London local authorities battle over plans for more common concerts
Licensing , Live Events / August 2016

LICENSING Live events sector     IQ reports that two London councils are at loggerheads over plans hold more concerts and large-scale live events on Clapham Common. The the 220-acre park is managed and maintained by Lambeth Council, but the South half of the Park lies in neighbouring Wandsworth, and the latter council has voiced “serious concerns” over a new events strategy proposed by Lambeth that paves the way for the borough to hold up to eight shows a year on Clapham Common, as well as eight each in four other ‘event zones’ (Streatham, North Lambeth, Brixton and Norwood). Lambeth has also approved the increase in maximum sound levels on the common and three other parks. The new music noise level (MNL) will be 75dB L(A), with a maximum low-frequency music noise level (LFMNL) of 90 dB L(C). Wandsworth Council’s environment spokesman, Councillor Jonathan Cook, criticised Lambeth for “burying” the recommendations “some 300 pages into a 520-page” report and says more “noisy music festivals and other loud events” will negatively affect those living near the Common. Mr Cook said: “Instead of trying to conceal the level of opposition that exists to these proposals and trying to sneak them through without the public’s…

Ban on audience pyrotechnics moves closer in the UK
Licensing , Live Events / August 2016

LICENSING Live events sector   MPs have supported a law banning flares and fireworks from UK music concerts and festivals. Conservative MP Nigel Adams put forward the amendment to the Police and Crime Bill, which would make it illegal for concert-goers to carry pyrotechnics including flares, fireworks and smoke bombs into a venue. Flares have been banned at sporting events since 1985. It is a criminal offence to enter or attempt to enter a football ground while in possession of a flare, smoke bomb or firework, punishable by up to three months in prison. The same penalties would now apply to concerts. Football fans in breach of the law have also found themselves banned from football grounds for up to six years. Currently, it is not illegal for fans to bring smoke bombs, flares and fireworks into a concert venue unless it can be proved they intend to cause harm to other people. UK Music, Live Nation and the Association of Independent Festivals (AIF) have all supported the move, with Bestival co-founder Rob da Bank saying “there are increasingly more incidents and the time is right for the Government to act and support organisers in minimising risk” and  UK Music CEO Jo Dipple said “Safety…

Appeal of Mason’s outdoor entertainment law is on the way
Licensing , Live Events / August 2016

LICENSING Live events sector   Residents opposed to music concerts at Marty’s Driving Range in Mason plan to appeal the Board of Selectmen’s denial of a new special town meeting to reconsider a recently approved zoning amendment that will allow the driving range to bring back outdoor entertainment. The move has split the town, which voted 240 to 165 in favour of the move at a special town meeting to amend the town’s zoning regulations to allow by special exception seasonal outdoor entertainment use up to three times a week from Memorial Day Weekend through Columbus Day Weekend, ending no later than 11 p.m. on holidays and weekends and 10 p.m. on weekdays. 39 percent of the town’s 1,028 registered voters cast a vote.   Initially there were no provisions in town ordinances regarding outdoor entertainment, so the Range’s owners consulted with police about appropriate times. When some residents expressed concerns about the noise and parking, town officials told the venue to stopm and apply for a variance.   At an initial re-hearing of the already approved zoning amendment, attorney Peter J. Nicosia who represents opponents of the re-zoning reportedly said the zoning amendment was too vague, with no limits on sound or light….

IsoHunt founder finally settles with the Canadian content industries
Copyright , Internet , Music Publishing / August 2016

COPYRIGHT Internet, film, recorded music   One of Canada’s longest-running copyright infringement lawsuits has ended with a judge in Vancouver announcing a $65 million settlement in the IsoHunt case that dates back to 2008. According to various reports, Gary Fung, founder of isoHunt Web Technologies Inc, which was found to have infringed music and film companies’ copyrights in both Canada and the USA , shared music files via isoHunt, a network of BitTorrent file sharing sites.  In the US, a federal district court found isoHunt liable for copyright infringement against the Motion Picture Association of America for sharing illegally downloaded movies. In 2010, more than 20 Canadian and international music companies sued isoHunt and Fung for “massive copyright infringement. In 2013, the US federal court of appeals upheld the 2009 ruling, isoHunt and Fung entered into an agreement to stop all international operations and agreed to a $110 million settlement. The British Columbia Supreme Court has now ruled against isoHunt and Fung, ordering him to pay $55 million CAD in damages for copyright infringement and an additional $10 million (CAD) for punitive damages, and ordering Fung to agree to never again be involved in a service that provides stolen or pirated…

Stairway to Heaven decision to be appealed
Copyright , Music Publishing / August 2016

