Sentencing for online film piracy
Copyright , Internet , Record Labels / November 2003

COPYRIGHT Film & Television, Internet, Record Labels A New Jersey man who pleaded guilty to illegally copying and posting a digital version of summer action movie “The Hulk” on the Internet received a three-year probation, was fined us $2,000 and was ordered to serve six months confinement in his home. He also must pay $5,000 in restitution to Universal, the company that produced and distributed the movie. Kerry Gonzalez pleaded guilty to one count of copyright infringement. He admitted to receiving an unfinished copy of the movie from a friend who in turn sourced the ‘work print’ from a third party who worked for an advertising agency. No one from the ad agency has been charged. The FBI traced the Internet copy back to Gonzalez through an encoded “security tag” on the print. The Motion Picture Association of America already puts the number of films pirated off the Internet at 400,000 to 600,000 a day, and no one has calculated what that costs the industry. Jack Valenti, the president of the MPPA, went before Congress in March to warn that “America’s crown jewels – its intellectual property – are being looted”. See:

Sentencing for the online sale of pirated CDs
Copyright , Internet , Record Labels / November 2003

COPYRIGHT Record Labels, Internet New Yorker Alan Davis was sentenced to six months in jail after being convicted of using the Internet to sell hundreds of CDs that were loaded with unauthorised copies of songs. Davis, 42, of Brooklyn, was also ordered to pay $3,329.50 (£2,000 approx). Judge Walton in the US District Court of Washington DC also sentenced Davis to one year of supervised parole, to be served upon his release from jail, and barred him from using a computer for one year. Davis had admitted using his site,, to market more than 100 different CDs and cassette tapes featuring compilations of copyrighted materials from various musical artists. He was caught after an FBI agent ordered 200 CDs and had them shipped from New York to Washington. The Web site has since been shut down. See:,39020651,39117063,00.htm

Suspended prison sentence for contempt of court for repeat copyright infringer: PPL v Tierney

COPYRIGHT Record Labels, Music Publishers, Live Concert Regular ‘users’ of music who either refuse to pay licence fees at all or who do so only under threat of legal proceedings are the bane of music collecting societies. The threat of legal proceedings does not always dissuade a repeat infringer. Furthermore, some infringers are prepared to ignore court orders or undertakings which they have given to the court. In this case the defendant Mr Tierney, the proprietor of an establishment in Guildford, breached a court order by failing to pay licence fees to Phonographic Performance Ltd in relation to certain sound recordings played at his establishment. He had also failed to comply with undertakings given to the court on a number of occasions. Failure to comply with a court order is a contempt of court which is punishable by a fine or an order for committal to prison. PPL applied for an order to commit Mr Tierney for contempt of court in respect of his failure to comply with the court order. It had reportedly made seven previous applications of this nature against Mr Tierney. PPL succeeded in its application. Mr Tierney had been warned of the consequences of further breaches…

EU Copyright Directive will finally be implemented in UK law

COPYRIGHT Artists, Record Labels, Music Publishers, Internet, Film, Television Legislation implementing the European Copyright Directive has finally been laid before the UK Parliament. Among other things, it extends the UK’s copyright laws to deal with digital piracy, albeit ten months behind the EU’s deadline. The Copyright and Related Rights Regulations 2003 will amend the Copyright Designs and Patents Act of 1988 and will come into force on 31st October. The Copyright Directive, passed in 2001, was the EU’s attempt to update copyright protection to the digital age. It is also the means by which the European Union and its Member States will implement two 1996 World Intellectual Property Organisation (WIPO) Treaties: the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. The new Regulations are available at:

Nokia hit by piracy of handset games
Copyright , Internet , Record Labels / November 2003

COPYRIGHT Record Labels, Telecommunications, Internet The secret codes protecting games which can be played on Nokia’s combined telephone/games platform N-gage have already been cracked and the games can be downloaded from the internet and can be played on other games consoles. The software for the games had already been licensed to a number of companies including Samsung and Siemens. Source:

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 , 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…

Copyright , Internet , Record Labels / September 2003

COPYRIGHT Record Labels, Internet US Senator Norm Coleman, chairman of the Senate Permanent Subcommittee of Investigations, is concerned that the recording industry is taking an extreme approach in its attempt to quash online file trading and may hurt innocent people in the process and has asked the Recording Industry Association of America (RIAA), to provide detailed information about the more than 900 subpoenas it has issued so far. As previously detailed in Law Updates, the RIAA has issued the subpoenas to universities and Internet service providers in order to obtain the names of file traders it suspects are violating copyrights. At the end of the month, the music trade group plans to file lawsuits against those caught offering “substantial” amounts of music for others to share. The Senator has asked for five pieces of information from the RIAA: Copies of all the subpoenas, a description of the standard the RIAA uses to file an application for a subpoena, and an explanation of how the group is collecting evidence against alleged file sharers. Coleman also wants to know how the RIAA is protecting computer users’ privacy and how the trade lobby is protecting people from erroneous subpoenas. The RIAA issued a…


