BMG-Sony merger re-approved as AIM questions Universal’s label acquisitions
Competition , Record Labels / November 2007

COMPETITION Record labels The European Commission have now formally re-approved their July 2004 merger approval of Sony and BMG’s record labels which was annulled in 2006 by the European Court of First Instance. The EC Competition Commissioner Neelie Kroess said that the “investigation represents one of the most thorough analyses of complex information ever undertaken by the Commission” adding that “It clearly shows that the merger would not raise competition concerns in any of the affected markets.” But in the same week UK independent labels trade body the Association of Independent Music, which is part of IMPALA, the European trade body which first complained about the Sony-BMG merger, responded to a request for information from the Office of Fair Trading (OFT) regarding Universal’s “creeping dominance” of the UK recorded music market. Having already complained about the Sony-BMG merger which put 80% of the recorded music market into the hands of just four companies (Universal, Sony-BMG, Warners and EMI), AIM are now citing Universal’s recent acquisition of two of the UK’s largest independents, V2 and Sanctuary Records as evidence of Universal’s “progressive expansion” which will “further marginalise the independent sector, serving to stifle competition and narrow consumer choice”.  Market consolidation means…

RIAA finally gets a filesharing conviction in the US
Copyright , Internet , Record Labels / November 2007

COPYRIGHT Record labels, internet The Recording Industry Association of America’s much criticised campaign against individuals who take part in illegal filesharing which costs the industry billions of dollars has finally resulted in a high profile conviction when a jury at the Duluth Federal Court ordered Jammie Thomas to pay the labels $222,000, the sum of $9,250 for each of 24 songs for which the companies sought damages. The lawsuit accused Thomas, a single mother of two, of sharing more than 1,700 songs on the peer-to-peer file sharing network Kazaa. The suit contended that Thomas violated the Digital Millennium Copyright Act by distributing songs for free that belonged to the record labels. The labels’ international trade body, the IFPI, estimates that 20 billion tracks are downloaded illegally each year and that only 795 million tracks were legally purchased – a ratio of 25 illegal downloads to each legal one. Over 10,000 people in 18 different countries have been threatened with legal action. The legal download market, worth about £1 billion ($2 billion) is worth about 10% of the total market value in recorded. The Head of Sony-BMG litigation, Jennifer Pariser, who testified during the trial made the industry’s position clear saying “it is important for Sony BMG to…

Radiohead and Charlatans ‘give away’ albums: the end of the label (for some)?
Copyright , Record Labels / November 2007

COPYRIGHT Record labels by Marc P Holmes In the space of a few days, two of the UK’s most enduring rock acts have announced plans to ‘give away’ their latest albums. Radiohead, in a cunning experiment have led fans into a moral maze and will allow consumers to name their own price starting from £0.00, thus either entrapping their fans into admitting that they’ve never paid for a single one of their albums, or else giving those who would have downloaded the music anyway the best possible quality copy of the work. In the ake of the announcement the band’s website crashed as it tried to cope with demand. An Xfm survey pitched up with 40% saying they would pay nothing, 30% plumping for £10 and the rest suggesting other figures. The Charlatans, for their part, are giving their latest efforts away as part of an XFM sponsored free download, accompanied by the hyperbolic language of a ‘revolutionary…groundbreaking first’, with the predictable anti-label (but not anti-copyright) lip service being paid by another band that coincidently happens to no longer have a major record deal. What does it all mean? The moves appear to signify that, once released from the their…

Swiss parliament approves downloading for ‘personal use’.
Copyright , Internet / November 2007