COPYRIGHT Music publishing   The estate of musician Randy California, of L.A. rock band Spirit, intends to appeal the jury verdict last month that found that Led Zeppelin did not lift music that formed the basis for the group’s hit “Stairway to Heaven” from an earlier Spirit instrumental, “Taurus”. The appeal against the unanimous verdict in U.S. District Court in Los Angeles will challenge the conclusion that even though Zeppelin songwriters Jimmy Page and Robert Plant may have heard “Taurus” before they composed “Stairway,” the songs were not musically similar enough to rise to the level of copyright infringement. The claim came four decades after the songs were written. Immediately following the verdict, Led Zeppelin’s  Jimmy Page and Robert Plant released a statement saying that they were glad to see the issue resolved saying “We are grateful for the jury’s conscientious service and pleased that it has ruled in our favour, putting to rest questions about the origins of ‘Stairway To Heaven’ and confirming what we have known for 45 years,” they said. “We appreciate our fans’ support, and look forward to putting this legal matter behind us.” Plaintiff’s attorney Francis Malofiy later claimed he lost his case on a technicality, insisting…

Google don’t need to filter ‘torrent’ searches in France
Copyright , Internet / August 2016

COPYRIGHT Internet   The High Court in Paris has held that search engines Google and Bing are not required to automatically filter “torrent” related searches to prevent piracy. The court said that the proposed filter, requested by the local music industry group SNEP, would be too broad, ineffective, and target legitimate content as well.   SNEP had argued that, when paired with the names of three artists it represented, “torrent” related searches predominantly link to pirated content. To counter this, they demanded a filter that would block results for these searches for the keyword “torrent,” as well as websites that include the same word in their domain name, basing the request on Article L336-2 of France’s intellectual property code, which states that “all appropriate measures” are permitted to prevent copyright infringement. Microsoft had warned that the broad filtering system requested by the music group would be imprecise, disproportionate and inefficient. The Court had to balance the rights of content owners to implement anti-piracy measures against the rights of individual Internet users including  freedom of expression and communication and the court found that “SNEP’s requests are general, and pertain not to a specific site but to all websites accessible through the stated methods, without consideration…

Virgin told to implement three strikes in Ireland – but who pays?
Copyright , Internet / August 2016

COPYRIGHT Internet     The Court of Appeal in Ireland has ruled that Ireland’s second largest internet service provider, Virgin Media, must take steps to deal with illegal music downloading, upholding a March 2015 High Court decision that required UPC (since taken over by Virgin) to set up a ‘three strikes’ regime whereby infringers of copyright are identified, warned and their service withdrawn if they do not desist. Subject to a minor variation, the High Court order in favour of Sony, Warner and Universal companies should apply, Mr Justice Gerard Hogan said on behalf of the three-judge appeal court. That variation is that a five year review of the regime would not apply.   Virgin would be entitled to apply to the court again if there are fundamental changes in circumstances or other significant changes which may merit a change in the order, or even its discharge, the court said. UPC/Virgin had appealed the High Court decision arguing, among other reasons, that because it (UPC) was not the infringer of the copyrighted music, the court had no jurisdiction to make the orders it had. For the appeals court, Mr Justice Hogan said the order was necessary and it satisfied the requirements of a 2001 EU…

Apple suggests new royalty rate for streaming music

COPYRIGHT Music publishing, internet, artistes     Apple has filed a new proposal with the US Copyright Royalty Board which it says it hopes will “simplify” songwriting royalties in the States by 2018. Apple has suggested that all on-demand streaming services should pay songwriters a statutory rate of 9.1 Cents every 100 plays – a per-stream rate of $0.00091, or $910 per million streams, or $910,000 for a billion – thought to be more that Spotify’s ‘free’ ad supported platform would generate.   And in Australia, commercial radio broadcasters will have to pay a licence fee for songs streamed over the internet after a Copyright Tribunal ruling. The long-running legal battle between the Phonographic Performance Company of Australia (PPCA) and Commercial Radio Australia (CRA) finally reached a conclusion after nearly seven years. CRA had previously argued that as it already pays a licence fee for music for radio and shouldn’t have to pay again for making  that broadcast available over the internet. Now the Copyright Tribunal has finalised the terms of the scheme where commercial radio broadcasters will pay simulcast licence fees for songs streamed over the internet.   And Screen Producers Australia (SPA) has reached agreement  with performers for the broadcasting, repeats and…

Were Sony’s MFN deals with Rdio anti-competitive?
Competition , Music Publishing / August 2016