COPYRIGHT Record Companies, Internet, Music Publishers, Artists, Merchandisers, Radio, Television INTRODUCTION : This article, by Professor Jonathan Zittrain, suggests a new approach to copyright law in the digital age. The article was first published on in their July/August edition. Bars can’t have TVs bigger than 55 inches. Teddy bears can’t include tape decks. Girl Scouts who sing “Puff, the Magic Dragon” owe royalties. Copyright law needs to change. By Jonathan Zittrain. A couple of years ago I was talking with a law school colleague about cyberlaw and the people who study it. “I’ve always wondered,” he said, “why all the cyberprofs hate copyright.” I don’t actually hate copyright, and yet I knew just what he meant. Almost all of us who study and write about the law of cyberspace agree that copyright law is a big mess. As far as I can tell, federal courts experts don’t reject our system of federal courts, and criminal law experts split every which way on the overall virtue of the criminal justice system. So what’s with our uniform discontent about copyright? I think an answer can be gleaned from tax scholars. Without decrying the concept of taxation, every tax professor I’ve met regards the U.S. tax…

R -v- Hunt Sentencing for lower level piracy
Copyright , Record Labels / September 2003

COPYRIGHT Record Labels A 42 year old plumber who turned his hand to selling counterfeit and bootleg CDs from a stall at a Record Fair was sentenced to a 120 hours community penalty and ordered to pay £250.00 costs after Trading Standards Officers seized pirated and bootlegged CDs worth approximately £9,000 in a raid organised by the British Phonographic Industry (BPI) and EMI Records. Hunt admitted 5 offences under the Copyright Designs & Patents Act 1988 and the Trade Marks Act 1994. The 900 CDs and 300 videos found at the Fair in Norwich included bootleg copies of recordings by Bob Dylan, U2 and Elvis.

Copyright , Internet , Record Labels / September 2003

COPYRIGHT Record labels, Telecommunications, Internet  Sales of downloadable ringtones for mobile phones look likely to outstrip CD singles in the UK in 2004. The ringtone market, estimated to be worth more than £70 million in the UK, is increasing rapidly. Sale of ringtones in 2002 were £40 million. CD singles are heading the other way, with sales currently at about ÿ£150 million (2002) but with an estimated 37% drop in 2003 on last year’s figures. August ’03 favourites include Flying on the Wings Of Love by XTN and Crazy in Love by Beyonce & Jay-Z. COMMENT : With ringtones costing between £1.50 and £3 to download in the UK, the mobile phone operators, labels and music publishers have found a lucrative new maket. Another new growth area is the ‘spoken word’ – a voice rather than a ringtone which announces an incoming call or text. This might prove a new area of legal dispute – where imitators provide the voice of well known celebritiy for a download – for example, as Sir Michael Caine or Arnie as the Terminator alongside that star’s well known catch phrase or parody of that phrase. It will be interesting to see if artists seek to assert character rights over…

Copyright , Internet / August 2003

COPYRIGHT Internet Jordan brought its copyright laws up to date by extending protection to the Internet, but proper enforcement remains the next hurdle, businessmen said on Wednesday. Jordan has implemented “100 per cent” of its commitments to various international bodies by extending copyright protections to material on the Internet, Minister of Industry and Trade Salah Bashir said. The change to copyright laws also toughens penalties against those who violate them, for example, by pirating music or computer software, said Tawfiq Tabbaa, a member of the Jordanian Intellectual Property Association. Tabbaa said the laws protecting intellectual property adopted since 1999 are working, noting that software piracy has dropped from 87% in 1999 to 64% this year. Tabbaa said work is going to “increase judicial capacity” when it comes to the often highly technical arguments made in cases over who has the legal claim to a certain idea. He said the government is looking at working with international experts ‘to help judges feel more a part of the changing laws that they will have to start applying in their courtrooms’. Source: The Jordan Times See


