AOL LAUNCHES SUBSCRIPTION INTERNET SERVICE
Copyright , Record Labels / March 2003

COPYRIGHT Record Labels AOL’s 27 million subscribers will be offered legitimate access to record company catalogues from $3.95 (0) per month. Subscribers will be given access to the 250,000 strong recording catalogue of download service MusicNet, one of the music industry’s answers to the hugely popular but unauthorised sites like Aimster, KazaA and Morpheus. The New York Times has welcomed the move as the strongest attempt yet to beat unauthorised downloading of music. The music industry has blamed internet piracy for contributing to a slump in CD sales, with sales dropping 9% in the US in 2002. But legal sites from the industry have so far struggled to persuade fans to use legitimate (paid for) services – MusicNet has 500,000 subscribers, compared with 100 million users of the free song-swapping services. The basic AOL $3.95 deal will give users 20 streamed songs and 20 downloads per month. Fans can sign up for more access for up to $17.95 (40) per month, which buys unlimited streams and downloads, and the ability to burn – or copy – 10 songs to blank CDs per month. AOL Director of Music Evan Harrison said “A music subscription service is not going to make sense…

“INTELLECTUAL PROPERTY IS THEFT. IDEAS ARE FOR SHARING”
Copyright , Internet / March 2003

COPYRIGHT Internet Columnist John Naughton used this headline in his February 09 column in the UK’s Sunday Observer newspaper advancing the argument that in the USA industry associations such as the RIAA (Recording Industries Association of America) and the MPAA (Motion Picture Association of America) have used politics and clever rhetoric to develop the concept of ‘intellectual property’ and to portray internet file swopping as ‘theft’ of this property. Naughton says that, in his view, the industry associations’ aim is to ‘signify the moral equivalent between sharing a track from a CD with a friend and stealing your neighbour’s goods and handing them round’. Naughton goes on to point out that the new draft EU copyright directive (see Law Updates, February 2003) will impose criminal sanctions on large scale (e.g., for profit) piracy but not on individual file sharing and copying. See www.briefhistory.com/footnotes. The industry campaigning continues and the RIAA and MPAA have just published a brochure warning companies of the risk of internet piracy and work place related copyright infringement. See www.zdnet.com.au. COMMENT:Most legal systems recognise that granting ownership of copyright and other intellectual property rights provides economic stimuli for those who create, invent and design for a living and provides protection against…

OWNER OF SAMPLED SONG WINS COURT INJUNCTION

COPYRIGHT Record Labels, Music Publishing, Artists Indian composer Bappi Lahiri has won a court injunction halting the sale of Dr. Dre protéguth Hurts’ debut album and single based on claims that the hit song, “Addictive,” sampled more than four minutes of one of his compositions, without credit. A federal judge in Los Angeles ruled that “Addictive” must be removed from shelves unless the composer Bappi Lahiri’s name is added to the credits. Lahiri filed suit against Dre, his Aftermath Records label, and parent company Interscope/Universal Music Group, citing uncredited use of the Hindi song “Thoda Resham Lagta Hai,” composed by Lahiri for the 1987 Indian film “Jhoothi.” Lahiri is seeking compensatory damages in excess of $1 million as a result of the failure to give credit and the loss of his ability to properly promote his music in the United States. The figure represents a combination of the profits Lahiri’s attorneys said the sales of Truth Hurts’ music has reaped for Universal along with the losses suffered by their client. The album has sold in excess of 300,000 units. Universal had the choice of pulling all product from the shelves or affixing a sticker with Lahiri’s credit on copies of…

DOORS DRUMMER TAKES ACTION AGAINST NEW ‘DOORS’
Artists , Copyright , Trade Mark / March 2003

TRADE MARK, COPYRIGHT Artists, Merchandising A reunion concert featuring two original members of the Doors has prompted a law suit from original drummer John Densmore in the Los Angeles Superior Court for breach of contract and unfair competition. Original keyboardist Ray Manzarek and guitarist Robby Krieger have teamed up with vocalist Ian Astbury (formerly of the Cult) and Stuart Copeland, drummer with the Police, to play a concert in Los Angeles. Densmore claims that the band’s name is owned as a partnership by the three living members and the late Jim Morrison’s wife, Pamela Courson and that each partner has a right of veto over use of the name. He claims that the ‘new’ Doors are misusing the band’s name and logo and will confuse the general public. Recent cases in the UK involving the use of original band names have included Sweet and Bucks Fizz. Seewww.news24.com/News24/Backpage COMMENT : This area of law has recently been explored in the UK by the High Court in the case of Byford -v- Oliver and Dawson (2003). This case involved the use of the name ‘Saxon’ by Biff Byford, the original singer with the British heavy metal band. Byford had been a band member since its formation in the late 1970s….

