In an unpublished decision by the Ninth Circuit Court of Appeals, the Court upheld copyright infringement claim for the public performances of copyrighted musical compositions. Range Road Music, Inc. v. East Coast Foods, Inc. (Case Nos. 10-55691 and 10-55800 – 9th Cir. Court of Appeals – Jan. 12, 2012 decision). An investigator testified that Coltrane standards were being performed by a live band at the Sea Bird Jazz Lounge and that a disc jockey played four Hiroshima songs from a CD.
Defendants claimed that the investigator’s report and declaration should be inadmissible as he was not an expert witness. However, the Court rejected the claims finding that “identifying popular songs does not require “scientific, technical, or other specialized knowledge” under F.R.E. 702.
In addition, Defendants East Coast Foods, Inc. and Herbert Hudson claimed that they could not be liable for vicarious infringement because the Sea Bird Lounge was owned by an independent corporation – Shoreline Foods. The Court rejected this claim finding that Defendants exercised the requisite control over the direct infringer and derived a financial benefit from the public performances. The liquor license at the Sea Bird Jazz Lounge was owned by East Coast Foods. Defendant Hudson was the president of both East Coast Foods and Shoreline Foods including the authority to hire and fire employees and to prevent acts from appearing at Sea Bird Jazz Lounge. The fact that Hudson had the legal and practical right to stop the infringing conduct played a factor in establishing vicarious liability.
The Court also noted that the Defendants could have purchased an ASCAP license as ASCAP had urged them to over the last 7 years.
Friday, January 13, 2012
Wednesday, January 11, 2012
Off the Naughty List
This past holiday season has proved that that checking the list twice paid off.
The U.S. Government has removed Baidu from its Naughty List.
See my previous posts for more information on the Naughty List and Baidu.
It seems that Baidu’s efforts to clean up music piracy on its website contributed to the removal from the government’s list. Baidu entered into a license agreement with recording companies which according to reports included a royalty payment system.
The influence of the Recording Industry cannot be underestimated if Baidu can be removed from the government’s notorious list by reaching a settlement with music companies.
The U.S. Government has removed Baidu from its Naughty List.
See my previous posts for more information on the Naughty List and Baidu.
It seems that Baidu’s efforts to clean up music piracy on its website contributed to the removal from the government’s list. Baidu entered into a license agreement with recording companies which according to reports included a royalty payment system.
The influence of the Recording Industry cannot be underestimated if Baidu can be removed from the government’s notorious list by reaching a settlement with music companies.
Friday, December 16, 2011
Black Market Friday
The U.S. government stepped up its enforcement against counterfeit copyrighted products such as DVDs again, shutting down over 100 domain names where counterfeit and pirated goods were being offered. This is in addition to other seizures that took place throughout the year.
The websites are replaced with notices that the website has been taken down as part of a seizure. As the government steps up its enforcement and ability to take down domain names, will private parties be able to take advantage of such remedies as domain name seizures in the future?
The websites are replaced with notices that the website has been taken down as part of a seizure. As the government steps up its enforcement and ability to take down domain names, will private parties be able to take advantage of such remedies as domain name seizures in the future?
Sunday, December 11, 2011
Copyright Office Publishes To-Do List
Last month, the Register of Copyrights released “Priorities and Special Projects Of The United States Copyright Office.”
The paper includes 17 priorities and 10 special projects that the Copyright Office will focus on for the next 2 years.
Three studies are proposed:
(1) Mass book digitization
This study largely stems from the Google Book Search litigation. (See previous blog entries here.) Some of the issues being researched include the Section 108 library and archive exceptions in digitalization, the current landscape and marketplace, addressing the issue of orphan works, and how to facilitate digitalization through licensing. It seems that the U.S. Copyright Office would like a say in the Google Book litigation but unlike Google, it seems that the U.S. government has additional considerations.
(2) Legal treatment of pre 1972 sound recordings
This is a goal raised previously as to how to treat pre-1972 sound recordings that were not covered by federal copyright. One issue is how to cover these works under federal law. (It is possible that there may the decision in Golan v. Holder may have an impact.) Another major issue is the impact (especially financial) on affected rights holders; and
(3) Small claims solutions for copyright owners
This study is not only the newest but also most intriguing. The Copyright Office is looking into methods of resolving copyright infringement claims involving lower amounts of money. Public comments will be due in the beginning of 2012. While the cost of litigation is high, it is difficult to perceive what the Copyright Office could propose.
The paper includes 17 priorities and 10 special projects that the Copyright Office will focus on for the next 2 years.
Three studies are proposed:
(1) Mass book digitization
This study largely stems from the Google Book Search litigation. (See previous blog entries here.) Some of the issues being researched include the Section 108 library and archive exceptions in digitalization, the current landscape and marketplace, addressing the issue of orphan works, and how to facilitate digitalization through licensing. It seems that the U.S. Copyright Office would like a say in the Google Book litigation but unlike Google, it seems that the U.S. government has additional considerations.
(2) Legal treatment of pre 1972 sound recordings
This is a goal raised previously as to how to treat pre-1972 sound recordings that were not covered by federal copyright. One issue is how to cover these works under federal law. (It is possible that there may the decision in Golan v. Holder may have an impact.) Another major issue is the impact (especially financial) on affected rights holders; and
(3) Small claims solutions for copyright owners
This study is not only the newest but also most intriguing. The Copyright Office is looking into methods of resolving copyright infringement claims involving lower amounts of money. Public comments will be due in the beginning of 2012. While the cost of litigation is high, it is difficult to perceive what the Copyright Office could propose.
