rejected by the High Court. However, this was the result, at least in part, of the newspaper having offered an undertaking not to publish details. The law remains unclear as to the extent to which it will protect a celebrity’s Article 8 privacy rights so far as their home is concerned. The Press Complaints Commission has taken a big step towards recognising the need for such protection in an adjudication published last week on behalf of Ms Dynamite. Ms Dynamite complained to the PCC, through her record company Polydor, that an article (and accompanying photograph) headlined “Chart Star’s dream house is right next door to my mum” published in the Islington Gazette on 26 March 2003 intruded into her privacy contrary to clause 3 of the PCC Code of Practice. This PCC provision closely mirrors the Article 8 wording and reads as follows:…