COPYRIGHT Artists, Record Labels Football Association Premier League Ltd and others -v- Panini UK Ltd The Court of Appeal has held that the badges and crests of individual English football clubs were the artistic works of the clubs and were entitled to copyright protection. The unlicensed inclusion of these badges, crests and emblems on the stickers of Panini’s Football 2003 Sticker Collection was not an ‘incidental inclusion’ in an artistic work within the meaning of section 3(1) of the Copyright Designs and Patents Act 1988 and therefore an injunction was granted to restrain the defendant distributing those stickers and albums. Lord Justice Chadwick held that where an artistic work in which copyright subsisted appeared in a photograph – because it was part of the setting in which the photographer found his subject, then it could be properly said to be an integral part of the photograph. But to qualify as an exception to infringement, the inclusion of the work must be incidental and on the facts of the case, clearly the inclusion of the badges, crests and emblems was not incidental as it was the basic object of the defendant’s production of stickers and albums. Source: The Times, Law Report, 17 July 2003 See…


COPYRIGHT Record Labels, Music Publishers, Internet, Artists The Electronic Frontier Foundation (EFF) today launched a “Let the Music Play” campaign urging the more than 60 million U.S. citizens who use file-sharing software to demand changes in copyright law to get artists paid and make file-sharing legal. The EFF Let the Music Play campaign counters the Recording Industry Association of America’s (RIAA) announcement that it will file thousands of lawsuits against individuals who use file-sharing software like Kazaa, Grokster, and Morpheus. “Copyright law is out of step with the views of the American public and the reality of music distribution online,” said EFF Executive Director Shari Steele. “Rather than trying to sue people into submission, we need to find a better alternative that gets artists paid while making file sharing legal.” EFF’s Let the Music Play campaign provides alternatives to the RIAA’s litigation barrage, details EFF’s efforts to defend peer-to-peer file sharing, and makes it easy for individuals to write members of Congress. EFF will also place advertisements about the Right to Share campaign in magazines such as Spin, Blender, Computer Gaming World, and PC Gamer. “Today, more U.S. citizens use file-sharing software than voted for President Bush,” said EFF Senior…

Copyright , Internet / August 2003

COPYRIGHT Internet Bugs Music, Koreas biggest online music service provider, has taken the upper hand in the initial stage of what is expected to be a long legal battle with prosecutors who are trying to draw a clear line on the copyright dispute between Internet music providers and the music industry. The Seoul District Court yesterday turned down a prosecution request for an arrest warrant for Park Sung-hoon, who heads the music provider. The Court said that as `his residence is fixed and there is no concern he will destroy evidence’ no warrant would be granted. Park was charged with copyright infringements as his online company provided music streaming services to more than 14 million members. Prosecuters will continue to investigate Bugs to determine future charges of copyright infringement. The lawsuit, which would serve as the conclusion of ongoing disputes surrounding Koreas online music service providers, was first brought up by a joint plaintiff of 25 local music labels and five distributors of foreign labels in February asking the court to shut down the online music site on charges of infringement of reproduction rights. Bugs Music has admitted that they are partly at fault. However, they are arguing that their…


COPYRIGHT Record Labels, Music Publishers, Artists, Internet A report published by the International Federation of the Phonographic Industry (IFPI) shows that the illegal music market is now worth $4.6bn (£2.8bn) globally. It believes two out of every five CDs or cassettes sold are illegal. The IFPI said much of this money is going to support organised criminal gangs, dispelling the myth that it is a “victimless crime”. Jay Berman, chairman of the IFPI, said: “This is a major, major commercial activity, involving huge amounts of pirated CDs. The IFPI’s top 10 priority countries where labels want a crackdown on piracy are Brazil, China, Mexico, Paraguay, Poland, Russia, Spain, Spain, Taiwan, Thailand and Ukraine. The IFPI also pointed out that when factoring in unlicensed downloads then “only one in three music products in the UK is authorised.” Despite the increase in the amount of CDs illegally produced and sold around the world, up 14% on 2001, there has also been a rise in the amount of CDs and recording equipment seized. The number of discs seized on their way for public sale was more than 50 million, a four-fold rise on the previous year. The IFPI is concerned in two main…