JAPANESE COURT ORDER ENSURES THAT CLIENTS OF ONLINE KARAOKE SUPPLIES MUST PAY ROYALTIES

COPYRIGHT Music Publishing, Internet The Daily Yomiuri Online reports that the Osaka District Court have ordered an online karaoke machine leasing firm in Osaka to take necessary measures to prevent its customers, who have not paid copyright fees for music to the Japanese Society for Rights of Authors, Composers and Publishers (JASRAC), from using music delivered online. The Court’s ruling held that Hit One had been assisting its customers to infringe copyrights. The verdict is a precedent for a number of forthcoming lawsuits of a similar nature in Japan and means that music distributors who do not take an active role in violating the law can, and will, be asked to take remedial measures to prevent infringements by users. According to the Daily Yomiuri Online, Hit One leased karaoke machines and distributed music online to bars and restaurants in the Osaka and Hyogo prefectures. About 97 percent of the songs distributed by the firm were reportedly controlled by JASRAC. However, Hit One knowingly delivered music to a number of its customers who had not paid copyright royalties to JASRAC. Presiding judge Kazuo Komatsu said in his ruling, “The firm was responsible for confirming that its customers already closed a deal…

COURT GRANTS MUSIC INDUSTRY SECOND MAJOR VICTORY IN AIMSTER CASE

COPYRIGHT Record Labels, Music Publishing, Internet In a major victory in the fight against the unauthorised uploading and downloading of music and other copyrighted works, a U.S. District Court Judge granted an all-encompassing preliminary injunction against the file swapping site Aimster (Madster). The Court’s decision follows its ruling on September 4th granting the record companies’ request for a preliminary injunction. In that prior ruling, the Court described the Aimster system as “a service whose very raison d’etre appears to be the facilitation of and contribution to copyright infringement on a massive scale.” After issuing that opinion, the Court asked for proposals from the parties for the language of the Injunction. The record companies and music publishers submitted a proposal that the Defendants opposed; however, the Defendants did not submit their own proposal, arguing that it was impossible to filter out infringing recordings. The Court adopted the record companies’ and music publishers’ proposed Injunction in full, outlining the roadmap by which Aimster must act immediately to halt the massive copyright infringement it facilitates. U.S. District Court Judge Marvin Aspen of the Northern District of Illinois ordered that Aimster implement filtering technologies now available so that it does not directly, indirectly, contributorily,…

EU UNVEILS NEW ANTI-PIRACY LAWS

COPYRIGHT Record Labels, Music Publishing The European Union Justice & Home Affairs Commissioner Antonio Vitorino unveiled a tough new draft anti-piracy code on Thursday January 30th designed to standardise the approach to piracy throughout the European Community. The new legislation would direct all member states to treat large scale piracy and counterfeiting as a criminal offence as well as a civil offence meaning that offenders would be liable for damages, fines and possible imprisonment. Rights owners could sue for damages and ancillary remedies such as accounts for profits and destruction orders whilst the authorities could shut down infringing companies and seize assets. The legislation would work alongside revised border controls allowing for the seizure of counterfeit and pirate goods. www.reuters.com

