Supreme Court rules software manufacturers can be liable for user’s infringements

COPYRIGHT Technology, Internet, Record Labels, Music Publishers Supreme Court rules software manufacturers can be liable for user’s infringements MGM v Grokster 04-480 27th June 2005 The US Supreme Court has ruled that software developers violate federal copyright law when they provide individuals with the means to share copyrighted files without authorisation. The court stressed that P2P technology has legitimate uses and added that file-sharing service operators can only be held liable if their intention was to encourage copyright infringement. “We hold that one who distributes a device with the object of promoting its use to infringe copyright … is liable for the resulting acts of infringement by third parties,” Justice David Souter wrote in the decision. “There is no evidence that either company made an effort to filter copyrighted material from users’ downloads or otherwise impede the sharing of copyrighted files.” MGM v. Grokster was brought by 28 of the world’s largest entertainment companies against the makers of the Morpheus, Grokster, and KaZaA filesharing software products in 2001. The entertainment companies hoped to obtain a legal precedent that would hold all technology makers responsible for the infringements committed by the users of their products but MGM and the other entertainment companies lost their case…

EU proposes harmonisation of criminal sanctions for infringements

COPYRIGHT, TRADE MARKS, PATENTS, DESIGN RIGHTS Record Labels, Music Publishers, Film and Television, Internet The European Commission has adopted proposals to form a new directive which will align criminal law in the European Community in relation to the use of criminal sanctions for copyright infringement. The proposals will extend to at least commercial piracy. The directive is aimed at allowing Community wide co-operation in the investigation and prosecution of piracy and counterfeiting. The Commission argues that counterfeiting and piracy are so lucrative, and carry such light penalties relative to other forms of trafficking, that they are attracting investment from criminal organisations. The Commission says the directive is being aimed particularly at organised counterfeiters and faked goods that are dangerous to public health and safety, with minimum prison terms of four years being mandated for these offenses. Individual countries will have the option to impose harsher terms when the directive is translated into national law. See:

BPI and legal download services challenge online publishing royalties

COPYRIGHT Record Labels, Music Publishers, Internet A number of the UK’s leading online music services and the BPI, representing more than 300 UK record labels, are mounting a legal challenge to the licence terms demanded by music publishers and composers for the use of their compositions on the internet and on mobile devices. The seven online services – AOL, Apple iTunes, MusicNet, Napster, RealNetworks, Sony Connect and Yahoo! – are filing references to the Copyright Tribunal, alongside the BPI, challenging the tariff set by the MCPS-PRS Alliance for the use of musical works on the internet and on wireless devices. The MCPS-PRS Alliance is a joint venture between the MCPS and PRS, the collection societies that fix and collect royalties on behalf of music publishers and composers. These filings follow several years of negotiations with the Alliance by the BPI and online music services to try to achieve acceptable terms. Geoff Taylor, BPI General Counsel said: “The licence that the Alliance is trying to impose for online music is unreasonable and unsustainable. It is charging a royalty rate on a download that is double the rate it charges for a song on a CD. It applies this excessive rate to…

China tracks down more pirates
Copyright , Record Labels / August 2005

COPYRIGHT Record Labels China has arrested some 2,600 people in an 8-month-old crackdown on product piracy, the government has said, criticizing US complaints that it was failing to stop rampant copying of foreign movies, music and other goods. Authorities have destroyed 63 million compact discs and other counterfeit goods estimated to be worth 860 million yuan ($105 million), said Vice Minister of Commerce Zhang Zhigang, speaking at a nationally televised news conference. Zhang acknowledged that China still faced “quite a few problems,” but he criticized the U.S. for adding Beijing to a list of 14 countries that receive special scrutiny because of widespread violation of copyrights. The US government said in April that product piracy in China had reached “epidemic levels” and has warned that Beijing could face formal complaints in the World Trade Organization, raising the threat of trade sanctions. China is regarded as the world’s biggest source of illegally copied goods, including Hollywood movies, Microsoft Corp. software, Ralph Lauren shirts and Callaway golf clubs. Estimates of potential lost sales to legitimate producers worldwide range from $16 billion to as much as $50 billion a year. Despite repeated crackdowns, counterfeit goods are widely available in Chinese shops. Authorities have…

Wife Swap vs Trading Spouses – Scores Level After First Round
Copyright / August 2005

COPYRIGHT Television ARTICLE: Format rights: by Jonathan Coad, solicitor The format trade is hoping that the battle in the US courts between RDF Media (Wife Swap) and Fox Broadcasting (Trading Spouses) will set a clear precedent telling us what protection will be given in the US to television formats. So far there have only been decisions by courts in Holland (see our early warnings of June and September 2004) and Brazil (see our early warning of June 2004) which have accorded copyright protection to television formats. The most valuable market for format producers is the US and the value of licence fees for formats will inevitably depend on the extent to which US courts will afford copyright protection to original television formats. The difficulties faced by the courts in any country are most acute where the format is in the reality genre. Where there is no script, and the programme merely places individuals in unusual (and non copyrightable) settings, and the resulting footage is merely edited and broadcast, how easy is it to characterise the resulting programme as a copyright work? It is not easily fitted into the statutory framework of copyright, either in the US or in any other jurisdiction….