Copyright , Internet , Record Labels / August 2003

COPYRIGHT Internet, Record Labels Three of Australia’s largest Universities today lost the battle to block the music industry from gaining access to their computer infrastructure, with the Federal Court ordering them to allow the industry’s experts to gain access. Federal Court Justice Brian Tamberlin ordered the Universities of Sydney, Melbourne and Tasmania to allow the music industry access to the infrastructure to seek information regarding alleged breaches of copyright, such as file-sharing, by University staff or students. The music industry had been seeking access to information on the Universities’ network it claims contains evidence of copyright infringement, but the Universities refused, citing privacy concerns. Justice Tamberlin previously stated he would order the Universities to hand over the relevant information but had allowed time for both parties to provide arguments appealing the decision. This story is from:,2000048600,20276375,00.htm COMMENT : This Australian case follows on from the Recording Industry Association of America’s successful action against Verizon. There, the US Courts granted the RIAA access to the cable provider’s subscriber details so that the RIAA could identify those who infringed copyright on the internet. In both cases the right to privacy was held to be inferior to the right of copyright owners to seek…


COPYRIGHT Artists, Record Labels, Music Publishers A federal judge has dismissed a copyright infringement lawsuit against Britney Spears, her record label (Zomba/Jive) and BMG Music Publishing, saying two Philadelphia songwriters failed to prove the pop singer copied the melody of one of their songs. U.S. District Judge Berle M. Schiller ruled last week that Michael Cottrill and Lawrence Wnukowski couldn’t provide enough evidence to prove Spears had access to their song titled, “What You See Is What You Get,” when she recorded, “What U See (Is What U Get).” Cottrill and Wnukowski said they gave one of Spears’ representatives a copyrighted version of their tune in late 1999 after being asked to submit songs for consideration for the singer’s upcoming album. But Schiller, citing defence testimony, said the melody of Spears’ song was completed by the beginning of November 1999, before Spears and her representatives “would have had access to a copyrighted version of plaintiffs’ song.” The Judge went on to say that there weren’t enough similarities between the two songs to prove copyright infringement. The four men credited with writing Spears’ song, released on her best-selling second album, “Oops! … I Did it Again,” testified that they hadn’t heard…


COPYRIGHT Record Labels, Music Publishers, Internet Having failed to persuade the appeals court of its case, US ISP Verizon has handed over the names of four of its customers to the Recording Industry Association of America (RIAA) – marking a significant victory for the RIAA and a shift in the way that the US courts deal with the conflict between copyright infringements on the internet and customer privacy on the internet. The decision will undoubtedly have an impact on net users around the world. The RIAA first contacted Verizon last year after finding files being shared through the Kazaa peer-to-peer network from computers with IP addresses on Verizon’s network. The RIAA had no way to find who the users behind those computers were, so used a provision of the Digital Millennium Copyright Act to issue a court-authorised subpoena to the ISP, asking for the subscriber names. Verizon refused, arguing that they were just a communications channel and had nothing to do with the potentially copyright-infringing behaviour of their customers. For comment in this area see: ‘Copyright holders like record labels have too much power over what people do with songs’ argues technology analyst Bill Thompson. See:


COPYRIGHT Record Labels, Music Publishers, Internet In a blow to record labels, music publishers and film producers, a Federal judge in Los Angeles on Friday denied the Recording Industry Association of America’s (RIAA) motion for summary judgement in its copyright-infringement suit against peer-to-peer file-swapping services Morpheus and Grokster. The RIAA along with the National Music Publishers’ Association and the Motion Picture Association of America, filed the suit in 2001. Judge Stephen Wilson broke with the recent series of victories for the entertainment industries’ trade association recently and ruled that the P2P service providers are not liable because they are capable of non-infringing use. He compared the case to landmark litigation brought by movie studios in 1984 against Sony Corporation over the sale of Betamax videocassette recorders which of course could be used to (legitimately) play pre-recorded copies of films but could also be used to copy programmes from the television. Judge Wilson held that “The sale of copy equipment … does not constitute contributory infringement if the product is capable of substantial non-infringing uses,” Wilson wrote. Grokster and StreamCast Networks, firms that distribute the file-sharing programs Grokster and Morpheus, were not guilty of copyright infringement just because some users swap…

Artists , Copyright , Record Labels / June 2003

COPYRIGHT Record Labels, Artists On April 22 2003, the U.S. District Court based in Los Angeles, dealt a blow to BMG and Sony, deciding that record clubs owned by the two majors had to face a court action scheduled for January 2004. The court found that the record clubs failed to pay for mechanical licenses on the premium records given away (roughly 6-8 cents per song, per copy sold). Songwriters’ lawyers estimate that the record clubs failed to account for approximately $100 million dollars a year. The following comment is from respected industry author – Moses Avalon, in his latest e-newsletter Moses Supposes. His site can be found at It is an interesting attack on what might be seen as the hypocritical attitude of the labels in pursuing P2P file sharers and yet at the same time maintaining archaic and unfair accounting and trade practices. The Recording Artists’ Coalition have made similar comments (see Law Updates March 2003 and “All this makes you wonder why the RIAA (which is funded by companies who own both major publishing houses and record clubs) scream bloody hell over KazaA and Napster, and yet ignore this? Could it be to distract us from the fact…