JAPANESE COURT RULING FOLLOWS USA APPROACH AS PEER TO PEER FILE SWOPPING SERVICE IS SHUT DOWN

COPYRIGHT Record Labels, Music Publishing, Internet The Tokyo District Court, in an interim ruling on Wednesday January 29th 2003, decided that the online music file-sharing service provided by MMO Japan Ltd has violated copyright law, thus supporting the Japanese music industry’s stance. The decision follows the Court’s April 2002 injunction, which prohibited Tokyo-based MMO’s Internet file-swapping service in an action brought by the Japanese Society for Rights of Authors, Composers and Publishers (JASRAC) and 19 record labels. Damages have yet to be assessed. This ruling, the first such suit filed in Japan, follows on from actions brought in the US against Napster, Aimster and KazaA. The service, which was provided by MMO Japan, automatically sent files over the Internet enabling online users to swap music and other files stored on their hard drives. The presiding Judge Toshiaki Iimura held that MMO had financially benefited and was responsible for the service. www.japantoday.com Also see “NEW ACTIONS IN CYBERSPACE” – DECEMBER 2002 LAW UPDATES

UK INTERNET CAFÉ DOWNLOADS INFRINGE MUSIC COPYRIGHT

COPYRIGHT Record Labels, Music Publishing, Internet Sony Music Entertainment (UK) Ltd. & Others -v- Easyinternetcafe Ltd. (2003) Mr Justice Smith held that Easy-internetcafes were guilty of copyright infringement by allowing customers to download music and burn CDs at their chain of internet cafes. Investigators for the BPI (British Phonographic Industry) found that hundreds of tracks had been downloaded in the cafes. Users paid £2.50 (approx US $4) for the download and a further £2.50 to buy each CDR. Mr Stellios Haji-Ionannou, owner of the chain of internet cafes, said that he will appeal the High Court decision and that the music industry was itself guilty of ‘extortion’ for overcharging for CDs and that ‘copying music over the internet is no different to videotaping a programme to watch later’. In the UK ‘time shifting’ by copying TV programmes onto a VHS is legal (under the Copyright Designs & Patents Act 1988) for personal use but copying records and films otherwise unavailable is a copyright infringement. In the US case of RIAA -v- Napster (US, 2000) the so called ‘VCR defense’ failed to protect Napster against claims from the Recording Industry Association of America which shut the service down. Damages in the Easy-internet case have yet to be determined. [See…

RAID ON SCOTTISH COUNTERFEITERS REVEALS A MAJOR OPERATION

COPYRIGHT INFRINGEMENT Record Labels, Music Publishing A man and a woman are being questioned after a raid on their Airdrie home in North Lanarkshire uncovered what is believed to be the biggest CD counterfeiting operation ever found in Scotland. Thousands of illegally copied CDs, DVDs and videos were discovered in the raid along with nineteen CD writers, 11 DVD writers and 15 video recorders. This MCPS-led raid (along with Strathclyde Police and Trading Standards officers) was designed to get to the root of the counterfeit problem in Scotland. It follows recent raids by other anti-piracy units that have focused on removing product from the market stalls themselves. Nick Kounoupias of the MCPS Anti-Piracy Unit said: “Getting to the source of significant counterfeiting operations like this one is the real key to stopping the proliferation of counterfeit product. You can strip a market of illegal goods but within a few days, the illegal product is back.” The two who were questioned could then face charges under theCopyright, Designs & Patents Act (1988), the Trade Marks Act (1994) and the Trade Descriptions Act (1968). The maximum penalty for counterfeiting and trade marks offences in the UK is ten years imprisonment. Late in 2002 Norwich Crown…

INTERNET RADIO SERVICE RESTRICTED
Copyright , Internet / February 2003

COPYRIGHT Radio, Internet Yahoo have agreed to a settlement with Sony Music Entertainment as part of a lawsuit filed by the US recording industry against the web portal’s online music subsidiary, Launch Media. The lawsuit, filed in May 2001 by the Recording Industry Association of America (RIAA), alleged that Launch violated copyright laws by giving its web radio listeners too much control over their song choices – allowing users to ‘programme’ their own station with tracks of their own selection which means that at the very least users can create ‘virtual albums’. Yahoo will make a onetime payment to Sony for its past use, and the portal will enter into a nonexclusive license to broadcast Sony’s songs on its LaunchCast radio service. The financial terms of the settlement were not disclosed (seewww.cnet.com). This case again shows the recording industry’s determination to force new media to either pay for the use of copyright material itself or make sure users and subscribers pay for copying or ‘downloading’ music.