COPYRIGHT Internet By Marc P Holmes Just as Germany makes copying for personal use illegal, Heise have reported that the Swiss Parliament has passed new federal legislation dealing with the sharing of ‘copyright and related intellectual property rights’ over the internet. The effect of this legislation is that, providing files shared are for ‘personal use’, the act of making a copy by downloading will not be illegal. In addition, the Act stresses that ‘access and copy-protection measures must not be circumvented’, which suggests that only files uploaded and shared by the author would conform to this definition. It would seem that over seven years since the explosion of Napster and others, during which time ‘filesharing’ and ‘downloading’ have become popular euphemisms for the mass breach of copyright, legislators still insist on buying into two fallacies: Firstly, that they can actively encourage a watertight, author-endorsed sharing of works without the risk of all sorts of other files being shared via the same platform without the author’s consent, and secondly that by legislating a national policy on filesharing, this somehow excludes (or simply does not take into account) all content being downloaded by fellow countrymen originating from a myriad of different international…

UK Trade Mark Law Changes
Trade Mark / November 2007

TRADE MARK All Areas By Tom Frederikse, Clintons UK trade mark law has changed so that the UK Registry will no longer block applications for being identical or similar to existing registrations. From 1 October 2007 under the Trade Mark (Relative Grounds) Order 2007, existing trade mark holders will carry the burden of trying to oppose (or negotiate around) any application that may threaten their registrations, without assistance from the government beyond a single alert notifying them of a possible threat. This is good news for new applicants and bad news for existing owners of UK trade marks. Until today, a new UK trade mark application had to overcome the twin hurdles of being both a registrable mark (i.e. distinctive, not descriptive or generic, not offensive or deceptive – known as “Absolute Grounds”) and being not identical or confusingly-similar to an existing mark in identical or similar classes of goods and services (known as “Relative Grounds”). The UK government, wishing to harmonise with the EU’s “Community Trade Mark” process (and, presumably, also to save costs), will now no longer refuse to register a mark on Relative Grounds unless a successful “opposition” is raised by the owner of an earlier mark. Each…

The most illegal album ever?
Artists , Copyright , Record Labels / November 2007

COPYRIGHT Artists, record labels ARTICLE Link –  One artist’s take on the ‘fair use’ doctrine and sampling in the USA

PRS bring lawsuit over garage radios
Copyright , Music Publishing / November 2007

COPYRIGHT Music publishing The Performing Rights Society is to bring an action against the tyre and exhaust fitting chain KwikFit as apparently staff play radios which can be overheard by colleagues and customers and the chain doesn’t have a licence for the public performance of songs from the PRS. At a procedural hearing at the Court of Session in Edinburgh a judge refused to dismiss the £200,000 damages claim. In PRSvHarlequinRecord. Shops Ltd (1979) 1 WLR 851 It was held that music played over loud speakers in a record shop was a public performance and in Ernest Turner Electrical Instruments Ltd v PRS ([1943]1 Ch 167 the playing of music to workers in a factory was held to be a performance although here of course the sound recordings and songs are performed at least initially via the (very loud?) fitter’s radios. see also Australian PRA v Commonwealth Bank (1992) 25 IPR 157 and PRS v RangersClub (1975) RPC 626.   The IP Kat adds this: According to PRS, Kwik-Fit employees “routinely use personal radios at work in such a way as to make copyright works audible to colleagues and customers alike. This, it is said, constitutes the “playing” or “performance” of such works “in public” for the…

Wu Tang Clan get Beatle’s ‘sample’
Artists , Copyright / November 2007

COPYRIGHT Artists, sound recordings The Wu Tang Clan have been given permission to sample a Beatles track having been given clearance to use the George Harrison composition ‘My Guitar Gently Weeps’ off the ‘White Album’ (famously illegally sampled on Dangermouse’s‘Grey Album’). However the band make it clear on their website that the use is a ‘replay’ – a re-recording and then INTERPOLATION of the classic George Harrison composition. Dhani Harrison, son of George, through his friendship with the RZA, played guitar on the song and he himself helped secure the reuse license of the song. The sample forms part of the Wu song ‘Gently Weeps’, off the rap collective’s new album, ‘8 Diagrams’. The Beatles, through Apple Corp, have been famously reluctant in granting any master tape licences for sound recordings by the Band. CMU Daily 4 th October 2007