Artists , Copyright , Record Labels / June 2003

COPYRIGHT Artists, Record Labels Michael Jackson is suing his former label Motown Records and its parent company Universal Music Group. Jackson claims that Motown, the label he signed with in 1969, breached a contract dated January 1980 that required the label to pay him royalties for certain pre-1976 recordings made by Jackson as a solo artist and the Jackson 5. In exchange for those royalties, Michael Jackson had agreed to waive his rights to other pre-1976 recordings. The 1980 contract was actually a settlement agreement stemming from lawsuits filed in 1975 and 1976 by the members of the Jackson 5 against Motown over accounting and contractual obligations. Jackson is now seeking complete and accurate accounting from Motown with full payment of all royalties due. Jackson is also asking the court to rescind the 1980 agreement and the underlying contract allowing Jackson to regain ownership and title to his master recordings and compositions. For more details see


COPYRIGHT Record Labels, Artists, Music Publishers A Bill designed to provide Californian recording artists with accurate accounting has won approval from the Senate Judiciary Committee. The Bill (SB1034) introduced by Senator Kevin Murray (D) would make it a “fiduciary duty” for labels to accurately calculate royalty earnings owed to artists. Music industry officials oppose the Bill, saying it would impede labels from developing new business models in the face of surging piracy. RIAA (Recording Industry Association of America) President Cary Sherman testified Tuesday that the bill “would distort the intensely negotiated, arms-length contractual relationship between an artist and recording label by imposing a fiduciary duty only on one party.” However, Committee members countered that only one party, the record company, holds the financial information to calculate royalties. The Recording Artists’ Coalition have repeatedly claimed that recording contracts are outmoded and complex, lack clarity in royalty calculations and contain numerous unjustifiable royalty reduction and discount provisions. See

Artists , Copyright , Record Labels / June 2003

COPYRIGHT Record Labels, Artists Widescale CD and cassette piracy in Uganda have prompted the Uganda Performing Right Society (UPRS) to push for legislation to criminalise piracy. UPRS estimate that over ten million units are copied and sold in Uganda annually depriving copyright owners of substantial royalty payments. Source: 


COPYRIGHT Record Labels, Music Publishing The Belgian Ministry of Economy has announced that a 12 eurocent per hour tax will be levied on blank rewritable CDs to compensate composers, copyright holders and performers for copies made for personal use and to counterbalance the likely lower income paid to copyright owners from reduced music CD sales. Meanwhile, in a different approach to music piracy, Italy has announced tough new laws against those illegally buying and selling pirated music on street stalls. For the first time, buyers of pirated CDs will face a fine of up to 154 euros for each illegal CD brought. Sanctions against vendors have been increased and vendors face fines and imprisonment for up to three years. See,89,&item_id=30857

Artists , Copyright , Trade Mark / June 2003

COPYRIGHT, TRADEMARK Artists, Merchandising The flamboyant British singer Lady Miss Kier believes a video game has stolen her image including her pink ponytailed hair, short skirt and knee-high boots and signature cry of “Ooh La La.” Miss Keir, who found fame with Deee-Lite, filed the suit in the Los Angeles Superior Court this week against the U.S. arm of video game publisher Sega, alleging the 2000 game “Space Channel 5” used her likeness for the ‘Ulala’ character without her permission and that the name of the character is based on Keir’s own signature ‘Oh La La’. Keir alleges that Sega approached her for permission but still used her image even after she declined to grant a licence to Sega . See


COPYRIGHT Record Labels, Music Publishing, Internet Four US students have agreed to pay damages after the RIAA (Recording Industry Association of America) issued proceedings for providing illegal peer-2-peer downloading sites for profit. Daniel Peng, Joseph Nievelt, Jesse Jordan and Aaron Sherman also agreed not to illegally distribute copyrighted music, although they did not admit to any wrongdoing (see Law Updates May 2003 RIAA Launches Pre-emptive Strike Against Student Downloading). The four students will pay between $12,000 (ÿ£7,500) and $17,500 (ÿ£11,000) each to the RIAA. The RIAA hope that the action will prompt universities to shut down similar downloading services which are facilitated by university high speed broadband and cable services which are available to students. Source


