M.E.L.O.N.

Tech News: Veoh Sails into "Safe Harbor"

by Shana Dines

In a previous article, we explained the Digital Millennium Copyright Act's "notice and takedown" and "safe harbor" provisions that were meant to insulate certain internet services from copyright infringement committed by their users. 

Viacom sued YouTube in early 2007, alleging that at least 150,000 clips on YouTube included content owned by Viacom that had been viewed at least 1.5 billion times, in total.  Viacom further condemned YouTube for profiting from a "massive copyright infringement."

Veoh, another online video site that offers a combination of licensed studio content and user-generated content, has also come under fire for hosting user-generated videos containing copyright infringements.  While Universal Music Group (UMG) has a case against Veoh still pending, Veoh recently won another case against them based on the safe harbor provision.

(c):Defendant Destroyed Evidence, RIAA Wins

by Shana Dines

In a previous article about the lawsuit against Jammie Thomas, we discussed the arguments on either side of the "make available" theory of copyright infringement.  Just this week, Judge Davis granted the pending motion for a new trial.  The jury award of $222,000 in the Thomas case was considered the pride of the Recording Industry Association of America (RIAA). 

While this decision strikes a definitive blow to the RIAA's campaign to sue illegal file-traders for copyright infringement, there are still plenty of other cases pending on similar issues.  In another case that seemed to be leaning towards the defendants, the RIAA ultimately achieved a small victory earlier this month. 

The latest victims are the Howells, a husband and wife from Phoenix, AZ who decided to proceed in court without an attorney.  They had been faring relatively well for the past year, successfully blocking two summary judgments, however, the decision was ultimately ill-conceived. 

The Howells are now faced with a fine of $40,850 for destroying evidence that was critical to the case against them. 

iTunes is getting iTaxed in Many States

by Shana Dines

The economy is in a recession.  Gas prices are up.  Mortgages are foreclosing.  But digital music sales are on the rise, with iTunes reportedly selling over 5 billion songs, to date. 

Not surprisingly, politicians have begun viewing the billion-dollar industry as a potential revenue generator for the government through taxation. 

Many states, including California, have tax laws that unintentionally protect digital downloads from taxing because of language written well before the internet was even envisioned.  However, a growing number of states have started (or will soon start) taxing digital music downloads, either through reinterpretation of existing tax laws or by passing new laws.

Introdcuing: The M.E.L.O.N. Podcast!

In the interest of better serving our loyal readers, the M.E.L.O.N. Blog Team is excited to introduce the New M.E.L.O.N. Podcast!

Tony Berman, Esq. is here to answer all of your questions about multimedia and entertainment law.

Today's podcast answers a question from Will in Los Angeles.  Will asked why he should bother copyrighting his original songs and artwork.  Tony will also explain what someone should do if they find out their copyright is being infringed, how to go about registering a copyright, and what damages one can expect to recover if his copyright is infringed.

If you have a question you'd like Tony to answer on the M.E.L.O.N. podcast, please send it to melon@beat-law.com

Truth or Consequences: New Law Protects Performers and Public from Impostors

by Tony Berman

researched & edited by Shana Dines

While I was in Las Vegas the past couple of days, I checked out the listings of entertainment at the casinos.  There were obvious “tribute” shows such as “The Rat Pack is Back,” “Barbra and Frank: The Concert That Never Was,” and “Four Lads From Liverpool.”

Then there were some performers that made me wonder - “The Platters,” “Cornell Gunter's Coasters,” and “The Marvelettes.” 

I thought, “Didn’t Cornell Gunter die in the '90s in Las Vegas after being shot?” Who were these Coasters then?

And what about these Marvelettes?  I knew that for many years, none of the original members were able to tour under the name "The Marvelettes" in the United States due to a decision by Motown Records to sell their name to a promoter who had much younger girls on both coasts appearing as "The Marvelettes." 

"Did original Marvelette Gladys Horton regain control of the name?" I wondered.

And how many of the original Platters would be at this gig?  Certainly not Zola Taylor, who I knew had died last year.

Impersonators and tribute bands have long been a popular, inexpensive alternative to seeing the real musical groups, especially those who have passed away.  However, when a group falsely claims to include an original member and bills themselves as the real thing, they cross the line and become impostors.

Events: Bandwidth Conference

The Bandwidth Music | Technology Conference is taking place August 14 & 15 at the University Club in Nob Hill. 

BEAT-Law's Tony Berman will be leading the discussion about digital legal issues @ 1 pm in the Library.

Other featured speakers include Susan Bonds and Alex Lieu, President/CEO and Chief Creative Officer of 42 Entertainment, Jonathan Poneman, co-founder of Sub Pop Records, and Alexandra Patsavas, founder of Chop Shop Music. 

From their website:

Bandwidth features conversations with movers and shakers, as well as a chance to interact with others in an intimate environment - the right people in the right space in numbers that make it easy to connect.

Topics focus on marketing, fan behavior, trends and future forecasts, and an examination of the ways people discover, purchase, interact with, and are exposed to music.