COMPETITION Recorded music   Sony Music has said that the suggestion of antitrust violations are “nothing but speculation and conjecture” and a pretext for avoiding $17 million claim and allegations of fraud by Rdio, which has been in Chapter 11 bankruptcy since November 2015. Rdio received $75 million from Pandora for the sale of assets – and Sony want their share – but is now facing some serious allegations of anti competitive behaviour from Rdio. Rdio was an online music streaming service that offered ad-supported free streaming and ad-free subscription streaming services in 85 countries. It was available as a website and via apps for Android, BlackBerry, iOS, and Windows Phone mobile devices, which could stream music from Rdio’s servers or download music for offline playback.   The Hollywood Reporter reports that Rdio has retained Winston & Strawn to investigate whether Sony for colluded with Universal and Warner Music in the streaming music market.  Sony has itself issued legal proceedings against three of Rdio’s top executives, alleging that before Rdio declared bankruptcy, the company made misrepresentations, false statements and concealments in order to avoid paying millions of dollars for streaming music from Sony artists including Michael Jackson, Bruce Springsteen, Beyonce…

Spotify launch anti-trust claims against Apple
Competition , Internet / August 2016

COMPETITION Internet   Music streaming platform Spotify has accused Apple of using its control of the iOS platform and App Store to keep the latest Spotify app out of the iOS ecosystem, in a move that favours its own Apple Music service. Spotify said that Apple rejected a new version of the firm’s app from the App Store, citing various technicalities. Apple has insisted that Spotify’s app did not conform to “business model rules”, and demanded that Spotify use Apple’s own billing system “to acquire new customers and sell subscriptions”. Companies such as Spotify have sought to sidestep Apple’s App Store cut by encouraging consumers to sign up for their services online. Apple forbids developers from promoting alternative payment methods within their apps. This is a requirement of all app developers who wish to sell apps on Apple’s App Store. iOS is a closed platform, and so Spotify say there is no choice but to comply. Apple takes a 30 per cent fee for the privilege, which Spotify is forced to pass on to customers. Spotify claimed that this makes its service appear uncompetitive. But Apple General Counsel Bruce Sewell countered that the company deserves a cut of transactions in the App Store for its…

DofJ’s decisions on music licensing upset everyone
Competition , Music Publishing / August 2016

COMPETITION Music publishing   In a major setback to music publishers, the Justice Department decided this week it will not alter a decades-old system that requires royalty collection societies ASCAP and BMI to license songs to everyone at a fixed rate.  The Justice Department dealt another potential blow to the music industry by calling for so-called “100% licensing.” In cases involving songs with multiple songwriters. This would require ASCAP and BMI to provide a license for the whole song, and then apportion revenues amongst the different writers. The heads of two of the world’s biggest publishing companies have now both said that they aren’t happy with the recent ruling. Universal Music Publishing Group CEO Jody Gerson and Warner/Chappell boss Jon Platt want publishers to be allowed to negotiate digital rights outside of blanket licenses offered by Collection Societies joining Sony/ATV boss Martin Bandier in declaring the position taken by the DofJ is deeply disappointing, and a threat to the livelihood of songwriters. The DofJ confirmed existing consent decrees – effectively a blanket licence – tat have governed ASCAP and BMI since 1941 and leaving them intact will mean publishers remain unable to partially withdraw their repertoire from the PROs in order to negotiate…

Michigan court finds that a free stream is not a ‘rent, lend or sale’
Copyright , Internet , Music Publishing / August 2016

COPYRIGHT / PRIVACY Internet, recorded music   The Michigan Court of Appeals has confirmed that music service Pandora didn’t violate a 20 year old Michigan privacy law by allegedly disclosing information about users of its free service to Facebook. in a unanimous decision the court said that the state’s Video Privacy Protection Act doesn’t apply when companies stream music to users for free. That law prohibits companies that rent, lend or sell music (as well as books and videos) from disclosing customers’ identities without their consent, upholding U.S. District Court Judge Saundra Brown in Oakland, California who had dismissed the lawsuit, ruling that Michigan’s law doesn’t apply when companies stream tracks. She said the law only applies to companies that lend, rent or sell material. Michigan resident Peter Deacon had begun the action against Pandora, a potential class-action, saying that Pandora wrongly disclosed his music-listening history to all of his Facebook contacts that also used Pandora. In 2010 Pandora partnered with Facebook for the first version of its “instant personalization” programme which automatically shared Facebook users data with outside companies. People could opt out, but at launch the feature operated by default. Having lost at first instance, Deacon appealed to the 9th Circuit Court…

Florida’s Supreme Court to look at pre-72 copyrights
Copyright , Music Publishing / August 2016