COPYRIGHT Record Labels, Music Publishers, Internet In an update on the case between the RIAA and Verizon (see Law Updates March 2003), Judge Bates of the U.S. District Court for the District of Columbia, has denied Verizon’s motion to quash a subpoena requiring it to identify a subscriber who was suspected of illegally sharing music online on the 24th April. The RIAA (Recording Industry Association of America) had served the subpoena on Verizon under the provisions of the Digital Millennium Copyright Act of 1998 (“DMCA”). Under the DMCA, a copyright holder can request a subpoena by asserting that a violation has occurred. Verizon put forward constitutional challenges, arguing that the Courts construction of the provisions of the DMCA does not provide sufficient safeguards to protect Internet users’ rights of expression and association under the First Amendment Rights of Internet users, and violates Article III of the Constitution. Both of these arguments were rejected by the Court. See and For the full decision see (pdf file) :

Copyright / June 2003

COPYRIGHT Television, Radio The author Barbara Taylor Bradford has won an injuction in the Indian Supreme Court to prevent transmission of a 260-episode Bollywood serial ‘inspired’ by her best selling novel A Woman Of Substance. The novel tells of the heroine’s rise from an impoverished servant to become head of a business empire and the Bollywood serial Karishma – the Miracles Of Destiny charts a similar story. Both stories begin with the heroine recounting her adventures in old age. Taylor Bradford won an injunction at first instance in the Calcutta High Court, although this was overturned on appeal. However on the 12th May the injunction was confirmed in the Supreme Court – although broadcaster Saraha TV broadcast the first episode risking an action for contempt of court. (source: The Times, May 14th 2003). COMMENT : This case could have interesting ramifications in the debate on the protection of format rights. UK copyright law does not protect ideas, only the expression of ideas. It is sometimes very difficult to draw the line between what is an idea and what is the expression of an idea. In the English case of Rees -v- Melville (1911), it was held that the plot or storyline to a play could be protected but…


COPYRIGHT Record Labels, Music Publishers, Merchandising CARLTON FILM DISTRIBUTORS -v- VCI & VDC As a result of a High Court decision last month companies pursuing royalty audit claims have acquired a new procedural weapon. It has now been established that in appropriate cases the court will order pressing plants to disclose their manufacturing records to an audit claimant prior to the commencement of any court proceedings. One of the most contentious areas in royalty audits is access to manufacturing records so audit claimants can compare numbers of units accounted with numbers of units actually manufactured. Companies being audited often will not, and sometimes cannot, provide manufacturing records. This leaves audit claimants in a difficult position. Should they pursue claims where they have reasonable suspicions but no hard evidence that all units manufactured have not been properly accounted? It is possible to obtain disclosure of documents from the potential defendant prior to commencing court action. But what if that company says it has no manufacturing records? This was the dilemma facing the claimant in Carlton Film Distributors -v- VCI and VDC. Carlton had entered into a licence agreement with VCI for the manufacture by VCI of videos. The licence agreement contained…


COPYRIGHT Internet, Record Labels The RIAA (Recording Industry Association of America) has issued lawsuits against four students in the United States to prevent the illegal downloading of music files. Two of the students are from Rensselaer Polytechnic Institute, one from Princeton and one from Michigan Technological University. The Record Industry’s previous tactic (e.g. in the UK) had been to send university and employers formal notices detailing their approach to the illegal downloading of music in educational institutions and the workplace (see Law Updates April 2003 BPI Targets Universities Over Illegal Downloads). These actions are against students who set up sites where sound recordings could be searched and then facilitated downloading and the lawsuits claim that one of the sites could distribute over 1 million MP3 files. See:,1412,58351,00.html

Copyright , Internet / May 2003

COPYRIGHT Internet The Supreme Court of Canada is to review the position of Internet Services Providers who facilitate the transmission of music on the internet. The case in question, known as the ‘Tariff 22 case’ began in 1995 when the Society of Composers, Authors and Publishers of Music in Canada (SOCAN) filed an application with the Copyright Board of Canada for the creation of a new royalty to cover music on the Internet. SOCAN argued that all parties involved in an Internet transmission – from the poster to the Internet service provider to the recipient – are liable for the communication and thus all bear some responsibility to pay an appropriate licence or royalty fee. Canadian Internet service providers (ISPs) led the opposition to the SOCAN proposal arguing that as mere intermediaries (much like phone companies) who should not be held liable for the content transmitted over their equipment. In 1999 the Copyright Board ruled that music transmitted over the Internet qualified as a public performance under the Copyright Act and therefore could be subject to a royalty. It also determined that ISPs could rely on a provision that exempts intermediaries from liability where they function strictly in an intermediary…