Friday, November 25, 2011
IIPA Study Shows the Economic Impact of the Copyright Industry
While copyright has certainly become more prevalent in our society, I do not believe most people understand the impact that copyright has on the U.S. economy. The recent International Intellectual Property Alliance (IIPA) study released this month shows just how much impact the copyright industry has. The copyright industry employs over 5 million people in the U.S. The average salary exceeds the national average by more than 25%. The industry and those built around the industry make up over 10% of the national gross domestic product.
Not only does the copyright industry make up a significant amount of the domestic economy but its products are significant exports as well. Over $130 billion dollars in sales are made overseas. That's more than airplanes and cars.
The report is available on the IIPA website. The report was prepared by Stephen E. Siwek of Economists Incorporated.
Numbers like these explain the powerful lobbying power of the copyright industry. Regulation is also very significant to protect the copyright interests. It seems fairly clear that computer software is a driving force behind most of the copyright figures.
Not only does the copyright industry make up a significant amount of the domestic economy but its products are significant exports as well. Over $130 billion dollars in sales are made overseas. That's more than airplanes and cars.
The report is available on the IIPA website. The report was prepared by Stephen E. Siwek of Economists Incorporated.
Numbers like these explain the powerful lobbying power of the copyright industry. Regulation is also very significant to protect the copyright interests. It seems fairly clear that computer software is a driving force behind most of the copyright figures.
Thursday, November 3, 2011
YouTube Case Heard By Second Circuit
Last month, the Second Circuit heard arguments in the Viacom v. YouTube appeal.
Summary of the district court decision: Part I, Part II, Part III
While Viacom claimed that YouTube was well aware of infringing materials being posted and that the Court should not allow rampant infringement, YouTube countered that there were no instances where the infringing works were not taken down following notice from the owner. During the arguments,
YouTube touted its ability to remove the infringing works within hours of the notice of infringement and have developed software to detect copyrighted works.
One of the problems expressed by the panel was how to calculate damages. One judge expressed that he believed that Viacom could be looking for some type of license arrangement. However, by taking the case this far, it would seem that Viacom is interested in more than a licensing arrangement. YouTube has arrangements with other companies. Viacom included several references and comparisons to Grokster.
Ultimately, the question about who should bear the burdens regarding copyright infringement will need to be answered. YouTube claims they need notice to determine whether something that is posted on YouTube is infringing the work of another.
It will likely be several months before a decision is reached.
Summary of the district court decision: Part I, Part II, Part III
While Viacom claimed that YouTube was well aware of infringing materials being posted and that the Court should not allow rampant infringement, YouTube countered that there were no instances where the infringing works were not taken down following notice from the owner. During the arguments,
YouTube touted its ability to remove the infringing works within hours of the notice of infringement and have developed software to detect copyrighted works.
One of the problems expressed by the panel was how to calculate damages. One judge expressed that he believed that Viacom could be looking for some type of license arrangement. However, by taking the case this far, it would seem that Viacom is interested in more than a licensing arrangement. YouTube has arrangements with other companies. Viacom included several references and comparisons to Grokster.
Ultimately, the question about who should bear the burdens regarding copyright infringement will need to be answered. YouTube claims they need notice to determine whether something that is posted on YouTube is infringing the work of another.
It will likely be several months before a decision is reached.
Thursday, October 20, 2011
Supreme Court Updates
Golan v. Holder
A few weeks ago, arguments were held before the Supreme Court in the Golan v. Holder case. The case challenges whether Congress has the ability to grant copyright protection to works that were previously in the public domain (See my previous post on case).
A copy of the transcript is available on the Supreme Court's website.
The Court seemed very engaged in the questioning for this matter which contained numerous hypotheticals, questions of First Amendment scrutiny and whether the government had already granted copyright protection to works that previously did not have any with analogies to 1790’s law and a moment of levity from Justice Breyer.
Vernor v. Autodesk
Back from its summer vacation, the Court denied certification to another copyright case Vernor v. Autodesk.
The case was summarized in previous blog entries:
Battles in Seattle Part 2 of 3: Vernor v. Autodesk
Battles in Seattle Vernor v. Autodesk Decision
This means that the Ninth Circuit decision will stand, thereby making software licenses not subject to the first sale doctrine under Section 109 of the Copyright Act.
A few weeks ago, arguments were held before the Supreme Court in the Golan v. Holder case. The case challenges whether Congress has the ability to grant copyright protection to works that were previously in the public domain (See my previous post on case).
A copy of the transcript is available on the Supreme Court's website.
The Court seemed very engaged in the questioning for this matter which contained numerous hypotheticals, questions of First Amendment scrutiny and whether the government had already granted copyright protection to works that previously did not have any with analogies to 1790’s law and a moment of levity from Justice Breyer.
Vernor v. Autodesk
Back from its summer vacation, the Court denied certification to another copyright case Vernor v. Autodesk.
The case was summarized in previous blog entries:
Battles in Seattle Part 2 of 3: Vernor v. Autodesk
Battles in Seattle Vernor v. Autodesk Decision
This means that the Ninth Circuit decision will stand, thereby making software licenses not subject to the first sale doctrine under Section 109 of the Copyright Act.
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