Hope to see you there!

(C): $200K Victory for RIAA May be Retried

by Shana Dines

In our previous article, Copyright: Registration Pt. 2, we mentioned the case of the Recording Industry Association of America (RIAA) suing Jammie Thomas for 24 counts of copyright infringement through the web-based P2P trading network, KaZaA.  In October 2007, the jury awarded the five record label plaintiffs (including Capitol and Sony/BMG) statutory damages of $222,000, which is less than 10% of what they were legally entitled to. 

Thomas filed an appeal 11 days after the jury verdict was entered on the grounds of excessive damages.  Finally, 7 months later, Judge Michael Davis filed an order stating that he was considering granting a new trial not based on excessive damages, but based on a possible "manifest error of law."  The hearing over this matter was held yesterday, August 4, 2008.  Although a decision will not be entered for another month, many commentators are expecting Judge Davis to declare it a mistrial.

Tech News: New TLDs Will Stir Up .change

by Shana Dines

The Internet Corporation for Assigned Names and Numbers (ICANN) announced their unanimous decision to allow new generic top-level domains (gTLDs) last month. 

Generic top-level domains are the series of letters at the right end of a website address.  The most commonly used gTLDs are .com, and .org, while some restricted TLDs include .gov and .edu.  There are also country code TLDs, like .il for Israel and .au for Australia. 

This program, set to take effect in early 2009, could potentially add limitless new gTLDs to the realm of IP addresses.

The news comes to a mixture of reactions, ranging from fear to excitement to apathy.

Copyright: Perform. Rights vs. Local Radio Freedom Act

by Shana Dines

Back in February, we reported on the progress of the Performance Rights Act (H.R.4789, S.2500) in a three-part series of articles.  Part 1 provided the background of the bill, Part 2 explained the changes it would make to existing law, and Part 3 discussed the arguments for and against the bill.

On June 11, 2008, hearings on the Performance Rights Act were held in the House Judiciary Committee's Subcommittee on the Courts, the Internet, and Intellectual Property and on June 26, the subcommittee voted on and passed the bill.  Next is consideration by the full Judiciary Committee and, if approved, the bill will move on to the House of Representatives.

However, before the Performance Rights Act was proposed on Dec. 18, 2007, a Concurrent Resolution Supporting the Local Radio Freedom Act had been introduced in the House of Representatives on Oct. 31, 2007 that, if passed, would nullify the P.R.A.'s intended changes.

Music Biz: Live Nation Slows 360s

by Howie Cockrill

In late April of this year, I wrote a three-part “Spotlight” article on Live Nation, exploring in depth the massive steps being taken by the concert impresario to secure its primacy not just in the live events market, but also in pretty much every ancillary market you can imagine.

One strategy Live Nation used in this business blitz was to identify major-player executives in both its core markets and its areas of expansion, and to bring them into the Live Nation fold.

Michael Cohl was one of these major-player executives.

Imagine No Permissions

by Tony Berman

Researched & edited by Shana Dines

Since the U.S. District Court for the Southern District of New York decided against Yoko Ono Lennon earlier this month in a well-publicized copyright infringement case, many filmmakers are further confused about where the lines are drawn around the concept of “Fair Use”. 

Ono Lennon was denied an injunction against the makers of the documentary film "Expelled," about Intelligent Design theory, for using a 15-second excerpt from Lennon's renowned song "Imagine" without her permission. 

(C): First Sale Doctrine Pt. 3

by Howie Cockrill

In Part 1 of this article I explained what the First Sale Doctrine is, how the it was first applied in the U.S. and how it became part of federal copyright law.

In Part 2 I began looking at Universal Music Group v. Augusto, the most recent application of the First Sale Doctrine in federal courts.

Part 3 focuses on Augusto's particular arguments, and what the court thought of each. 

(C): First Sale Doctrine Pt. 2

by Howie Cockrill

In Part 1 of this article, I explained the First Sale Doctrine, and we saw how it was first applied in the U.S. and then became part of federal copyright legislation.

The First Sale Doctrine has been in the news lately due to a recent California federal district court ruling. 

So in Part 2, I'll explore a 2008 application of the First Sale Doctrine in Universal Music Group v. Augusto.

Here's what happened:

(C): First Sale Doctrine

by Howie Cockrill

Last week, a federal district judge in California dismissed a copyright infringement suit brought by Universal Music Group against a man selling Universal’s “promo” CDs on eBay. 

This decision is not a minor blip on the music industry’s radar, and at the case’s heart was something called the “first sale doctrine.” 

So – what is the first sale doctrine, and why should you care?

Excellent questions – let’s see if I can answer them.

(C): Notice & Take Down Pt. 3

by Howie Cockrill

In Part 1 and Part 2 of this article, I outlined the 4 types of Service Providers qualifying for protection under the DMCA and explained the 3 types of copyright infringement - strict, contributory and vicarious liability.

In Part 3, I provide an explanation of the DMCA's Section 512 - more commonly referred to as the "notice and take down" or "safe harbor" provisions.