COPYRIGHT Internet, Record Labels Easyinternetcafes have agreed to pay costs and damages totalling £210,000 to the British record industry as a result of the High Court judgement awarded against the internet café chain in January 2003 as a result of the chain’s activities in illegally downloading music and burning CDs for customers (see Law Updates February 2003). See,7496,933184,00.html

Copyright / April 2003

COPYRIGHT Merchandising SKECHERS USA Inc. the US footwear manufacturer has announced that the Company will file a counterclaim lawsuit against singer Britney Spears and her companies, Britney Brands Inc. and Britney Touring Inc. for fraud and breach of contract. The suit, in the Federal court in Los Angeles, also includes allegations of unjust enrichment and negligent misrepresentation, and seeks rescission of all agreements between Skechers and Ms. Spears, return of all advances paid, costs, and compensatory and punitive damages in excess of ten million dollars. Skechers signed an exclusive three year worldwide licensing deal with Britney for a line of Britney branded roller skates known as Britney 4 Wheelers and accompanying apparel and skating accessories The suit alleges that the singer breached her obligations to Skechers under a merchandise license agreement by unreasonably delaying and failing to approve manufacturers, product designs and product advertising for Britney 4 Wheelers roller skates and apparel. See

Artists , Copyright , Record Labels / April 2003

COPYRIGHT Record Labels, Artists His Honour Judge Lowen, sitting in the Isleworth Crown Court on 12th March 2003, sentenced Yogesh Raizada to 3 years imprisonment and record fines of ,000 under a Confiscation Order. Raizada was charged and found guilty on eleven counts under the Trade Marks Act 1994 and a further two counts under the Video Recordings Act. The Court heard that Raizada had been subject to a number of raids carried out by the Police and Trading Standards Officer which resulted in the seizure of thousands of pirated music CDs, DVDs and video cassettes between 2000 and 2001. In a separate case, David Stanley was sentenced to 4 years and 5 months imprisonment at Maidstone Crown Court having been charged with conspiracy to defraud and attempting to pervert the course of justice. The Court heard that Stanley was ringleader of a gang which copied and sold illegal music product and computer software, primarily at computer fairs across the UK. At one fair in May 2001, CDs with a street value of ,000 were seized. Sentencing Stanley, His Honour Judge Croft said that “the loss to the industry was massive and incalcuable” and that Stanley had been in effect…


COPYRIGHT Record Labels, Music Publishers The PRS/MCPS Alliance have announced a number of global successes in combating the sale of illegal music product. In ITALY collection society SIAE joined with the police in a series of high profile raids across the country targeting 454 premises and resulting in charges brought against 137 people with 78,000 CDs, 5,000 DVDs and 6,000 VHS cassettes confiscated along with 17 sets of mastering equipment. In RUSSIA a number of government agencies have joined forces with the trade mark protection agency and various intellectual property organisations to tackle counterfeiters. Russia has one of Europe’s highest piracy levels with well over half of all music product sold being illegal copies. In THAILAND the British Government has formally asked the Thai Government to clampdown on illegal copies of music product flooding onto the world market. Thailand is the third largest exporter of illegal music product after China and Taiwan. See Mbusiness7 (PRS/MCPS magazine Spring 2003)

Copyright , Internet / April 2003

COPYRIGHT Internet The US Internet Industry Association (USIIA) has announced that it will support the efforts of Verizon to overturn a recent ruling by the Washington DC District Court in the case of RIAA v Verizon. The ruling was based on a narrow and erroneous reading of a single provision of the Digital Millennium Copyright Act,” says David P. McClure, president of the USIIA. “In reality, this ruling will cause great harm to the Internet community, and will place ISPs in jeopardy of violating contracts, subscriber agreements and local and federal privacy laws if they are forced to comply. It was never the intent of the Congress that copyright holders should have the right to invade the personal privacy and security of American consumers on the basis of allegations, and without due process under the law,” says McClure. “Internet service providers and their subscribers have the right to be secure in their persons, houses, papers and effects, including on the Internet. USIIA endorses and will support efforts by Verizon and other parties to stay and overturn this ruling.” Source: US Internet Industry Association