Genuwine litigates to get out of ‘fraudulent’ contract
Artists , Contract / November 2007

CONTRACT Artists Ginuwine has filed a lawsuit filed in Manhattan’s state Supreme Court saying that he was duped into signing a contract in May 2007 with a company, the King Music Group Inc., which doesn’t exist. The King Misic Group was allegedly owned by a personal acquaintance of Genuwine’s, Michael Bourne and t he terms of the contract gave Ginuwine (real name is Elgin Baylor Lumpkin) $1.75 million to record his first album a $500,000 advance. In nearly five months the singer hasn’t made any records and hasn’t been paid a cent, the lawsuit said. The lawsuit further alleges that there are no corporate records for King Music Group Inc. anywhere in New York, California, Florida or Tennessee. The lawsuit accuses King Music and Bourne of breach of contract, fraud and negligent misrepresentation. It asks for a total of $4 million in damages. Genuwine was previously signed to Epic.

Does Diddy owe on a Biggie debt?
Artists , Contract / November 2007

CONTRACT Artists Blimey, another rap suit. P Diddy is being sued by a former colleague who claims he is owed monies relating to a Notorious BIG recording from in 1994. The plaintiff is James Sabatino who previously worked as a consultant for Diddy’s Bad Boy, and who personally paid for Biggie, to fly to Miami to perform live and record songs back in 1994. Because he paid for the trip, Sabatino had a deal with Wallace that he would own the recordings made that day. Enter Diddy who allegedly agreed to buy the recordings in 1997 after Biggies untimely death in for $200,000 of which $25,000 was paid. Then Sabatino was declared to be “of interest” to LA police investigating Biggie’s murder and so Diddy promptly put his deal with Sabatino on ice. Since then Sabatino has since been cleared of any involvement in Biggie’s murder although he was jailed over a totally unrelated matter. And now he wants his $175,000 for those 1994 recordings. CMU Daily 8 October 2007

Italian police take fileshare action
Copyright , Internet , Record Labels / November 2007

COPYRIGHT Internet, record labels By Marc P Holmes Italian police have shut down the Discotequezone file-sharing network with raids in Rome, Milan and Brescia. A total of 11 computers and 110,000 illegal MP3 music files were seized in the action. Police in the Italian city of Bergamo have reportedly arrested the administrators of a P2P network, along with seven filesharers who are accused of illegally uploading copyright materials including in excess of 110, 000 MP3 files. These raids constitute another episode in the continuing global ‘war on illegal filesharing’ waged on illicit downloaders. Under Italian law, the IFPI reports, these individuals could now “…face fines of up to 8.5 million euros in each case” and form part of a group of 170 file-sharers and P2P network administrators who have so far been hauled up before the country’s courts on similar charges. It is interesting to note that many of the new prosecutions being faced by such filesharers in their respective countries are now being brought by state authorities. This marks a subtle, yet significant shift in the nature of the battle against internet-based copyright infringement. Whereas initially the music industry itself brought private prosecutions against such individuals, with the result…

New neighbours object to live music venue
Health & Safety , Licensing , Live Events / November 2007

HEALTH & SAFETY / LICENSING  Live events industry  By Marc P Holmes The Birmingham Mail has reported a dispute concerning noise levels between the residents of a newly built housing development and a long-standing drinking hole in the traditionally vibrant Irish Quarter of Digbeth. The Spotted Dog public house now finds itself in a neighbourhood being regenerated with new residential buyers and tenants and has been served with a noise abatement order. The case raises interesting issues concerning the regulation of noise emanating from social and live music venues – if less tolerant new neighbours move into close proximity to boisterous neighbours, exactly what should the cost of harmony between the two parties amount to: the death of another live music venue or the daily donning of ear muffs for those unhappy residents? The answer is hopefully neither, with the soundproofing of new properties the most obvious solution. However, this then raises the critical issue – who is to bear the cost? In Australia, under the ‘agent of change’ doctrine, residential developers building city centre apartments are obliged by law to soundproof developments themselves: The owner of one live music venue objected to a three-storey apartment block being built in a warehouse shell behind his venue. The…

Brooker to appeal Whiter Shade of Pale judgment
Copyright , Music Publishing / November 2007

COPYRIGHT Music publishing Gary Brooker, the lead singer of Procol Harum, is appealing the judgment awarding the group’s former organist (Matthew Fisher) 40% of the royalties from the 1967 hit ‘A Whiter Shade of Pale‘. Brooker’s lawyers will question Fisher’s 40 year delay in making and claim that the case sets the “dangerous precedent” of allowing any musician who had played on any recording in the past four decades to claim joint authorship. For more in this area see the article Battle of The Bards at

Ticketmaster seek to block automated access by secondary retailer
Competition , Live Events / November 2007

COMPETITION Live event industry The furor over the state of the secondary ticket marketing in the is moving to the courts. Ticketmaster is seeking a preliminary injunction to stop RMG Technologies from accessing the Ticketmaster system through automated programmes (a tactic which provides resellers with repeated access to via a proxy server).

Indian religious festival falls foul of Potter magic
Copyright / November 2007

COPYRIGHT Film & TV The Delhi High Court has partially dismissed a claim from Harry Potter author JK Rowling and film producers Warner Bros against organisers of a religious event who constructed a replica of the fictional Hogwarts School complete with a marble staircase and stone flagged hall, all lit with flaming torches.  The writer had brought a claim in copyright law seeking 2 million rupees (£25,000) in damages. The Scholl replica will be remain standing until the end of the festivities in what appears to be a common sense judgment. However the Court took a dim view over adverts featuring ‘Potteresque’ characters used to promote the event and banned the use of these by organisers of the Durga Pjua festivities in Calcutta. The festivities begin on October 16th and last for four days. Event organisers were told that any future use of any material from Harry Potter would need the permission of the author. See

An inconvenient judgment against Al Gore
Education / November 2007

EDUCATION Film & TV We were not quite sure what heading to put this story under, but, a High Court judge in London had agreed with a complaint made by a school teacher that Al Gore’s film,  An Inconvenient Truth was not entirely accurate and contains certain unsubstantiated data. Mr Justice Barton said schools could screen the film but must make available balancing materials. For example Gore claimed that sea levels could rise twenty feet in the ‘future’ whereas the respected Intergovernmental Panel on Climate Change (IPCC) suggests less than a tenth of this figure (18 inches) over the next 100 years. The judge also found no evidence that polar bears were drowning because of melting ice and that the film was guilty of ‘alarmism and exaggeration’. However the judge also commented that there was good support for the four main hypotheses of Gore’s film – that climate change is mainly caused by human created emissions; that global temperatures are rising and will continue to so do; that unchecked climate change will cause serious damage; that government and individuals can reduce the impact of climate change. The case was brought by Stewart Dimmock, a school governor from Kent, with funding from a…

Record labels clamp down on student downloading in USA and Taiwan
Copyright , Internet , Record Labels / November 2007

COPYRIGHT Internet, record labels US Universities have been counting the cost of policing illegal music downloading by students after being contacted by a U.S. House of Representatives subcommittee on intellectual property. The University of Winconsin at Madison (UW) said that it had spent more than US $300,000 responding to cease and desist leters from the Recording Industry Association of America (RIAA) and to a lesser extent the Motion Picture Association of America (MPAA). Staff have to deal with cease and desist letters, follow up with students, notify the RIAA when the music is deleted and secure the student’s agreement not to copy again. The University also spends time and money publicising the implications of copyright theft. Last year UW received 1,158 cease and desist letters from the RIAA. Purdue University, which made the top 10 lists of both the RIAA and MPAA for unauthorized use of copyrighted materials, says tracking down alleged offenders and verifying identities has been a “significant cost to the university” with each case taking 3 – 4 hours to properly deal with at an estimated $50 per hour cost. Last year Purdue received 1,068 notices form the RIAA and 873 from the MPAA. In mid-September, the RIAA issued…

Canadian Copyright Board rule on download royalties
Copyright , Internet / November 2007

COPYRIGHT Internet Canada’s Copyright Board has ruled on what publishing royalties should be paid to the Society Of Composers, Authors And Music Publishers (Socan) on download sales made between 1996 and 2006, bringing to an end a decade long dispute between the recording and publishing sectors. Socan had been pushing for a higher rate than physical royalties, at one point 25%, though during the Copyright Board hearing they gave clear indications they would settle for a royalty much lower than that, though not as low as the 3.4% awarded by the Board this week. But the record labels were looking for something much less than even the 3.4% that was awarded. They already pay a 7.9% royalty to mechanical rights body the Canadian Musical Reproduction Rights Agency, and were hoping to keep the total publishing royalty – ie the amount paid to CMRRA and Socan – within the 8% figure, to keep the royalty inline with that due elsewhere (Japan is 7.7%, UK 8% and US 9.1%). The Board ruling means they will have to pay a total publishing royalty of 11.3%. The Board now needs to consider the royalty rates for this year, which have not been set pending…

Football fans may face claim
Defamation , Internet / November 2007

DEFAMATION Internet Disgruntled Sheffield Wednesday Football Club fans who vented their anger about club directors in acrimonious blogs may face defamation clams after the High Court ruled that the owner of a blog must reveal the identities of three fans who had made allegations of ‘greed, selfishness, untrustworthiness and dishonest behaviour’. Mere abuse or where the post was likely to be understood as a ‘joke’ was not enough and eight fans were allowed to retain their anonymity. In an earlier case in October a Sunderland property developer called John Finn admitted in court that he was the owner of a website which had criticised a rival firm, Gentoo on a website set up to campaign for father’s rights. The Guardian 22 October 2007 & see Music Law Updates April 2006 Liability for ISPs: Bunt v Tilly & Others

Pirates board IFPI
Internet , Trade Mark / November 2007

TRADE MARK Internet Pirate Bay, the ongoing thorn in the side of the record and film industries, has launched a new website at …. on no you guessed it, the seemingly vacant The International Federation of Phonographic Industries whose main website is at have said they will bring a WIPO (World Intellectual Property Organisation) action to regain the ‘cyber squatted’ domain.

Google missing from copyright pact
Copyright , Internet / November 2007

COPYRIGHT Internet A coalition of nine of the world’s biggest media companies have signed a pact aiming at cracking down on copyright abuse on the internet. The group, which includes Viacom, Microsoft, Disney and Fox have pledged to use filtering technology to stop the use of copyright materials without permission on file sharing sites. But Google, which owns the biggest file sharing website YouTube, is a notable absentee despite the fact that YouTube publicly launched new copyright filtering technology on the site this month. All nine companies have offered each other an amnesty against legal action for copyright abuse provided the new guidelines are adhered to. The Guardian October 19 2007.

FACT close down tv-links wesbite
Copyright , Internet / November 2007

COPYRIGHT Internet The Federation Against Copyright Theft (FACT), Gloucestershire trading standards officers and Gloucestershire police have raided the offices of and closed the site down.  According to police reports, the website’s owner and some of its moderation staff were arrested. FACT says that this is just the first of a series of planned moves to combat the illegal, unauthorised distribution of video content online here in the UK. The website,, listed hundreds of TVseries and movies and provided links to video sharing sites – YouTube, Veoh, stage6, Guba and others, many of which host illegally uploaded content. However the website itself contained no illegal uploads nor offered illegal content and it will be interesting to see if the UK Courts decide that the mere linking to illegal sites and material constitutes copyright infringement especially as the wesbite did not support illegal links with advertising. source CMU Daily 22 October 2007

Nugent loses appeal over concert cancellation
Contract , Live Events / November 2007

CONTRACT Live events industry The Michigan Court Of Appeal has rejected an appeal by rocker type Ted Nugent who sued music festival Muskegon Summer Celebration after they cancelled a 2003 booking with his band Amboy Dukes after he made allegedly racist remarks in a radio interview. Promoters of MSC cancelled the planned Amboy Dukes set at their 2003 event after a local newspaper reported on the radio interview, comments Nugent had made, and opposition by some local residents to what he had said. They said at the time of the cancellation that “any use of potentially offensive racial terms such as those attributed recently to Ted Nugent do not reflect the spirit of Muskegon nor the Summer Celebration”. Nugent sued the MSC not only for breach of contract over the cancellation but also for libel, slander, “detrimental reliance”, unfair competition and unjust enrichment. The breach of contract claim, heard by a jury, was successful, but a Muskegon County Circuit Court judge dismissed all the other allegations. Nugent appealed that decision, but the Court Of Appeals upheld the dismissals last week. Not only that, but they reduced the compensation awarded to the rocker over the breach of contract claim. At first…

Judgment of the Court of First Instance in Case T-201/04
Competition / November 2007

COMPETITION Technology, software Microsoft Corp. v Commission of the European Communities Microsoft have announced that they will not be appealing against the recent CFI decision and European Competition Commissioner Neelie Kroes said in a speech on the 22 nd October “I want to report to you today that Microsoft has finally agreed to comply with its obligations under the 2004 Commission decision, which was upheld last month by the Court of First Instance. The Commissioner went on to confirm that Microsoft would now provide information allowing third party developers of work group server operating systems to develop products that interoperate with the Windows desktop operating system on terms acceptable to the Commission and that Microsoft had slashed patent royalty rates for interoperability information from 5.95% to 0.4% – less than 7% of the royalty originally claimed. The Commissioner also confirmed that there would now be a one of payment for access to secret interoperability information on software developed using licensed information and that Microsoft would make interoperability information available to open source developers and that Microsoft would give legal security to programmers who help to develop open source software and confine its patent disputes to commercial software distributors and end…

European copyright law used to threaten Canadian public domain site
Music Publishing / November 2007

COPYRIGHT Music Publishing ARTICLE LINK A number of article have appeared commenting on the closure of the International Music Score Library Project which appeared to be a site hosting ‘public domain’ music scores – public domain works in Canada anyway. and see a summary at including comment from two leading Canadian lawyers Professor Michael Geist and Howard Knopf.

Oink shut down in British and Dutch raids
Copyright , Internet , Record Labels / November 2007

COPYRIGHT Internet, record labels The IFPI report that British and Dutch police have shut down the world’s biggest source of illegal pre-release chart albums and arrested a 24-year old man in an operation coordinated between Middlesbrough and Amsterdam. The raids, which were coordinated by Interpol, follow a two-year investigation by the international and UK music industry bodies IFPI and BPI into the members-only online pirate pre-release club known as OiNK. OiNK specialised in distributing albums leaked on to the internet, often weeks ahead of their official release date.  More than 60 major album releases have been leaked on OiNK so far this year, making it the primary source worldwide for illegal pre-release music. The site, with an estimated membership of 180,000, has been used by many hardcore file-sharers to violate the rights of artists and producers by obtaining copyrighted recordings and making them available on the internet. It is alleged that the site was operated by a 24-year-old man in the Middlesbrough area, who was arrested today. The site’s servers, based in Amsterdam, were seized in a series of raids last week.  OiNK’s operator allegedly made money by setting up a donations account on the site facilitated by PayPal.  Cleveland Police and…

‘Brega’ Sound turning music industry on its ear
Copyright , Record Labels / November 2007

COPYRIGHT Record labels ARTICLE:  “While piracy is the bane of many musicians trying to control the sale of their songs, tecnobrega artists see counterfeiters as key to their success. Artists, who make their money off of live shows, deliver their CDs directly to the street vendors, who determine the price that market can bear.”