COPYRIGHT Recorded music   Florida’s Supreme Court will now hear the three year old class action brought by former members of the Turtles after the The 11th U.S. Circuit Court of Appeals on Wednesday certified questions of state law to the Florida Supreme Court i Howard Kaylan and Mark Volman, known as Flo & Eddie, filed suit in California, New York and Florida against satellite radio operator Sirius XM, arguing that Pre-1972 sound recordings are protected by a patchwork of state and common laws meaning they would need to consent to their recordings being played an should be paid for this. Whilst Flo and Eddie were successful in California and New York, they failed at first instance in Florida, prompting the initial appeal. In Florida U.S. District Judge Darrin Gayles decided to rule in favour of SiriusXM. The judge said he understood why his judicial colleagues in other states ruled differently, noting that California and New York are creative centres of culture, and laws have been enacted there to protect artistic rights, and there have been prior cases that have touched upon the present controversy. But Judge Gayles said that “Florida is different” saying “There is no specific Florida legislation covering sound…

Russian collection society chief arrested on fraud charges
Criminal Law / August 2016

CRIMINAL LAW Collective Management   Sergei Fedotov, head of the Russian author’s rights collecting society RAO, has been arrested on suspicion of fraud.  Russian news service RIA Novosti said that Fedotov has been accused of funnelling assets worth of over ₽500 million rubles ($7.7 million) out of the organisation. RAO’s office and Fedotov’s home were searched by police on June 27th after which Fedotov was brought in for questioning. On June 28, The Tagansky court in Moscow sanctioned Fedotov’s arrest, rejecting his lawyer’s plea for bail. RAO issued a statement saying: “RAO’s general director Sergei Fedotov and the organization’s other employees are fully cooperating with the investigation, helping it to find out the truth” adding “We are sure that a qualified investigation will lead to establishing no wrongdoing in Sergei Fedotov’s action.” The move comes AFTER rumours of corruption involving real estate surfaced in the wake of the 2015 announcement that RAO would merge with two other collecting societies, VOIS, which deals with neighbouring rights, and RSP, which collects a one-percent tax on imports of electronic devices that can be used for copying content. That merger was seemingly supported by the country’s communications ministry but VOIS objected. This time Nikolai Nikiforov, the communications minister, was quoted by RIA…

Utsick faces substantial jail term
Criminal Law , Live Events / August 2016

CRIMINAL LAW Live events sector   Jack Utsick, the former concert promoter who was charged with defrauding an estimated 3,300 investors out of nearly US$300 million, faces up to 20 years in prison after pleading guilty to a mail fraud charge. Many who lost substantial sums were former airline pilots, Utsick’s own former profession. Prosecutors say that that Utsick, 73, who appeared in court in Miami, operated his promotion company, Worldwide Entertainment, as a “ponzi scheme”, repaying older investors with money from newer ones. Worldwide promoted tours by arena-filling artists such as The Rolling Stones, Fleetwood Mac, Elton John, The Pretenders, Aerosmith and Fleetwood Mac before being placed into administration amid mounting debts in 2006. A subsequent investigation by the Securities and Exchange Commission (SEC) discovered that Utsick had in reality lost money on most tours. Utsick departed for Brazil after the company failed, but was extradited to the US in 2014 after a protracted court battle, and since then has been in custody. Utsick will be sentenced on 23 August and has been ordered to repay $169m to Worldwide’s investors.

Former SFX directors to face criminal charges?
Criminal Law , Live Events / August 2016

BANKRUPTCY / CRIMINAL LAW Live events sector     The new management of SFX Entertainment – reported to be led by two senior creditors, investment firms Allianz and Axar Capital Management – have signalled their intention to bring charges against the company’s former directors, including ex-CEO Robert FX Sillerman. New documents, filed in the Delaware bankruptcy court, outline alternative post-bankruptcy plan for the dance music promotion group and says there may be a claim for damages for “breaches of fiduciary duty by former directors and officers of the debtors, and avoidance actions, such as fraudulent transfer claims under federal and state law”   SFX’s new management may also seek to recover “amounts reimbursed to Sillerman” during the bankruptcy process, as well as “licensing fees, employee compensation, a cash collateral release [and] certain settlement payments” and “the termination fee the company paid in connection with the termination of the merger agreement”, which relates to a failed 26 May 2015 merger between SFX Entertainment and two other companies forming part of Sillerman’s  EDM empire, SFXE Acquisition LLC and SFXE Merger Sub, Inc. The revised post-bankruptcy plan will go before US bankruptcy judge Mary F. Walrath for approval on 30 August. At the time…