Copyright , Internet , Record Labels / April 2003

COPYRIGHT Internet, Record Labels The BPI (British Phonographic Industry) has today (March 27th) sent out a letter to every University in the United Kingdom warning them that they face criminal sanctions if they collude in the illegal downloading of music files. This action follows similar actions by record company associations in Australia and the USA, the latter resulting in in the US Navy Acadamy warning nearly 100 students about downloading music files illegally. See University News and Views. COMMENT : The BPI’s action follows on from similar actions by the RIAA and other industry associations, targeting internet service providers (ISPs), telecommunication companies and cable companies. The leading case at the moment is the ‘Verizon’ case currently in the appeal courts in the USA (see Law Updates March 2003). The UK courts held in the BPI’s case against easyinternetcafes Ltd that providing and facilitating the downloading of illegally copied files was actionable and the first instance decision in the Verizon case and the decisions in the RIAA’s cases against Napster and Aimster clearly supports this position. However, the Verizon appeal will certainly be of interest and the Dutch decision in Buma/Stemra -v- KaZaA (see Law Updates December 2002) means that this issue…


COPYRIGHT Record Labels, Music Publishers, Internet The legal battle between the Recording Industry Association of America (RIAA) and Verizon Communications over the pursuit of alleged internet music pirates could have a major impact on cable operators, telecom companies and internet service providers. If the RIAA wins the case, record labels and music publishers wielding broad federal subpoena power could force operators to divulge the names of high-speed data subscribers each time one is suspected of breaking a copyright. RIAA also want operators with high-speed data operations to pay copyright use fees into a new industry-wide ISP pool. The RIAA has proposed that the fund should compensate music companies for the copyright violations which they can’t track down. The case places the right to fair remuneration for use of copyright in direct conflict with individuals right to privacy, and further, would put an obligation on ISPs to take responsibility for subscribers unauthorised copyright infringements. The cable industry is carefully watching the case. The case also highlights the conflicts within major media conglomerates – AOL Time Warner owns two major ISPs, cable channels and of course a major record label and major music publishing house. The legal action arose when Verizon refused…


COPYRIGHT Record Labels, Music Publishers A folk musician says he is to take legal action against Rod Stewart over his contribution to the 1970s hit song “Maggie May”. Ray Jackson, a member of folk/rock band Lindisfarne, says he was paid just in 1971 for his contribution of a distinctive mandolin section in the recording. Mr Jackson believes he may have lost at least because he was not credited for the track’s distinctive “hook”. Mr Jackson is basing his claim on the Court of Appeal ruling that held that session musician Bobby Valentino should be recognised for his part in writing the distinctive violin riff on the Bluebells’ 1983 hit and subsequent 1993 number one hit “Young At Heart”. Stewart’s defence is that Jackson was engaged on a ‘work for hire’ basis and that all and any copyright which might have subsisted in the mandolin recording was assigned to Stewart absolutely and the was ‘full and final settlement’ for his services and any contribution. It is accepted that Mr Jackson had played on the song but not that he had any part in writing it. Stewart’s argument is that the recording and song were from the inception of their creation “the…


COPYRIGHT Record Labels, Music Publishers CD pirates and street vendors in Ecuador are decimating the legitimate music industry as copied CDs featuring tropical salsa, hard rock and even Christmas carols are retailing for just $1 each – a price even the citizens of this poverty-stricken nation can afford (the minimum wage is just $138 a month). More worryingly for record labels and music publishers is the statistic that pirates sold an estimated 13 million compact discs in 2002 – compared to just 650,000 sold legitimately. The pirates are now exporting copied CDs, and pirate CDs made in Ecuador have been found in Peru and Columbia. Ecuador is a prime spot for all types of pirated goods. Weak police intervention compounds the problem. As the pirating industry grows, local shops suffer. Just 80 record stores are still in business in Ecuador, compared with 300 shops four years ago. Even with the US dollar adopted as currency, two of the ‘big five’ majors (BMG and EMI) have left Ecuador after they were unable to compete with counterfeiters. Sony Music Entertainment and Universal still operate in Ecuador. See


COPYRIGHT Record Labels, Music Publishers The parent company of ‘major’ record label BMG are the latest recipient of a lawsuit in the Napster saga. The German media giant Bertelsmann has received a $17 billion lawsuit from a group of songwriters, composers and music publishers alleging that by funding the file swapping service BMG had been involved in the widespread infringement of copyrighted music works and had deprived the claimants of millions of dollars of revenues. Bertlesmann invested in Napster in the hope of turning Napster into a subscription service. Bertlesmann argue that their investment is only a loan and deny any legal liability. Ironically Bertlesmann owns a major publishing catalogue through BMG which would benefit from any successful action. See