US SUPREME COURT UPHOLDS COPYRIGHT EXTENSION

COPYRIGHT  TV, Film, Artists and Composers, Record Labels, Music Publishing, Internet Eldred -v- Ashcroft (2003) In this case, the US Supreme Court finally confirmed the provisions of the US Copyright Extension Act 1998. This Act, known as the ‘Sonny Bono’ Act after the late recording artist and congressman, extends US copyright protection to life of author plus 70 years (up from 50 years) and 95 years (up from 75 years) for works owned by corporations. The Act, passed after lobbying from Walt Disney and other media corporations (worried about older works falling into the public domain) returns certain works to copyright and gives extended protection to other works. It could be argued it is the end of public domain as hundreds of thousands of works which would have become freely available are now protected by copyright laws. (John Naughton, The Networker, Observer Newspaper 19/01/03). See : www.observer.co.uk/business See : www.briefhistory.com/footnotes

CAN A TELEVISION FORMAT BE OWNED?
Copyright / January 2003

COPYRIGHT TV, Film CBS -v- ABC (2003) US District Court NY, Judge Loretta Preska The protection of the format to television formats has become a complicated area for programme makers and lawyers. The leading UK case of Green -v Broadcasting Corporation of New Zealand (1984) held that there was no copyright in an idea and that on the facts of that case the format rights to the programme Opportunity Knocks were not protected under copyright law. This case reaffirms that principle. CBS claimed that the programme I’m A Celebrity Get Me Out of Herewas a copy of their programme Survivor and sought injunctive relief against ABC to prevent the programme going to air. ABC successfully argued that their show was an original format and that injunctive relief was not an appropriate remedy. Despite the judgement it is clear that the global television industry does licence format rights – indeed both the programmes in this dispute were themselves formats licensed from third parties. (Duncan Lamont, The Guardian Media, 20/01/03) See : www.aftrs.edu.au/studwork/essays/legalprot.html This opinion is from Johnathan Coad a solicitor at the Simkins Partnership. The last format rights dispute to go to trial was some 15 years ago, when Hughie Green sued the New Zealand Broadcasting Corporation over his huge hit programme, “Opportunity Knocks”. Despite the…

NEW SOURCES OF INCOME FOR SONGWRITERS
Artists , Copyright , Music Publishing / January 2003

COPYRIGHT Music Publishing, Artists and Composers A recent study by the Informa Media Group shows that downloading mobile phone rings is a fast growing and lucrative business. Informa found that in 2002 songwriter’s collection societies collected in excess of £44 million for composers and publishers and that the global income from mobile tone rings was in excess of US$1 billion. See www.cnet.com for further information.

NEW ACTIONS IN CYBERSPACE

COPYRIGHT Record Labels, Music Publishing, Internet Following on from the Recording Industry Association of America’s successful action against Napster (RIAA -v- Napster, Judge Marilyn Patel, July 2000) where a preliminary injunction was granted Effectively shutting Napster down, further cases have now reached the courts. In April 2001 Aimster applied to the US District Court requesting that it declare that its service was legal. A number of organisations including the RIAA reacted by filing lawsuits against Aimster alleging contributory and vicarious copyright infringements. The District Court agreed that Aimster had clear knowledge of the infringements taking place using its service and that Aimster materially contributed to these infringements, could supervise them if Aimster wanted and Aimster financially benefitted from the (infringements) on its service. A preliminary injunction was granted. A decision of the activities of KaZaA in the USA is expected soon. BUT in a Dutch decision, the activities of KaZaA were held NOT to infringe copyright in an action between KaZaA BV and the Dutch collection societies BUMA/STEMRA. The Court held that as KaZaA BV could not prevent the exchange of copyright material between its users the service itself was not unlawful although the acts carried out by some users were certainly…

NEW COUNTRIES SIGN UP TO INTERNATIONAL TREATIES PROTECTING INTELLECUAL PROPERTY RIGHTS

COPYRIGHT Record Labels, Music Publishing, Artists and Composers The World Intellectual Property Organisation (WIPO) has announced that the total number of contracting states for the Berne Convention (which sets out and defines minimum standards of protection for economic and moral rights for authors of literary and artistic works) is now 149 nations and that the total number of contracting states to the Geneva Convention (protecting phonographic copyrights) has reached 69. Email: Publicinf@wipo.int for further information.