European Commission proposes Europe wide music licensing for online use

COPYRIGHT Record Labels, Music Publishers, Internet The European Commission has proposed that rules for registering and administering copyrights in Europe need to be changed to simplify procedures and to make it easier for artists to secure copyright registration across the European Community and provide a ‘one stop shop’ for copyright users such as legal download sites. The Commission suggests that it is the complexity and cost of the current system involving numerous collection societies each operating on a country by country basis that is holding back online growth in Europe (and not piracy and illegal file swapping). A EC study found that the cost of licenses to sell tracks in all 25 member states currently tops EUR 19,000. With profit per download standing at approximately EUR 0.10 it would require the sale of over 4.75m tracks to break even. “The gap is very wide; we need to do something about this” said a spokesman for Tilman Lueder, the EU’s commissioner for internal market and services. At the present musicians, record labels and publishers need to register copyrights with collective rights managers (collection societies such as the PRS, GEMA and SACEM). The collective rights managers then license songs to end users…

German court rules that the discoverer of a long lost Vivaldi opera may forbid unauthorized performances
Copyright , Music Publishing / August 2005

COPYRIGHT Music Publishers In a case reminiscent of Hawkins v Hyperion, the right of two music festivals to perform Vivaldi’s long-lost operaMotezuma is being contested in Germany. A German court has ruled that the Berlin Sing-Akademie, in whose archives the incomplete 18th-century manuscript was found, has the right to authorize and forbid performances of the work. A concert performance of Motezuma took place in June in Rotterdam using an edition prepared by German musicologist Steffen Voss, who discovered the manuscript in 2002, and Italian musicologist and conductor Federico Maria Sardelli, who conducted the world premiere with his Baroque ensemble Modo Antiquo. The Sing-Akademie filed civil lawsuits against Italy’s Opera Barga and Düsseldorf’s Altstadtherbst Kulturfestival, both of which have planned staged versions of the work. The Akademie claims to have published the manuscript on its web site, and says that it is protected by German copyright law, which holds that the finder of a work can own the rights to its performance for 25 years – effectively a form of restricted act in copyright owned by the finder. See:

Dutch court rules that privacy overrides copyright investigation

COPYRIGHT Record Labels, Music Publishers, Film and Television, Internet The Dutch rights organisation BREIN has lost a lawsuit filed on behalf 52 media and entertainment companies. BREIN had acquired unique computer identification numbers, so-called IP addresses, of suspected file swappers and had requested the personal details behind these IP addresses from five large internet service providers (UPC, Essent, Tiscali, Wanadoo and KPN). The ISP’s had refused to hand over details arguing only a criminal court could request this. The court ruled that BREIN made a crucial mistake in collecting evidence against the individuals as it could have accessed private data as well as details of copyright infringements when looking at user’s Kazaa activities and this was not permissible under Holland’s privacy laws (which the court suggested were far more robust than US privacy laws). The case in a civil court in the city of Utrecht led to a ruling that whilst the judge was allowed to order the ISPs to submit the personal data, the plaintiffs had not met the necessary conditions to warrant such an order. However, whilst a court in Sweden has also protected internet users privacy (see Law Updates July 2005) it should be noted that an…

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

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 “” 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…

Court of Appeal gives narrow scope to database right
Copyright , Internet , Record Labels / August 2005

COPYRIGHT Record Labels, Internet The Court of Appeal has now given its judgment in British Horseracing Board v William Hill Organisation Ltd, the first substantive case concerning database rights in the UK. The court held that William Hill’s appeal against the High Court’s 2001 decision in favour of the British Horseracing Board (BHB) should be allowed, in light of the ruling of the European Court of Justice (ECJ) on the scope of database rights in this matter under EC Directive 96/9 late last year. The Court of Appeal ruled that William Hill had not infringed BHB’s database rights. It confirmed the distinction drawn by the ECJ between (i) the creation of the contents of a database and (ii) investment in the obtaining, verification and presentation of those contents. It is only this latter investment, which attracts the protection of the database right – so for a database right to subsist there must be (real) investment in the obtaining, verification and presentation of the database – the court will NOT look at the creation of the database itself – which is not doubt an unwelcome decision for database right owners; here the Court has drawn the boundaries of protection afforded to database…

Clearing Music for Film
Copyright / August 2005

COPYRIGHT Film and Television This is a link to an interesting article on clearing master tape recording and music publishing rights for an independent documentary film. Clearing rights can be a complex and expensive area but this interview explains what can be done, legally, with a limited budget and with a lot of effort, persistence and enthusiasm. See: