Digital re-seller loses round one
Copyright , Internet / May 2013

COPYRIGHT Internet   In a case brought by Capitol Records against digital re-seller ReDigi, U.S. District Judge Richard Sullivan in Manhattan has ruled that the  ‘first sale’ doctrine does not apply to digital goods, in a decision which might also come as a blow to comes to other online retailers such as Amazon and Apple who have been developing platforms to re-sell used digital goods such as books, music, videos and apps. Judge Sullivan said “The novel question presented in this action is whether a digital music file, lawfully made and purchased, may be resold by its owner through ReDigi under the first sale doctrine. The court determines that it cannot”.  The reason, the judge ruled, is because copying, or an illegal “reproduction” of a music file, must take place, despite ReDigi’s claims to the contrary. Judge Sullivan added “Because the reproduction right is necessarily implicated when a copyrighted work is embodied in a new material object, and because digital music files must be embodied in a new material object following their transfer over the internet, the court determines that the embodiment of a digital music file on a new hard disk is a reproduction within the meaning of the Copyright Act….

Muse ‘concept copy’ claim thrown out

COPYRIGHT Music publishing   A New York judge has thrown out a lawsuit that targeted Warner Music over the 2009 Muse album ‘The Resistance’ in a case brought by American songwriter Charles Bollfrass who claimed that the last three tracks on that album, a trilogy under the title of ‘Exogenesis’, were copied from a concept he had devised in 2005 for a rock opera of the same name. Bollfrass had said he had contacted Muse but the band called the claims “complete nonsense”, and denied having previous knowledge of Bollfrass or his 2005 project. The court ruled that the ‘plot’ was too abstract to constitute any sort of infringement of the songwriter’s rock opera screenplay, even if the band had been previously exposed to the claimant’s work.

PRS 2012 collections up overall, but live music slips

COPYRIGHT Music publishing, live events, internet   UK collection society PRS for Music have announced a record £641.8m collected for songwriter, composer and music publisher members in 2012, equating to a 1.7% rise on 2011. A focus on efficiency resulted in a £3.6m reduction in overall costs, equivalent to 4.6%, meaning a total of £571.9m was paid to members (up 2.6% on 2011). Royalties from online and digital services topped £51m for the first time, up 32.2% on 2011. Royalties from online services now provide a larger income stream for music creators than radio, live or the pub sector, but perhaps unsurprisingly, royalties collected from live music fell by 14.2% to £19.3m as fewer live events occurred in 2012. Collections from CD sales were also down, but overall PRS’s ‘recorded media’ income was slightly up. International revenue, which has seen considerable growth in the last decade, was down 4% in 2012, a result, in part, of exchange rate losses. However, this income stream is still the biggest single revenue generator for PRS members, bringing in £180.1 million. 2011 figures here:

IFPI report confirms modest growth in recorded music revenues

COPYRIGHT Recorded music   The International Federation of the Phonographic Industry (IFPI) has published its annual Recording Industry In Numbers report for 2013. The global recorded music industry saw its revenues increase very slightly by 0.2% in 2012, the first increase since 1999. Growth in digital revenues, including those from the rapidly expanding subscription and streaming service domain, coupled with boosted income from a number of emerging markets, combined to help compensate for the continued decline in physical product sales. Digital now accounts for 35% of the wider record industry’s global trade revenues, and of this paid for downloads account for around 80% – although in Europe subscription and streaming are now bringing in a third of digital income. Digital generated $5.6 billion in 2012, up 8% on 2011. Physical products bring in 57% of the money worldwide and CD sales topped $9.4 billion with 833 million CDs sold, down from 910 million in 2011 and 2.4 billion sold in 2000.The remaining income is from other licensing-based revenue streams, chiefly performance (PPL) rights, which now account for 6% of income overall. Sync licensing saw modest growth in 2012. Brazil, India and Mexico have all seen market growth since 2008 (of…

West’s Gold Digger faces massive sampling claim

COPYRIGHT Music publishing, recorded music   Rapper Kanye West is facing a copyright infringement lawsuit for sampling lyrics for hit ‘Gold Digger’. According to West is being sued by David Pryor’s children Trena Steward and Lorenzo Pryor for lyrics the rapper used on his 2005 hit, which they say was taken from the their father’s 1974 song ‘Bumpin’ Bus Stop’, which he performed with Thunder & Lightening. Steward and Pryor are reportedly seeking $150 million in damages per infringement, as they own the copyright for the song.  They also claim the rapper used their father’s voice to echo ‘get down’ during West’s  “get down girl, go ‘head, get down”  lyric.  The court documents name West along with Roc-A-Fella Records, Island Records / Def Jam Music Group, Bad Boy Records, Stones Throw Records, Bomb Hip-Hop Records, Autumn Games, Activision and Caroline Distribution. as defendants. and claims that the defendants “systematically and wilfully refused to clear samples of the plaintiffs’ original, copyrighted work in order to gain a commercial profit and to avoid paying and crediting the author.” You can hear Bumpin’ Bus Stop here is in trouble for ‘Rebound’ lift

COPYRIGHT Music publishing, recorded music   Singer has been accused of using Arty and Mat Zo’s song “Rebound” for his own track with Chris Brown titled “Let’s Go” and now the The Black Eyed Peas stalwart has seemingly admitted at least to a degree of influence saying “Arty is a dope producer so I wrote this song to “Rebound” this last year,” in an interview with KISS FM, admitting that he used the song in question as the foundation for “Let’s Go” saying “I got in touch with Arty and showed it to him, did a different version to it ’cause I asked him [to] make it newer ’cause I don’t just wanna take your song and rap over it,” he said. “But in a year’s time, time’s gone by [and] we preferred writing over and using the [original] Rebound. Reviews say that ‘Let’s Go’ features the new vocals by Chris Brown, but the instrumental side uses Arty and Zo’s original almost in its entirety. was somewhat vague in the interview saying “Something happened and the clearance” but Arty insisted that “there is no official licence agreement, signed contract or anything else between me, Mat Zo, [their label]…

23 months custody for US criminal copyright infringer
Copyright / May 2013

COPYRIGHT All areas   A Florida man has been sentenced to 23 months in prison for conspiracy to commit criminal copyright infringement. Javier Ferrer pleaded guilty in November and was sentenced this month in the District Court in Norfolk. Prosecutors say Ferrer was part of a conspiracy to become the premier group to release copies of new movies on the Internet that were showing in theatres. Court records say the group used receivers and recording devices to secretly capture audio sound tracks of movies playing in cinemas. The group then synchronized the audio files with video files suitable for distribution over the Internet. Four others pleaded guilty in the case and were given sentences ranging from 23 to 60 months.

Over 2,000 premium SoundCloud users demand copyright policy change
Copyright , Internet / May 2013

COPYRIGHT Internet   SoundCloud’s copyright policy has been met with complaints as almost 2,500 premium registered teir displeasure that their activities are being limited by StormCloud policies on mashups, mixes and more. A petition is requesting the streaming site reverts to “a real promotion tool” and “not a website just to have fancy audio players.” The campaign is being headed up by French DJ/producer Stephan Hedfors, who said: “Soundcloud was a great promotion tool for musicians. Unfortunately, with their new copyright policy, even original content can be flagged as copyrighted content, removed from their website and account from the artists can be closed” adding “Bootlegs, mashups are not allowed anymore, despite the facts that people who make them don’t earn money from them and that some of the biggest artists support them.” Soundcloud have responded saying that they are “striving to resolve any conflicts that have arisen from legitimate rights holders getting caught up in any takedown requests.” Acknowledging some user’s frustration, a spokesperson told Music Week: “At SoundCloud we use a well-established and market leading third party content ID system to help identify and block known copyright works from appearing on our platform. Unfortunately, this sometimes has the unwanted…

German DJ’s in dispute with GEMA

COPYRIGHT Music publishing, live events sector   A dispute between the German DJ fraternity and Germany’s music publishing rights collecting society GEMA resulted in two protests outside the rights organisation’s offices in Dortmund and Munichin Aprilk, the latter also supported by the German Pirate Party. The DJs are protesting a recently announced new licence that GEMA has introduced which means that DJs who play their sets off laptops or similar devices must pay a royalty into the collecting organisation, seemingly to cover the ‘mechanical copy’ said DJs are making of any songs they rip from CD or transfer from another device to the computer they perform with. While in Germany such copies are exempt from royalty payments if for personal use, the minute said copied songs are played in public that exemption does not apply, says the rights body. The cost will be 13 cents for each copied track, although bulk track options are also available. Billboard calculated that an average DJ with, say, 15,000 tracks on his or her laptop would face an annual licence fee of 1500 euros. The DJs have also pointed out that GEMA already receives royalties from club promoters for the performing rights that exist…

Cavalcade Records Ltd v HHO Multimedia Ltd

COPYRIGHT Recorded music   Although the news of Cavalcade Records Ltd (trading as Minder Records Ltd) succeeding in its copyright infringement action against HHO Multimedia Ltd is no longer hot news, the case — which is not available on the BAILII database but can be found on Music Week, is not without interest. The claim, adjudicated in the Patents County Court by Judge Colin Birss QC, related to an early Rod Stewart recording, The Blues. HHO was shown to have made Minder’s recording available to a third party partner, Cleopatra Records Inc, which subsequently sold recordings to the public, both as part of physical packages and digitally. The court granted a permanent injunction against HHO and also awarded Minder damages and costs (the latter being estimated at a little over £40,000). According to a note on this decision on the Lawtel subscription-only service, the damages were not merely compensatory but also additional (= punitive) because, “although the defendant had not received a significant benefit in licensing a music track, it was a fragrant and deliberate infringement and it had demonstrated a reckless attitude”. The parties were actually some way apart on the question of quantum. Minder’s claim that it was entitled to…

Safe harbor defence does not apply to pre-1972 recordings

COPYRIGHT Recorded music, internet   In a case involving the controversial website Grooveshark, a New York state appeals court has held that the safe harbor defence found in the Digital Millennium Copyright Act does not apply to pre-1972 recordings. a panel of five judges in the New York State Supreme Court of Appeals found in favor of Universal Music Group (UMG) in its copyright suit against Grooveshark, reversing a lower state court decision favoring Escape Media Group Inc., the operators of Grooveshark. UMG Recording, Inc. had sued Grooveshark, an internet-based music streaming service, for copyright infringement, accusing it of uploading around 100,000 recordings without authorisation. Grooveshark conceded that it could not ensure that each work uploaded to its servers was a non-infringing work however, it claimed that it operated on the basis that it was shielded from infringement claims by the safe harbor provisions of the DCMA. Many of the recordings uploaded by Grooveshark were made before 15 February 1972 which is significant as, when the US Copyright Act was amended in 1971 to include sound recordings, Congress expressly extended federal copyright protection only to recordings “fixed” on 15 February 15 1972 or after. UMG claimed that by permitting the pre-1972 recordings…

Pressure for copyright reform gathers pace
Copyright / May 2013

COPYRIGHT All areas   Last month the Register of Copyrights Maria Pallante called for copyright reform and the adoption of “The Next Great Copyright Act” to address issues around licensing, digital first sale, and exceptions and limitations, including enhancing clarity. During her testimony to the House Subcommittee on Courts, Intellectual Property and the Internet Committee on the Judiciary, Pallante explained “The law is showing the strain of its age and requires your attention. As many have noted, authors do not have effective protections, good faith businesses do not have clear roadmaps, courts do not have sufficient direction, and consumers and other private citizens are increasingly frustrated” and that the US needed  “the next great copyright act”  which Pallante said  is needed as consumers are increasingly “accessing content on mobile devices and fewer and fewer of them will need or desire the physical copies that were so central to the 19th and 20th century copyright laws.” It’s not just one issue – digitization is the main driver, but there are other reforms that have been suggested: clarifying the scope of exclusive rights; revising exceptions and limitations for libraries and archives; addressing orphan works; accommodating people who have disabilities when they access…

New EU rules may put pressure on unexplained ticketing charges
Contract , Live Events / May 2013

CONTRACT Live events industry   New regulations have come effect last weekend that will stop UK companies from including anything but ‘cost of sale’ in payment surcharges which may have a major impact on the ticketing business where a variety of additional costs are often added the cost of tickets including credit card booking fees, delivery, ‘transaction’ and ‘booking’ fees . The Regulations ban traders from charging consumers more than the cost borne to them for accepting a given means of payment. The Consumer Protection (Payment Surcharges) Regulations which stem from EU legislation were passed by the UK parliament last year and brought into effect on the 6 April  say that where credit card fees are added to purchases, a seller can’t use that extra charge to increase profit margin, ie the fee must only cover costs directly linked to the credit card transaction. The Department for Business, Innovation and Skills has issued guidelines to try to define “costs directly linked to the credit card transaction. Fees charged to a seller by a credit card provider can be included, and according to the guidelines so can any costs directly related to fulfilment  – IT costs, risk management and anti-fraud efforts….

The Hives must re-pay The Cardigans £1.8 million in Swedish studio muddle
Artists , Contract / May 2013

CONTRACT Artists   The Hives have been ordered to pay fellow Swedish band The Cardigans 18.5 million kroner (about £1.8 million), after a legal battle resulting from dubious financial management practices at the Malmö-based Tambourine Studios. According to local media reports, the Lund District Court heard that it was standard practice at Tambourine Studios to move money between the accounts of artists it represented to provide cheap cash flow. This was how 18.5 million kroner belonging to The Cardigans ended up in The Hives’ account. The Hives argued that they were never told by Tambourine that some of the money transferred into their band account was, in essence, a loan from other artists, in particular The Cardigans, and in a blog post ahead of the court hearing the band stated “there are no loan agreements, no signed documents, no agreements on interest rates”. The judge hearing the case agreed that the transfers made by Tambourine “shouldn’t be viewed as a loan”, given the lack of any formal agreements to that effect, but nevertheless the money that belonged to The Cardigans should be returned to them. The case is reportedly one of a number involving Tambourine Studios (“the greatest music studio…

Pirate bay founder charged over hacking
Criminal Law , Internet / May 2013

CRIMINAL Internet   One of The Pirate Bay founders, Gottfrid Svartholmn Warg has been charged with aggravated fraud, attempted aggravated fraud, and being an accomplice to attempted aggravated fraud, over allegations he was involved in the hacking of computer systems of various Swedish state agencies, as well as making an illegal online money transfer. Svartholm, was extradited from Cambodia last year and incarcerated on return to his home country. He had previously failed to attend appeal hearings in relation to his Pirate Bay conviction, so that his one year prison sentence stemming from that charge stood.

Sarah Harding banned from driving but says sorry
Artists , Criminal Law / May 2013

CRIMINAL Artists   Former Girls Aloud member Sarah Harding has been banned from driving for six months after admitting to failing to stop for police when she was spotted talking on her phone while driving in central London. Harding was arrested and taken to Holborn Police Station to be charged with using her phone while driving and failing to stop for police. She appeared at Highbury Corner Magistrates’ Court to face the charges where District Judge Nina Tempia disqualified her and ordered Harding to pay a fine of £500, plus a £20 ‘victim surcharge’ and £85 court costs. Her lawyer, Nick Freeman, argued that his client had “suffered more than a normal person because of the media attention her arrest had attracted”. District Judge Tenpia disagreed. She gave Ms Harding credit for pleading guilty straight away to the charge and said her charity work was admirable, but said she was a “normal person” and should be treated as such. After the hearing Harding was repentant saying “Too many people use their mobile phone whilst driving and think it’s acceptable. It is not. Every year people die or are seriously injured because they were distracted making that ‘oh so important call’….